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COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Sahyoun v. Ho, 2017 BCCA 18 Date: 20170110 Docket: CA42707 Between: Antonios Nabil Riad Sahyoun, by his committee and father, Dr. Nabil Riad Sahyoun, Mariam Nabil Riad Sahyoun, Bishoy Nabil Riad Sahyoun, Mrs. Sanaa Riad Sahyoun and Dr. Nabil Riad Sahyoun Appellants (Plaintiffs) And Dr. Helena Ho, Dr. Anton Miller, Speech and Language Pathologist Elizabeth Payne, Provincial Health Services Authority (doing business as Sunny Hill Health Centre for Children, formerly Sunny Hill Hospital for Children, and doing business as B.C. Children’s Hospital), The University of British Columbia, Speech and Language Pathologist Martha Hilliard, Vancouver Coastal Health Authority formerly Vancouver Health Department, Her Majesty the Queen in Right of the Province of British Columbia, as represented by the B.C. Ministry of Health, Audiologist Margaret Hardwick, Dr. Kevin Farrell, Dr. Jean Hlady, Dr. Fred Kozak, Dr. Keith Riding, Dr. Neil Longridge, Vancouver Coastal Health Authority (doing business as Vancouver General Hospital), Laura Wang, Dr. Brian Westerberg, Providence Health Care (doing business as St. Paul’s Hospital), Dr. Jason Chew, Dr. Douglas Graeb, Beverley Underhill, Dr. Jean Moore, Karen Till, Robert Pearmain, Allan McLeod, Donald Goodridge, Carol McRae, Deceased, Kenneth Ronald Bradley McRae, as Representative and Administrator of the Estate of the Deceased Carol McRae, Vancouver Board of Education, formerly Vancouver School Board, Her Majesty the Queen in Right of the Province of British Columbia, as represented by the B.C. Ministry of Education, David Duncan, BC Legal Services Society, Harinder Mahil, Judith Williamson, Her Majesty the Queen in Right of the Province of British Columbia, as represented by the Attorney General of BC for the former B.C. Council of Human Rights, Ross Dawson, Cheryl Carteri, Haris Zakouras, Her Majesty the Queen in Right of the Province of British Columbia, as represented by the B.C. Ministry of Children and Family Development, formerly B.C. Ministry for Children and Families, Lorill Johl, Gateway Society: Services for Persons with Autism, Detective Constable Ennis, Constable Schaaf, Acting Sergeant Schilling, Constable Lemcke, Sergeant Pike, Constable Green, Vancouver Police Department, City of Vancouver, and Her Majesty the Queen in Right of the Province of British Columbia Respondents (Defendants) Before: The Honourable Mr. Justice Savage (In Chambers) On appeal from: An order of the Supreme Court of British Columbia, dated March 12, 2015 ( Sahyoun v. Ho , 2015 BCSC 392, Docket S080713, Vancouver Registry). Oral Reasons for Judgment Appearing on behalf of the Appellant, Antonios Nabil Riad Sahyoun, and on his own behalf: Nabil Riad Sahyoun The Appellant, appearing on her own behalf Sanaa Riad Sahyoun Counsel for the Health and School Respondents: T.C. Hinkson Counsel for Her Majesty the Queen and Provincial Respondents: L. Lee Counsel for the Respondent Physicians: D.W. Pilley Place and Date of Hearing: Vancouver, British Columbia January 10, 2017 Place and Date of Judgment: Vancouver, British Columbia January 10, 2017 Summary: The appellants seek the appointment of counsel to act on behalf of their son at hearing of an appeal scheduled just over a month away. Held: application dismissed. It would not be either useful or appropriate to make the appointment, but the applicant is at liberty to renew his application before the division hearing the appeal. [1] SAVAGE J.A. : This is an application by Dr. Nabil Riad Sahyoun to have separate state-funded counsel appointed for Antonios Nabil Riad Sahyoun, his son, in an appeal set to be heard on 16-17 February 2017. [2] The appeal was commenced 9 April 2015. The underlying facts, which I will not repeat, are fully set out in the reasons of Voith J. below, and concern alleged wrongdoings based on events 20-25 years ago: Sayhoun v. Ho , 2015 BCSC 392, at para. 2-10. [3] Dr. Sahyoun and Mrs. Sahyoun appeal the dismissal of their amended notice of civil claim which was found to disclose no reasonable claim. Antonios Nabil Riad Sahyoun appeals the dismissal of his claim for want of prosecution. [4] The factums before the court were all filed in 2015. The appellant’s reply factum (the last factum filed) is dated 14 August 2015, and is said to be filed on behalf of Dr. Nabil Riad Sahyoun, Antonios Nabil Riad Sahyoun and Mrs. Sanna Riad Sayhoun. [5] As I understand it, the current applicant sought indigent status before Goepel J.A., which status was refused, primarily because the appeal was bound to fail: Sahyoun v. Ho , 2015 BCCA 235, at para. 14. In the course of that judgment Goepel J.A., said that the appeal filed on behalf of Mr. Antonius Nabil Riad Sahyoun was a nullity. [6] The Public Guardian and Trustee has determined that it would not act on behalf of Antonios Nabil Riad Sahyoun: see Sayhoun v. Ho , 2011 BCSC 567, para. 20. I am advised that Dr. Sayhoun has been aware that Access Pro Bono has not been prepared to provide counsel since mid-2015. [7] This application comes just over a month before the scheduled hearing of the appeal. Granting the application would probably result in an adjournment of the appeal. In my opinion this application comes far too late in the proceeding. [8] Further, I am not convinced that making such an appointment would be either useful or appropriate. In my opinion, it would not be in the interests of justice to make the appointment sought, or to make an order requiring advanced costs, as was done in L.C. v. Alberta , 2011 ABQB 42, a case referred to me by Dr. Sayhoun. [9] The application is dismissed, although the applicant is at liberty to renew his application before the division of this Court hearing the appeal. “The Honourable Mr. Justice Savage”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: 1043325 Ontario Ltd. v. CSA Building Sciences Western Ltd., 2017 BCCA 13 Date: 20170111 Docket: CA41993 Between: 1043325 Ontario Ltd. Appellant (Petitioner) And CSA Building Sciences Western Ltd., Ralph Jeck and Maria Jeck Respondents (Respondents) Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Groberman The Honourable Mr. Justice Willcock Application to re-open the order (not yet filed) of the Court of Appeal, made for reasons dated June 15, 2016 ( 1043325 Ontario Ltd. v. CSA Building Sciences Western Ltd. , 2016 BCCA 258). Counsel for the Appellant: R.S. Fleming Counsel for the Respondent: M.B. Morgan Place and Date of Hearing: Vancouver, British Columbia January 4, 2017 Place and Date of Judgment: Vancouver, British Columbia January 11, 2017 Written Reasons of the Court Summary: Application to re-open appeal dismissed. Written Reasons for Judgment of the Court: [1] The appellant applies to re-open its appeal. The application was made following a series of written communications between counsel and this division of the Court dealing with various matters; but the proposed re-opening would relate only to the position of Mrs. Jeck, a defendant in this proceeding. She is the wife of the defendant Mr. Jeck, who was the sole director of the defendant CSA Building Sciences Western Ltd. (“CSA”). He was found to have engaged in oppressive and prejudicial conduct in causing CSA to pay to himself “excessive” management fees over several years — to the exclusion of the appellant, which as the minority shareholder could reasonably have expected to participate to some extent in CSA’s financial success. In allowing the appeal, this court determined that 44% of the “excess” fees, or $249,065, should have been paid out by CSA as dividends to the appellant. [2] At the close of our reasons, we requested that counsel provide written submissions no later than June 30, 2016 as to any order they might propose as a tax-efficient alternative to an order that Mr. Jeck simply pay $249,065 to the appellant. Counsel have not been able to agree on any such alternative order that this court could properly make. Thus the ‘default’ order would simply direct that Mr. Jeck pay the full amount. [3] In its application, the appellant seeks an order that Mrs. Jeck be jointly and severally liable with Mr. Jeck for the payment of the $249,065 to the appellant. [4] It is certainly true that Mrs. Jeck was a defendant and that the appellant pleaded that Mr. and Mrs. Jeck had “invested and obtained profits from the $2,069,455 that Ralph Jeck took from [CSA] without authority” [our emphasis] and that the two had received other benefits as a result of the oppressive conduct. A reference was made at para. 65 of the amended petition to unjust enrichment on the part of both. The wrongful conduct, however, was the conduct of Mr. Jeck as the majority shareholder and sole director of CSA. There was no allegation that Mrs. Jeck (who apparently acted as CSA’s office manager) had participated in the oppression; nor did the trial judge, Mr. Justice Sigurdson, make any such finding. At para. 149 of his reasons, he stated: having reviewed the evidence, I think that the remuneration that Mr. Jeck receives should be taken to include monies that he subsequently said should be treated as payments to Mrs. Jeck.  I do that because I think that his initial statement of his income in his earlier affidavit is more likely to be accurate and I was not persuaded on the evidence that the payment by the company to Mrs. Jeck was other than for income splitting purposes. We read this as indicating that the judge was skeptical of the affidavit evidence of Mr. Jeck that he had paid, or caused CSA to pay, to his wife some of the fees he had previously deposed had been paid to himself. The judge resolved the doubt by simply treating the entire amount of management fees shown in CSA’s financial statements as having been paid to Mr. Jeck. He made no finding that Mrs. Jeck had participated in the wrongdoing, and he dismissed the action as against her. The appellant did not apply to the trial judge to re-open this or any other aspect of the trial judgment. [5] The appellant’s grounds of appeal were set out at para. 40 of this court’s reasons. They did not include any challenge to the trial judge’s inclusion of funds allegedly paid to Mrs. Jeck, in the amount of management fees received by her husband. [6] The appellant now submits that Mrs. Jeck received what funds she did (assuming she did) “without justification” and that this court overlooked or ignored that fact. When questioned as to the legal basis of the claim asserted against Mrs. Jeck, counsel for the appellant suggested that because the oppression remedy is broad and in some respects similar to that of an equitable remedy, an order of joint and several liability can and should be made to do justice. [7] The fact remains, however, that no cause of action was proven against Mrs. Jeck. She was not a director of CSA and no evidence was brought to our attention that she knew or should have known that the appellant’s reasonable expectations were being wrongly thwarted by Mr. Jeck. There was no evidence, and no finding, of a conspiracy among the defendants or “knowing assistance” on her part that might support any kind of claim in Equity. No tracing of funds to her from another was sought and no fraudulent conveyance was alleged. As far as unjust enrichment is concerned, Mrs. Jeck might well have had an argument that there was a juristic reason for any benefit she received — that the funds were a gift from her husband (albeit for tax reasons), for example, or that CSA was remunerating her for her services. Again, however, it appears this was not pursued at trial, or if it was, the trial judge did not find that it had been proven. [8] We conclude that it is not appropriate at this stage, on the pleadings, on the evidence, or on the findings of fact made below, to attribute Mr. Jeck’s conduct to his wife or to order that she is jointly and severally liable with him to the appellant. [9] Our previous comments made to counsel in writing concerning dividends or the tax treatment thereof, and concerning the estoppel/limitation issue remain unchanged. [10] In the result, we dismiss the application to re-open this matter and urge counsel to attend to the filing of an order reflecting our reasons of June 15, 2016. “The Honourable Madam Justice Newbury” “The Honourable Mr. Justice Groberman” “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Robinson, 2017 BCCA 6 Date: 20170111 Docket: CA42963 Between: Regina Respondent And Benjamin Robinson Appellant Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Willcock The Honourable Mr. Justice Goepel On appeal from:  An order of the Supreme Court of British Columbia, dated March 20, 2015 ( R. v. Robinson , 2015 BCSC 433, Vancouver File 25753). Counsel for the Appellant: E.D. Crossin, Q.C. E. France Counsel for the Respondent: R.C.C. Peck, Q.C. T.C. Paisana Place and Date of Hearing: Vancouver, British Columbia October 11, 2016 Place and Date of Judgment: Vancouver, British Columbia January 11, 2017 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Mr. Justice Goepel Dissenting Reasons by: The Honourable Mr. Justice Willcock (p. 30, para. 62) Summary: The appellant was one of the four RCMP officers involved in the encounter at Vancouver International Airport that resulted in the death of Robert Dziekanski. The appellant and his fellow officers made similar statements to investigators following the incident that were alleged to have been demonstrably false when compared to a video recorded by a bystander. Appellant was convicted of one count of perjury relating to his testimony at the Braidwood Inquiry. On appeal, appellant argued verdict was unreasonable because guilt was not the only reasonable inference available on the evidence; and that trial judge misapprehended the evidence concerning (i) Mr. Dziekanski’s being “wrestled” or “taken” to the ground, (ii) whether Mr. Dziekanski was “swinging” the stapler, and (iii) the appellant’s motive to lie. Held: appeal dismissed (Willcock J.A. dissenting). Trial judge’s findings were not unreasonable. The fact other judges might have drawn different inferences does not justify overturning this judge’s findings . Discussion of the rule in Hodge’s Case. Trial judge did not misapprehend the evidence. It was open to him to conclude that an officer in the appellant’s position could not have been mistaken about what had transpired, that the officers’ statements that Mr. Dziekanski had “swung” the stapler in a threatening manner were untrue, and that the appellant had had a motive to lie. The factual findings and inferences drawn by other judges in the trials of the appellant’s fellow officers (two of whom were acquitted) do not dictate that the judge misapprehended the evidence in the appellant’s case. Neither the trial judge nor the Court of Appeal was bound to reconcile the four cases. Willcock J.A., dissenting, would allow the appeal and order a new trial on the basis the judge misapprehended the evidence regarding one of the false statements he found the police officers made to IHIT investigators. The misapprehension went to the core of the trial judge’s finding that perjury was proven beyond a reasonable doubt, thus a new trial is required. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] The events that resulted in the tragic death of Mr. Robert Dziekanski at the Vancouver International Airport in the early morning of October 14, 2007 continue to wind their way through the justice system. Mr. Dziekanski, a visitor from Poland, had arrived at YVR at about 3:25 p.m. on October 13. It was not until 12:45 a.m. the next day (by which time his mother had given up waiting at the airport) that he was processed through Customs. Where he was and what he had been doing for the previous nine hours is unknown. He did not speak English, and one may assume he was exhausted by this time, frustrated, and perhaps disoriented. According to an agreed statement of facts, he began to act “erratically and aggressively.” Airport staff called the police and four RCMP officers left the Richmond detachment for the airport at approximately 1:28 a.m. When they arrived, a struggle took place, in the course of which the police deployed a conducted energy weapon, or “Taser”, against Mr. Dziekanski. He fell to the ground. The police Tasered him four more times and handcuffed him on the ground. At 2:10 a.m. he was pronounced dead at the scene. [2] No charges were ever laid directly in connection with the Tasering of Mr. Dziekanski or in connection with his death. However, the Province of British Columbia convened a public inquiry under the Public Inquiry Act , S.B.C. 2007, c. 9, which was held before the Hon. Thomas R. Braidwood in late 2008 and early 2009. The Inquiry was a “judicial proceeding” as defined by s. 118 of the Criminal Code . [3] The appellant in this case, Cpl. Robinson, was the senior RCMP officer involved in the incident. He and the other three officers all testified at the Inquiry. All four were eventually charged with perjury in respect of their testimony at the Inquiry and have been tried in the Supreme Court of British Columbia. Two, Csts. Bentley and Rundel, were acquitted, while Cst. Millington and the appellant were convicted. This fact is not relevant to this appeal as a matter of law, although counsel for the appellant submits that it does “demonstrate” that Cpl. Robinson’s conviction is unreasonable. [4] The indictment charging Cpl. Robinson was laid on February 3, 2014. It asserted one count of perjury that incorporated eight allegations, or “averments”, as follows: On or about the 23 rd , 24 th and 25 th days of March, 2009, at the City of Vancouver in the Province of British Columbia did commit perjury at a Public Inquiry at 701 West Georgia Street, namely, The [Honourable] Thomas R. Braidwood, Q.C. Commissions of Inquiry under the Public Inquiry Act , S.B.C., 2007 c. 9 by making orally a false statement under oath, knowing the statement to be false and with intent to mislead the Inquiry in his description of the events surrounding the death of Robert Dziekanski, and the subsequent police investigation, including, in particular: 1)         when he testified that, his knee was nowhere near Robert Dziekanski’s neck; 2)         when he testified that, when he said in his statement on October 14, 2007 that Robert Dziekanski had to be wrestled to the ground, he was mistaken but was telling the truth because at certain points the officers did wrestle with Robert Dziekanski, and that in his statement he sort of blended the whole interaction with Robert Dziekanski; 3)         when he testified that, when he said in his statement on October 14, 2007 “I put him out”, he did not mean that he was responsible for rendering Robert Dziekanski unconscious; 4)         when he testified that, when he said in his statement on October 14, 2007, that “Yeah, so I’m on his back, so control on, he’s kicking, so I’m still controlling him um, and then it’s almost like he started snoring. And it, it, and I was like, and I remember saying that like, and Kwesi’s on his back he, and I say you know, I put him out. Just cause I’m the one applying pressure to the top part” he did not mean that he was responsible for rendering Robert Dziekanski unconscious, but was trying to draw attention to the fact that Mr. Dziekanski was snoring, not pushing up and was possibly unconscious; 5)         when he testified that he was reluctant to remove Robert Dziekanski’s handcuffs for the emergency personnel because he thought Robert Dziekanski would gain consciousness and come up swinging again; 6)         when he testified that he kept putting his gloves back on after checking Robert Dziekanski’s pulse because he thought that Mr. Dziekanski would gain consciousness and come up swinging; 7)         when he testified that he did not discuss with his fellow officers the details of the incident involving Robert Dziekanski before providing his statement to the Integrated Homicide Investigation Team on the morning of October 14, 2007; 8)         when he testified that he never had any conversations with Constables Bill Bentley, Gerry Rundel or Kwesi Millington regarding the incident involving Robert Dziekanski after October 14, 2007, other than to speak about their feelings with respect to the event; contrary to Sections 131 and 132 of the Criminal Code of Canada , R.S.C. 1985, c. C-46. [5] The evidence at the trial of Cpl. Robinson, before Mr. Justice N. Smith, included an agreed statement of facts, statements given by witnesses and the four police officers shortly after the incident, transcripts of the testimony of Cpl. Robinson and others at the Braidwood Inquiry, and a video recording made by a Mr. Pritchard, who happened to be present at YVR at the time of the incident. (Since Mr. Pritchard and the other non-police eyewitnesses were watching from the public side of the International Reception Lounge at YVR, they saw the incident through glass and from a different perspective than that of the police officers.) Mr. Pritchard’s camera, memory card and case were immediately seized by Cst. Rundel when the police were taking the names of eyewitnesses prior to the arrival of the Integrated Homicide Investigation Team (“IHIT”) at the airport. IHIT’s involvement was normal procedure in cases of in-custody deaths. The Trial Judge’s Reasons Applicable Law [6] The trial judge summarized the Crown’s allegations against the appellant as follows: The Crown contends that Mr. Robinson and his fellow officers set out to mislead investigators with exaggerated accounts of Mr. Dziekanski’s actions in an effort to maximize the threat he purportedly posed. Then, at the Inquiry, when faced with the Pritchard video that demonstrated the inaccuracy of those accounts, the Crown says Mr. Robinson lied under oath in an attempt to justify his use of force and to explain the strikingly similar, but wrong, versions of events he and his fellow officers all initially provided to IHIT. [At para. 21.] [7] The judge correctly summarized the law relating to perjury. He noted that two elements of the offence were admitted – that Cpl. Robinson had given evidence under oath or solemn affirmation at the Inquiry on March 23, 24 and 25, 2009; and that the Commissioner had been a person authorized by law to receive sworn evidence. This left three other elements of the offence that had to be proven beyond a reasonable doubt: a.         that the accused made a false statement under oath or solemn affirmation; b.         that the accused knew it to be false; and c.         that the accused had an intention to mislead. [At para. 26.] [8] The judge noted that words that are said to constitute perjury must be considered “in the context of the testimony as a whole”, citing R. v. Boross 1984 ABCA 114 at para. 18. He explained: That is an important consideration in this case because the eight statements alleged to constitute perjury are drawn from three days of testimony, during which Mr. Robinson was examined or cross-examined by five different counsel. Some of the subjects giving rise to allegations of perjury were canvassed at multiple, sometimes widely separated points in his testimony, with different words sometimes used at different points. Mr. Robinson is entitled to have all of that testimony considered in determining whether any specific statement has been proved beyond a reasonable doubt to have been knowingly false and intentionally misleading. [At para. 32.] [9] He also acknowledged that where the case is a circumstantial one, the court must be “satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty”, citing R. v. Griffin 2009 SCC 28 at para. 33. After noting Chief Justice McEachern’s oft-quoted observation that judges are “not expected to treat real life cases as a completely intellectual exercise where no conclusion can be reached if there is the slightest competing possibility” ( R. v. To (1992) 16 B.C.A.C. 223 at para. 41, cited in R. v. Ngo 2009 BCCA 301), Smith J. added: Gaps in the evidence cannot be bridged by speculation or conjecture. If there is another rational inference arising from the evidence, a guilty verdict cannot be found on the basis of circumstantial evidence. R. v. Khan , 2013 BCSC 975 at paras. 121 – 126. Any alternate explanation put forward by the defence must also be grounded in evidence and not based merely on speculation. R. v. Westlake , 2005 BCSC 93 at para. 11. The alternate inference must be more than “a theoretical possibility lacking any evidentiary foundation,” but need not be strong enough to constitute a proven fact, R. v. Bui , 2014 ONCA 614, para 30. [At para. 36; emphasis added.] No challenge is made to any of the foregoing statements of the law. Averments Two and Seven [10] The trial judge turned first to Averments Two and Seven, which he noted were closely related and had to be considered together. Averment Two related to a statement made by Cpl. Robinson to IHIT at about 5:45 a.m. on October 14, 2007, about 2.5 hours after Mr. Dziekanski had been pronounced dead. In the interview, Cpl. Robinson stated that the police had had to wrestle Mr. Dziekanski to the ground after he was Tasered ‒ a statement clearly contradicted by the Pritchard video. At the Braidwood Inquiry on March 23, 2009 the appellant was asked the following question: Q         Now, I understand you may wish to change that statement in some way about wrestling him to the ground. A          I was mistaken but I was telling the truth. At certain points we did wrestle with him, but like I have on page 3, he did -- he did drop to the ground. So the Taser did take him down, and I sort of blended the whole interaction with him and I was mistaken. But at the time I did the best job I could in articulating it. Similarly, on March 24, the appellant was asked when he had realized that he and his colleagues had not wrestled Mr. Dziekanski to the ground. He responded: A          We wrestled with him but we didn’t wrestle him to the ground. That’s correct. Q         Yeah. A          And this is what I said before. I was mistaken but I was telling the truth. And at the time I gave my statement, when you look at it and you look at the video, I’m only -- I only can tell you what I saw and that was my best recollection at the time. [11] The appellant argued at trial that some of the independent eyewitnesses who testified at the Inquiry had also recalled that Mr. Dziekanski had continued fighting after he was Tasered and had to be wrestled to the ground; and that it was therefore not unreasonable for those witnesses and the appellant to have “blended” these events in their memories. [12] However, the trial judge noted, the vagueness of the appellant’s testimony on this point had been dispelled when he was asked specifically whether Mr. Dziekanski had fallen on his own or had to be forcibly brought to the ground. The appellant answered that the latter was the case. Smith J. described this response as a “single, discrete, simple but very important fact”, given that the appellant had been the most senior officer at the scene and also the first to have put a hand on Mr. Dziekanski. In the judge’s analysis: Unlike independent witnesses, who were viewing the events from various distances, Mr. Robinson was a direct participant in them. Further, while independent witnesses may have made an error in their recollection of events, Mr. Robinson was a trained and experienced police officer. Part of the job for which he had been trained was the accurate recording of events. Every day in this and other courts, police officers must give detailed evidence of how brief and fast moving events unfolded ‒ evidence that is usually based on notes made at the time of or shortly after the events at issue. The accuracy of that record is crucial to the reliability of the police officers’ evidence. I accept that the events had been stressful, but when interviewed by IHIT Mr. Robinson knew the importance of both the interview and the specific question. He was describing events that had led to a death in police custody. The need to carefully reflect on the events and provide accurate answers was obvious. I simply do not believe that a police officer of his experience could make such a crucial mistake in these circumstances. [At paras. 50 − 52; emphasis added.] [13] Turning to the question of whether the appellant had intended to mislead, Smith J. found that Cpl. Robinson had known his conduct would be examined and that he had had a “direct motive to exaggerate the level of threat presented by Mr. Dziekanski and to justify the response to that threat.” Thus the judge concluded with respect to Averment Two: I am satisfied beyond a reasonable doubt that Mr. Robinson knew when he spoke to the IHIT investigator that what he said about Mr. Dziekanski being wrestled to the ground was false. In all of the circumstances, I cannot accept innocent error as even a reasonable possible explanation for such a crucial departure from the facts in a description of events that had taken place only hours earlier. [At para. 55; emphasis added.] [14] The trial judge found further support for this inference in evidence relied on by the Crown in connection with Averment Seven, in particular the evidence given by the three other officers that Mr. Dziekanski had been “wrestled” or “taken” to the ground after the Taser had been deployed. The judge found it “inconceivable that four trained officers would have made the same mistake at the same time by pure co-incidence.” (At para. 65.) The inference was inescapable, he said, that collusion had occurred among the four officers prior to their interviews with IHIT. [15] The inference of collusion was also supported by the similarity in the statements of the police officers about Mr. Dziekanski’s use of a stapler he had picked up before he was Tasered. (See paras. 72 –83 of the trial judge’s reasons.) The trial judge found that the Pritchard video showed no ‘swinging’ of the stapler took place, contrary to what had been claimed by the officers. In Smith J.’s words: The Pritchard video shows Mr. Dziekanski walking away from the police, clearly empty handed, at three minutes and 41 seconds from the start of the recording. At 3:42, he steps behind a desk and is then out of view for three seconds. He presumably picked up the stapler at that point. At 3:45 he is seen facing the officers with his back to the camera. The Taser is fired five seconds after that. During those five seconds before the Taser is fired, Mr. Dziekanski’s hands are not visible, but it appears from the position of his arms that he does not raise his hands above approximately waist or at most shoulder level . His upper arms remain at or near his side. While he may have made some movement with the hand holding the stapler, there is nothing that can remotely be described as a swinging motion. Only when he is stumbling in apparent reaction to the Taser does he raise his hand above his head, with the stapler visible in it, for about one second. The four officers describe Mr. Dziekanski using the stapler in very similar terms that simply did not reflect what actually happened. Again, I find it inconceivable that they could have all made the same mistake about such an important fact and find the evidence is consistent only with a discussion in which they arrived at an agreed upon version of events. [At paras. 78 − 80; emphasis added.] [16] Again, the Court found that the officers’ “clearly false” statements that Mr. Dziekanski had swung the stapler and had to be wrestled to the ground after the first Tasering were not consistent with “common error” and “could only be the product of discussion amongst them.” After distinguishing the evidence in Cst. Bentley’s case, the trial judge said he was satisfied beyond a reasonable doubt that some discussion of the incident had taken place among the four police officers “in the hour or two” prior to the arrival of the IHIT investigators. (Cpl. Robinson admitted there had been “general” discussion before the investigators arrived, but later said the discussion was about witness management.) Smith J. found that the appellant’s evidence at the Inquiry that no discussion of the incident had taken place, was false. (At para. 87.) [17] The final question to be determined was whether the appellant had known the evidence to be false when he testified at the Inquiry, almost 18 months after the incident. Smith J. noted that when a person is charged with knowingly giving false testimony, he or she is usually confronted with the evidence relied on to prove the falsity. This provides the opportunity to provide some explanation or to say his or her memory has been refreshed and to admit the previous statement was mistaken. In this case, the appellant had not been “reminded” of the similarities in the statements he and his colleagues had made at the Inquiry. However, he had been asked repeatedly whether discussions about the incident had taken place and he had repeatedly denied they had. (On this point, Cpl. Robinson’s testimony differed from that of Cst. Bentley, who said he “had no memory” of what was discussed.) The appellant’s attention had been directed to “specific aspects” of what had taken place and he had denied discussions about each of them. The trial judge observed: The questions related to the period immediately following the first in-custody death he had ever been involved in. Any discussions that took place would be an important part of the events that followed Mr. Dziekanski’s death. In the absence of some evidence to suggest otherwise, such discussions are not something one would expect a witness in Mr. Robinson’s position to have simply forgotten about. As a trained and experienced police officer, he had to understand that the question of whether there had been discussion was important to the credibility of his IHIT statements and his inquiry testimony. He had a clear reason and motive to deny such discussions had taken place. I am satisfied beyond a reasonable doubt that Mr. Robinson knew his statement at the inquiry to be false and, in the absence of any other evidence, I have no difficulty inferring an intention to mislead the inquiry. [At paras. 91 − 92.] In the result, he found that the Crown’s case had been proven beyond a reasonable doubt on both averments. Other Averments [18] For reasons set forth at paras. 94 – 142, Smith J. found that the remaining averments had not been proven beyond a reasonable doubt. I do not believe it is necessary to recount the Court’s specific findings on those items, as no appeal is taken from the acquittals on those averments. On Appeal [19] In this court, Cpl. Robinson asserts the following errors in judgment on the part of the trial judge: It is respectfully submitted that the verdict is unreasonable pursuant to s. 686(1)(a)(i) of the Criminal Code because, on the whole of the evidence, the guilt of the appellant is not the only reasonable inference available on the evidence. .           .           . It is respectfully submitted that a miscarriage of justice has occurred pursuant to s. 686(1)(a)(iii) of the Criminal Code because the verdict is dependent on misapprehended evidence, including: a.  the trial judge misapprehended the evidence concerning Mr. Dziekanski being “wrestled” or “taken” to the ground; b.  the trial judge misapprehended the evidence concerning whether Mr. Dziekanski was “swinging the stapler”; and c.  the trial judge misapprehended the evidence concerning motive to lie. Both grounds of appeal are said to have application to Averments Two and Seven. Unreasonable Verdict The Law [20] Mr. Robinson correctly states in his factum that a verdict will be found to be unreasonable within the meaning of s. 686(1)(a)(i) of the Code where it is not one that a properly instructed jury or judge could reasonably have rendered on the basis of the evidence adduced at trial (my emphasis; see R. v. Morrissey (1995) 97 C.C.C. (3d) 193 (Ont. C.A.) at 221); where the trial judge has drawn an inference or made a finding of fact essential to the verdict that is plainly contradicted by evidence relied upon by the judge in support of the inference or finding; or where the inference or finding is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the judge: see R. v. R.P. 2012 SCC 22 at para. 9, per Deschamps J. for the majority. As also noted at para. 10 of that case, the question of whether a verdict is unreasonable is a question of law. ‘ Circumstantial’ Cases [21] The appellant suggests that the verdict in this case is based entirely on circumstantial evidence and that therefore, this court must, on the authority of Hodge’s Case (1838) 168 E.R. 1136, determine on the whole of the evidence whether the trier of fact could have reasonably concluded that the only rational conclusion was that Cpl. Robinson was guilty. His factum referred to para. 96 of R. v. Panghali 2012 BCCA 407, where this court in turn cited R. v. Trevor 2006 BCCA 91, lve. to app. ref’d [2006] 2 S.C.R. xiii. In Trevor , Low J.A. stated for the Court: In the present case, proof of the element of lack of consent was based entirely on circumstantial evidence. Therefore, the following passage from the judgment of Finch C.J.B.C. in R. v. Robinson (2003), 176 C.C.C. (3d) 23, 2003 BCCA 353 is apt: In R. v. Dhillon (2001), 158 C.C.C. (3d) 353 (B.C.C.A.), 2001 BCCA 555, Low J.A., writing for the Court, applied the standard of review to a circumstantial case as follows at [paragraph] 102: Since the Crown’s case is entirely circumstantial, it seems to me that this court must determine whether a properly instructed jury, acting judicially, could have reasonably concluded that the only rational conclusion to be reached from the whole of the evidence is that the appellant murdered the victim. [At para. 11; emphasis added.] [22] Applying the underlined passage from Dhillon to the facts relating to Averment Two, the appellant submits that other reasonable inferences were available on the evidence – i.e., that: as a result of the dynamic and stressful nature of the event, the appellant and/or the other officers made a mistake, confused or blended the sequence of events, misperceived the event or misspoke when they described the police interaction with Mr. Dziekanski on the morning of October 14, 2007. [23] This argument raises squarely what the Supreme Court of Canada in R. v. Villaroman 2016 SCC 33 recently described as the “ongoing difficulties caused by the old rule in Hodge’s Case” and the jury instruction formulated therein for circumstantial cases. In this category are included cases in which the proof of at least one of the essential elements rests solely or primarily on circumstantial evidence. ( Villaroman at para. 18.) [24] The rule in Hodge’s Case was rejected years ago in the United States (see Holland v . United States , 348 U.S. 121 (1954)), and discarded in the U.K. (see McGreevy v. D.P.P . [1973] 1 All E.R. 503 (H.L.)). In Canada, the rule remains, but as Mr. Peck on behalf of the Crown reminded us, it has been relaxed considerably, particularly by R. v. Mitchell [1964] S.C.R. 471. For one thing, it is now said to apply only to the actus reus of an offence and not to the element of intent. Thus the Court in Mitchell stated that the Hodge’s instruction: provided a formula to assist in applying the accepted standard of proof in relation to the first only of the two essential elements in a crime; i.e., the commission of the act as distinct from the intent which accompanied that act. The first element, assuming every circumstance could be established by evidence, would be capable of proof to a demonstration. The latter element, save perhaps out of the mouth of the accused himself, could never be so proved. The circumstances which establish the former not only can be, but must be consistent with each other, as otherwise a reasonable doubt on the issue arises . The circumstances which establish the latter, being evidence personal to one individual, will seldom, if ever, be wholly consistent with only one conclusion as to his mental state and yet the weight of evidence on the issue may be such as to satisfy the jury, beyond a reasonable doubt, as to the guilty intent of the accused. The instruction of Baron Alderson in Hodge’s case does not apply and was never intended to apply to an issue of this kind . [At 479 ‒ 80; emphasis added.] The restriction of Hodge’s Case to elements of the actus reus was confirmed in R. v . Cooper [1978] 1 S.C.R. 860 at 874-8; and more recently in R. v. Vokurka 2013 NLCA 51, aff’d 2014 SCC 22. [25] Mr. Peck submitted that since the contentious elements of the case at bar relate to the mental element of perjury rather than to the actus reus , Hodge’s Case had no application at all. However, the falsity of the appellant’s statements is also under appeal and in any event, some fuller explanation of the rule in Hodge’s Case is in my view called for in light of the appellant’s arguments on the appeal. [26] It is noteworthy that the Supreme Court of Canada has retreated from the notion that the rule imposes a different, and even higher, standard of proof than proof beyond a reasonable doubt. (The latter view had been taken in Boucher v. The Queen [1955] S.C.R. 16 at 30; R. v. Ducsharm [1955] O.R. 824 (C.A.) at 832 – 3; and R. v. Manderville [1958] 124 C.C.C. 268 (N.B.C.A.) at 273, all cited by Benjamin L. Berger in “The Rule in Hodge’s Case : The Rumours of Its Death are Greatly Exaggerated,” (2005) 84 Can. B. Rev . 47 at fn. 44.) In Mitchell , the Court described the rule simply as a formula used to assist a jury in applying the “accepted standard of proof” beyond a reasonable doubt or as a “graphic illustration of the principle of reasonable doubt.” The rule was said not to add to or detract from the requirement for proof of guilt beyond a reasonable doubt. ( Per Spence J. in Mitchell at 479, adopted in Cooper at 879 – 80; see also R. v. John [1971] S.C.R. 781 at 791-2; R. v. Griffin 2009 SCC 28 at para. 33.) [27] The Supreme Court has also rejected the notion that specific wording must be used in the instruction of juries in order to comply with the rule. On this point, the Court at para. 21 of Villaroman approved the reasoning of Sharpe J.A. in R. v. Tombran (2000) 142 C.C.C. (3d) 380 (Ont. C.A.): The modern approach to the problem of circumstantial evidence, enunciated clearly in Cooper, supra , and reiterated and reinforced by Fleet, supra , is to reject a formulaic approach and to deal with all the evidence in terms of the general principles of reasonable doubt. Trial judges are given a degree of latitude to formulate the appropriate instruction as befits the circumstances of the case. Trial judges are not required to adopt any specific language or wording, provided the charge conveys to the jury in a clear fashion the central point, namely, the necessity to find the guilt of the accused beyond a reasonable doubt . In particular, trial judges are not required to deliver to the jury a general, abstract lecture on the nature of circumstantial evidence or on the steps of logic to be followed in assessing circumstantial as distinct from direct evidence. An academic exercise along those lines may well confuse rather than assist the jury. Trial judges are entitled to conclude that the essential message of the need to establish guilt beyond a reasonable doubt can be better conveyed in other ways. [At para. 29; emphasis added.] Similarly, in R. v. Mayuran 2012 SCC 31, the Court, citing Griffin , stated that no “special instruction” is now required provided the jury is “made aware of how they can use [circumstantial] evidence to establish guilt beyond a reasonable doubt.” (At para. 38.) The Court approved three other means of instructing juries aside from following the “formulaic” approach of Hodge’s Case , as set forth in R. v. Fleet (1997) 120 C.C.C. (3d) 457 (Ont. C.A.) at para. 20. [28] But as noted in Villaroman , Hodge’s Case was concerned not only with describing the reasonable doubt standard, but also with “the dangers of the path of reasoning involved in drawing inferences from circumstantial evidence.” As Cromwell J. for the Court observed: An instruction about circumstantial evidence … alerts the jury to the dangers of the path of reasoning involved in drawing inferences from circumstantial evidence: Berger, at p. 60. This is the danger to which Baron Alderson [in Hodge’s Case ] directed his comments. And the danger he identified so long ago – the risk that the jury will “fill in the blanks” or “jump to conclusions” – has more recently been confirmed by social science research: see Berger, at pp. 52 – 53. This Court on occasion has noted this cautionary purpose of a circumstantial evidence instruction: see, e.g., Boucher v. The Queen at p. 22; [ R. v. John [1971] S.C.R. 781], per Laskin J., dissenting but not on this point, at p. 813. It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. [At paras. 29 – 30.] [29] On the question of how “alternative inferences” are to be approached in circumstantial cases, the Court in Villaroman rejected the notion that “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts” – as had been suggested, for example, in R. v. McIver [1965] 2 O.R. 475 (C.A.) at 479, affirmed without discussion on this point [1966] S.C.R. 254. Subsequent cases have clarified that “inferences consistent with innocence do not have to arise from proven facts”. Cromwell J. continued in Villaroman : Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an 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. 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 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.… 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. When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt…. 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 the absence of evidence, not on speculation. 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 logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. [At paras. 35 – 38; emphasis by underlining added.] [30] The Court commended the following passage from R. v. Dipnarine 2014 ABCA 328: “[c]ircumstantial evidence does not have to totally exclude other conceivable references” and … a verdict is not unreasonable simply because “the alternatives do not raise a doubt” in the jury’s mind. Most importantly, “[i]t is still fundamentally for the trier of fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt.” [ Villaroman at para. 56; emphasis added.] Appellate Review of Circumstantial Cases [31] As we have seen, the trial judge in the case at bar correctly stated the requirement that the court be satisfied beyond a reasonable doubt that the “only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty”, citing Griffin at para. 33 and Ngo at para. 54. If this rule is simply a “graphic illustration” of the criminal standard of proof, what role does it play in the appellate review of a guilty verdict? [32] Recent authorities support the view that Hodge’s Case does not imply or import a different standard of appellate review than that applicable to non-circumstantial cases. In Villaroman, the Court cited the well-known decisions of R. v. Yebes [1987] 2 S.C.R. 168 and R. v. Biniaris 2000 SCC 15 as correctly reflecting the task of appellate courts in circumstantial cases: A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered: R. v. Biniaris . Applying this standard requires the appellate court to re-examine and to some extent reweigh and consider the effect of the evidence: R. v. Yebes at p. 186. This limited weighing of the evidence on appeal must be done in light of the standard of proof in a criminal case. Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence: Yebes , at p. 186; R. v. Mars (2006), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 4; R. v. Liu (1989) 95 A.R. 201 (C.A.), at para. 13; R. v. S.L.R. , 2003 ABCA 148 (CanLII); R. v. Cardinal (1990), 106 A.R. 91 (C.A.); R. v. Kaysaywaysemat (1992), 97 Sask. R. 66 (C.A.), at paras. 28 and 31. [At para. 55.] [33] While contemplating a “limited weighing” of the evidence on appeal, the Court in Yebes and Biniaris also cautioned that the appellate court is not acting as a “thirteenth juror” or “usurping the function” of the finder of fact. A court of appeal may not interfere with a verdict simply because of a “lurking doubt” or uneasy feeling. The court must, Arbour J. stated in Biniaris, identify a defect in the analysis of the judge (assuming no jury) that led to an unreasonable conclusion; or be satisfied that the judge was not alive to an applicable legal principle or that he or she reached a verdict inconsistent with his or her own factual findings. (At para. 37.) Thus Professor Berger, supra, writes: the law “requires that the reviewing court articulate as explicitly and as precisely as possible the grounds for its intervention.” Without usurping the role of the trial judge or jury, and not being permitted to rely upon a lingering or lurking discomfort with the result, the appellate court must weigh the evidence, look to the verdict (and reasons, if they exist) and then produce an explanation for why the conviction is unreasonable. That is a substantial challenge for appellate judges. .           .           . When a case turns on circumstantial evidence, Canadian appellate courts can set out this evidentiary matrix and test the inferences that the evidence can bear. When there is a reasonable inference that is inconsistent with the guilt of the accused, appellate courts have a legal rule at their disposal to explain why, viewed “through the lens of judicial experience,” the verdict is, as a matter of law, unreasonable. Since this mode of appellate reasoning is dependent upon the evidence adduced rather than the reasons offered by the finder of fact, Hodge’s rule is an effective instrument for cases heard both by judge and jury and by judge alone. The rule in Hodge’s Case can serve as a kind of inferential litmus test to be applied by appellate courts to the evidence adduced at trial. Using Hodge’s rule in this way, appellate judges are not just substituting their view of the evidence for that of the finder of fact. Rather, they are applying an evidentiary rule to determine, as a matter of law, whether the verdict is unreasonable. [At 71; emphasis added; footnotes omitted.] [34] In Villaroman itself, the Alberta Court of Appeal was found to have erred in finding the conviction of the accused to be unreasonable, in “focusing on hypothetical alternate theories and, at times, engaging in speculation rather than on the question of whether the inferences drawn by the trial judge, having regard to the standard of proof, were reasonably open to him.” (At para. 67.)  Indeed, the Court of Appeal was found to have effectively re-tried the case because it had attempted to fill in certain “gaps” in the Crown’s evidence. Again in the analysis of Cromwell J.: It was for the trial judge to decide, as he did, whether the evidence of Mr. Villaroman’s powers of control and direction over the computer; the coincidence of his name and the only user name on the computer; the file names descriptive of their pornographic contents; the admission in relation to the non-involvement of two other people with whom he lived; and the length of time the pornography had been on the computer, when considered in light of human experience and the evidence as a whole and the absence of evidence, excluded all reasonable inferences other than guilt. In my view, while not every trier of fact would inevitably have reached the same conclusion as did the trial judge, that conclusion was a reasonable one. At certain points in its analysis, the Court of Appeal crossed the line from considering the effects of gaps in the Crown evidence to raising purely speculative possibilities. For example, the Court of Appeal considered questions such as whether the “laptop ... [went] to work” or “during the day to a school, college or university” or “may have sat much of each day in a location or locations frequented by many friends, coworkers, or fellow student: paras. 28 and 31.” These particular factual scenarios are purely speculative and postulating them goes beyond the bounds of properly considering the impact of the gaps in the Crown evidence about the physical location of the laptop. The Court of Appeal’s analysis overlooks the important point made in Dipnarine that it is fundamentally for the trier of fact to draw the line in each case that separates reasonable doubt from speculation. The trier of fact’s assessment can be set aside only where it is unreasonable. While the Crown’s case was not overwhelming, my view is that it was reasonable for the judge to conclude that the evidence as a whole excluded all reasonable alternatives to guilt. [At paras. 69 − 71; emphasis added.] [35] Another decision of the Supreme Court of Canada is instructive as to the circumstances in which a court of appeal may disagree with a verdict in a circumstantial case. In R. v. Grover 2007 SCC 51, the accused was convicted of attempting to obstruct justice. The charge had arisen out of a fire in residential premises owned by a company that was managed by the accused. The Crown alleged that he had attempted to alter and falsify records relating to the testing and maintenance of smoke alarms at the premises. The trial judge found that the documents relating to the smoke alarms were false and that the accused knew they were false. He therefore convicted the accused. [36] The Saskatchewan Court of Appeal set aside the conviction because in the majority’s view, the verdict of guilt could not reasonably be supported by the evidence before the trial judge: see 2006 SKCA 146. This conclusion was based on the view that the accused’s actions after the fire had been capable of more than one explanation. [37] The Supreme Court of Canada allowed the Crown’s appeal, agreeing with the dissenting reasons of Jackson J.A. in the Court of Appeal. The Supreme Court wrote as follows: [The majority’s conclusion that the finding of guilt was unreasonable] was based on the view that the controversial actions of the accused after the fire were capable of more than one explanation. Of particular interest was a visit he had made to the hospital to try to see his tenants who were victims of the fire. The Crown argued that the purpose of the visit was to persuade the tenants to sign an inspection document that the respondent knew to be false. The trial judge accepted the tenant’s testimony that the respondent had asked her to sign a document indicating that the smoke alarms had been inspected. However, the majority in the Saskatchewan Court of Appeal said that the respondent’s conduct was equally consistent with the conclusion that the respondent, possibly ignorant of the fact that the required inspection had not in fact taken place, simply considered “it crucial that in this case the inspection records be in perfect order”. Jackson J.A., dissenting, was of the view that: As to whether there could be any other rational explanation for Mr. Grover’s actions, it is important to note that Mr. Grover testified. He said that he had attended at the hospital out of compassion for the victims. He did not say he went up to the hospital to have the tenants to sign an incomplete form. Where the accused testifies and offers an explanation for his or her actions, which the trial judge then rejects, it is not the task of a court of appeal to come up with another rational explanation. [para. 26] We agree. It was not open to the Court of Appeal to acquit the respondent on the basis of speculation about a possible explanation of his conduct that was flatly contradicted by his own testimony. Accordingly, the appeal is allowed. [At paras. 2 – 3; emphasis added.] See also R. v. Damin 2012 BCCA 504 at paras. 40 – 42. [38] I approach the first ground of appeal, then, on the basis that this court’s task is to determine “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable inference available on the totality of the evidence.” ( Villaroman , at para. 55.) This does not constitute a different standard of review for circumstantial cases; but it does provide finders of fact and appellate courts with an alternate formulation by which to assess such cases – in the words of Professor Berger, a kind of “inferential litmus test.” (At 71.) In circumstantial cases, as in non-circumstantial cases , the appellate court may not interfere if the verdict is one that a properly instructed jury could reasonably have rendered. ( Yebes , at 186.) It is generally the task of the finder of fact to draw the line between reasonable doubt and speculation. ( Villaroman , at para. 71.) It is not open to a court of appeal to conceive of inferences or explanations that are not reasonable possibilities; nor to attempt to revive evidence or inferences that the trial judge reasonably rejected. ( Grover , at para. 2, quoting from the reasons of Jackson J.A. in the Court of Appeal.) If an appellant is to succeed, an inference other than guilt must be “reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.” ( Villaroman , at para. 36.) Application to the Facts [39] Turning at last to the facts of this case, I will address Averment Seven first, since it was argued first by counsel for the appellant on the basis that it is “key” to the appeal. In Mr. Crossin’s submission, the conviction on this averment was based on the inference of collusion, which in turn was based on (1) the similarity in the testimony given by the appellant and his fellow officers at the Inquiry on two points – that Mr. Dziekanski had “fought through the Taser” so that the officers had to “wrestle him to the ground” after Tasering him (the subject of Averment Two) and the testimony that he had been “swinging” a stapler at them in an aggressive way; (2) the finding that the appellant had had a motive to lie; and (3) the finding that the officers had had an opportunity to discuss the incident among themselves before giving statements to IHIT. [40] Counsel sought to cast doubt on each of these findings, arguing that: 1.  The appellant and his colleagues may have been genuinely mistaken in their recollection of the incident and may have “sort of blended the whole interaction with Robert Dziekanski” as Cpl. Robinson testified. 2.  One could not be sure from looking at the Pritchard video whether Mr. Dziekanski had “swung” a stapler, since his back was to the camera and one could not see what his hands were doing. Three (at most) of the twelve civilian witnesses had also said he had been “waving” or “swinging” the stapler. 3.  There was “no evidence” at trial that the officers had been motivated to lie about their conduct in connection with Mr. Dziekanski, nor was there any “real analysis” that supported the trial judge’s finding at para. 53 that Cpl. Robinson “had a direct motive to exaggerate the level of threat presented by Mr. Dziekanski and to justify the response to that threat.” This finding, it is argued, arose from an assumption that the police response to Mr. Dziekanski had been, or that the police believed it to have been, unreasonable or improper. This assumption, Mr. Crossin submitted, had “permeated” the trial. 4.  The acquittals of Csts. Bentley and Rundel, while not “binding” in any way on the trial judge, indicated that a conclusion other than guilt was available on evidence that, if not identical, was “on all fours” with Cpl. Robinson’s case. In all these circumstances, Mr. Crossin argued, the conviction was not only “unsafe”, but more to the point, reasonable inferences other than that the appellant was guilty were available. The verdict was therefore said to be unreasonable. [41] With respect, it seems to me that Mr. Crossin is inviting us to interfere with the trial judge’s findings of fact (including credibility) or to make our own. I do not read the cases discussed above as suggesting that trial judges or juries are not required in circumstantial cases to determine what evidence they accept or to find facts. As we know from R. v. W.(D.) [1991] 1 S.C.R. 742, the ultimate step in applying the “reasonable doubt” standard is for the trier of fact to consider whether, “on the basis of the evidence which [the trier of fact] does accept , the [trier of fact is] convinced beyond a reasonable doubt by that evidence ”. (At 758; emphasis added.) In this case, the trial judge found himself unable to accept the appellant’s explanations of the discrepancies between his testimony and what actually occurred at the airport. [42] Viewed through the “lens of judicial experience”, the judge’s findings cannot in my view be said to have been unreasonable. It cannot be said he jumped to unreasonable conclusions or speculated in order to try to fill “gaps” in the evidence. He carried out a close analysis of all the evidence and drew inferences he was entitled to draw. The fact that other judges might have drawn different inferences (and in fact two other trial judges acquitted on somewhat similar evidence and somewhat similar averments) does not change the fact that the judge in this case was entitled (and indeed bound) to determine what evidence (adduced in this case) he found persuasive. At the end of the day, he was not left with a reasonable doubt on all the evidence as to Cpl. Robinson’s guilt. Put another way, he did not find any of the alternative inferences urged on the Court by the defence – that the appellant had innocently “sort of blended” the sequence of events in his memory; that Mr. Dziekanski had made a threatening gesture with the stapler; that the officers had not discussed the events and that the similarity in their testimony had been coincidental – to be reasonable. In my view, this conclusion was one that a properly instructed finder of fact, acting judicially, could have reached. [43] It follows that I would not accede to this ground of appeal. Misapprehension of Evidence? [44] The second ground of appeal is that the trial judge misapprehended the evidence concerning some of the matters I have already discussed – Mr. Dziekanski’s being “wrestled” or “taken” to the ground; the “swinging” of the stapler; and a motive on the appellant’s part to give false testimony at the Inquiry. As Mr. Peck notes on behalf of the Crown, in order to constitute a miscarriage of justice for purposes of s. 686(1)(a)(iii) of the Criminal Code , the appellant must point to a misapprehension on a question of substance that was “material” to the trial judge’s reasoning process and played an essential role in the reasoning process resulting in conviction: see R. v. Morrissey (1995) 97 C.C.C. (3d) 193 (Ont. C.A.) at 221; R. v. Lohrer 2004 SCC 80; and R. v. Swales 2014 BCCA 350 at paras. 47 – 49. Evidence of Mr. Dziekanski being “wrestled” or “taken” to the ground [45] It will be recalled that the appellant told the Inquiry that his previous statement to IHIT investigators that Mr. Dziekanski had to be “wrestled” or “taken” to the ground after being hit with the Taser was not true, but that it had reflected his honest belief at the time. I reproduce again his testimony at the Inquiry that: I was mistaken but I was telling the truth. At certain points we did wrestle with him, but like I have on page 3, he did – he did drop to the ground. So the Taser did take him down, and I sort of blended the whole interaction with him and I was mistaken. But at the time I did the best job I could in articulating it. [46] Smith J. considered the argument that some of the independent eyewitnesses had also recalled Mr. Dziekanski’s “fighting through the Taser” and having to be wrestled to the ground. The judge did not find this argument persuasive for the following reasons: Unlike independent witnesses, who were viewing the events from various distances, Mr. Robinson was a direct participant in them . Further, while independent witnesses may have made an error in their recollection of events, Mr. Robinson was a trained and experienced police officer. Part of the job for which he had been trained was the accurate recording of events. Every day in this and other courts, police officers must give detailed evidence of how brief and fast moving events unfolded – evidence that is usually based on notes made at the time of or shortly after the events at issue. The accuracy of that record is crucial to the reliability of the police officers’ evidence. I accept that the events had been stressful, but when interviewed by IHIT Mr. Robinson knew the importance of both the interview and the specific question. He was describing events that had led to a death in police custody. The need to carefully reflect on the events and provide accurate answers was obvious. I simply do not believe that a police officer of his experience could make such a crucial mistake in these circumstances. [At paras. 50 – 52; emphasis added.] I see no error in this reasoning, even accepting the fact that only some (at most, three) of the twelve eyewitnesses also believed Mr. Dziekanski had to be “taken” to the ground in some way. The trial judge simply could not accept that an officer in Cpl. Robinson’s position could have been mistaken as to what had transpired in front of him. No misapprehension of the evidence has been shown on his part. [47] It is next argued that the trial judge failed to state in his reasons or to consider the fact that one of the four officers, Cst. Rundel, made two statements to IHIT. In the first, made on October 14, 2007, he said that after the first engagement of the Taser, Mr. Dziekanski was “still clenching, and motioning towards us” and that after two or three more engagements of the Taser, he and Cpl. Robinson and Cst. Bentley “wrestled him to the ground.” The second statement was given on October 18, 2007, when Cst. Rundel stated that Mr. Dziekanski “stood up through the first … five-second Taser … activation and … after the second time went down.” Cst. Rundel’s attention was never drawn to the distinction, if there was one, between these statements and he did not testify about this point at the Inquiry. [48] At para. 83 of his reasons, the trial judge stated: However, I find that the four officers’ similar but clearly false statements about Mr. Dziekanski swinging the stapler and having to be wrestled to the ground are not consistent with common error and could only be the product of discussion amongst them. [Emphasis added.] and at para. 62: The responses given to IHIT were statements of simple fact, not subject to nuance or differing interpretation. In three of the four cases , the answers came in response to specific questions that directed the officer’s attention to the very issue of how Mr. Dziekanski came to be on the ground. Any police officer would understand the importance of that issue in the circumstances. [Emphasis added.] [49] The appellant submits that the trial judge’s inference of collusion was based on a finding that all four officers had incorrectly stated that Mr. Dziekanski had to be wrestled to the ground, and that the inference is seriously undermined by his failure to consider Cst. Rundel’s October 18 statement. The appellant stated in his factum: Cst. Rundel’s October 18, 2007 statement was a critical piece of evidence and the effect of it on any inference of collusion ought to have been considered by the trial judge. Given that there was only one piece of evidence supporting any potential collusion on Cst. Rundel’s part, it was undoubtedly integral to the trial judge’s finding of collusion among the four officers and any evidence that may have contradicted that finding ought to have been considered. The failure to consider relevant evidence constitutes a misapprehension that went to the substance of the evidence, concerned a material part of the reasoning process, and played an essential part in the reasoning process resulting in conviction. The failure to consider Cst. Rundel’s October 18 statement in its entirety and to properly examine his October 14 statement rendered the result unfair and constituted a miscarriage of justice. [50] Again, with respect, I cannot accede to this submission. As I read the reasons, Smith J. was referring to the four “strikingly similar” statements made by the four officers to IHIT about the timing of Mr. Dziekanski’s fall to the ground in support of his conclusion that collusion had occurred. He was careful to point out that Cpl. Robinson had been asked specifically about the sequence of events which he claimed to have “sort of blended” and the judge explained at paras. 50 – 52 (quoted earlier) why he could not accept the appellant’s explanation. [51] As I read Cst. Rundel’s statements, they were consistent with the statements of his colleagues: Mr. Dziekanski had “stood up” through the first two engagements of the Taser, and then went down. The Pritchard video shows this was simply not the case. The fact that Cst. Rundel did not repeat the falsehood on October 18 does not take away from the trial judge’s reasoning. All four officers made similar, but false, statements that Mr. Dziekanski had “fought through the Taser” and still had to be wrestled to the ground. Whether Cst. Rundel later resiled from the version of events he gave in his October 14 statement – and if so, why he might have done so – were not material issues that the trial judge was bound to resolve. Swinging the Stapler [52] In my view, a similar analysis applies with respect to the trial judge’s finding at paras. 80 and 83 that the officers’ statements that Mr. Dziekanski had “swung” the stapler in a threatening manner were simply untrue. My colleague Mr. Justice Willcock reaches a different conclusion, but to a large extent his analysis is based on findings and inferences drawn from the findings of the trial judges in the cases of Csts. Rundel and Bentley. In particular, my colleague places emphasis on the finding of McEwan J. in Bentley that: there is a basis on which all of the following perceptions could be found to be facts: …. (2) that Mr. Dziekanski picked up a stapler; (4) that Mr. Dziekanski made a gesture or gestures with the stapler. [At para. 209; emphasis added.] and on Gropper J.’s description in Rundel of the “specific instance of the stapler”: The specific instance of the stapler occurred over six seconds. It appears, on the Pritchard Video, to have commenced at 3:46, when Mr. Dziekanski faces the officers and Cst. Bentley steps back, apparently in reaction to an action of Mr. Dziekanski picking up the stapler, and concludes at 3:52, when Mr. Dziekanski can be seen raising his arm above his head with the stapler in his hand. During that six seconds, Mr. Rundel was making various movements away from Mr. Dziekanski and observing Cst. Millington deploy the Taser, as well as observing Mr. Dziekanski’s reactions. Following this six seconds, the events unfold for almost two more minutes before Mr. Rundel stands up from having struggled on the ground with Mr. Dziekanski. [At para. 81.] (As I read her reasons, Gropper J. here may have been referring to the moment after Mr. Dziekanski had been Tasered.) [53] On the other hand, of course, there is the fact that Cst. Millington in his testimony before Ehrke J. clarified that when he told the Inquiry Mr. Dziekanski had raised the stapler “high”, he meant only that Mr. Dziekanski had the stapler above his waist and did not mean to convey he had it raised in the air. There was also the admission of  Cpl. Robinson before the Inquiry that when he had testified in chief that Mr. Dziekanski had “swung” the stapler at the officers in an attempt to “hit” them, he had misspoken. In cross-examination, he conceded that it was inaccurate to say, even from his perspective, that Mr. Dziekanski had “swung” the stapler. Instead, he said, Mr. Dziekanski merely “brandished” it. [54] My colleague also suggests that the trial judge should have been left with a reasonable doubt as a result of the evidence of the independent eyewitnesses. The question of how much weight to accord that evidence in the face of the appellant’s own admission was one for the trier of fact.  As we are constantly being admonished, trial judges are in the best position to decide the facts, and must be deferred to in the absence of palpable and overriding error. No such error has been shown in this case. [55] In any event, the findings of other judges do not lead to the conclusion that Smith J. misapprehended the evidence in this case. He was bound to consider only the evidence and the accused before him; he was entitled to give weight to the evidence of witnesses he believed; he was not bound to try to reconcile the four cases; nor was he bound, in my view, to find a reasonable doubt based on the fact that other judges had done so in cases they had tried. If that had been the case, there would have been no point to the appellant’s trial.  I know of no authority that suggests the drawing of different factual inferences by this trial judge would  constitute a misapprehension of the evidence presented at trial. To the contrary, as Smith J. correctly stated: As a matter of law, the conclusions of another trier of fact who dealt with the same offence but a different offender are irrelevant to the determination with respect to another accused in a different trial. R. v. Tran , 2014 BCCA 343 at para. 62. [At para. 84.] [56] Similarly, we are not on appeal required to consider the evidence in all four cases together, or to reach a verdict reflective of the verdicts in the other two, or three, cases. As Mr. Justice Harris recently stated in the Millington appeal (2016 BCCA 293): It may seem surprising, indeed troubling, that different courts can reach different results on what superficially appear to be similar or identical allegations, especially where the evidence is substantially the same in the different cases. In relation to these matters, two officers have been acquitted and two convicted. Having said this, it must be remembered that criminal responsibility is individual and is to be assessed on the evidence led in relation to a particular accused: R. v. Chow, 2011 BCCA 338 at para. 44; R. v. Huard , 2013 ONCA 650 at para. 105. In these cases, the evidence in each officer’s trial varied and the averments differed to some extent. For example, Cst. Bentley, who was acquitted, did not testify at trial and the issue was whether he perjured himself when he said he could not remember what he discussed with other officers. Cst. Millington did testify and his alleged perjury was his testimony that he did not discuss the details of the incident before providing his statement. Moreover, the finding in the Bentley case was that the Crown had not proven the alleged perjury to the requisite criminal standard; that is, beyond a reasonable doubt. It does not amount to a positive finding of fact that the officers did not discuss the details of the incident as alleged. [At para. 48.] The Appellant’s Motive [57] The appellant’s final submission is that the trial judge erred in inferring that the appellant had had a direct motive to lie to IHIT on the basis that he knew his conduct would be subject to scrutiny because of his role in an in-custody death. Mr. Crossin argues that the fact Cpl. Robinson knew his conduct would be examined cannot logically support the inference that he had a motive to lie in order to justify the conduct of the police in connection with Mr. Dziekanski’s death. Cpl. Robinson contends in his factum that there was “no evidence” the officers were or ought to have been “worried” about their conduct: No evidence concerning the officers’ use of force was proffered at the trial. As a result, there can be no suggestion that the officers’ conduct was anything but appropriate in the circumstances and no further suggestion that Mr. Robinson or the other officers had any reason to obscure certain facts during their IHIT interviews. The trial judge’s finding that the appellant had a motive to lie to IHIT was speculative: there was no evidence beyond the fact that the appellant knew his conduct would be examined to ground such a conclusion. This, on its own, was insufficient to support a finding of motive. [58] I do not agree. As discussed in both Mitchell and Cooper , supra , the mental element of an offence is almost always a matter of inference rather than direct evidence. As I read the trial judge’s reasons, the finding that the appellant had a motive to lie was based at least in part on the fact that the circumstances were such that Cpl. Robinson knew the police would potentially face some form of consequences, the precise nature of which was unknown at the time. This finding was open to the trial judge to make: Cpl. Robinson and his colleagues had fired a Taser five times into an unarmed and agitated man in a public place. The judge took a realistic view of the pressure the appellant likely felt to provide an explanation for the incident that would not detract from his conduct as a “trained and experienced police officer.” [59] Like the trial judge, I have little doubt that “viewed through the lens of judicial experience”, the appellant had a “clear reason and motive to deny” that he and his colleagues had discussed the incident and colluded in their evidence before the Inquiry. The Court was not left with any reasonable doubt on this point, or on the evidence considered as a whole; and again, I discern no misapprehension of evidence. [60] In the result, I would not accede to the second ground of appeal. Disposition [61] I would dismiss the appeal, with thanks to counsel for their helpful submissions. “The Honourable Madam Justice Newbury” I AGREE: “The Honourable Mr. Justice Goepel” Dissenting Reasons for Judgment of the Honourable Mr. Justice Willcock: [62] This appeal requires us to re‑examine, and to some extent re-weigh and consider, the effect of the evidence in light of the standard of proof in a criminal case: R. v. Yebes , [1987] 2 S.C.R. 168 at 186; and R. v. Villaroman , 2016 SCC 33 at para. 55 . [63] Regretfully, I am unable to agree with my colleagues’ disposition of this appeal. In my opinion, the evidence does not support the trial judge’s conclusion that the officers’ statements to IHIT that Mr. Dziekanski had swung or brandished the stapler in a threatening manner “simply did not reflect what actually happened”. That conclusion was critical to his finding that a circumstantial case of collusion had been made out. The perjury conviction was founded upon the view the officers had colluded, which was premised on the finding that the officers had made “strikingly similar” but false statements to the IHIT. If the finding that there was collusion is unsound the conviction cannot stand. [64] The appellant was not convicted of perjury for lying to IHIT, but for lying to the Braidwood Inquiry about why his initial statement to IHIT was inaccurate and for denying to the Inquiry that he discussed the details of the incident involving Mr. Dziekanski with his fellow officers before providing that statement. In the words of McEwan J. in R. v. Bentley , 2013 BCSC 1364, he was convicted because he “lied about lying”. [65] The Crown sought to establish, as the foundation for a case that was wholly circumstantial, that the initial statements made by the officers were demonstrably false. The appellant’s conviction did not hinge at all upon the specific words he used at the Braidwood Inquiry; nor did it hinge upon evidence adduced at trial (no viva voce evidence was called in respect of Averments Two or Seven). The conviction turned upon the trial judge’s comparison of statements made by the four police officers to IHIT with the Pritchard video and independent witnesses’ descriptions of the events the officers had described. With respect, I do not share my colleagues’ view that the trial judge’s conclusion was founded upon careful consideration of the Pritchard video and the evidence of the eyewitnesses. [66] The conviction was based upon the trial judge’s conclusion that all four officers’ statements were all inaccurate in two respects, the second of which was dealt with by the judge as follows: [72]      … Mr. Robinson told the IHIT investigator, at page two of his statement, that “he grabbed a stapler and tried to hit us with it.” [73]      At page 9 of the same statement, Mr. Robinson said: It happened really quick to where he grabbed the stapler and tried to hit us with it. [74]      At page 10 he said: I remember telling Cst. Millington to deploy the Taser because he was um, swinging the stapler. Then on the following page: I remember him taking a step forward and then he was swinging the stapler and that um, ah, like he’s swinging the stapler like the um, up high and then he’s just like he’s swinging it um, to try to push us back or ah, an attempt to hit us. [75]      In a general occurrence report written on October 14, 2007, Cst. Millington said Mr. Dziekanski “picked up a stapler and advanced toward members.” He was interviewed by IHIT for a second time on October 15, 2007.  In that statement, he said: he knocked over some things that were on the desk and ah then he reached and grabbed the stapler, had in the open position and had it raised high and then started advancing towards us. [76]      In a written report specifically addressed to use of the Taser, Millington said “the male swung the stapler wildly with his arm at the members” and “the male raised the stapler in one arm and raised the other fist.” [77]      Cst. Rundel’s October 14 statement to IHIT refers to Mr. Dziekanski “putting the stapler up above his head, motioning, making motions with it, uh, towards us.” Cst. Bentley, in his statement, says at page 7: he grabbed the stapler and he kind of flings it out in front of him and he’s kind of holding it up, pointing it towards the members…the way he grabbed the stapler, he kind of swung it right out in a fast motion, almost like he was trying to hit myself and corporal Robinson. Later in the same statement, Cst. Bentley said “he kind of swung it at us.” [78]      The Pritchard video shows Mr. Dziekanski walking away from the police, clearly empty handed, at three minutes and 41 seconds from the start of the recording.  At 3:42, he steps behind a desk and is then out of view for three seconds. He presumably picked up the stapler at that point. At 3:45 he is seen facing the officers with his back to the camera.  The Taser is fired five seconds after that. [79]      During those five seconds before the Taser is fired, Mr. Dziekanski’s hands are not visible, but it appears from the position of his arms that he does not raise his hands above approximately waist or at most shoulder level.  His upper arms remain at or near his side.  While he may have made some movement with the hand holding the stapler, there is nothing that can remotely be described as a swinging motion . Only when he is stumbling in apparent reaction to the Taser does he raise his hand above his head, with the stapler visible in it, for about one second. [80] The four officers describe Mr. Dziekanski using the stapler in very similar terms that simply did not reflect what actually happened. Again, I find it inconceivable that they could have all made the same mistake about such an important fact and find the evidence is consistent only with a discussion in which they arrived at an agreed upon version of events . [81]      In their various statements and reports in the days following the incident, all four officers referred at some point to Mr. Dziekanski’s “combative behaviour.” That is another of the striking similarities the Crown relies on. [82]      At the point when the Taser is fired, Mr. Dziekanski appears to have just taken a step back from the officers, suggesting his behaviour is not at all combative. However, there are nine seconds immediately preceding the use of the Taser when he is either out of view or has his back to the camera . I therefore cannot, beyond a reasonable doubt, exclude the possibility that something in his demeanour might reasonably have been perceived as aggressive or combative. If that was the case, I agree with defence counsel that use of the same words by all four officers is consistent with police officers being trained to use a certain jargon - what McEwan J. referred to in R. v. Bentley , 2013 BCSC 1364 as “cop speak.” [83]      However, I find that the four officers’ similar but clearly false statements about Mr. Dziekanski swinging the stapler and having to be wrestled to the ground are not consistent with common error and could only be the product of discussion amongst them. [Emphasis added.] [67] The Pritchard video is certainly not persuasive evidence that the officers falsely described Mr. Dziekanski’s use of the stapler. [68] When he considered the question whether the video showed Mr. Dziekanski to be “combative”, the trial judge noted that certain gestures were hidden from view and he could not exclude the possibility that something in Mr. Dziekanski’s demeanour might reasonably have been perceived as aggressive or combative. The same uncertainty, in my view, should have coloured his assessment of the use of the stapler depicted in the Pritchard video. [69] Examination of the same video for the same purpose by three other judges led to a different conclusion. For reasons that follow, I am of the opinion that some weight may properly be placed upon their serial interpretation of the Pritchard video. [70] The trial judge correctly observed that issue estoppel does not arise from the findings in R. v. Bentley . Ehrcke J. had arrived at that conclusion in dismissing a preliminary challenge to the prosecution of Cst. Millington, for reasons reported at 2014 BCSC 756. In upholding that decision on appeal, Harris J.A. for this Court (2016 BCCA 293), cited passages from the judgment in R. v. Tran , 2014 BCCA 343. In that case Frankel J.A. had described persuasive reasons for dismissing a similar argument: [59]      To accept the appellants’ argument would effectively overrule Guimond v. The Queen , [1979] 1 S.C.R. 960. That case decided that when two persons charged with conspiring together are tried separately, the acquittal of one does not necessarily invalidate the conviction of the other. In other words, B can be convicted of conspiring with A, even though A has been acquitted of conspiring with B. The reason for this is that the evidence admissible against each of them may well be different . [Emphasis added.] [71] Harris J.A. concluded in Millington : [50]      The trial judge applied the law correctly. He did not err in his application of the law in permitting the Crown to pursue the collusion averment at the trial of Cst. Millington. [72] Given our judgment in Millington , it must be regarded as settled law that the acquittals of Cst. Bentley and Cst. Rundel do not give rise to an estoppel. It is not suggested that the prosecution of the other officers after the Bentley acquittal amounts to an abuse of process. But the fact that the cases are not legally relevant in that sense does not mean that no importance should be ascribed to them. As Tran establishes, conflicting outcomes may result from separate trials where the admissible evidence is different in each. The troubling fact in this case is that the differing outcomes followed careful consideration of substantially the same evidence. The four officers’ statements to IHIT, the eyewitness accounts collected at the airport, the Pritchard video and the officers’ notes were considered by all four trial judges. [73] The differences between the cases – the accused officers’ differing opportunities to observe events, their differing degrees of experience and training, and the fact that those acquitted denied collusion by saying they did not remember any agreement to concoct a false story whereas those convicted expressly denied any agreement – were not critical to the differing outcomes. All cases hinged upon a consideration of whether there were demonstrable errors in the four officers’ initial accounts of the events of October 14, 2007 and, if so, whether those were, beyond a reasonable doubt, the result of the officers speaking to each other prior to giving statements. [74] In R. v. Bentley , the trial of the first officer charged, McEwan J., after closely comparing the statements made by the four officers with the Pritchard video, found at para. 219 that there was only one statement that was “certainly incorrect”: that Mr. Dziekanski remained on his feet after being Tasered and had to be wrestled to the ground. When considering the evidence concerning the use of the stapler McEwan J. noted: [209]    In my view, what that evidence shows is that while it is possible to debate nuances in the various descriptions, there is a basis on which all of the following perceptions could be found to be facts: (1)  That Mr. Dziekanski was combative; (2)  That Mr. Dziekanski picked up a stapler; (3)  That Mr. Dziekanski addressed the members in a loud voice; (4)  That Mr. Dziekanski made a gesture or gestures with the stapler; (5)  That after he was hit by the Taser Mr. Dziekanski appeared to fight through it; (6)  That after going to the floor as a result of the Taser Mr. Dziekanski was difficult to subdue and handcuff. [75] In R. v. Millington , 2015 BCSC 515, Ehrcke J. convicted Cst. Millington of perjury, having found that six of ten averments, including the averment he lied to the Inquiry when he testified there had been no discussions between the officers before they gave statements to IHIT, had been proven. However, in his reasons for judgment, Ehrcke J. found there to be only one strikingly similar false statement: the officers’ testimony that Mr. Dziekanski had to be wrestled to the ground after being Tasered. He placed no reliance upon the similarity in the evidence with respect to the use of the stapler. The Crown was found not to have proven that Cst. Millington lied when he testified to the Inquiry that when he said his statement on October 15, 2007 that Mr. Dziekanski had the stapler “raised high” was a reference to Mr. Dziekanski having the stapler above his waist, and did not intend to convey that the stapler was raised high in the air. [76] In R. v. Rundel , 2015 BCSC 1090, Gropper J., having closely examined the Pritchard video, concluded at para. 133 that the Crown had not established similarities in the officers’ evidence could only be explained by collusion. In particular, the Crown had not proven it was false to say that “Mr. Dziekanski was looking to fight and/or was exhibiting ‘combative’ behaviour towards the officers; … was yelling and/or moving towards the officers; [and] swung a stapler at the officers ” (emphasis added). [77] These decisions provide some support for the view I have arrived at, having looked at the video, that the trial judge erred in regarding it as conclusive evidence that the officers all lied with respect to the manner in which Mr. Dziekanski handled the stapler. [78] While the video evidence is inconclusive, the evidence of independent witnesses suggests the officers did not falsely describe the use of the stapler. That evidence was not addressed by the trial judge, who referred to the evidence of independent witnesses only when considering whether it could be said the appellant might have perceived Mr. Dziekanski to have remained standing after having been Tasered. In relation to that issue, he asked whether an experienced police officer might have made the same error as that apparently made by those witnesses. [79] The independent evidence before the judge, transcripts of the evidence of witnesses at the Bentley trial and statements to IHIT, was also before Gropper J., who described it (at para. 65) as follows: a)         At Cst. Bentley’s trial, Sidarth Arora described Mr. Dziekanski as generally being hostile towards the police, including grabbing a stapler and trying to swing it at the officers . He agreed that in his IHIT statement he claimed Mr. Dziekanski was tackled by two or three police officers and that, from his vantage point, it might have happened. He also agreed that he described Mr. Dziekanski as wobbling but still resisting and fighting when he was initially Tasered. b)         Lorne Meltzer described at Cst. Bentley’s trial that Mr. Dziekanski suddenly produced a stapler from somewhere, raised it and then made a leaning motion like he was going to go towards one of the officers to his right. c)         Lance Rudek, who was a security guard working at YVR at the time of the incident, described at Cst. Bentley’s trial that Mr. Dziekanski was backing off from the officers in order to put up a fight, holding the stapler in an elongated position, squeezing it and making little swipes with it towards the officers . Mr. Rudek agreed he said at the Braidwood Inquiry that he saw an object being waved around and directed at the officers . He also agreed that he told the IHIT investigator that Mr. Dziekanski was not going down as a result of the Tasering and it took two or three officers a couple of seconds to get him to the ground. d)         At Cst. Bentley’s trial, Gregory Sambrook described Mr. Dziekanski as acting aggressively towards the officers, making an aggressive move towards them, grabbing an object, which he later found out was a stapler, and swinging it at one of the officers . He stated that from his vantage point he was able to see Mr. Dziekanski from the upper chest and upwards only, yet he was still able to see him waving and swinging the stapler in his hand . He agreed that in his statement he said the officers tried to “take him down physically and that wasn’t working”; then as he was Tasered, he stepped back and “fell to the ground.” g)         In her statement to IHIT, Sima Ashrafina described Mr. Dziekanski as grabbing what looked like a black stapler and waving it . She also described him as taking one or two steps while waving the stapler at a police officer and shouting before being Tasered. Ms. Ashrafina said that Mr. Dziekanski was keeping his hand close to his right shoulder and not extending his arm too far. l) Finally, in his statement to IHIT, Adam Williams described Mr. Dziekanski as going into a rage when the police officers approached him and picking up what looked like a pair of scissors and making a striking motion with his fist in the air. He said Mr. Dziekanski fell to the ground immediately upon being Tasered but then got back up while the officers continued to Taser him, screaming and hollering. [Emphasis added.] [80] In my opinion, the conclusion that the officers’ statements to IHIT were demonstrably false in two respects is not supported on the evidence. The police description of Mr. Dziekanski’s use of the stapler is consistent with the evidence of independent eyewitnesses and not clearly inconsistent with the video evidence. [81] The judge’s conclusion that the stapler could not have been wielded in the way described by the officers went to the core of his reasoning process; it played a key role in the finding of collusion. The significance in this case of the trial judge’s conclusion there were two false statements in all of the officers’ accounts of events should not be understated. Each must presumably have contributed to the “strong inference” described by Ehrcke J. in Millington at para. 92: Where the testimony of the accused is demonstrably false, the absence of a reasonable explanation for the error may raise a strong inference that the accused was aware the testimony was false: R. v. Kovacs , [1974] 3 W.W.R. 562 (Alta. S.C.A.D.) at p. 566. [82] The finding of collusion was key to the conviction in relation to both averments. As Newbury J.A. points out, the trial judge, in finding that Averment Two had been proven, rejected the appellant’s evidence that he was, at any point, mistaken about wrestling Mr. Dziekanski to the ground. The judge concluded the appellant knew from the outset that this story was false. That conclusion was, in part, based upon his view that the appellant was unlikely to have been mistaken with respect to what happened, given his expertise and opportunity to observe events. However, it was also expressly based upon the evidence in support of Averment Seven, proof the officers colluded. [83] The convictions based upon both Averments Two and Seven was founded upon the trial judge’s conclusion that it had been proven beyond a reasonable doubt that the four officers reached an agreed-upon version of events, or colluded, prior to giving their statements to IHIT. That agreement was found to have resulted in a consistent, favourable version of events. The appellant was found to have lied about that fact with the intention of misleading the Inquiry. That conclusion undermined the appellant’s evidence that he had confounded the sequence of events in relation to how Mr. Dziekanski was taken to the ground, and supported the conclusion he had perjured himself by testifying to that effect. [84] The misapprehension regarding the stapler evidence, critical to the trial judge’s conclusion the four officers had colluded, was of the sort that meets the standard described by Newbury J.A., drawn from R. v. Morrissey (1995), 97 CCC (3d) 193 (Ont. C.A.), R. v. Lohrer , 2004 SCC 80 and R. v. Swales , 2014 BCCA 350:  it related to a question of substance and played an essential role in the reasoning process resulting in conviction. [85] There is support for this proposition in the conclusions of the other judges who considered the same evidence that led to the appellant’s conviction. I agree with the appellant’s submissions that the judgments in Bentley and Rundel have some limited use in addressing whether a conviction may be sustained in light of the misapprehension of evidence. [86] As I mentioned earlier, the statements made by the officers to IHIT, the statements made by witnesses, the Pritchard video and the officers’ notes were reviewed by all three of the trial judges in the other perjury cases. The trial judge in this case is the only one who found the statements made by the officers to IHIT were false in two respects. In particular, he was the only judge who concluded the statements were demonstrably false with respect to the use of the stapler by Mr. Dziekanski. [87] The trial judge in Bentley concluded: [220]    … The Crown has not shown that in any particular Mr. Bentley made a false statement knowing it to be false and with intent to mislead the Inquiry . The Crown has advanced a suspicion based largely on circumstantial evidence. As to each particular, however, and as to the indictment taken as a whole, there are other explanations, inconsistent with the guilt of the accused that remain open on the evidence. [88] On appeal, MacKenzie J.A. for this Court, at 2015 BCCA 251, upheld Cst. Bentley’s acquittal: [61]      The judge’s reasonable doubt as to Cst. Bentley’s guilt arose from “a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond a reasonable doubt” ( J.H.M. at para. 39). In particular, having declined to infer collusion, the judge applied the correct test from R. v. Griffin, 2009 SCC 28, and concluded he was not satisfied beyond a reasonable doubt that the only rational inference from the circumstantial evidence was the guilt of Cst. Bentley. [89] The trial judge in Rundel dismissed the charge of perjury, including an averment that Cst. Rundel committed perjury when he testified that he could not recall whether he discussed with his fellow officers the details of the incident before providing his statement to IHIT. While the judge distinguished the case against each of the three officers charged prior to Cst. Rundel, the acquittal on this averment clearly hinged upon the conclusion that the Crown had not proved Cst. Rundel had discussed the incident with his fellow officers. Gropper J. explained: [150]    I find that the Crown has not proved that Mr. Rundel made a false statement at the Inquiry when he said that he did not recall whether he discussed with his fellow officers the details of the incident involving Mr. Dziekanski; neither has the Crown proved that his October 14, 2007 statement to the IHIT investigators was the result of collusion . [Emphasis added.] [90] In light of these cases, it cannot be said with any confidence that the trial judge would have concluded there had been collusion between the officers if he had found there to have been only one demonstrably false assertion in the officers’ initial statements. The fact that one common error is not determinative of the question is illustrated by the acquittals of Csts. Bentley and Rundel. [91] For that reason, I would allow the appeal, set aside the conviction and order a new trial on the charge of perjury described in Averments Two and Seven. “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Henareh, 2017 BCCA 24 Date: 20170112 Docket: CA43305 Between: Regina Respondent And Esfandiar Henareh Appellant Before: The Honourable Mr. Justice Savage (In Chambers) On appeal from: an order of the Supreme Court of British Columbia, dated December 4, 2015 ( R. v. Hanareh , 2015 BCSC 2455, Vancouver Docket No. 26235-4) Application for judicial interim release pending appeal. Oral Reasons for Judgment Counsel for the Appellant: J.P.E. Desbarats Counsel for the Respondent: W.P. Riley Place and Date of Hearing: Vancouver, British Columbia January 10, 2017 Place and Date of Judgment: Vancouver, British Columbia January 12, 2017 Summary: The applicant seeks leave to appeal sentence and release from custody pending that appeal. Held: leave to appeal sentence granted, release from custody refused. It has not been shown that the appeal has sufficient merit that it would cause unnecessary hardship if the applicant were detained in custody. [1] SAVAGE J.A. : The bail applicant, Esfandiar Henareh, was convicted of one count of possession of opium for the purpose of trafficking. His conviction appeal was dismissed 10 January 2017: R. v. Henareh , 2017 BCCA 7. Mr. Henareh was sentenced on 4 December 2015 to 3 years’ imprisonment. [2] With the Crown consenting, I granted leave to appeal his sentence on 10 January 2017. Mr. Henareh also seeks release from custody pending the hearing of his sentence appeal in this court. The Crown is opposing his release. The sentence appeal could be heard as early as March of this year. [3] The applicable provisions of the Criminal Code , R.S.C. 1985, c. C-46 (the “ Code ”) with respect to Mr. Henareh’s application for release pending his sentence appeal are ss. 679(1)(b) and (4), which provide: 679(1) A judge of the court of appeal may, in accordance with this section, release an appellant from custody pending the determination of his appeal if, (b) In the case of an appeal to the court of appeal against sentence only, the appellant has been granted leave to appeal; (4) In the case of an appeal referred to in paragraph (1) (b) , the judge of the court of appeal may order that the appellant be released pending the determination of his appeal or until otherwise ordered by a judge of the court of appeal if the appellant establishes that (a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody; (b) he will surrender himself into custody in accordance with the terms of the order; and (c) his detention is not necessary in the public interest. [4] With respect to s. 679(4) of the Code Mr. Henareh must first establish that his appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody. I am satisfied that there are arguable grounds for challenging the order made by the sentencing judge. However, the Crown says that even if Mr. Henareh were to succeed in reducing the sentence, that would not result in a term of imprisonment that would justify his current release. In order to satisfy s. 679(4)(a), Mr. Henareh would have to show sufficient merit in his grounds of appeal relating to the period of three years’ incarceration imposed on him, that failure to release him would result in unnecessary hardship. [5] The merits threshold for obtaining release on bail pending a sentence appeal is more stringent than that for obtaining release on bail pending a conviction appeal. This is so because when an applicant applies for bail pending his or her sentence appeal, there is no longer any question of whether there was a wrongful conviction: R. v. Dibbs, 2006 YKCA 3 at paras. 5-9; R. v. Wilder , 2007 BCCA 344 at paras. 13-14. [6] In imposing the three year sentence on Mr. Henareh the sentencing judge said this: [95]      Mr. Justice Davies, in the sentencing of Mr. Salamat Ravandi, addressed the range of sentencing in cases involving opium in Ravandi at paras. 31-33: [31]      Having said that, however, the importation of opium does not generally amount to sentences in the range of trial for the importation of other Schedule I drugs, including trafficking in heroin or cocaine: see R. v. Pocasangre , 2013 BCSC 193 at para. 26, and R. v. Dyal , 2007 BCSC 623 at para. 18. [32]      That is so because, as noted by Justice Wedge in R. v. Eshghabadi , 2009 BCSC 1875, para. 41, in referring to the Ontario Court of Appeal decision in R. v. Abolmolouk (1987), 23 O.A.C. 144: [41]      The Court of Appeal noted the evidence of an expert who said that opium is not a very marketable commodity in Canada except in certain ethnic groups. While a hard narcotic, it has only one-tenth the strength of heroin. The Court, citing the LeDain Commission on Non-Medical Use of Drugs, noted that smoking opium produces a decidedly lower dependence liability than morphine or heroin. [33]      Accordingly, the range for sentencing in importation of opium cases is, I have noted, in the three‑to seven‑year range, not the much higher range appropriate for sentencing for the importation of heroin or cocaine. [96] The most instructive cases with regard to range of sentence are Eshghabadi and Ravandi . Although both cases involved importation as well as possession for the purpose of trafficking, I find the ranges stated therein of assistance in the circumstances of this case of possession for the purpose of trafficking. [97] Notwithstanding an appropriate range of sentence being determined, I agree with defence counsel regarding the individualized nature of sentencing. The cases cited, particularly Nesbitt , have thorough discussions of that fundamental principle of sentencing. The sentence must be a fit sentence for this offender. [98] With regard to the immigration consequences, I note the case of R. v. Pham , 2013 SCC 15. Mr. Justice Wagner states at para. 20: Collateral immigration consequences are but one relevant factor amongst many others related to the nature and the gravity of the offence, the degree of responsibility of the offender and the offender’s personal circumstances. [99] In this particular case, those immigration consequences are not clear. Mr. Henareh may receive a warning letter rather than a removal order. If such a removal order is granted, he will likely be allowed to stay in Canada pending the danger opinion process, and may not be deported depending upon the result of that process. [100] In this case, the offence is possession for the purpose of trafficking rather than importing. The primary principles are deterrence and general denunciation. The quantity is large - 14 kilograms. The opium was imported into Canada as part of an ongoing scheme involving at least two shipments of which Mr. Henareh had knowledge. He was a trusted employee of the former co-accused, Mr. Salamat Ravandi. In that role, he was in the course of assisting to accept delivery of a shipment on the day that surveillance led to his arrest. [101] I am mindful of the rehabilitation of Mr. Henareh which it is submitted is evident by his continuing to be a hard-working family man. [102] In arriving at a fit sentence, I take into consideration the findings of fact and the aggravating and mitigating factors particularly the ongoing involvement and knowledge of Mr. Henareh; the nature and quantity of the drug opium; and the family circumstances of Mr. Henareh, as well as his health and immigration status. The totality of those factual considerations, the principles of sentencing and the case law take this case outside of the sentencing position of defence counsel. [7] Mr. Henareh referred to three decisions of this Court: R. v. Pirouz , 2009 BCCA 51, R. v. Kreutziger , 2005 BCCA 231 ( sub nom. R. v. Breakey ), R. v. Mai , 2005 BCCA 615. In Pirouz , this Court upheld a conditional sentence of 2 years less a day to be followed by two years of probation. Mr. Henareh argues that he is eligible for a similar sentence. The sentencing judge concluded that Mr. Pirouz’s “unique personal circumstances justified a departure from the usual range” to the extent that it permitted her to consider a conditional sentence: Pirouz at para. 10, referring to R. v. Pirouz, 2008 BCPC 413 at paras. 79-81 [ Pirouz (BCPC)]. [8] Mr. Pirouz was an addict and a convention refugee from Iran who suffered PTSD and depression, and a medical report said that if imprisoned it was “all but certain that his emotional state will unravel”: Pirouz at para. 13. This Court upheld the sentence outside the range of 3-5 years for similar offences on the basis of personal circumstances, namely the sentencing judge’s assessment that “the effect that jail would have on this particular person … is substantial, more so that any of the other parties that have been described in any of the other cases”: at paras. 15-17. [9] In Pirouz the court observed that sentencing is an inherently individualized process and that ordinarily incarceration will flow for a significant period of time from the circumstances before it, but for the rather unique personal circumstances before them. Mr. Henareh is not similarly situated to Mr. Pirouz. He is not an addict or a convention refugee, nor is there any suggestion of mental health issues. He was found in possession of substantially more opium than Mr. Pirouz (14 kilograms vs. 5.6 kilograms). Mr. Henareh is 46 years of age. Mr. Pirouz was 34. [10] Another comparator case is R. v. Aghabeigi, 2004 BCCA 26. In that case, Ms. Aghabeigi was sentenced to 3 years imprisonment for possession for the purposes of trafficking, concurrent with a 3 year sentence for importing. The offences involved 9.6 kilograms of opium. This Court upheld the sentence, though noting that the sentence was “lenient” and that “[t]he range is clearly much higher than two years less a day”: at paras. 17, 20. [11] Ms. Aghabeigi was 41 years of age; Mr. Henareh is 46. Ms. Aghabeigi had two daughters who were young adults; Mr. Henareh has one daughter who is a young adult. Both Ms. Aghabeigi and Mr. Henareh had no prior criminal record. There are some differences. Ms. Aghabeigi suffered from depression and other health issues and had been living on welfare for several years. By contrast, Mr. Henareh has a history of employment and has not advanced any mental health issues. The quantity of opium involved in Ms. Aghabeigi’s case was less than that in Mr. Henareh’s, and she had one-time involvement, which is what Mr. Henareh alleges is the appropriate finding here. [12] One further issue bears consideration. Other cases, including Pirouz and R. v. Eshghabadi, 2009 BCSC 1875, have considered the immigration consequences attaching to the sentence pursuant to s. 36 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 . Those cases were decided when there was a profound distinction (namely the ability to appeal a removal order) between the immigration consequences arising from a sentence of two years less a day versus a sentence of two years or more. Now, this distinction attaches to a sentence of less than six months versus six months or more: Faster Removal of Foreign Criminal Acts, S.C. 2013, c. 16, s. 24 , amending the Immigration and Refugee Protection Act, s. 64(2) . [13] The cases discussed above and by the sentencing judge indicate that the range of sentences, even if there are some errors as alleged, is well above six months. Collateral immigration consequences are not a basis for imposing a disproportionately lenient sentence: see R. v. Pham, 2013 SCC 15 at paras. 14-15; R. v. Gonzales, 2016 BCCA 436 at paras. 2-3, 23-27, 30; R. v. Sanghera, 2016 BCCA 251 at paras. 50-53, 58-63. In my opinion, this is not a case where immigration consequences will bear on the fit and proportionate sentence. [14] I have also considered the other cases referred to by the applicant but have not found them helpful. The objective of releasing an applicant on bail pending a sentence appeal is primarily to ensure that the time the applicant spends in custody pending his sentence appeal is not greater than the time, if any, he or she would have spent in custody under a fit sentence. As I am not convinced that the appeal has sufficient merit that it would cause unnecessary hardship if Mr. Henareh is detained in custody, I dismiss the application for release from custody pending the hearing of the appeal. “The Honourable Mr. Justice Savage”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Hoppe, 2017 BCCA 25 Date: 20170112 Docket: CA43385 Between: Regina Respondent And Peter Hoppe Appellant Before: The Honourable Chief Justice Bauman The Honourable Mr. Justice Frankel The Honourable Madam Justice Fitch On appeal from: An order of the Provincial Court of British Columbia, dated October 15, 2015 ( R. v. Hoppe , New Westminster Docket 78358-1). Oral Reasons for Judgment Counsel for the Appellant: K.B. Westell Counsel for the Respondent: S.E. Elliott Place and Date of Hearing: Vancouver, British Columbia January 12, 2017 Place and Date of Judgment: Vancouver, British Columbia January 12, 2017 Summary: Appeal by H. from his conviction on a charge of breaking and entering a restaurant. H.’s fingerprint was found on the underside of the cash register which had been moved from the front counter into another room. The trial judge rejected H.’s evidence that he had touched the cash register on an earlier occasion when he stole money from the till. Held: Appeal dismissed. It was open to the trial judge to draw the inferences she did. Her verdict was not unreasonable nor did she misapprehend the evidence. [1] FRANKEL J.A. : Peter Hoppe appeals his conviction on a charge of breaking and entering with intent to commit an indictable offence following a trial before Judge Alexander of the Provincial Court of British Columbia. The place broken into was a small family-run restaurant. Mr. Hoppe’s fingerprint was found on the underside of the restaurant’s cash register. In convicting Mr. Hoppe, the trial judge rejected his evidence that he placed his fingerprint on the cash register when, at a time prior to the break-in, he stole money from the till. [2] The break-on occurred while the restaurant was closed over New Years. Forced entry was gained through a window facing the alley; an unsuccessful effort had been made to pry the back door open. The restaurant was ransacked and food and other items taken. The cash register, which ordinarily sits on the front counter, had been moved into another room and placed on a table. The drawer for the till was on the floor and money had been removed. The restaurant owner’s husband discovered the break-in on the morning of January 2, 2015, and notified the police. Two other small businesses and a vacant unit on the same block had also been broken into. [3] Mr. Hoppe was a regular customer of the restaurant. He worked at nearby store that sold locks among other things; he was somewhat of a handyman. In 2014 the owner’s son asked Mr. Hoppe to install a new lock on the restaurant’s front door and to fix the back door. Both the son and the owner were present while Mr. Hoppe did so. The owner was in the habit of leaving the cash register’s drawer open when she was in the restaurant. [4] A police forensic-identification officer located two fingerprints on the underside of the cash register by tilting the register on its side; it weighed approximately 30 pounds. The officer was able to lift only one of those prints. That print, which was on the left side of the register, was from Mr. Hoppe’s left middle finger. The print’s orientation was such that Mr. Hoppe would have been facing the register as you would to operate it when he touched the underside. [5] The officer also recovered fingerprints consistent with someone pulling themselves through the back window but those prints could not be matched to anyone. The officer testified those prints did not contain sufficient detail to exclude Mr. Hoppe. [6] A pry bar was found in one of the other businesses that had been broken into and a latex glove was found in the vacant unit. No DNA or fingerprints were found on the pry bar. DNA was found on the inside and outside of the latex glove but was not sufficient for analysis. [7] Mr. Hoppe testified that he was addicted to heroin when he fixed the restaurant’s doors. He said just before finishing that work he could see that the cash register’s till was open and seized the opportunity to quickly steal $16. In cross-examination he said that he “hit the bottom of the till” and then that he “grabbed the bottom of it.” With respect to why he “grabbed” the cash register he said (while making a gesture with his left hand) (verbatim): The whole till opens. Pulled it open ‘cause I didn’t know how -- where the drawers went, if it was the whole piece to pull it and again it popped open, the whole square so [8] The trial judge instructed herself in accordance with R. v. W.(D.) , [1991] 1 S.C.R. 742. She rejected Mr. Hoppe’s testimony and found that, on the evidence she accepted, that the Crown had proven its case beyond a reasonable doubt. In so doing, the judge stated: [13]      When considering the evidence, I find the explanation of the defendant for the presence of his fingerprint underneath the cash register to be contrived. It is apparent on the evidence of the two owners, the mother and the son, that the cash drawer was frequently left open or partly open, and in the circumstances it is not credible that the defendant would reach underneath what was testified by Cst. Robinson as a 30-pound cash register to access funds from the till when the drawer was already partly open. It is also not credible that he would do this at a time when the defendant testified himself that he was unsure of the exact whereabouts of the shop owners, keeping in mind that this is a small premises and he testified that Mr. Husang (phonetic) was close behind him. [14]      The location of the cash register was also in the front of the shop where it would have been visible to anyone passing by on the street or other customers and it is unclear if there were any other customers in the shop, but as I have indicated both the complainant and her son were working that day and did not see the defendant at any time access the cash register. [15]      I find that on the whole of the evidence that the fingerprint was put on the cash register when the defendant moved it during the break and enter over the New Year's period from the front room to the middle room of the premises. I find that he was the perpetrator of the break and enter. [16]      The other events in nearby properties and who the perpetrators may have been is pure speculation. I find that the evidence of the defendant, I do not believe it, it does not raise a reasonable doubt, and on the whole of the evidence I find him guilty as charged. [9] On appeal, Mr. Hoppe contends that: (a) the verdict is unreasonable; (b) the circumstantial evidence left open a reasonable inference inconsistent with guilt; and (c) the trial judge misapprehended the evidence. In oral submissions he concentrated on the first of those grounds. I would not accede to any of his arguments, some of which overlap. [10] For the most part, Mr. Hoppe seeks to have this Court retry the case and make a credibility finding in his favour that the trial judge was not prepared to make. He seeks to dissect and isolate aspects of the judge’s reasons in an attempt to show she made findings incompatible with the evidence. For example, he submits the statement in para. 14 of those reasons – that neither the owner nor her son saw Mr. Hoppe “access the cash register” on the day he fixed the doors – ignores the fact that both witnesses acknowledged there may have been times when they lost sight of him. However, in reviewing the evidence of those witnesses the judge stated that while they believed they had Mr. Hoppe in view at all times, they could not say they had never lost sight of him: para. 11. [11] Another example is Mr. Hoppe’s argument that the weight of the cash register, which the trial judge refers to in para. 13 of her reasons, was irrelevant. I disagree. It was common ground that the cash register’s drawer was left open. As a matter of common sense, the judge was entitled to consider whether someone who intended to steal money from an open till would place his other hand underneath the cash register. [12] As the cases indicate, a single fingerprint can support a conviction: see R. v. O’Neill (1996), 71 B.C.A.C. 295; R. v. Gauthier , 2009 BCCA 24, 264 B.C.A.C. 298; R. v. Chudley , 2015 BCCA 315. In the absence of a credible explanation for how Mr. Hoppe’s fingerprint came to be on the underside of the cash register, it was open to the trial judge to find that it was placed there when Mr. Hoppe moved the cash register away from the front counter of the restaurant. [13] With respect to Mr. Hoppe’s arguments that the trial judge misapprehended the evidence, in my view those are nothing more than disagreements with the judge’s interpretation of the evidence. As Madam Justice Stromberg-Stein stated in R. v. Swales , 2014 BCCA 350, 360 B.C.A.C. 291, leave to appeal ref’d [2016] S.C.C.A. No. 68: [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. [14] The last argument I will address is Mr. Hoppe’s submission that the trial judge erred because she did not, after rejecting his evidence, go on to consider the possibility that he could have placed his fingerprint on the cash register at some other time. There is, however, no evidence from Mr. Hoppe or any other witness that Mr. Hoppe ever touched the cash register when he attended at the restaurant as a customer. Indeed, as a customer he would have had no reason to come into contact with the cash register, let alone its underside. The suggestion now made – which was not made at trial – is completely speculative and is not one that the Crown needed to negate: see R. v. Villaroman , 2016 SCC 33 at paras. 36 – 38, 338 C.C.C. (3d) 1. [15] I would dismiss this appeal. [16] BAUMAN C.J.B.C. : I agree. [17] FITCH J.A. : I agree. [18] BAUMAN C.J.B.C. : The appeal is dismissed. We thank counsel for their excellent submissions. “The Honourable Mr. Justice Frankel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Koopmans, 2017 BCCA 10 Date: 20170112 Docket: CA43216 Between: Regina Respondent And John Ike Koopmans Appellant Before: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Tysoe The Honourable Mr. Justice Willcock On appeal from:  An order of the Supreme Court of British Columbia, dated April 11, 2015 ( R. v. Koopmans , Penticton Registry 41337). Counsel for the Appellant: H.M. Patey and M. Reinhart Counsel for the Respondent: M. Levitz, Q.C. Place and Date of Hearing: Vancouver, British Columbia November 9, 2016 Place and Date of Judgment: Vancouver, British Columbia January 12, 2017 Written Reasons by: The Honourable Mr. Justice Willcock Concurred in by: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Tysoe Summary: The appellant challenges his convictions on two counts of second degree murder and one count of attempted murder. He argues the trial judge erred in declining to give a Vetrovec warning in respect of a Crown witness with an alleged history of involvement with drugs. He further argues the judge erred by not permitting the defence to adduce evidence of the witness’ medical records and hearsay statements said to go to his credibility. Finally, the appellant argues the judge erred in her charge to the jury by not including a lesser included offence of attempted murder and by confusing the jury by engaging in serial revision and clarification of the charge. Held: appeal dismissed. The judge appropriately exercised her discretion to not give a Vetrovec warning. Further, the appellant was not precluded at trial from adducing the credibility evidence he now claims he was not able to adduce. Finally, the judge did not err in her charge to the jury. Assault is not necessarily an included offence in attempted murder. The judge’s method of revising and clarifying the charge was not so confusing as to undermine the verdicts in this case . Reasons for Judgment of the Honourable Mr. Justice Willcock: Introduction [1] On April 11, 2015, after deliberating for two days, a jury found the appellant guilty of the second degree murder of Robert Wharton, the second degree murder of Rosemary Fox, and the attempted murder of Bradley Martin on March 30, 2013, contrary to s. 235(1) and 239(1) of the Criminal Code, R.S.C. 1985, c. C‑46 . [2] All convictions are appealed on the basis that the trial judge erred in law by: a) failing to instruct the jury that it must find something in the nature of confirmatory evidence before relying upon the evidence of a witness, Bradley Martin, said by the appellant to be a person of disreputable character, whose testimony occupied a central position in the demonstration of guilt (i.e., failing to give a “ Vetrovec warning”); b) failing to allow evidence relevant to the credibility of Bradley Martin to be put before the jury (i.e., statements made by Mr. Martin to a police officer considered by the trial judge to be hearsay; and certain of Mr. Martin’s medical records); and c) failing to instruct the jury in a clear fashion, by periodically revising the charge in response to submissions in a manner that is said to have been confusing. [3] Further, an appeal of the conviction for the attempted murder of Bradley Martin is founded upon the argument that the judge erred in law by failing to leave any lesser included offence in relation to that charge with the jury. Lesser Included Offences [4] I do not agree that the judge was required to instruct the jury with respect to lesser included offences. Count 3 of the indictment in this case reads as follows: John KOOPMANS, on or about the 30th day of March, 2013, at or near Princeton, in the Province of British Columbia, did, using a firearm, attempt to commit the murder of Bradley MARTIN, contrary to section 239(1)(a) of the Criminal Code. [5] The appellant says if the jury concluded he had shot at Mr. Martin but that intent to kill Mr. Martin was not proven beyond a reasonable doubt, “it would have been proper to convict him of the lesser included offence of assault with a firearm.” He argues that because no instruction was provided to the jury and he was convicted “on the more serious offence”, a new trial is needed. [6] In my view, no lesser offences are included in the attempted murder charge laid in this case. Assault is not an included offence in attempted murder simpliciter : R. v. C.D.; R. v. C.D.K ., 2005 SCC 78 at para. 59. As Watt J.A. noted in R. v. Pelletier , 2012 ONCA 566: [105]    One offence may be included in another in any of three ways: i. by description in the enactment creating the offence; ii. by description in the indictment or count in which the accused is charged; or iii. by specific statutory provision. See, R. v. Simpson (No. 2), (1981), 58 C.C.C. (2d) 122 (Ont. C.A.) , at p. 133 ; Luckett v. The Queen , [1980] 1 S.C.R. 1140 , at p. 1141 . [106]    An “included offence” is part of the main (principal) offence. The offence charged as described in the enactment that creates it, or in the count that charges it, must contain the essential elements of the included offence: Simpson , at p. 133; R. v. Fergusson , [1962] S.C.R. 229 , at p. 233 . [107]    Section 239(1) of the Criminal Code creates the offence of attempted murder: Simpson , at p. 134. However, the subsection, in particular its phrase “by any means”, does not “describe” the ways in which the offence of attempted murder may be committed: Simpson , at p. 140. The offence of attempted murder may be committed without committing an assault or causing any bodily harm whatsoever: Simpson , at p. 142. It follows that, “as described in the enactment creating it”, attempted murder does not include any crime of assault or unlawfully causing bodily harm: Simpson , at pp. 142‑143. [108] Sections 662(2)‑(6) permit conviction of certain offences on indictments for other crimes. The effect of these provisions is to declare certain offences to be included in other offences. Nothing in these provisions permits a court to convict an accused of aggravated assault on an unparticularized count of attempted murder. [Footnotes omitted.] [7] The indictment in this case included the words “using a firearm” but that alone, in my view, did not amount to such particularization as to make the indictment an expanded charge that included assault. As the Court noted in Pelletier , considering a similarly drafted charge: [110]    Attempted murder is one of several offences in the Criminal Code that attracts a minimum punishment when firearms are used in its commission. The inclusion of the words “while using a firearm” in a count that charges attempted murder puts an accused on notice that, if a conviction of attempted murder is entered, he or she will be subject to a minimum punishment in accordance with the scheme put in place by sections 239(1)‑(3): R. v. Manley , 2011 ONCA 128, (2011), 269 C.C.C. (3d) 40 , at paras. 54‑61 ; R. v. D.(A.) (2003), 173 C.C.C. (3d) 177 (B.C.C.A.) , at paras. 29-31 . The addition of the phrase “while using a firearm”, does not amount to a particularization of the means by which the offence was committed, thus cannot serve to expand the offences included in the description of the enactment creating the principal offence. [8] Because the indictment in this case states the offence was committed by the appellant “using a firearm”, not “by using a firearm” or “by shooting with a firearm”, it amounts to the same thing as the charge in Pelletier , that the appellant committed the offence “while using a firearm”. That being the case, and because I agree with the reasoning of Watt J.A., I would dismiss the appeal on this ground. The Vetrovec Warning [9] A voir dire was held to determine if Bradley Martin, a witness who clearly played a central position in the Crown’s case, was a person of such unsavoury character that the jury should be warned, as a matter of common sense, that something in the nature of confirmatory evidence should be found before relying upon his evidence. (The warning described in R. v. Vetrovec , [1982] 1 S.C.R. 811 ). The oral reasons for judgment on the voir dire are indexed as 2015 BCSC 2517. [10] The appellant notes that in R. v. Brooks , 2000 SCC 11, the Supreme Court of Canada identified the two factors to be weighed in determining whether a Vetrovec warning is necessary: the credibility of the witness and the importance of the witness' evidence to the case. The Court rejected the suggestion that the categories of witnesses who might attract such a warning are limited, for example, to jailhouse informants and accomplices. The appellant submits the trial judge applied such a categorical standard, either by requiring evidence that the witness was involved in an operation comparable to a “crystal meth emporium”, or by requiring evidence the witness was a jailhouse informant, an accomplice, or a perjurer to warrant a Vetrovec warning. [11] The appellant submits the test for a Vetrovec warning is “broader, more nuanced, and more case-specific” than that described by the judge. He says Brooks describes the appropriate analysis: a court asked to provide a Vetrovec warning must first consider whether there is an objective basis upon which to suspect the credibility of the witness. Once there is found to be such an objective basis, the court must consider the importance of the evidence of that witness. [12] It is common ground that the testimony of Mr. Martin, as the only eye-witness, was central to the Crown’s case. When a witness’ testimony is essential to the Crown’s case, the threshold which may draw a Vetrovec warning is lowered. [13] The Crown says a Vetrovec warning is not called for whenever the credibility of a witness is challenged or doubtful, but necessary only where the witness has “a disreputable or untrustworthy character” (per Bastarache J. at para. 3 of Brooks ). The Crown concedes a witness might be found to attract the caution as a result of a criminal record or drug use, but says Mr. Martin’s criminal record is dated and his association with drugs is below the threshold to warrant the Vetrovec warning because the evidence did not establish Mr. Martin has an amoral character, lives a criminal lifestyle, has a history of dishonesty or an interest in the outcome of the trial. [14] There is no dispute that the categories of witnesses who might attract a Vetrovec warning are not fixed. In R. v. Khela , 2009 SCC 4, Fish J. said: [31]      …trial judges, rather than attempting to “pigeonhole” witnesses as an “accomplices”, ought instead to consider all of the factors that might impair their credibility and decide on that basis whether a special instruction is necessary. [15] At para. 3 of Khela, Fish J. described the witnesses who attract the warning as including “all witnesses who, because of their amoral character, criminal lifestyle, past dishonesty or interest in the outcome of the trial, cannot be trusted to tell the truth – even when they have expressly undertaken by oath or affirmation to do so.” [16] In my view, the trial judge did consider all of the factors that might impair Mr. Martin’s credibility and decided on that basis a special instruction was not necessary. Having considered Vetrovec and Brooks , the judge held “the question that has evolved is whether the witness is unsavoury or not.” She did not limit the class of persons who might attract the warning, as suggested by the appellant. [17] The judge expressly considered factors said to impair Mr. Martin’s credibility: his criminal record (two theft under offences from 1984, possession of marihuana in the early 1980s, and a guilty plea to a charge of possession for the purpose of trafficking about five years before his testimony); allegations made by the defence that Mr. Martin was involved in drug trafficking; his acknowledged marihuana and cocaine use; and evidence that Mr. Martin sold crack cocaine in a small amount for under $100 to one of the victims, Robert Wharton. The judge also referred to the fact that Mr. Martin lived in the Wharton house, and that there was some evidence there may have been drug activity there. However, she also noted that there was conflicting evidence in relation to some of these allegations that would have to be weighed by the jury. She noted that a police search of the Wharton residence had not turned up evidence of crystal meth production, as had been suggested to Mr. Martin. She considered Mr. Martin’s involvement with drugs to be substantially different from the Vetrovec witness in R. v. Cliff, 2015 BCCA 15. Weighing all of that, she concluded (at para. 13): “I do not believe that Mr. Martin has attracted the threshold of requiring a Vetrovec warning, such that it would be dangerous to convict on his evidence.” [18] The decision whether to give a Vetrovec warning is discretionary and thus attracts deference on appellate review. The Crown, citing R. v. Bevan , [1993] 2 S.C.R. 599 at 602; R. v. Brooks at paras. 4, 24; R. v. Mariani , 2007 ONCA 329 at para. 24, says this Court can only intervene in that determination if we conclude there was no foundation for the trial judge’s exercise of her discretion. I would adopt Bastarache J.’s description of our role on appeal from Brooks at paras. 3‑4: It is … within the trial judge’s discretion to give a Vetrovec caution.  This discretionary approach was confirmed by this Court in R. v. Potvin , [1989] 1 S.C.R. 525, at p. 557, wherein Wilson J. states: Vetrovec , in my view, represents a rejection of formalistic and a priori categories concerning the trustworthiness of evidence both with regard to warnings and corroboration. In every case it is for the trial judge on the basis of his or her appreciation of all the circumstances and, may I add, on the basis of the application of sound common sense, to decide whether a warning is required .  [Emphasis added by Bastarache J.] Provided there is a foundation for the trial judge’s exercise of discretion, appellate courts should not interfere. [19] While the necessity of a warning is to be determined on a case-by-case basis, it should be borne in mind, as Binnie J. noted in Brooks at paras. 130‑131, that the Vetrovec warning serves to impart to jurors the benefit of the judicial experience that teaches that the evidence of particular witnesses should be approached with caution. However, where, as in the case at bar, the witness’ testimony is said to be suspect for reasons that generally are not outside a jury’s experience, the imperative to give the warning may be attenuated. In my opinion, the nature of the conduct said to make the witness “unsavoury”, and in particular, whether that conduct is likely to be outside the jury’s experience, is one of the factors to be weighed by the judge in the exercise of her discretion. [20] Mr. Martin could certainly be considered unreliable, untrustworthy, or tainted on the basis of the evidence considered during the voir dire . However, the evidence of Mr. Martin’s involvement in the drug world was not such that, as argued by the appellant, Mr. Martin should be seen as a disreputable or untrustworthy witness requiring a Vetrovec warning. Instead, issues with regard to Mr. Martin’s credibility could correctly be addressed in the charge to the jury. In my opinion, the trial judge in this case did what Vetrovec and Brooks direct a trial judge to do: she directed her mind to the facts of the case, and examined all the factors that might impair the credibility of the witness. For that reason, I would not accede to this ground of appeal. Evidentiary Rulings Hearsay [21] The Crown witness called before Bradley Martin, Sgt. Joanne Skrine of the RCMP, testified that she obtained a statement from Mr. Martin on April 2, 2013 at the Kelowna General Hospital, where he was recovering from a gunshot wound. The statement and a photo lineup were recorded on video. She was asked in cross-examination by defence counsel if Mr. Martin said he was convinced RCMP officers were conspiring against him. She said he had. She was then asked if Mr. Martin claimed an RCMP officer who attended the scene was dancing and skipping in front of him. The Crown objected on the grounds the information sought was hearsay, related to a collateral matter and would amount to evidence from Sgt. Skrine about Mr. Martin’s opinion on another officer’s attitude and demeanour. Crown counsel argued that if the accused sought to admit Sgt. Skrine’s evidence of the statements made by Mr. Martin, the Crown would seek to play an unedited video record of Mr. Martin’s hospital statement. Defence counsel withdrew the question. [22] When questioning resumed, defence counsel asked Sgt. Skrine about her impression of Mr. Martin’s demeanour, which led to a further Crown objection. Defence counsel then proposed that the video be played in full to the jury. The court ruled that there was an inadequate evidentiary foundation to permit the video to be played as a record of a prior statement by the witness. [23] In the course of the submissions on this point, the judge noted defence counsel had not provided a reason to admit the hearsay evidence of Sgt. Skrine regarding Mr. Martin’s statement. In response, defence counsel submitted that the evidence of Mr. Martin’s description of his interaction with the police was not being adduced for the purpose of proving the truth of his statements but, rather, to establish what he said, presumably to establish that he was irrational and an unreliable witness. Defence counsel noted that Mr. Martin, who had not yet testified, might claim not to remember making such statements or deny making them, and if that were the case the defence would have lost the opportunity to elicit this evidence. Further, counsel argued Mr. Martin’s statements fell into the res gestae exception to the hearsay rule. [24] The judge ruled that Sgt. Skrine’s evidence of Mr. Martin’s statements amounted to hearsay, and there was no necessity to admit the statements given the availability of a videotape that might be put to the witness to impeach his testimony if necessary. [25] Mr. Martin did later testify. In cross-examination he agreed that he spoke to the police while in the hospital and made certain statements read to him by defence counsel concerning drug use. He testified with respect to past negative encounters with the police and about his recollection that a police officer had blocked him from entering the ambulance at the scene of the crime, which precluded him from receiving medical care. He further testified that the officer directed that he should be tilted downward in the ambulance leaving the scene. He was not cross-examined with respect to anything he said at the hospital about the RCMP conspiring against him. The request to play the video of the hospital interview was not renewed. Medical Records [26] In cross-examination Mr. Martin denied the suggestion that he had mental health problems about six months before the murders of which the appellant was convicted. Defence counsel sought to show Mr. Martin a psychiatric consultation in his medical records. When the Crown objected, defence sought to have the records received in evidence as prima facie proof of the facts recorded, as records made contemporaneously by someone having a personal knowledge of the matters recorded and under a duty to record them , relying on the description of hospital records as such in Ares v. Venner , [1970] S.C.R. 608. Defence argued that the medical records were reliable; they had been disclosed prior to trial, the witness had been questioned on them at the preliminary inquiry, and they went to the heart of a credibility issue. [27] The judge did not make a ruling on the objection, but sought submissions from defence counsel on whether the criteria for admissibility pursuant to s. 30 of the Canada Evidence Act , R.S.C. 1985, c. C‑5, or under the common law exception to the hearsay rule, had been met. Defence counsel was not prepared at that point to deal with the issue of admissibility. The judge offered to stand down so counsel could prepare submissions. More than once the judge later asked defence counsel how the issue would be addressed and whether it might be resolved by putting the diagnosis described in the records to Mr. Martin directly. Defence counsel cross-examined Mr. Martin and, while he denied he ever had a mental illness, he agreed he had seen a psychologist, and been admitted to a psychiatric ward for three days. Later in the trial, defence counsel advised the judge that the defence was no longer seeking admission of Mr. Martin’s medical records. [28] There is, therefore, in my opinion, no basis on which to say the trial judge ruled on an application to adduce medical records, much less erred in doing so. [29] In my view, it cannot be said that the trial judge precluded defence counsel from adducing evidence that might have been used to impeach Mr. Martin’s credibility. The attempt to introduce evidence of Mr. Martin’s conduct in the hospital was abandoned by defence counsel. The statements of Mr. Martin’s defence counsel sought to introduce through Sgt. Skrine were ultimately introduced through cross-examination of Mr. Martin himself. There is no suggestion the appellant’s counsel sought to adduce any evidence from Sgt. Skrine that was not admitted by Mr. Martin. In the result the ruling on the hearsay objection was immaterial to the case of the defence. There is no merit in this ground of appeal. Confused Instructions [30] The judge provided a 117‑page charge to the jury. She made several corrections to the instructions as they were read to the jury and made further changes after the conclusion of the charge and submissions of counsel. For the reasons set out below, I am of the opinion that neither the individual corrections nor their global effect can be said to have been so confusing as to undermine the verdicts in this case. Corrections Made While Reading the Charge Section 229(c) of the Criminal Code: [31] Shortly after reading to the jury a passage in the written instructions that referred to s. 229(c) of the Criminal Code (causing death while pursuing an unlawful object) the judge informed counsel that she had intended to refer to s. 229(a) (causing death with intent to cause death or intent to cause bodily harm). The judge corrected the error orally and provided the jury with a copy of s. 229(a) to add to their written materials. [32] This correction is relatively simple and unlikely to have been confusing. The Penalty Provision [33] When reading a passage citing s. 239(1) of the Criminal Code , the judge noted that the penalty provision had erroneously been included. Section 239(1) reads: Every person who attempts by any means to commit murder is guilty of an indictable offence and liable (a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of (i) in the case of a first offence, five years, and (ii) in the case of a second or subsequent offence, seven years; (a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (b) in any other case, to imprisonment for life. [34] She advised the jury that the penalty provision (all of s. 239(1) following the first two lines) was not applicable to their task, and later re‑read s. 239(1) without the penalty provision, and provided the jury with a replacement page setting out only the relevant portion of s. 239(1): Every person who attempts by any means to commit murder is guilty of an indictable offence [35] This correction is also relatively simple and unlikely to have been confusing. Similar corrections in R. v. Weeds , [1993] O.J. No. 328, 18 W.C.B. (2d) 523 (Ont. C.A.) ; and R. v. Meston (1975), 28 C.C.C. (2d) 497 (Ont. C.A.) were found not to have resulted in any substantial wrong or miscarriage of justice. Attempted Murder [36] When reading the instructions, the judge realized the charge suggested some task might remain for the jury if they found the appellant not guilty of attempted murder (which might have been the case if there had been a lesser included offence). She immediately corrected that impression, simply saying that if they found the appellant not guilty of attempted murder that should end their consideration of that charge, “full stop”. They were instructed: Unless you are satisfied beyond a reasonable doubt that John Koopmans meant to kill Bradley Martin, you must find John Koopmans not guilty. Your deliberations would be over. If you are satisfied beyond a reasonable doubt that John Koopmans meant to kill Bradley Martin, you must go on to the next question. [37] She then recognized that the rest of the description of the attempted murder charge required clarification. She removed a sentence suggesting the jury would “have little trouble finding that Mr. Martin was assaulted with a firearm”, but otherwise kept the instructions unchanged with respect to the essential elements of the charge. The jury was given a corrected version of the charge with respect to attempted murder to replace pages in the original instructions. [38] In my view, these changes and clarification also cannot be said to have resulted in any confusion, substantial wrong or miscarriage of justice. Subsequent Corrections [39] Further changes were made following submissions by counsel in relation to the adequacy of the instructions, after the jury had retired and before deliberations. The judge drafted written corrections of the description of some evidence in the charge; corrected instructions with respect to two legal questions; and modified the jury verdict sheets. The jury was simply given the corrections and asked to insert them at the appropriate place in the written instructions. [40] The factual corrections were: DNA Evidence [41] The written instructions initially referred to the testimony of an expert with respect to the presence of blood in two places on the appellant’s jeans. Accepting the submissions of counsel, the judge corrected the description of the tests. The jury was given a replacement page revising the relevant passages in the written charge. The Handgun [42] The written instructions initially referred to the appellant’s testimony that his .357 “Ruger” handgun was fired at a party in 2007. The Crown informed the judge that the gun was referred to in the evidence as a Smith and Wesson. The jury was also given a replacement page to insert in the written instructions correcting this error. [43] The corrections to the legal instructions were: Attempted Murder [44] There was a correction to the portion of the instructions addressing the attempted murder charge. The written instructions initially stated, at one point, that if the appellant assaulted Bradley Martin with a firearm, this amounted to attempted murder. The Crown pointed out assault with a weapon could constitute attempted murder only if the appellant had the requisite intent to kill. The jury was given a replacement page to insert in the written instructions correcting the relevant passage, to reflect that submission. It is important to note, however, that the instructions from the outset contained a description of both the mens rea and the actus reus of attempted murder. The deleted words were an inapt summary that was unnecessary to the charge. Its removal made the instructions clearer. Offences Included in Murder [45] Under the heading “Intoxication and Intent”, in relation to the murder charges, the jury was instructed in writing that if they accepted evidence of intoxication, the appellant would only have the intent necessary for manslaughter. The Crown pointed out that there was no reference in the charge to the definition of manslaughter. That was added and the jury was given a four-page addition to the written charge describing the included offences to first degree murder (second degree murder and manslaughter) and the definition of manslaughter. [46] I agree with the Crown’s submission that the jury evidently was not confused about the verdicts available to them, given that they found the appellant not guilty on the two counts of first degree murder but guilty of second degree murder. [47] There is no complaint with respect to the description of the defence of intoxication in the original charge and the jury clearly rejected that defence. It is difficult to see any evidence of confusion in the verdict. Verdict Sheets [48] Last, the verdict sheets first given to the jury did not permit the jurors to indicate if they found the appellant not guilty of second degree murder or not guilty of manslaughter. The sheets they first received for Counts 1 and 2 gave them the option to put an “X” under either “guilty” or “not guilty” of first degree murder, but only “guilty” for second degree murder and manslaughter. The judge acceded to the defence submission that the sheets should properly permit the jury to indicate that the appellant was not guilty of second degree murder and manslaughter. The jury was given this oral instruction and received a corrected verdict sheet. [49] The need for this change was obvious and it cannot have been confusing. The Overall Effect of the Corrections [50] Despite the fact that individual corrections were not in themselves confusing, we must consider whether the instructions as a whole became so due to the number and sequence of the corrections and the manner in which they were made. [51] The role of this Court, when called upon to consider the adequacy of instructions to a jury, has recently been described by Stromberg-Stein J.A. in R. v. Alexander , 2015 BCCA 484; and repeated by Frankel J.A. in R. v. Hume , 2016 BCCA 105; and by Harris J.A. in R. v. Robinson , 2016 BCCA 192. In the words of Stromberg-Stein J.A. in Alexander : [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. [52] The appellant submits that in this case the charge as a whole became unclear “through a lengthy and disjointed process of revision, insertion, and further revision”. The jury had initially been instructed that where written instructions differed from those presented orally, the oral instructions should be followed. The appellant says no instructions were given to the jury following the corrections to reconcile this with the fact that the last instructions had come in the form of written revisions without additional oral instructions. There was no other explanation of the cause of the initial error or the significance of the deletions, additions or changes. However, all of the additions and changes to the charge were eventually read to the jury and formed part of the oral instructions and the jury was instructed to ignore any portions of the charge that were deleted or replaced. When changes had been made during the course of the reading of the initial instructions, the jury had been told by the judge that mistakes sometimes creep into a charge and corrections are necessary. In my view, the jury was left with no uncertainty with respect to what to make of those portions of the written charge replaced. They were told to ignore the discarded parts of the charge and the new charge was read to them, becoming the effective charge. [53] The appellant says it is troubling that the jury asked no questions regarding these instructions, as it is impossible to determine what, if any, confusion resulted from the manner of instruction. He argues that while it is unclear exactly what impact this may have had on the verdict, it is not possible to say with certainty that it had no impact. [54] It is the Crown’s position that the revisions the judge made to the charge would not have misled or confused the jury with respect to their understanding of the issues they had to decide. None of the revisions would have confused the jury on the main issue they had to determine, identity, as the revisions did not touch on that issue. [55] In addressing this ground of appeal, I give some weight to the following facts: a) Counsel were given an opportunity to make submissions with respect to the initial charge and despite its length, have never suggested that the charge, prior to the revisions, was confusing or unclear; b) After concluding her charge, and having made some corrections while reading the charge, the judge invited counsel to make submissions. It was not suggested at that time that the corrections made while the charge was being read were confusing or unclear. Instead, further corrections were sought; c) The judge then made the revisions suggested by counsel by providing the jury with written copies of the revisions; d) Neither counsel suggested the manner in which the changes were made – by inserting pages in the written instructions – might cause confusion; e) When counsel suggested that all corrections should be read to the jury, that was done; f) No counsel requested the judge to explain to the jury why the corrections were being made; g) It is not now suggested there are any errors in the revised charge; h) The jury deliberated for two days and did not ask any questions that would suggest they were confused; and i) The jury sought no clarification of the charge. [56] Although the instructions were long and required serial revision, I am not persuaded, in the words used in R. v. MacKay , 2005 SCC 75, that the instructions mislead or confused the jury or otherwise had an adverse impact on the fairness of the trial. Here, as in MacKay at para. 2, “ the jury was ultimately left with a clear understanding of its duty and adequate guidance as to how it was to be discharged”. [57] The corrections made in this case were effected in an attempt to ensure the jury was properly instructed with a view toward doing justice. As pointed out by Major J. in R. v. Ménard , [1998] 2 S.C.R. 109 at para. 29: “juries are frequently recharged as a result of counsel’s submissions at the conclusion of the judge’s instructions, and potentially fatal errors are often avoided in this way.” In my view, the difficult task of the trial judge should not be rendered more difficult by constraining too tightly the judge’s ability to make such revisions at the request of counsel. Conclusion [58] I would dismiss the appeal. “The Honourable Mr. Justice Willcock” I agree: “The Honourable Mr. Justice Lowry” I agree: “The Honourable Mr. Justice Tysoe”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Spookw v. Gitxsan Treaty Society, 2017 BCCA 16 Date: 20170112 Docket: CA41986 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 Harris The Honourable Mr. Justice Goepel The Honourable Mr. Justice Savage On appeal from:  An order of the Supreme Court of British Columbia, dated June 18, 2014 ( Spookw v. Gitxsan Treaty Society , 2014 BCSC 1100, Smithers Registry S15150). Counsel for the Appellants: M.L. Macaulay & B. Joseph Counsel for the Respondent Gitxsan Treaty  Society: S.D. Hansen & A. Schalles Counsel for the Respondent Attorney General of Canada: N. Wright & A.P. Singh Counsel for the Respondent Her Majesty the Queen in Right of the Province of British Columbia: K. Phillips & R. Wilson Place and Date of Hearing: Vancouver, British Columbia September 12 and 13, 2016 Place and Date of Judgment: Vancouver, British Columbia January 12, 2017 Written Reasons by: The Honourable Mr. Justice Harris Concurred in by: The Honourable Mr. Justice Goepel The Honourable Mr. Justice Savage Summary: The appellants, certain Gitxsan Chiefs, Indian Bands and the Gitksan Local Services Society, petitioned to the Supreme Court for the winding-up of the Gitxsan Treaty Society under the Society Act, R.S.B.C. 1996, c. 433. The chambers judge dismissed their petition on the basis that the petitioners, who were not members, lacked standing as “proper persons”. He also dismissed their claims against Canada and British Columbia for breach of fiduciary duty and the honour of the Crown. Held: Appeal dismissed. The chambers judge properly considered the procedural history and circumstances of the appellants, and did nor err in exercising his discretion to deny them standing. The claims relating to fiduciary obligations and the honour of the Crown were properly dismissed as they are contrary to the principles of First Nation self-government and the statutory scheme established by the First Nations Summit, British Columbia, and Canada for tripartite and independent treaty negotiations. Reasons for Judgment of the Honourable Mr. Justice Harris: Introduction [1] This is an appeal from an order of Mr. Justice McEwan in which he dismissed the appellants’ claims against the Gitxsan Treaty Society (“GTS”) and against Canada and British Columbia. [2] The appellants’ claim against the GTS is to wind it up or seek oppression remedies against it. The GTS is a society incorporated under the Society Act , R.S.B.C. 1996, c. 433. [3] The appellants are certain Gitxsan Hereditary Chiefs, Indian Bands, and the Gitksan Local Services Society. They filed their original writ and statement of claim in December 2008. For introductory purposes, it is sufficient to observe the thrust of their claim against the GTS. The action arises in the context of treaty negotiations between the Gitxsan First Nation, Canada and British Columbia. The GTS receives funding for and negotiates with the Crown(s) on behalf of the Gitxsan people. The appellants contend that the GTS does not have a proper mandate from the Gitxsan people, is not representative of them, has not acted in their best interests, has restricted consultation and opportunities for participation or involvement in treaty negotiations, all while assuming debt in excess of $21 million for which the Gitxsan people as a whole may ultimately be liable. [4] The appellants are not members of the GTS. Their standing to seek remedies depended on being “proper persons” to do so under the applicable legislation. The chambers judge concluded, on an application for summary judgment brought by the GTS, that they were not proper persons and declined to grant them standing to pursue their claims. At the core of his reasoning is his conclusion that the Hereditary Chiefs had the opportunity to become members of the GTS and advance their concerns from within it, but did not do so, instead choosing to pursue their interests from the outside. One issue that divides the parties is whether he went further and found that, even if they had standing, their claim for relief was bound to fail. [5] The appellants’ claim against Canada and British Columbia sounds in breach of fiduciary duty and the honour of the Crown. They contend those duties were breached when the Crown(s) continued to negotiate with the GTS after receiving notice from the appellants that the GTS did not have the necessary mandate to negotiate on behalf of the Gitxsan people. More particularly, the Crown continued to fund the GTS by loans for which the Gitxsan people may be liable, negotiated about the termination of Indian Bands, band membership, and band lands (the Gitxsan Alternative Governance Model, or “GAGM”) without the consent and participation of the bands, and improperly funded a forestry agreement. These issues also form part of the foundation of the claim against the GTS. [6] Both Canada and British Columbia applied to have the claims dismissed, both as disclosing no reasonable cause of action and by way of summary judgment. The judge granted the order. As I read his reasons, he considered that the issues raised by the appellants engaged matters reflecting internal disputes within the Gitxsan people, most particularly with respect to the mandate and representativeness of the GTS. In the context of a treaty process, no fiduciary duty, as alleged, could arise because the British Columbia Treaty Commission (“BCTC”) is statutorily mandated to assess the mandate of the entity representing the First Nation in arms-length, government-to-government negotiations in which the Crown(s) represents non‑Aboriginal interests. Furthermore, imposing an obligation on either Crown to intervene in an internal dispute would conflict with the principle of First Nations self-governance enshrined in the BC Treaty Process. There is some disagreement between the parties about whether the judge decided these issues and, if so, whether he dismissed the action on the basis that it was plain and obvious that it was bound to fail or whether he granted summary judgment on the basis of applying the law to uncontested facts. [7] The appellants allege the following errors in judgment: In finding that the Appellants are not “proper persons” for the purpose of standing to advance their claim on the basis of the following errors: i. in finding the Appellants could and should have become GTS members, ii. in failing to consider the purposes of GTS as a society in determining what is just in the circumstances, iii. in finding that the Appellants’ interest was only a contingent interest in the outcome of negotiations, and iv. in finding that the claim for winding up was bound to fail. The Chambers Judge erred in failing to make a decision on the Appellants claims against the Crown for breach of fiduciary duty or honour of the Crown. i. In the alternative, if the Chambers Judge did make a decision then he erred by failing to provide sufficient reasons for judgment, ii. He erred in law in finding that the Respondents met the test for striking a claim. [8] This appeal arises in the context of an action with a lengthy procedural history. Before turning more specifically to the errors alleged, I will provide some background that defines the context in which the issues arise and bears on the resolution of the issues on appeal. I will first outline the treaty process. Second, I will provide some description of the parties. Third, I will canvass the procedural history of this litigation insofar as it is relevant to the issues on appeal. Background The BC Treaty Process [9] The BC Treaty Process provides a framework for negotiating treaties between First Nations, Canada and British Columbia. It is the product of an agreement, the British Columbia Treaty Agreement (“BCTA”), between Canada, British Columbia and the First Nations Summit. The BCTA was based on recommendations made in 1991 by a tripartite task force, with terms of reference endorsed by Canada, British Columbia and the First Nations Summit. Certain of those recommendations are relevant to the current case. First, a BCTC be established by agreement among the First Nations, Canada, and British Columbia to facilitate the process of negotiations. Second, the organization of First Nations for the negotiations is a decision to be made by each First Nation. Third, non‑Aboriginal interests be represented at the negotiating table by the Crown(s). Fourth, the respective negotiating teams be sufficiently funded to meet the requirements of the negotiations. And fifth, the BCTC be responsible for allocating funds to the First Nations. [10] The BCTA led to the passage of provincial (the Treaty Commission Act , R.S.B.C. 1996, c. 461 [ TCA ]) and federal legislation (the British Columbia Treaty Commission Act, S.C. 1995, c. 45 [ BCTCA ]). They set out the statutory framework for the BC Treaty Process, including creating the BCTC as an independent, arms-length entity that is not an agent of any of the Crowns or the First Nations Summit ( BCTCA s. 4(3), TCA s. 4) and acts as “facilitator for negotiations in the BC Treaty Process ( BCTCA s. 5(1), TCA s. 5(1)). The BCTC is responsible for assessing a First Nations’ readiness to negotiate in the BC Treaty Process, for ensuring ongoing negotiation mandates, and for allocating funds. [11] The BC Treaty Process contemplates a six-stage negotiation as follows: 1 Filing a Statement of Intent to Negotiate a Treaty 2 Preparing for Negotiations and Assessing Readiness 3 Negotiating a Framework Agreement 4 Negotiating an Agreement in Principle 5 Negotiating a Final Treaty 6 Implementing the Treaty [12] Canada supported its summary judgment application with undisputed evidence describing the BC Treaty Process. This evidence confirms that the BCTC is responsible for assessing each party’s negotiating mandate and allocating negotiation support loan funding. Further, the Statement of Intent informs the BCTC how the First Nation is mandated by its constituency to enter negotiations. The Statement of Intent can be returned by the BCTC if the First Nation body no longer has a mandate from its constituents. The BCTC’s policies and procedures required each party to confirm its negotiating mandate at each stage in the process. [13] Funding for negotiations by First Nations is governed by funding agreements. First Nations must have a legal entity to receive funding. The legal entity which enters negotiation support loan agreements for the Gitxsan First Nation is the GTS. The BCTC allocates the level of loan funding under the BCTCA and the TCA and in accordance with funding criteria jointly established by the First Nations Summit, Canada and British Columbia. Once BCTC allocates the level of loan funding for each year, it instructs Canada to enter into the negotiation support loan agreement. Canada is contractually required to enter into a negotiation support loan agreement on receiving those instructions. [14] The Gitxsan First Nation filed a Statement of Intent with the BCTC and entered the BC Treaty Process on July 15, 1994. Negotiations are at stage 4, namely the negotiation of an agreement in principle. Hence, no binding agreements have been reached at the negotiating table and any treaty would require ratification, on a basis not yet determined, by the Gitxsan. Confirmation of a mandate is also required to progress to the next stage of negotiating a treaty. Negotiations have been supported by loan funding to the GTS. Funds have been allocated by the BCTC in an amount currently in excess of $21 million. The Appellants and Their Place in Gitxsan Society. [15] The appellants comprise five Hereditary Chiefs, four Indian Bands and the Gitksan Local Services Society. In the words of the appellants’ factum: The plaintiffs (the Appellants) are Gitxsan Hereditary Chiefs and members of Gitxsan Houses and Indian Bands. In these proceedings each Chief acts in his or her personal capacity as Hereditary Chief and also represent his or her House. The Appellant Spookw (Geraldine McDougall) represents herself, as well as other Gitxsan Chiefs, matriarchs and members of other Gitxsan Houses who have signed a declaration opposing the conduct of treaty negotiations by GTS. The Appellant Indian Bands, Gitanmaax, Glen Vowell, Gitwangak,and Kispiox, act in their capacity as elected governments and also represent their Band members. The Gitxsan Indian Bands have councils elected under the Indian Act, R.S.C. 1985 c.1‑5 and hold 25 reserves totaling 6000 hectares and have over 5,000 Band members. The plaintiff Gitxsan Local Services Society (known as the Gitxsan Government Commission or “GGC”) is a non‑profit society, which delivers programs and services to members of five Gitxsan Bands. [16] It appears that there is broad agreement between the parties about the structure of Gitxsan society and traditional governance, although, as I understand it, one point of contention within the Gitxsan First Nation lying behind the current dispute is the role and protection of the interests of those Gitxsan who are not members of Houses and the interests of Indian Bands. Nonetheless, I believe the following description, drawn substantially from the appellants’ factum, is uncontentious, at least for the purpose of the issues in this appeal. [17] Gitxsan governance and social structure consists of Houses (Wilps), Clans (Pdeeks) and communities. Gitxsan governance includes both a hereditary system and elected Band governments. There are four Clans and between 60 to 65 Houses. Each House has a Head Chief and Wing Chiefs. Each House has its own history and territory. Each Head Chief is a “trustee” responsible for protecting their House members’ interests and managing the House’s traditional lands and resources. Each House is autonomous. Under Gitxsan law, the Head Chief has authority to speak for the House territories, but no Chief can speak to another House’s interests. Wing Chiefs are entitled to speak on behalf of the House but only in accordance with the direction of the Head Chief. [18] There are six Gitxsan bands each with a band government elected under the Indian Act, R.S.C. 1985, c. I‑5. Further, every person born of a Gitxsan woman is automatically a member of his or her mother’s House or Clan. Some, but not all, Gitxsan Band members are also House members. Roughly 20% to 30% of the appellant Gitxsan Bands’ members are not Gitxsan House members, because they do not have Gitxsan mothers. House membership is not required for a person to be considered Gitxsan. Persons may be recognized as Gitxsan if they are the father of a Gitxsan person, off-spring of a male Gitxsan or a registered status Indian with a Gitxsan Indian Band. Gitxsan Indian bands do not distinguish between members based on whether they belong to a Gitxsan House. All band members have equal rights whether they belong to a House or not. The Gitxsan Treaty Society [19] As noted, the existence of an entity such as the GTS is required if a First Nation is to enter into treaty negotiations. Under the BCTA, a First Nation is defined as: an Aboriginal governing body, however organized and established by Aboriginal people within their traditional territory in British Columbia, which has been mandated by its constituents to enter into treaty negotiations on their behalf with Canada and British Columbia. [20] The BCTC’s “Policies and Procedures” provide: The organization and establishment of a governing body for treaty negotiations is a decision to be made by the Aboriginal people it represents, namely the constituents of the First Nation. [21] For current purposes, and in terms of the definition of a First Nation, the governing body of the Gitxsan is the Hereditary Chiefs, the Simgiigyet, structured as we have seen along matrilineal lines in autonomous Wilps. [22] The GTS was incorporated by the Hereditary Chiefs, as required by the Treaty Process. The details of its incorporation will be canvassed later, but the GTS and the First Nation are distinct. The Simgiigyet, as the traditional leaders of the Nation, hold and exercise the Nation’s Aboriginal rights, including title, on behalf of their Wilp, not the GTS. The Gitxsan Nation, as represented by the Simgiigyet, is the party, the principal, in treaty negotiations with the Crown. The GTS undertakes administrative tasks, at the request of the First Nation, but the Gitxsan Nation retains ultimate control over the treaty process, including not having the GTS act on its behalf. The GTS cannot ratify a treaty. Ratification, and the basis for it, is a matter ultimately for the Gitxsan people. [23] From a review of the pleadings, arguments and various judgments dealing with different issues within this litigation, it appears that a number of issues underlie division within the community, inform the issues on appeal, and partially explain why the GTS has become a lightning rod for criticism. By way of example, the appellant Hereditary Chiefs express concern that the Aboriginal title they hold is being bargained without recognition of their veto over any agreements to which they do not consent. The stated approach in negotiations that the Simgiigyet operates by consensus is inconsistent, the appellants contend, with traditional governance. Indeed, some of the appellants, we were told, object to any participation in treaty negotiations. Moreover, the model of membership in the GTS (which currently permits one representative of each House to be a member) denies recognition to Indian Bands, fails to recognize the interests of Gitxsan persons who are not House members, and is unduly restrictive. By relying on “indirect” membership, the GTS is insufficiently representative, undemocratic, and does not exemplify a principle of “universal suffrage”. [24] These “structural” problems, which go to how the GTS is constituted within the Gitxsan Nation, is compounded, in the view of the appellants, by the way in which the GTS has acted and some of the agreements it is said to have reached. Of particular concern to the appellants is the Gitxsan Alternative Governance Model tabled by the GTS in negotiations. They contend this proposal would adversely affect Aboriginal and other rights and obligations of Gitxsan Hereditary Chiefs and House members, registered Gitxsan band members, band council and land holders on Indian reserve land. The appellants gave notice in 2008 to the Crown(s) and the BCTC of their concerns, attempting to stop negotiations until the GAGM was addressed in the community and their concerns met. Procedural History [25] This action, as originally constituted, named the BCTC in addition to the GTS, Canada and British Columbia. The appellants alleged that the BCTC owed a duty of care in negligence to them to oversee the negotiation process, to ensure the readiness of the Gitxsan people to negotiate in the treaty process, to ensure on an ongoing basis that the negotiators have a mandate, and to allocate funds accordingly. They contended the BCTC breached its duty of care by failing to meet the standard of care required by a reasonable and prudent facilitator of the treaty process, including failing to ensure that the GTS has a valid mandate, is representative and accountable to the Gitxsan people, and in failing to exercise due care and diligence in lending funds to the GTS. [26] For reasons indexed at 2011 BCSC 1001, Mr. Justice Kelleher dismissed the action, concluding that it was plain and obvious that no duty of care as alleged arose in the circumstances. He concluded that the BCTC could not have a duty to involve itself in the internal governance affairs of a First Nation to protect a minority within it. He found that recognizing a duty of care would conflict with the fundamental principle of self-governance for First Nations. In reaching this conclusion, he endorsed the view of Mr. Justice Cullen, as he then was, in Tsimshian Tribal Council v. British Columbia Treaty Commission , 2005 BCSC 860, where he said at para. 59: The question of for what and how the Tsimshian community should be negotiating is an internal question to be decided collectively by its membership. It cannot be decided by the BCTC or by the court. The requirement of securing and advancing a mandate is an open one conducive to debate, persuasion, and resolution through ongoing processes. It is through that essentially political process that the interests and views of those aggregating around the TTC can be furthered. [27] Mr. Justice Kelleher’s decision was not appealed. Although the claim sounded in negligence, the judgment reflected a theme that emerges in the judgment under review, namely that the courts should be cautious (at a minimum) about interfering in the internal affairs of, or political conflicts within, First Nations, especially where they relate to self-government for the purpose of engaging in the Treaty Process. I make no comment on whether the appellants have any other recourse against the BCTC in the discharge of its duties to ensure a First Nation’s mandate in treaty negotiations. The record discloses that the BCTC has been informed of the appellants concerns, but has not taken the position that the GTS has lost its original mandate to engage in the Treaty Process. [28] The second issue that arose was an application pursuant to s. 85 of the Society Act for approval of a list of 37 new members so that the GTS could convene an extraordinary general meeting to decide on the constitution of its board of directors. The reasons approving the s. 85 petition are indexed at 2013 BCSC 974. As the chambers judge commented, those reasons are pertinent to some of the issues in this proceeding. [29] The s. 85 issue arose because of a defect in the then existing GTS bylaws relating to the appointment of directors. The bylaws stipulated that the four clans (Pdeek) had the authority to appoint the GTS’ directors. The Society Act mandates that the GTS’ members have the authority to appoint directors. The structure that had been adopted was an effort to integrate models of Gitxsan governance with the requirements of governance of a society under the Society Act . [30] The s. 85 issue came to light in the context of the GTS’ initial application to strike the appellants’ claim. As a result, the application was adjourned pending a resolution of the defect. As noted by the judge in the decision under appeal: [7]        Among the features of the resolution of the s. 85 issue was a canvass of the whole Gitxsan community to create a representative body of voting members to convene an extraordinary general meeting to appoint a board of directors. The proposal this court approved was that voting members would include all the Hereditary Chiefs of Gitxsan Houses who submitted a membership application. Among the reasons for this Order was a concern that, as previously structured, the Hereditary Chiefs (which includes some of the plaintiffs), could not readily become members. This significantly undermined the GTS’s position that in this proceeding the plaintiffs lacked standing because they were not members of the GTS. It seemed that an intelligible and more inclusive opportunity to apply for membership might result in a situation where the debates that drive these proceedings could take place within the GTS. [8]        None of the Hereditary Chiefs among the plaintiffs took up this invitation. The members ultimately entitled to vote at the extraordinary meeting included some 37 of the approximately 62 Hereditary Chiefs. [31] More detail is provided in the s. 85 reasons: Gitxsan Treaty Society, 2013 BCSC 972. After describing some initial suggestions about how to overcome the defect, the judge described the process actually followed: [30]      The process the GTS adopted was more extensive, given the court’s direction to develop a model that would open participation to the broader community. I have set out the context at para. 5 of these reasons. The segment of the interested community represented by the Spookw plaintiffs have sought the dissolution of the society from outside, that is without standing as members. A rather brief investigation into how they might become members showed that it was rather difficult, and that in any event, membership under the current by-laws did not carry with it the necessary prerogative of a voice in the directors. It appears, in other words, that the only way to influence the governance of the GTS was from the outside. [31]      In order to address these issues, the GTS put forward a plan in four phases: Step one:         Meeting of the Gitxsan Simgiigyet (Hereditary Chiefs) to update and consult with the Simgiigyet about the proposal for resolving the defect in the GTS’s bylaws in a manner that adhered to both Ayookim Gitxsan and the March 27 Decision; Step Two:        Meeting of the Simgiigyet and the broader Gitxsan Nation to appoint new members to the GTS. The GTS’s proposed membership structure asked each Wilp (House) to appoint one member, if that Wilp wanted to participate in GTS governance; Step Three:     GTS returns to court, seeking approval of new membership list that it obtained as a result of the previous two steps; and Step Four:       GTS calls an extraordinary general meeting of new members to revise GTS bylaws. [32]      The BCTC was consulted and attended the meetings. A meeting of the Gitxsan Simgiigyet (Hereditary Chiefs) was held on June 26, 2012. Skanu’u (Ardythe Wilson), one of the chairs of the meeting, summarized the discussion as follows: Many of the Simgiigyet understood references to a “community based” solution in the June Materials to be a reference to Indian Act bands. The Simgiigyet firmly rejected any process for the GTS that was based on Indian Act governance. Instead, the Simgiigyet emphasized that they are the leaders of the Gitxsan Nation and are meant to control the GTS. They insisted that the Gitxsan’s Wilp (House) system must be respected, and must not be placed by Indian Act communities. During the meeting, GTS representatives clarified that any reference to “community-based” in the GTS’s proposal was a reference to the Gitxsan Huwilp (Houses), and not Indian Bands, and the Simgiigyet accepted that clarification; Many of the Simgiigyet questioned why it was necessary to prove the Gitxsan’s hereditary system again, because the Gitxsan already had succeeded in doing so before the Supreme Court of Canada in the Delgamuukw case; A large majority of the Simgiigyet agreed that if the GTS was broken, they had a responsibility to fix it. However, that “fix” must respect Ayookim Gitxsan (Gitxsan law). This point was stressed repeatedly at the meeting; and The Simgiigyet did not want to accept foreign structures, like the provincial society, and expressed frustration that their own systems and laws were not being respected by the Crown. The Simgiigyet understood that they had no option but to use the provincial structure in order to be eligible for treaty funding, because of the Crown’s position on that issue, but accepted the use of a provincial entity under a sense of duress, or because they felt they had no other choice. [33]      Ms. Wilson declared at the end of the meeting that a consensus had emerged approving the four step process. [34]      A further meeting was held July 17 - 19, 2012. Efforts were made to distribute materials giving notice of the meeting throughout the Gitxsan Nation. These included: (a)        the GTS posted the July Materials in public areas around the Gitxsan’s territory, like Band offices and bulletin boards in the various Band communities. one was posted at the bulletin boards at the Kispiox Band Office and Glen Vowel Band Office, and also at the Royal Bank in Hagwilget; (b)        the GTS ensured the July Materials remained the top post on its website, beginning July 6 until the meeting concluded on July 19; (c)        the GTS posted the June Materials on a Facebook page used regularly by opponents of the GTS on July 6; and (d)        the GTS issued a news release about the July Meeting on July 10, clearly stating the meeting’s purpose was “to admit new members to the GTS and re‑affirm the GTS’s continuing mandate to support the Simgiigyet and the Gitxsan people in their efforts to advocate for Gitxsan Aboriginal rights in treaty negotiations...” The news release also clearly stated that the meeting was “open to all Gitxsan”. [35]      Ms. Wilson again co-chaired the meeting. She deposes that 66 Simgiigyet and 50 others attended; as well as the GTS “directors” and staff. [36]      Each Wilp was told it could submit a membership application to the GTS if it wanted to appoint a GTS member. Each Wilp was left to decide internally whether it would do so. At the end of the meeting 37 names were put forward from Huwilp that were supportive. Some 18 Simgiigyet indicated that they did not wish to put forward a name from their Wilp. [37]      The GTS submits that this process demonstrates a substantial effort to involve all Gitxsan Huwilp, and gave everyone an opportunity to participate. They have now presented the 37 named individuals they propose should form the reconstituted membership of the GTS in order to make the necessary revisions to the GTS by-laws. [32] The court approved the proposed structure. Before doing so, the judge had to decide whether he should grant the current appellants standing in that petition. The judge took note of the position of the appellant Hereditary Chiefs, who were respondents to the s. 85 petition, noting that none of them had taken up the opportunity to influence the GTS from within by becoming members. He acknowledged their submission (at para. 48) that: ... should only members have standing, an organization can immunize itself by limiting membership. GTS has deliberately kept its membership small in the past and, according to their proposal developed during the January 2012 Gimlitxwit meeting, they will have a maximum membership of approximately 65 members despite claiming to speak for all Gitxsan people. Some of the Spookw Plaintiffs, the Bands and those they represent, are completely excluded from membership. The other Spookw Plaintiffs, the Hereditary Chiefs, are unable to join in membership because they cannot agree with the membership structure adopted by GTS that unfairly restricts membership,... If the Respondents are not found to have standing, it would allow GTS to continue to restrict its membership so as to immunize itself from challenges on grounds of lack of standing. At the very least, the issue of standing cannot be decided as a preliminary matter, and can only be determined after hearing all of the evidence on the petition. [33] In dealing with standing the judge observed that ordinarily, granting standing to non‑parties is premised on there being no other way for a matter of importance to be brought before the court. It is not, he said, normally an alternative means by which people who have chosen not to take standing in a more conventional way (e.g., by participating in membership) can come before the courts. Second, he concluded that the GTS was not akin to a government. It was an agency of the Gitxsan Nation with only power to make recommendations that the community must ratify in order to be binding. The third is that the submission he noted in para. 48 was premature. The proposal was only to create a slate of members who would then go on to appoint directors to do whatever the society chooses to do respecting membership. In refusing to participate, the respondents had given up an opportunity to persuade the other initiating members of their point of view. [34] The appellants made various submissions before the chambers judge in the s. 85 proceeding, including alleging violations of Gitxsan law by the GTS and its proponents, as well as irregularities in the meetings that were held to consult the community about the new GTS structure: see paras. 57‑64. The chambers judge noted the issue before him was narrow: [68]      My task on this petition is not to pronounce on the merits of the larger controversies between the factions who support the treaty process and those who do not. It is to address the defect in an entity of some long standing that has to date, in the Treaty process, been accepted by the BCTC as an agency of the Gitxsan Hereditary Chiefs. As the BCTC has indicated, the GTS operates while it has the confidence of the Gitxsan Nation and could cease to be the negotiating agent for the Gitxsan if the Nation so decided. [69]      The BCTC explained that its role in the meetings leading to the proposed restructuring process, in 2012, “related to the mandate issue”; it specifically wanted the GTS to seek confirmation from the Gitxsan Hereditary Chiefs and the broader Gitxsan community respecting their collective wishes regarding the GTS administration of treaty matters on behalf of the Gitxsan Nation. Nothing before me suggests that issue was settled in a way that presently compromises the standing of the GTS, although the question of “mandate” is not presently before the court. Reasons for Judgment [35] Given that the appellants were not members of the GTS, the relief they sought depended on them being found to be “proper persons” to seek its winding-up. This issue was governed by provisions of the Society Act and the Company Act , R.S.B.C. 1996, c. 62 , in place at the time this action commenced in December 2008. There have been amendments since. At times relevant to these proceedings, s. 71 of the Society Act incorporated portions of the Company Act , which had, for other purposes, been repealed. Section 71 of the Society Act read as follows: Despite the repeal of the Company Act, R.S.B.C. 1996, c. 62, Part 9 of that Act continues to apply to a society and an extraprovincial society as though Part 9 of that Act had not been repealed. Part 9 of the Company Act includes s. 271(1): A company, on the application of the company, member, director, creditor, a trustee for debentureholders, a receiver manager, or the minster may be wound up by court order. Section 271(4) reads: For the purposes of this section, a member includes (a)        a beneficial owner of a share in the company, and (b)        any other person who, in the discretion of the court, is a proper person to make an application. Section 272 allows a court hearing a winding up application brought by a member to make an order for winding up or under s. 200, the oppression provision, “if [the court] is of the opinion that the applicant is entitled to relief either by winding up the company or under s. 200”. [36] Much of the judgment is given over to a comprehensive summary of the arguments advanced by the parties on the issue of standing. In brief, the GTS argued that a grant of standing to non-members is available only on narrow grounds, typically where the non-member has a direct stake or financial interest in the affairs of a society, but owing to unforeseeable circumstances is not actually a member. The GTS acknowledged that the power to grant standing is discretionary, not disputing the proposition from First Edmonton Place Ltd. v. 315888 Alberta Ltd. (1988), 60 Alta. L.R. (2d) 122 (Q.B.), that the court has “a broad power to do justice and equity in the circumstances of a particular case, where a person, who otherwise would not be a “complainant”, ought to be permitted to bring an action under [the Alberta Business Corporations Act ] to right a wrong done….” [37] The GTS stressed that the Hereditary Chiefs chose not to become members despite the opportunity to do so, and the Indian Bands are statutory entities with no relationship to the GTS. Although the appellants are or might be affected by the activities of the GTS and are persons whose interests are among those sought to be advanced by it in negotiations, the appellants are not stakeholders in the GTS and have no direct interest in its assets or liabilities (including any loan debts). Granting standing would undermine the position of those who have actually participated in the GTS, effectively “hijacking” it. [38] The appellants grounded their submission on an argument that any agreement negotiated by the GTS would have permanent effects on the Gitxsan people’s rights. They claimed a direct interest in the assets and liabilities of the GTS. They contended that they had been excluded from involvement in treaty negotiations and their rights have been compromised without their knowledge, involvement or agreement. They contended that they have a direct interest in the treaty negotiations because it is their rights and interests that are the subject of negotiations. The GAGM would have profound effects on Gitxsan band members and their interests, including the abolition of the Indian Bands. This, they submit, is sufficient for granting standing to the appellant Bands. They argued that the GTS has no mandate and is unrepresentative. It is only just that they have standing to advance their claims. The appellants submit, moreover, that they are constituents of a “First Nation” as defined in the First Nation Negotiating Support Agreement and may thus be said to have a role in mandating the GTS to enter treaty negotiations on their behalf. [39] The chambers judge acknowledged how the appellants may be affected by the conduct of the GTS, but noted that any agreement would have to be put to a vote of the Gitxsan people before it could be adopted (at para. 123). Moreover, he found that the appellants do not have a “direct” pecuniary interest in the GTS. Their interest is, at this point, only a contingent interest in the negotiations (at para. 125). The chambers judge noted the grounds for granting standing on indirect, non-pecuniary interests are “circumscribed”, and considered the Hereditary Chiefs to have “forsworn the opportunity to work inside the GTS for the changes they would like to see” (at paras. 126‑128). Finally, the chambers judge considered this to be a political dispute within the Gitxsan First Nation. The principle of self-government inherent in the Treaty Process should not be undermined or compromised through interference by the Crowns or the courts. In conclusion, the chambers judge noted: [136]    The plaintiffs’ submissions that the Gitxsan people are effectively members of a community that directs the GTS and are, therefore, “proper persons”, would negate the purpose for which the GTS was incorporated, that is, to provide a legal entity which can negotiate with the Crown(s) in the Treaty process, and a mechanism for the receipt and accounting of Treaty negotiation funding. There are means to wind up the GTS if the community and its leaders decisively choose to use them. [137]    As matters now stand, however, the plaintiffs’ advance propositions that amount to dissenting political views they ask the court to endorse and impose, in circumstances where they have been unable (or unwilling) to carry the burden of persuasion of their point of view within the community as a whole. Did the Judge Err in his Conclusion on Standing? [40] The parties agree that the appellants’ standing to seek winding-up remedies is dependent on them being found to be “proper persons” under the then-in-effect s. 271(4) of the Company Act which states: For the purpose of this section, a member includes (a) a beneficial owner of a share in the company, and any other person who, in the discretion of the court, is a proper person to make an application. [41] Equally, it is common ground that conferring standing on this basis involves an exercise of discretion, albeit one that must be exercised judicially. Moreover, the fundamental proposition articulated in the First Edmonton case is sound. The section confers a power on the court to grant standing where in the circumstances of a particular case justice and equity require it. But the exercise of that power must take into account the general principles of law governing companies and societies, such as the “indoor management rule” which exemplifies the reluctance of courts to become involved in internal issues or to permit outsiders of the legal entity whose interests may be affected by its conduct to acquire rights conferred on those who are shareholders or members. It seems clear that the power to recognize someone as a “proper person” is one to be exercised in limited circumstances. In effect, a grant of standing confers upon a person the rights they would have had if they were a shareholder or a member, because justice and equity require it. Evidently, this is an unusual, if not extraordinary, remedy. [42] Here, the appellants attack the exercise of a discretionary power. In my view, to do so successfully they would need to demonstrate that the judge erred in principle or came to a decision that is so clearly wrong as to amount to an injustice or that the judge had erred in giving no or insufficient weight to relevant considerations: see Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 at para. 27. [43] It appears to me from a reading of the chambers judge’s reasons that a number of observations guided his exercise of discretion to deny the appellants standing: (1) the appellant Hereditary Chiefs have “forsworn the opportunity to work inside the GTS for the changes they would like to see” (at para. 128); (2) the appellants’ interest is “an interest in negotiable aspects of the treaty process… [that] is, at this point, a contingent interest…” (at para. 125); and (3) turning over resolution of a “political dispute within the Gitxsan Community” to Canada, British Columbia, or the courts would undermine the “fundamental premises of self-government” of First Nations (at paras. 128, 130). As to the Bands and the Gitksan Local Services Society, the chambers judge considered them to be “organizational manifestations of the relationship between the government(s) and the Gitxsan people” (at para. 127). [44] The appellants argue that the chambers judge erred in finding the appellant Hereditary Chiefs “could and should have” become GTS members, in failing to give sufficient weight to the purposes underlying the GTS, and in finding the appellants’ interests to be “contingent.” [45] Finally, the parties disagree as to whether the chambers judge dismissed the winding-up petition on the threshold issue of standing, or on the basis of the merits. The Appellant Hereditary Chiefs “Could and Should” Have Become Members of the GTS [46] It is evident that a primary consideration in denying standing was that the Hereditary Chiefs had failed to take the opportunity to become members of the GTS during the s. 85 “restructuring” process. Instead, they have persisted in pursuing relief from the outside as if they were members. [47] Most fundamentally, the judge recognized the opportunity that the Hereditary Chiefs had been given, as a result of the s. 85 petition proceedings, an opportunity to become, or to nominate, a member of the GTS representing their respective House. The judge concluded that the Hereditary Chiefs had available to them a means of direct engagement with the GTS, but that they had “forsworn the opportunity to work inside the [GTS] for the changes they would like to see” (at para. 128). In these circumstances, accepting the invitation to grant standing would involve the court in interfering in internal political disagreement within the Gitxsan nation, contrary to the principles embedded in the Treaty Process which call for recognition of the principle of self-government. [48] The appellants say that the judge erred in finding that they could and should have become members of the GTS. [49] The parties disagree about what the appellant Hereditary Chiefs could and should have done. On one hand, the GTS says, and the chambers judge agreed, it was open to the Hereditary Chiefs to submit an application to become, or to nominate someone to become, a member of the GTS as part of the s. 85 process (the “ could ”). Indeed, the chambers judge viewed the whole purpose of the s. 85 proceedings as directed towards making the GTS more inclusive and representative: Gitxsan Treaty Society, 2012 BCSC 452 at para. 43. The chambers judge viewed the s. 85 proceedings as an invitation for the appellant Chiefs to join if they wanted to voice their concerns about the GTS (the “ should ”). [50] The appellant Chiefs do not deny it was open to them to submit an application. As I understand their argument though, they submit that they “could not approve the scheme by putting their names forward for membership because it violated Gitxsan law, tradition and practice.” Indeed, they submit that they “declined to apply for membership on grounds of this abuse of Gitxsan law.” [51] In approaching this question, it is important to note the careful considerations that courts must bring to bear in cases dealing with the interaction between indigenous legal traditions and those of non‑Aboriginal sources, such as the Company Act and Society Act, and related case law. [52] Although primarily expressed in the context of claims of Aboriginal title and other property rights (e.g., fishing rights), the Supreme Court of Canada has encouraged courts to be sensitive to Aboriginal perspectives, and to take them into account alongside the perspective of the common law: see generally R. v. Sparrow, [1990] 1 S.C.R. 1075 at 1112; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at paras. 148‑149; R. v. Marshall; R. v. Bernard, [2005] 2 S.C.R. 220 at para. 48; R. v. Van der Peet, [1996] 2 S.C.R. 507 at para. 42; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 at paras. 34‑35. [53] With this in mind, I understand the appellant Hereditary Chiefs’ objections to the GTS membership structure. I also understand why they considered that they “could not” submit an application to join the GTS. [54] Nonetheless, I am persuaded that the chambers judge was alive to these considerations. There was clearly a dispute, at least among certain Chiefs, about whether Gitxsan law precluded one from becoming a member of the GTS, as presently structured. The chambers judge’s extensive reasons in the proceedings related to these disputes reflect his concern about the representativeness and transparency of the GTS, including the notion of community involvement in and engagement with Gitxsan traditions. With this concern in mind, he rejected the first “restructuring proposal” in the s. 85 proceedings, directing more extensive, community-wide consultations and participation. The appellants did not appeal the chambers judge’s subsequent order approving the appointment of the 37 resulting members as members for the purposes of the extraordinary general meeting. [55] Oral submissions before this Court suggested that, since the approval of the s. 85 petition, additional Houses have submitted applications for, and appointed representatives as, GTS members. On the record before us it remains open to the appellant Hereditary Chiefs to become members. If the appellant Hereditary Chiefs were members, they would have had, and may still have, standing to bring a winding-up petition under the Society Act and Company Act provisions noted earlier. [56] This is what the chambers judge had in mind when he observed the appellant Hereditary Chiefs were, improperly, making their arguments from the outside . I see no error in the chambers judge’s observation that “there are means to wind up the GTS if the community and its leaders decisively choose to use them” (at para. 136). The current petition proceeding, as brought by the current appellants, is not one of those means. [57] As the chambers judge correctly observed, as a general rule, “proper person” standing is granted where there is no other reasonable alternative to bring a question before the court. That is not the case here. I agree that the Hereditary Chiefs forswore their opportunity to become members and to influence the affairs of the GTS from within. The chambers judge, in considering what would be just in the circumstances, considered the history of the proceedings and the fact that other Houses have nominated members to join the GTS after the extensive consultation process. His finding that the appellant Hereditary Chiefs have forsworn their opportunity to become members was supported on the record. His consideration of this in exercising his discretion to deny standing was not an error. [58] The appellants also say the judge erred in failing to consider the purpose of the GTS in determining what is just in the circumstances. But the judge did pay attention not only to the purposes of the society, but also to the context in which these issues had arisen, namely, a treaty process designed to achieve reconciliation between a First Nation and the broader community. Both in the reasons for judgment concerning the s. 85 petition and in the reasons leading to the order under appeal, the judge carefully analysed the role of the GTS as an instrument of the Gitxsan Nation in its negotiation with the Crown(s). He paid attention to its purpose as an entity capable of receiving negotiation funding, as well as its role as an instrumentality in the process of negotiation. He examined what the GTS could do, and what it could not do, such as bind the Gitxsan nation without ratification. He took account of the current stage of negotiations. He recognized the degree to which the GTS could advance or affect the interests of the appellants. He explicitly referred to the fact that he had examined whether issues of standing should be more liberally construed in a context dealing with Aboriginal law. In my view, the appellants have not demonstrated that the judge erred by misunderstanding the role of the GTS, or by failing to consider the purpose of the GTS. Nor have they demonstrated any error in the way in which he took into account the purposes of the GTS in deciding the issue of standing. Contingent Interests [59] The appellants contend that the conclusion that they had only a contingent interest in the outcome of negotiations was an error. I am not persuaded that it was. [60] The judge recognized that the appellants’ interests could be affected by the activities of the GTS, but he concluded that the GTS had not done anything irrevocable or lasting, nor could it bind the Gitxsan people. He recognized the appellants’ interest in treaty negotiations, describing that interest as “contingent” because any proposed treaty, the terms of which had not been negotiated in any event, would require ratification by the Gitxsan nation. He was not prepared to find that the appellants’ concerns about debt financing or the way that monies had been spent established a direct pecuniary interest in the GTS’s affairs. As I read his reasons, he did not conclude that a direct pecuniary interest was a prerequisite for standing as a “proper person”. Instead, he found that the appellants did not have a direct pecuniary interest. This finding was open to him on the  record, and it militated against exercising his discretion to allow standing. [61] It is apparent that the judge accurately comprehended the role of the GTS in treaty negotiations, in which the principal is the Gitxsan Nation. The GTS is merely an agent. Negotiations are at stage 4, negotiating an agreement in principle. But no such agreement has yet been negotiated, and indeed, a confirmation of the mandate is required before advancing to the next stage. The judge understood the subject matter of those negotiations, including discussion of matters such as Aboriginal title and the future of the Bands. He recognized that any treaty would require ratification by the Gitxsan nation, in a manner yet to be determined, and that the GTS could not bind the Gitxsan nation. In my view, the judge’s reference to the appellants “having a contingent interest in the outcome of the negotiations” was simply a convenient shorthand characterization of the manner in which ongoing negotiations might affect the appellants’ interests. I see nothing inaccurate in that characterization. Further, while the appellants have urged upon this Court to consider the sizeable debt to the Crown the GTS has incurred for treaty negotiations, I do not find this persuasive, and the chambers judge did not err in how he considered it. The debtor is the GTS, and the extent to which this debt becomes a liability for the individual appellants, members of their respective Houses, or the nation as a whole, would depend on the presently unknown, or contingent, outcome of the negotiations. I see nothing here that suggests the judge in anyway misapprehended the facts or misapplied any relevant principle in allowing this to inform his exercise of discretion to deny standing. [62] Insofar as the Bands are concerned, the judge concluded that they were “organizational manifestations of the relationship between the government(s) and the Gitxsan people”, but “they were not parties to the government-to-government negotiations represented in the treaty process” (at para. 127). This conclusion, as I read the judgment, is informed by an appreciation of the principles underlying the treaty process, a recognition that the manner in which a First Nation organizes itself to engage in that process is a matter of internal government, and also an awareness of his earlier ruling in the s. 85 petition which approved the membership structure of the GTS. [63] I do not think the judge made any reversible error in denying the Bands and the Gitksan Local Services Society standing. The constitution of the GTS based on membership rooted in one potential member for each house, as approved and directed by the Head Chief, not only reflects important elements of traditional governance in the Gitxsan nation, but was also endorsed by the court’s order resulting from the s. 85 petition. That order approved the GTS’s membership structure, which did not contemplate membership for the Indian Bands. No party appealed that judgment. These considerations informed the judge’s exercise of discretion in not granting standing to the Bands. He correctly considered that to grant them standing would be inconsistent with the final outcome of the s. 85 petition insofar as the issues engaged in the current application are an attack on the structure and composition of the GTS, rather than merely its conduct. [64] In my view, underlying the approach taken by the judge in handling this litigation is the recognition that the way in which the Gitxsan nation organizes itself to engage in treaty negotiation is a matter of internal self-government. What role, if any, the Bands and the Gitksan Local Services Society play in that process is to be decided by the community itself. Granting standing to these organizations as proper persons would be inconsistent with this approach. The judge’s analysis of the Bands as being organizational manifestations of the relationship between government and the Gitxsan people is accurate, reflects the fact that the Bands do not form part of the traditional government of the Gitxsan nation, and in my view, was properly taken into account in denying them standing. [65] Finally, the appellants contend that the judge erred in concluding that the claim for winding up was bound to fail. This issue raises a question pertaining to the scope of the reasons for judgment. The judge catalogued arguments advanced by the parties premised on the proposition that the appellants had standing (at paras. 72‑95). The GTS contended that the claim, even so, was bound to fail because none of the circumstances that would justify a winding up of a society could be said to exist on the pleaded allegations, even if they were assumed to be true. [66] On my review of the reasons for judgment, it is far from clear whether the judge went beyond concluding that the claim was bound to fail because the appellants did not have standing to raise it. It is not apparent that the judge went further and adopted the view that the claim was bound to fail on its merits (e.g., there was a loss of substratum, etc.). Since I would uphold the judge’s order on the basis that the appellants were correctly held not to be proper persons, I think it unnecessary to resolve this question. I would say no more about it. [67] It is apparent that the guidance in the case law relating to the circumstances when a court should exercise its discretion to grant standing to someone as a “proper person” is relatively sparse. Given the unique circumstances of this case, I do not think this is the appropriate case to attempt to lay down any general principles about such matters as what kind of interest might entitle someone to standing, how direct or immediate must that interest be, to what extent should the interest be analogous to a shareholder’s or member’s interest, or how should the difference between a company and a society be reflected in any test. In my view, this appeal can be disposed of without laying down any general rules, but on the basis of the considerations and circumstances I discussed above, and considered by the judge in his exercise of discretion. [68] As such, I conclude the chambers judge did not err in his exercise of discretion to deny the appellants standing in the winding-up claim against the GTS. I would not accede to this ground of appeal. Fiduciary Duty [69] The appellants query whether the judge made a decision on the claim against the Crown(s) sounding in breach of fiduciary duty and the honour of the Crown. If he did, they contend that his reasons were insufficient and, in any event, rested on an error in finding that the test for striking a claim had been met. [70] In my view, it is clear that the judge did decide the question and, indeed, the order reflects that fact. The judge set out the submissions of the parties at length. He concluded that the declaration sought by the appellants of a duty owed to them failed to address the design of the treaty process which “is meant to place the governments in arms-length relationships with the Gitxsan intermediated by the BCTC” (at para. 131). This conclusion was based on two propositions. First, no fiduciary obligation could arise in the circumstances because of the role of the BCTC in the treaty process, which role is endorsed by the statutory framework setting it up. Second, the responsibility to intervene in political disputes within the Gitxsan community cannot be turned over to the Crown or the courts because to do so would undermine the premise of self-government. The chambers judge put it this way: [116]    There may be contexts in which such dealings would be grounds for a breach of fiduciary duty against the Crown, but it is difficult to see how that is possible within the treaty process, which puts the Crown(s) at arm’s length with the BCTC as the intermediary. In this proceeding, in Spookw v. Gitxsan Treaty Society , 2011 BCSC 1001, Kelleher J. ruled that the BCTC has a duty to respect Gitxsan self-governance and ought not to be seen to have a duty to respond to factional disputes within the Gitxsan nation. [118]    In the circumstances in which this matter first came before the court it was difficult to tell whether it was arguable that GTS, had in fact, retained its mandate. The BCTC appears, however, to have been satisfied that the GTS has maintained a mandate throughout its tenure as the negotiating agent for the Gitxsan people in the treaty process. [119]    The structural problems with the composition of the GTS that came to light in the course of this litigation was resolved when this Court ultimately approved a resolution that came from the community itself. The Court was satisfied that a broad canvass of the community had been undertaken and that a resolution that offered the Hereditary Chiefs of each House an opportunity to participate in a meeting to elect directors and give further direction to the GTS properly balanced respect for the traditional form of Gitxsan governance and community-wide engagement. [71] In my view, the judge was aware of, and acceded to, Canada’s submissions to the effect that the essence of the litigation is a dispute within the Gitxsan community, in which the Crown has no role. The Treaty Process, established by parallel provincial and federal legislation, created an arm’s-length entity to assess a First Nation entity’s negotiating mandate and to allocate negotiation support funding. Accordingly, no fiduciary obligation can arise on the part of Canada with respect to that matter. The claim is premature as the harms alleged are contingent rather than imminent because there is still no agreement in principle. Similarly, as I will discuss later, the honour of the Crown cannot be relied on to require the Crown to intervene in an internal dispute. Such intervention would be in conflict with the principle of self-government. The Crowns’ role and conduct are limited by their respective statutory obligations under the relevant legislation. [72] More importantly, I think it important to note the unique dynamics engaged in treaty negotiations between the Crown(s) and indigenous peoples. The interests being negotiated are unique, and indeed, at least in part, sui generis. In this sense and given the principles informing the process, it is not inaccurate to describe the process as “nation to nation” negotiations. This dynamic recognizes the imperative of reconciliation of Aboriginal rights and title and the assertion of sovereignty in relation to which the Crown(s) certainly bear a duty of honour. [73] It is in this context that the Crown(s) and the First Nations Summit came together to develop the BCTA framework. In the resulting framework, the Crown(s) are placed at arm’s length from the First Nation, by way of the BCTC. Funding, for example, is placed beyond the control of the Crown(s). The BCTC manages funding requests and needs, and directs the Crown to provide the funding. Both the Crowns and the BCTC have an obligation to respect Gitxsan self-governance. It would be inconsistent with that obligation to require the Crown to respond to, or decide, factional disputes within the Gitxsan nation. [74] In my view, the judge did not err in concluding that it was plain and obvious the claim was bound to fail. It is no barrier to such a conclusion that a case involves complex fiduciary duty claims or Aboriginal claims: see e.g., Canada (Attorney General) v. Lameman, 2008 SCC 14; Nunavut Tunngavik Incorporated v. Canada (Attorney General), 2014 NUCA 2; Peter Ballantyne Cree Nation v. Canada (Attorney General), 2014 SKQB 327, rev’d in part on other grounds 2016 SKCA 124; see generally, Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24; and Hryniak v. Mauldin, 2014 SCC 7. [75] It is important to note that while relationships between First Nations and the Crown may, generally, be fiduciary in nature, not all dealings between parties in a fiduciary relationship are governed by fiduciary obligations: Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 at para. 48, [ MMF ]. In MMF, the Supreme Court of Canada outlined how a fiduciary obligation can arise in the Aboriginal context: [49]      In the Aboriginal context, a fiduciary duty may arise as a result of the “Crown [assuming] discretionary control over specific Aboriginal interests”: Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (CanLII), [2004] 3 S.C.R. 511, at para. 18. The focus is on the particular interest that is the subject matter of the dispute: Wewaykum Indian Band v. Canada , 2002 SCC 79 (CanLII), [2002] 4 S.C.R. 245, at para. 83. The content of the Crown’s fiduciary duty towards Aboriginal peoples varies with the nature and importance of the interest sought to be protected: Wewaykum , at para. 86. [50]      A fiduciary duty may also arise from an undertaking, if the following conditions are met: (1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries; (2) a defined person or class of persons vulnerable to a fiduciary’s control (the beneficiary or beneficiaries); and (3) a legal or substantial practical interest of the beneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control. ( Alberta v. Elder Advocates of Alberta Society , 2011 SCC 24, [2011] 2 S.C.R. 261 , at para. 36). [76] Canada does not have unilateral or direct administrative control over the positions that are put forward on behalf of the Gitxsan community at the treaty table. To give Canada, or British Columbia, such control would compromise the integrity of that negotiation process. Canada, British Columbia and the Gitxsan Nation are separate and equal parties when negotiating a treaty. British Columbia and Canada represent distinct non‑Aboriginal constituencies and interests in these negotiations. The Gitxsan Nation decides for itself which positions to put forward, if any, at the treaty table on behalf of its constituents. [77] On occasion, the Crown is in an arm’s-length or quasi-adversarial relationship with a First Nation. While treaty negotiations are not adversarial, I agree with the Crown respondents that the distinct interests and constituents represented by the parties to the negotiations imply that no fiduciary obligation arises here. I find support for this in Gladstone v. Canada (Attorney General), 2005 SCC 21 at para. 27. As noted earlier, the statutory scheme makes it clear that neither Crown respondents exercise any discretion over assessing the GTS’s negotiating mandate, allocating negotiation support funding, or the positions advanced at the treaty table. The statutory scheme assigns these responsibilities to the BCTC, which is an independent, arm’s-length entity. [78] As Canada argues, relying on MMF , fiduciary obligations may be imposed on those who have expressly or implicitly undertaken them (at para. 50). The undertaking of a fiduciary obligation may be by statute, agreement or unilateral undertaking: Guerin v. The Queen, [1984] 2 S.C.R. 335 at 385. [79] In my view, the Crown respondents have not undertaken to act in the appellants’ best interests in the course of treaty negotiations. They have not undertaken to assess the GTS’s mandate or funding. There are no such undertakings because to find they exist would be inconsistent with the nature of treaty negotiations, as envisioned by the statutory scheme described earlier [80] The concept of arms-length treaty negotiations – and the fact that Canada represents all Canadians in the negotiations – precludes Canada from putting the appellants’ best interests above all others in the negotiations. This applies similarly to British Columbia. [81] In my view, the chambers judge correctly dismissed the claims against the Crown respondents for breach of fiduciary obligations. The chambers judge did not err in considering the law of fiduciaries relating to the Crown and First Nations, as developed in Supreme Court jurisprudence. His conclusion that no such obligations exist in the case at bar is correct, and I would not disturb it. Honour of the Crown [82] The duty of the honour of the Crown “arises from the Crown’s assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people”: MMF at para. 66, citing Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, at para. 32. The ultimate purpose of the honour of the Crown is the reconciliation of pre‑existing Aboriginal societies with the assertion of Crown sovereignty: MMF at paras. 66‑67. The honour of the Crown governs treaty-making, imposing requirements on the respondent Crown(s), such as honourable negotiation and the avoidance of the appearance of sharp dealing: MMF at para. 73. However, the honour of the Crown is not a free-standing cause of action; rather, it controls how obligations that attract it must be fulfilled: MMF at para. 73. [83] The appellants argue that the Crown respondents have breached this honour in a number of ways, primarily by continuing to fund and negotiate with the GTS after receiving notice that the GTS does not represent the views of the appellants. The tabling of the GAGM and the adoption of a short-term forestry agreement are also identified as breaches of this obligation. [84] In my view, the chambers judge correctly observed that breach of the duty of honour of the Crown is not a recognized cause of action. Equally, the alleged breaches of the honour of the Crown are inconsistent with the obligations undertaken by the Crown(s) within statutory framework governing the Treaty Process. Taken jointly, these conclusions are sufficient to uphold the judge’s order. [85] Evidently, there are serious disputes among the Gitxsan people as to how the treaty negotiation process should proceed, if at all. The GTS is an agent of the Gitxsan people. Through their Hereditary Chiefs, members of the Houses can have a voice in how or whether the GTS is to conduct negotiations with the Crown(s). It is not for the Crown(s) as a matter of a fiduciary duty or honour to interfere with that internal, political debate. [86] Courts, in the context of the Treaty Process, as a general proposition, should respect how an indigenous community resolves internal issues and organizes itself to participate in the process. Similarly, the honour of the Crown is not a paternalistic concept. It does “not arise from a paternalistic desire to protect the Aboriginal peoples” ( MMF at para. 66). The Treaty Process contemplates that the Crown(s) will respect the self-governance of indigenous communities, which includes how it resolves what, essentially, is political disagreement. [87] The chambers judge was correct to note that the honour of the Crown does not require either British Columbia or Canada to assess GTS’s mandate in the BC Treaty Process. The statutory scheme provides that the BCTC is the party responsible for assessing the GTS’s mandate and for allocating negotiation support funding, not Canada. This way, the Crown(s) cannot “manipulate” negotiation funding, or “pick and choose” which organization has a valid mandate, when negotiating with the First Nation. Again, within the tripartite, arm’s-length negotiation process, Canada cannot be said to have acted dishonourably by complying with the statutory scheme, itself the product of extensive dialogue between the First Nations Summit and the Crown(s). [88] The appellants indicate that they have informed the BCTC that the GTS is no longer acting on their behalf. It appears that the BCTC is satisfied that the GTS still has a valid mandate. The appellants have not, in the present action, advanced any claims against the BCTC, aside from the action in negligence which was dismissed. I would say no more respecting the appellants’ claims, if any, against the BCTC, as the order dismissing that claim was not appealed and is not before us. [89] In my view, the chambers judge correctly dismissed the appellants’ claim of breach of the duty of the honour of the Crown in the way he did. This claim discloses no reasonable cause of action or genuine issue to be tried. It is not a recognized cause of action, is inconsistent with the principles of First Nations self-governance, and is contrary to the statutory scheme that emerged from agreement among the principals to the BCTA. Conclusion [90] The chambers judge did not err in exercising his discretion to refuse standing to the appellants. That is sufficient to dispose of the appeal as to the petition against the GTS. [91] The chambers judge properly dismissed the claims against Canada and British Columbia for breach of fiduciary duty and honour of the Crown. [92] Accordingly, I would dismiss the appeal. “The Honourable Mr. Justice Harris” I agree: “The Honourable Mr. Justice Goepel” I agree: “The Honourable Mr. Justice Savage”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: A.A.A.M. v. Director of Adoption, 2017 BCCA 27 Date: 20170113 Docket: CA44032 Between: A.A.A.M. Appellant (Claimant) And Director of Adoption Respondent (Respondent) Before: The Honourable Chief Justice Bauman The Honourable Mr. Justice Frankel The Honourable Madam Justice Dickson Application to vary an order of the British Columbia Court of Appeal, dated November 25, 2016 Oral Reasons for Judgment Counsel for the Appellant A.A.A.M.: J.E. Shragge Counsel for the Respondent Director of Adoption: M.E. Mouat, Q.C. (via teleconference) Place and Date of Hearing: Vancouver, British Columbia January 11, 2017 Place and Date of Judgment: Vancouver, British Columbia January 13, 2017 Summary: The appellant, Mr. M, applied under s. 9(6) of the Court of Appeal Act to vary an order of the chambers judge in which she held that his applications for an examination for discovery of the Director or her representative and for a list of documents from the Director are limited appeal orders. She denied leave to appeal the dismissal of those applications. The chambers judge also denied his application for leave to appeal an order dismissing his application for an interim increase in parenting time. Held: application allowed in part. The chambers judge erred in holding that the jurisdictional basis for the discovery orders was Rule 9 of the Supreme Court Family Rules as opposed to Rule 10-3(7)(d). Orders made under Rule 10-3(7)(d) are not limited appeal orders such that Mr. M is entitled to appeal dismissal of those applications as of right. However, the chambers judge made no error in dismissing his application for an interim increase in parenting time. [1] BAUMAN, C.J.B.C.: Mr. M applies to vary the chambers order of Justice Fenlon made 25 November 2016, finding that two portions of his appeal required leave and denying him leave to appeal from all limited appeal orders. The orders concern pre-trial procedures in connection with a trial to determine certain matters under s. 45 of the Family Law Act , S.B.C. 2011, c. 25 (“ FLA ”). One aspect of Mr. M’s appeal goes as of right and is scheduled to be heard on 27 February 2017. He seeks to have this division vary Justice Fenlon’s order and grant him leave to appeal on the remaining issues. I. Background [2] This case concerns the guardianship of Mr. M’s daughter, who I will refer to as “O”, who is now seven years old. Mr. M is a citizen of Saudi Arabia who is living in Canada on a now-expired student visa. O was born on 8 December 2009. O’s birth mother denied Mr. M’s paternity and indicated on the birth registration form that the father was unknown. She then signed the necessary forms to facilitate O’s placement for adoption by the Director pursuant to the Adoption Act , R.S.B.C. 1996, c. 5. The Director thereby became O’s guardian. [3] In January 2010, DNA testing established Mr. M’s parentage. On 7 May 2010, the Director advised Mr. M that O would be placed for prospective adoption with a couple in Alberta – the Ps – who were already guardians of O’s half-sister. Mr. M opposed the placement. On 13 September 2010, the Director gave care and custody of O to the Ps and she has lived with them since that time. [4] Mr. M filed a notice of family claim seeking custody and guardianship of O pursuant to the now-repealed Family Relations Act , R.S.B.C. 1996, c. 128 (the “ FRA ”) on 25 February 2011. During a hiatus in the trial of that action the FRA was replaced by the FLA and the Adoption Act was amended to harmonize with the FLA . When the trial resumed the parties agreed that the case should be decided under the new provisions. At that point, Mr. M sought only to be recognized as a guardian under the FLA . [5] The first trial resulted in an order of Justice H. Holmes dated 1 October 2014 dismissing Mr. M’s application for guardianship but granting 2.5 hours of supervised contact every six weeks and Skype visits once every three weeks (2014 BCSC 1847). On 19 May 2015, this Court allowed Mr. M’s appeal and declared him to be O’s co-guardian (reasons indexed at 2015 BCCA 220) subject to the condition that either the Director and Mr. M reach an agreement, or an order is pronounced by the Supreme Court of British Columbia, allocating and defining Mr. M’s rights and those of the Director in a manner consistent with O’s best interests. If the parties failed to reach an agreement within 30 days of the Court of Appeal’s order then the matter would be remitted to the Supreme Court for an order under s. 45 of the FLA ( orders respecting parenting agreements ). The court upheld the access order with liberty to Mr. M to seek an increase in contact with O. [6] The parties could not come to an agreement on the appropriate parenting arrangements. The Director applied for directions under s. 45 of the FLA on 8 October 2015. Mr. M cross-applied for a report prepared pursuant to s. 211 of the FLA and an interim increase in parenting time. At the hearing of the applications, in chambers, Justice Butler ordered the s. 211 report and a trial of the issue of O’s parenting arrangements pursuant to Rule 10-3(7)(d) of the Supreme Court Family Rules , (“SCFR”). Subsequently, Justice Choi was appointed trial management judge and oversaw a number of judicial management conferences. The trial was scheduled for nine days to commence 21 November 2016. It has since been adjourned pending Mr. M’s present appeal. [7] Mr. Robert Colby delivered his s. 211 report on 26 April 2016. The report did not include an evaluation of O’s home life because his instructions from both counsel were not to evaluate the Ps as parents. [8] Mr. M has also filed a judicial review application challenging the Director’s authority to place O in Alberta for adoption. On 12 May 2016, Justice Young declared O’s placement with the Ps to have been ultra vires the Director’s authority under the Adoption Act . She prohibited the Director from consenting to O’s adoption by the Ps so long as they were not residents of British Columbia. However, she also prohibited the Director from removing O from the P residence until further order of the court. The Director has appealed the judicial review decision. The Ps are presently seeking to adopt O in Alberta adoption proceedings under the Child, Youth and Family Enhancement Act , R.S.A. 2000, c. C-12. Mr. M has filed an objection to the adoption application. Application Leading to the Present Appeal [9] The trial management conference concerning the s. 45 trial was set down for 12 October 2016. On that date, Mr. M applied for the following relief: a) interim unsupervised parenting time with O to be comprised of four hours once every two weeks near O’s community, telephone calls every night with O and a weekend every other month with O in Vancouver (the “Interim Order”); b) subpoenas compelling the Ps to attend as witnesses at trial; c) a further four hour examination for discovery of the Director or her representative (the “Discovery Order”); and d) a supplemental list of documents from the Director that includes all documents created or obtained by the Ministry of Children and Family Development since 13 March 2014 and any documents to which the Director intends to refer at trial (the “Documents Order”). [10] Mr. M relied on both Rule 9 and Rule 10-3(7)(d) of the SCFR as the legal basis for the Discovery and Documents Orders. [11] Mr. M said the Discovery and Documents Orders were indispensable to the adjudication of the central issue of what parenting arrangements are in O’s best interests. The trial management judge rejected that submission in favour of the Director’s characterization of the issue at trial – namely, to allocate and define which, if any, of the parental responsibilities are to be granted to Mr. M. In other words, Mr. M’s abilities and plans to exercise parental responsibilities are at issue, not those of the Director. The trial management judge agreed with the Director that her guardianship rights had already been confirmed in the previous Court of Appeal decision. On the contrary, Mr. M’s guardianship is conditional upon him reaching an agreement with the Director or an order of the Supreme Court. She reasoned that further examinations for discovery of the Director and eliciting specific evidence from the P family would be irrelevant to the question of Mr. M’s parental capacity. Accordingly, she declined to certify the subpoenas or order further examinations for discovery. [12] Turning to the Discovery Order, the trial management judge was satisfied by the Director’s evidence that there had been no change in the relevant material contained in the volumes of documents and evidence that emerged in connection with the previous trial. She refused to order discovery. [13] The trial management judge also refused to expand Mr. M’s in-person parenting time, but granted a modest increase in the frequency of his Skype visits. She noted that it was premature to increase parenting time, particularly on an unsupervised basis, in light of the very limited evidence before her regarding Mr. M’s parenting capabilities. II. Decision under appeal [14] In chambers, the principal issue before Justice Fenlon was whether an appellant requires leave to appeal a Supreme Court judge’s refusal to order discovery in the usual way in a chambers proceeding that has been referred to the trial list. If she determined that it required leave then Mr. M sought to have her grant him leave. Mr. M argued that the trial management judge erred in law in narrowly characterizing the issue for trial, which he says presumed that the current parenting arrangements are in O’s best interests contrary to s. 40(4) of the FLA . He also said the trial management judge was “clearly wrong” to refuse the subpoena order, and the Documents and Discovery Orders. He conceded that his appeal with respect to his application for an interim increase in parenting time was a limited appeal order, but said that the subpoena order came with an appeal as of right. It was unclear whether the Discovery and Documents Orders required leave. [15] Justice Fenlon denied leave to appeal the dismissal of Mr. M’s application for an interim increase in parenting time, the Discovery Order and the Documents Order. She agreed that the denial of the subpoena order is appealable as of right. Currently, that hearing is scheduled to proceed on 27 February 2016. Mr. M seeks to have this division vary the chambers judge’s decision such that the relief in subparagraphs 9(a), 9(c) and 9(d), above, will also be considered in his appeal of the order declining certification of the subpoenas. I note that Justice Fenlon’s decision is currently being transcribed. Mr. M submits that she rested her decision on a finding that the substance of the Discovery and Documents Orders was relief of a nature that ordinarily would fall within the ambit of Rule 2.1(b)(iii) of the Court of Appeal Rules . III. Issues [16] In this application to vary the chambers judge’s order, the following points are in issue: a) Is the order refusing to grant the Discovery and Documents Orders a limited appeal order? b) Should this Court grant leave to appeal the refusal of the Interim Order? [17] If this Court determines that the Discovery and Documents Orders are limited appeal orders then Mr. M accepts the chambers judge’s refusal to grant leave. If, however, this Court finds that the chambers judge erred then the appeal goes as of right and will be heard together with Mr. M’s appeal of the dismissal of his application for certification of the subpoenas. IV. Submissions [18] Mr. M acknowledges that an application to vary an order of a single justice is not a renewal of the original application but says that the justice in this case was wrong in law or principle. With respect to the Discovery and Documents Orders, he submits that the chambers judge erred in concluding that the jurisdictional basis for the relief sought was under Part 9 of the SCFR as opposed to Rule 10-3(7)(d). The latter rule is not listed in Rule 2.1 of the Court of Appeal Rules such that the orders are appealable as of right. [19] With respect to the order refusing his application for an interim increase in parenting time, Mr. M acknowledges that this Court only interferes with interim custody orders in exceptional circumstances, but says this case meets that threshold. He says the existing visitation arrangements are woefully inadequate and have exacerbated O’s estrangement from him. He further submits that it would be unjust for him to wait until the end of the s. 45 trial to obtain a modest increase in parenting time. [20] Before the chambers judge, the Director submitted that leave to appeal the Discovery and Documents Orders was required. She said a chambers matter that is referred to the trial list is a scheduling decision and does not make an application into a trial de novo . Part 9 of the SCFR deals with discovery procedures, and that rule is specifically listed under Rule 2.1(b)(iii) of the Court of Appeal Rules . [21] The Director’s position on the merits of the leave application was that the additional information sought by Mr. M is irrelevant to the upcoming s. 45 trial. The Director argued that the central issue to be decided by the trial judge is not what parenting arrangements are in O’s best interests, but rather what parenting responsibilities are to be granted to Mr. M. She said the focus of the Alberta adoption application will be on the Ps. That court will make the ultimate determination of what is in the best interests of O. In the s. 45 trial, the focus is on Mr. M. Regardless of which s. 45 responsibilities Mr. M does or does not have, the Alberta court hearing the adoption application will make the final determination of which plan is in the best interests of O. [22] With respect to the increase in Mr. M’s access, the Director noted Mr. Colby’s concern that Mr. M presents a flight risk and his conclusion that “at this time, this Assessor cannot present a positive evaluation of Mr. [M]’s ability to engage in parenting time with [O]…”. She argues that there is no evidence that a change in the current parenting time prior to the hearing is in O’s best interests. [23] The Director further submitted that the factors governing leave to appeal (as set out in Goldman, Sachs & Co. v. Sessions , 2000 BCCA 326 at para. 10) are not met. The appeal is not of significance to the practice and the relief sought is not significant to the issue the judge will decide at trial. The appeal would further unduly hinder and delay determination of Mr. M’s guardianship responsibilities. Further, the Director said the appeal is without merit for the reasons outlined above concerning the central focus of the s. 45 trial being on Mr. M. V. Analysis [24] The standard of review of a decision of a single justice in chambers is a high one. In British Columbia v. Phillip Morris International Inc. , 2016 BCCA 363 at para. 19, the court said as follows: The standard of review that applies on this application is uncontroversial. In Langston v. Teamsters Local 155 , 2010 BCCA 481 it was succinctly summarized as follows: [29]      The standard of review of a decision of a chambers judge is a high one. A review application is not a rehearing of the application before the chambers judge. Absent a demonstrated error of law, error of principle or misconception of the facts, a division of this Court may not interfere with or vary a discretionary decision of a chambers judge: Frew v. Roberts , [1990] B.C.J. No. 2175 (C.A.), Haldorson v. Coquitlam (City) , 2000 BCCA 672 at para. 7, Mullins v. Levy , 2010 BCCA 294 at para. 4. [Emphasis added.] [25] Turning to the first issue of whether leave to appeal the Discovery and Documents Orders was required, I find that Mr. M has demonstrated that the chambers judge erred in principle. The starting point is Rule 2.1 of the Court of Appeal Rules , the relevant parts of which read as follows: The following orders are prescribed as limited appeal orders for the purposes of section 7 of the Act (b) an order granting or refusing relief for which provision is made under any of the following Parts or rules of the Supreme Court Family Rules: (iii) Part 9 [Procedures for Obtaining Information and Documents], other than Rule 9-6(6) [application for order on admissions]; [26] Section 7 of the Court of Appeal Act , R.S.B.C. 1996, c. 77 requires that an appellant obtain leave to appeal from a justice in order to appeal the prescribed limited appeal orders. [27] The language of “granting or refusing relief for which provision is made under…Part 9” refers to the generally applicable rules governing procedures for obtaining information and documents. Generally, parties in a family trial are entitled as of right to document discovery (Rule 9-1) and to examine for discovery the opposing party (Rule 9-2). This is clear from the language of those rules which specifies that parties must prepare a list of documents and must make themselves available for examination for discovery. [28] In the present case, the origin of the upcoming s. 45 trial is this Court’s decision declaring Mr. M to be a co-guardian and, absent agreement, directing the Supreme Court to determine the parenting arrangements that are in the best interests of O. It is that order that ultimately led to Justice Butler ordering a trial of the s. 45 issues pursuant to the Supreme Court’s authority under Rule 10-3(7)(d). That rule reads, in relevant part, as follows: (7)Without limiting subrule (4), on the hearing of a chambers proceeding, the court may (d) order a trial of the chambers proceeding, either generally or on an issue, and order a pleading to be filed and, in that event, give directions for the conduct of the trial and of pre-trial proceedings and for the disposition of the chambers proceeding . [Emphasis added.] [29] When Justice Choi subsequently considered Mr. M’s application at the trial management conference I conclude she was exercising the court’s powers under Rule 10-3(7)(d) to “give directions for the conduct…of pre-trial proceedings”. This rule accords jurisdiction to order discovery as a pre-trial proceeding where a chambers matter has been referred to the trial list; it does not simply incorporate Rule 9-2 by reference. That Justice Choi was exercising her jurisdiction under Rule 10-3(7)(d) is true regardless of whether she treated the orders as having been made under Rule 9. A court must be correct in identifying the jurisdictional basis for its orders. [30] Accordingly, the jurisdictional basis for the order appealed from is Rule 10-3(7)(d). This puts it outside the scope of Rule 2.1 of the Court of Appeal Rules such that Mr. M is entitled, without leave being required, to appeal the trial management judge’s dismissal of his application for the Discovery and Documents Orders. I pause to note that I make no comment on the merits of his appeal on these issues. [31] The Director relies on this Court’s decision in Tri-City Capital Corp. v. 0942317 B.C. Ltd. , 2016 BCCA 407. At paras. 22 and 23 of Tri-City Capital Corp. , Justice D. Smith discusses Rule 2.1 of our Rules: [22]      The purpose of enacting R. 2.1 was to bring certainty and clarity to those orders that will require leave to appeal. That clarity and certainty requires orders to correctly state the rule or jurisdictional basis for the order. An order should refer to more than the mode of proceeding as that authority. The order nisi of foreclosure in this instance was not made pursuant to R. 9-7; it was granted pursuant to the legislative provisions of R. 21-7. To the extent that the Order refers to R. 9-7 as the authority under which the Order was made, it was, in my respectful view, in error. [23]      Rule 2.1 prescribes a list of orders as limited appeal orders that require leave to appeal. For good reason, the Legislature has specifically prescribed orders arising from a certain mode of hearing, such as Part 5 (relating to case management), Part 7 (relating to procedures for ascertaining facts) and R. 12-2 (orders made during a trial management conference). When an order is made in a listed mode of hearing, it will always require leave to appeal. The opposite however is not always the case. If an order is made in a mode of hearing that is not listed in R. 2.1 (in this case, a summary trial), but is still made under the authority of a listed category (in this case, R. 21-7) it cannot follow that such an order automatically proceeds by right. To conclude otherwise would be to allow the mode of hearing to override the jurisdictional basis of the order, defeating the Legislature’s intention to have matters decided under R. 21-7 classified as limited appeal orders. [32] In my view, this extract rather supports the view that the Discovery and Document Orders were not intended to be limited appeal orders. If Rule 10-3(7)(d) said for example: and in that event give directions for the conduct of the trial and of pre-trial proceedings under Part 9 then Tri-City Capital Corp. would apply as the jurisdictional basis for the Document and Discovery Orders would indeed be Part 9 of the Rules. The orders would therefore be limited appeal orders under Rule 2.1 as Tri-City Capital Corp. holds. But that is not what Rule 10-3(7)(d) of the SCFR says. The jurisdictional basis for the order in that Rule is not Part 9 of the SCFR , it is rather a jurisdictional basis contained wholly within Rule 10-3(7)(d). This distinction is reflected in Rule 10-3(7) itself. For example, Rule 10-3(7)(c) provides that on the hearing of a chambers proceeding the court may: obtain the assistance of one or more experts, in which case Rule 13-5 applies The sub-rule here specifically incorporates Rule 13-5, which is a jurisdictional basis expressly included in Rule 2.1(b)(vi). The omission of such an express reference in Rule 10-3(7)(d) means that the Documents and Discovery Orders fall outside of Rule 2.1 of the Court of Appeal Rules . [33] Turning to the second issue, I find that the chambers judge did not err, as Mr. M alleges, in refusing to grant leave to appeal the dismissal of Mr. M’s application for an interim increase in parenting time. As Mr. M acknowledges, this Court will only interfere with interim orders of this nature in exceptional circumstances. He says he has met that threshold because of the “woefully inadequate” nature of the existing visitation arrangements and that it would be unjust to require him to wait until the conclusion of the s. 45 trial to obtain an increase in parenting time. [34] Mr. M’s submissions do not address the valid concern raised by the trial management judge that she lacked sufficient information concerning Mr. M’s circumstances to determine whether an increase in parenting time was justified. The trial management judge properly emphasized that Mr. M was seeking unsupervised parenting time with O. This makes his own parenting capabilities the key issue for the court in determining whether an increase is in O’s best interests. I would decline to intervene with the chambers judge’s conclusion that leave should not be granted on the order dismissing Mr. M’s application for an interim increase in parenting time. [35] In the result, I would allow the application on whether the Discovery and Documents Orders are limited appeal orders. The order will be varied to reflect my holding that these are not limited appeal orders. I would dismiss the application to vary the order concerning the interim increase in parenting time. [36] FRANKEL J.A. : I agree. [37] DICKSON J.A. : I agree. [38] BAUMAN C.J.B.C. : The application to vary is allowed in the manner and to the extent indicated in my reasons. “The Honourable Chief Justice Bauman”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: L.V.R. v. Mountain Institution (Warden), 2017 BCCA 20 Date: 20170113 Docket: CA42371 Between: L.V.R. Appellant (Petitioner) And Warden of Mountain Institution Respondent (Respondent) Restriction on publication:  Ban on Publication pursuant to s. 486 of the Criminal Code of any information which may identify the victims. Before: The Honourable Madam Justice Stromberg-Stein The Honourable Mr. Justice Goepel The Honourable Mr. Justice Savage Supplementary Reasons to L.V.R. v. Mountain Institution (Warden) , 2016 BCCA 467, Vancouver Docket CA42371. Appellant Appearing in Person Counsel for the Respondent: L. Bantourakis A. Brown Place and Date of Hearing: Vancouver, British Columbia November 18, 2016 Place and Date of Judgment: Vancouver, British Columbia November 23, 2016 Written Submissions Received: December 6 and 19, 2016 Date of Supplementary Judgment: January 13, 2017 Supplementary Reasons of the Court Summary: Supplementary reasons as to costs. Supplementary Reasons for Judgment of the Court: [1] The general rule is that the successful party is entitled to costs. Section 23 of the Court of Appeal Act provides: Costs 23 Unless the court or a justice otherwise orders, the party who is successful on an appeal is entitled to costs of the appeal including the costs of all applications made in the appeal. [2] In my view, there are no reasons to depart from the general rule in this case: see Mapara v. Ferndale Institution (Warden) , 2013 BCCA 120; Vukelich v. Mission Institution, 2005 BCCA 75.  The successful respondent is entitled to costs. “The Honourable Madam Justice Stromberg-Stein” “The Honourable Mr. Justice Goepel” “The Honourable Mr. Justice Savage”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Workers’ Compensation Board of British Columbia v. Seattle Environmental Consulting Ltd., 2017 BCCA 19 Date: 20170113 Docket: CA43492 Between: Workers’ Compensation Board of British Columbia Appellant Respondent on Cross-Appeal (Petitioner) And Seattle Environmental Consulting Ltd., Mike Singh also known as Manoj Singh, and Shawn Singh Respondents Appellants on Cross-Appeal (Respondents) 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 February 26, 2016 ( Workers’ Compensation Board v. Skylite Building Maintenance Ltd. , 2016 BCSC 394, Vancouver Registry S125392). Counsel for the Appellant: Ben Parkin & Nicolas Bower Counsel for the Respondents Mike Singh and Shawn Singh: Sumandeep Singh Place and Date of Hearing: Vancouver, British Columbia December 15, 2016 Place and Date of Judgment: Vancouver, British Columbia January 13, 2017 Written Reasons by: The Honourable Mr. Justice Savage Concurred in by: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Harris Table of Contents Paragraph Range I.      Introduction [1] - [6] II.     Preliminary Matters [7] - [17] A.  Representation by Director [8] - [16] B.  New Evidence [17] - [17] III.    Background [18] - [63] A.  Prior Proceedings [19] - [31] i.  Before Russell J. (2012) [19] - [25] ii.  Before Funt J. (2013) [26] - [31] B. Proceedings Below [32] - [48] i.  Pleadings and Application [32] - [36] ii.  Response [37] - [38] iii.  Cross-application and Response [39] - [41] iv.  Evidence [42] - [48] C.  Decision of the Chambers Judge (Macintosh J.) [49] - [61] D.  Issues on Appeal [62] - [63] IV.    Workers Compensation Act [64] - [76] A.  The Act [64] - [68] B.  Occupational Health & Safety Regulation [69] - [76] V.     Discussion and Analysis [77] - [106] A.  Temporal Ambit of the 2012 Order [81] - [84] B.  Inherently Complex [85] - [93] C.  Cross-Referencing [94] - [99] D.  Vagueness [100] - [102] E.  General [103] - [106] VI.    Reply and Cross-Appeal [107] - [125] A.  The Order of Russell J. [108] - [111] B.  Bias [112] - [116] C.  Conduct of Counsel [117] - [123] D.  Costs [124] - [125] VII.   DISPOSITION [126] - [127] Summary: The Workers’ Compensation Board obtained an interim order under s. 198 of the Workers Compensation Act requiring the respondents to comply with the Act and its Regulations. In an application to find the respondents in contempt of that order, the chambers judge found the terms to be insufficiently clear, and thus, could not support a finding of contempt. The chambers judge also rejected the respondents’ claims of bias, discrimination, and improper conduct of the Board’s staff and counsel, and declined to make an order for costs. Held: appeal allowed; cross-appeal dismissed. The matter is remitted to the Supreme Court. The terms requiring compliance with the Act and Regulation are not ambiguous or insufficiently clear so as to be incapable of supporting a finding of contempt, given the nature of the statutory regime for workplace safety and the procedural history. The chambers judge did not err in dismissing the respondents’ serious and baseless claims, and did not err in exercising his discretion to decline costs. Reasons for Judgment of the Honourable Mr. Justice Savage: I. Introduction [1] This appeal and cross-appeal concern whether the breach of an order requiring individuals and a business to comply with legislated health and safety requirements can found a determination of contempt. [2] The respondent, Shawn Singh, is in the asbestos survey business.  The respondents, Mike Singh and Seattle Environmental Consulting Ltd., are in the asbestos abatement business.  Asbestos has been determined to be a dangerous carcinogenic substance that requires special detection, handling, and abatement techniques.  As a result, these businesses are highly regulated under British Columbia workplace safety legislation. [3] As a result of significant non‑compliance with the Workers Compensation Act , R.S.B.C. 1996, c. 492 [the Act ], and the Occupational Health and Safety Regulation, B.C. Reg. 296/97 (the “ Regulation ”), the Workers’ Compensation Board (the “Board”) sought and obtained an order under s. 198 of the Act requiring compliance with the Act and Regulation .  As a result of the respondents’ further alleged breaches of the Act and Regulation , the Board sought an order finding the respondents in contempt of court. [4] The Board’s application detailed the times, dates, and places of the incidents and the specific provisions of the Act and Regulation alleged to have been breached.  Two of the respondents did not appear to take issue with the specific allegations of breach but alleged discrimination and other failings of the Board in its application response.  One respondent filed an affidavit denying the allegations. [5] The chambers judge, Mr. Justice Macintosh, did not appear to take issue with the evidence led by the Board, but held that the initial order requiring compliance with the Act and Regulation was overly broad and not sufficiently clear to be enforceable by contempt.  He invited the Board to apply for other orders and referred to s. 198(1)(e) of the Act . [6] The Board appeals the finding that the initial order could not found a determination of contempt.  In their reply and cross-appeal, the respondents challenge the order giving rise to the contempt proceedings, attack the conduct of counsel for the Board, and argue that the judge showed bias.  For the reasons that follow, I would allow the appeal and dismiss the cross-appeal. II. Preliminary Matters [7] Prior to hearing the merits of the appeal there were two preliminary matters on which this Court was required to rule.  The first matter concerned the representation of the corporate respondent (“Seattle”) by a director.  The second matter concerned an application to adduce fresh evidence. A.  Representation by Director [8] On December 8, 2016, Seattle filed a Notice of Intention to Act in Person.  Up to that point, Seattle had been represented by counsel for the individual respondents.  All of the respondents had filed a joint factum some months earlier.  Before us, Mr. Gerhard Pyper sought leave to address the Court on behalf of Seattle qua director.  Mr. Pyper advised the Court that he had been a director of Seattle for some months.  The Board opposed the application on the basis that Seattle’s representation by Mr. Pyper was neither necessary nor proper. [9] The Court noted certain relevant decisions related to Mr. Pyper: Pyper v. The Law Society of British Columbia , 2016 BCSC 2090; a related proceeding, Singh v. Nielsen , 2016 BCSC 2331; and a disciplinary decision of the Law Society of British Columbia: Re Pyper , 2016 LSBC 1. [10] It is apparent that Mr. Pyper was a practicing lawyer but is not currently licenced to practice law in British Columbia.  In the Law Society proceeding (2016 BCSC 2090), Mr. Pyper sought, inter alia , an order of mandamus that the Law Society reinstate Mr. Pyper as a practicing lawyer.  That application was dismissed.  We are advised that the decisions in the Law Society proceedings are under appeal. [11] Mr. Pyper, qua director, has represented Seattle and the individual respondents in an action against counsel and various employees of the Board.  With respect to the merits of that proceeding, Mr. Justice Verhoeven said this: [18]      In broad terms, the application to disqualify counsel is based upon alleged professional misconduct on the part of Mr. Parkin and Mr. Bower in their capacity as counsel for the Board in the prior proceedings. The plaintiffs’ allegations are contained in their Notice of Application and in the affidavit in support sworn by Mike Singh on November 10, 2016. In essence, Mike Singh and the applicants allege that Mr. Parkin and Mr. Bower deceived and misled the court in their submissions before Dley J. and Macintosh J. It is alleged that they were deceitful and deceptive, particularly in their characterization of the previous proceedings and the Russell J. order. [19]      As an example only, it is alleged that Mr. Parkin failed to inform Dley J. that the Russell J. order was interim and was made by consent. The nature of the order as an interim order is apparent on its face. The order does not state that it was made by consent but that is of no consequence as it does not affect its enforceability. [20]      There is no need for me to describe the allegations in detail. I have reviewed them and determined that there is no merit whatsoever to them. In my view the real purpose of this application has indeed, as argued, been to delay and frustrate the hearing of the application brought by the defendants. The application was brought as a tactical measure for improper motives.  The application is not in good faith. The conduct of the plaintiffs in bringing the application is, in my view, similar to that already remarked upon by Mr. Justice Macintosh in his reasons for judgment arising out of the February hearing. [12] In that proceeding, Mr. Justice Verhoeven described the representation of Seattle by Mr. Pyper thus: [36]      There is another matter I wish to address, and that is the representation of Seattle by Mr. Pyper. [37]      No position was taken on behalf of the defendants with respect to Mr. Pyper’s right of audience. I was told at the outset of the application that Mr. Pyper is a director of Seattle and that Seattle is otherwise unrepresented. During the course of the hearing of the application I learned that Mr. Pyper is, in fact, former counsel for Seattle, and that he was previously but is not now a member of the Law Society of British Columbia. At the end of the day yesterday I was provided with an affidavit from the principal of Seattle, Mike Singh, which I read after court. Mr. Singh says in that affidavit at paragraph 11: The relentless attacks by WorkSafe [have] pushed Seattle to represent itself. I have appointed a new director in September 2016 to help me to prepare the paperwork and speak for Seattle in the Court. I attach as Exhibit “A” [a] corporate search of Seattle. [38]      The corporate record search shows that Mr. Pyper is a director of Seattle. [39]      The circumstances suggest to me that Mr. Pyper was appointed in order to allow him to represent the company very much as a lawyer and a member of the Law Society would do. As I said, no objection was taken by the defendants and for that reason the issue was not addressed. Also as mentioned, counsel for the individual plaintiffs, Mr. Sumandeep Singh, took no active role on the hearing of the application. He adopted the position taken and the arguments brought on behalf of Seattle by Mr. Pyper. In practical terms, therefore, the application was argued by Mr. Pyper. [40]      These circumstances are highly troubling. It appears to me that what may be involved here potentially is a breach of the Legal Profession Act , S.B.C. 1998, c. 9. However, that issue is not before me. I do not have complete information, and as a result it would be inappropriate for me to make any conclusions or any findings with respect to that matter. [41]      However, I direct that the court staff deliver a copy of these reasons for judgment to the Law Society of British Columbia, to be dealt with in such manner as the Law Society may deem fit. [42]      I wish to express the point as well, that although Mr. Pyper was not denied audience, because no issue was made of it, that does not mean that on a future application or other proceeding a right of audience will be allowed. That is to be dealt with on another day. [13] Mr. Justice Verhoeven found that the allegations made in the application were scandalous and unfounded.  He awarded special costs against the plaintiffs, although not against Mr. Pyper personally, saying: [44]      The order as to costs I make is that the plaintiffs, all of whom were applicants, are jointly and severally liable for special costs of the application. The reasons for the order for special costs are the comments that I made earlier about the lack of bona fides with respect to the application itself, and the scandalous and unfounded accusations that were made during the course of the hearing and in the materials presented to the court, including the Notice of Application and the affidavit of Mike Singh. [14] In the present case, Mr. Pyper proposes to speak to the joint factum filed on behalf of all of the respondents by counsel for the individual respondents, Mr. Sumandeep Singh.  Mr. Sumandeep Singh has acted for the respondents in the appeal and signed the joint factum filed on their behalf months ago. [15] In Atlantic Chemicals Trading of North America Inc. v. Morizon Holdings Ltd., 2005 BCCA 456 at para. 3, Mr. Justice Esson noted that “the right of a corporation to be represented by other than a member of the bar is very limited” and a matter of the “discretion or indulgence” by the Court.  He cited as “authoritative” the decision of this Court in Vernrose Holdings Ltd. v. Pacific Press Ltd. (1978), 7 B.C.L.R. 298 where McIntyre J.A. (as he then was) speaking for the Court said this (at 304): For reasons that are indicated in Tritonia Ltd. v. Equity & Law Life Assur. Society , [1943] A.C. 584 at 586, [1943] 2 All E.R. 401, and in Rondel v. Worsley , [1967] 1 Q.B. 443, [1966] 3 All E.R. 657, affirmed [1969] 1 A.C. 191, [1967] 3 All E.R. 993 (H.L.), the courts as masters of their own proceedings must retain a discretion whether to hear from time to time in the course of the dispatch of their business such persons other than barristers as they may consider should be heard in the interests of justice. The court in its discretion may grant a privilege of audience to such persons in any case where it deems it necessary or proper and deny it in other cases. This, no doubt, is a power which should be exercised rarely and with caution, and it is one the courts will be zealous to preserve . [Emphasis added by Esson J.A.] [16] I agree with these observations.  The factum of the respondents is before the Court.  Mr. Sumandeep Singh signed the factum and represents the individual respondents based on the same arguments.  Until two weeks before the hearing, he also represented Seattle.  As Mr. Sumandeep Singh was speaking to the joint factum on behalf of the individual respondents, it was not necessary to hear Mr. Pyper in this case.  Mr. Pyper’s appointment as a director is designed to circumvent the fact that he is not currently licenced to practice law in this province.  There is no suggestion that there is any other reason for his appointment.  It would not be proper to hear from Mr. Pyper.  As it was neither necessary nor proper to hear from Mr. Pyper, the matter proceeded based on the written factums and oral argument as presented by counsel. B.  New Evidence [17] The Board applied to the Court to admit new evidence which it says goes to the question of whether the respondents should be found in contempt.  Seattle has responded with a cross-application addressing the matters raised by the new evidence.  The Board made no attempt to justify the reception of the evidence other than to say it goes to the question of the respondents’ knowledge of the legislated requirements.  As this material was not before the court below, and no attempt was made to justify its reception by the criteria articulated in Palmer v. The Queen, [1980] 1 S.C.R. 759, the new evidence application was dismissed.  The respondents have also referred the Court to material in their Appeal Books that was not before the court below.  For the reasons discussed later (paras. 113‑115) that material is not properly before the Court. III. Background [18] In this proceeding the Board alleged 37 breaches of the Act or Regulation by the respondents.  The judge found that the Board had proven earlier breaches of the Act or Regulation by the respondents leading to orders in the court below: 2016 BCSC 394 at para. 65. A.  Prior Proceedings i.  Before Russell J. (2012) [19] On July 31, 2012, the Board filed a petition requesting orders restraining Mike Singh, Shawn Singh, Seattle Environmental Consulting Ltd., and others from exposing persons to asbestos or a risk of asbestos exposure and from breaching provisions of the Act and Regulation . [20] The Board alleged and detailed numerous violations of the Act and Regulation and numerous outstanding penalties against the respondents.  The Board relied on 17 incidents that had been through the entire quasi-judicial process (where the respondents chose not to avail themselves of the review and appeal mechanisms available under the statutory scheme), while noting that there were a total of 244 orders against the respondents. [21] The respondents filed a pro forma response on August 24, 2012, noting the quantity of material and lengthy history referenced in the petition, as well as the need to obtain expert opinion evidence. [22] This matter came on for hearing before Russell J. on September 14, 2012.  While there are no reasons for judgment, there is a transcript of the proceedings.  Counsel for the respondents requested an adjournment to address the volume of material.  Counsel for the Board only consented to the adjournment if the orders requested were made on an interim basis. [23] The respondents’ counsel (who is not counsel on this appeal) consented to the interim order as against each of the respondents (Mohini Singh, Skylite Building Maintenance Ltd., Mike Singh, Shawn Singh, and Seattle) that would have effect until the matter was brought on for a full hearing. [24] Madam Justice Russell advised the respondents’ counsel that the order, while interim, would be enforceable.  Counsel for the Board advised that the Board would apply for a contempt finding if the respondents were found in violation of the order.  The respondents’ counsel acknowledged both of those cautions.  He stated that “the order is in place until the next hearing … If there’s one, basically. … An order is an order. It’s enforceable. Yes.” [25] Madam Justice Russell pronounced an interim order that prohibited and restrained Mike Singh (a.k.a. Manoj Singh), Shawn Singh, Mohini Lata Singh, Skylite Building Maintenance Ltd., and Seattle from exposing persons to asbestos or putting persons at risk of exposure to asbestos and from breaching the provisions of the Act and Regulation (the “2012 Order”).  The 2012 Order was entered on September 14, 2012.  The specific terms of the 2012 Order relevant on this appeal stated that each of Mike Singh, Shawn Singh, and Seattle: is restrained from breaching the provisions of the Workers Compensation Act of British Columbia, R.S.B.C. 1996, Ch 492, and the Occupational Health & Safety Regulation, B.C. Reg 296/97, enacted pursuant thereto. ii.  Before Funt J. (2013) [26] On April 26, 2013, the Board filed an application seeking to have the respondents Mike Singh, Shawn Singh, and Seattle found in contempt of the 2012 order.  The Board noted a total of 51 breaches of the Act and Regulation since the 2012 Order, which it said occurred despite the Board’s attempts to compel compliance through inspection reports and Board orders. [27] On June 14, 2013, the respondents filed a response opposing the relief sought.  The respondents advanced allegations of bias (due to economic involvement and the respondents’ colour and ethnic origin), libel, harassment, planting tainted samples, and Board officers abusing their position to favour the respondents’ competitors.  They denied exposing any employee to asbestos. [28] The respondents sought to have the matter converted into an action, to collaterally attack certain orders, and also sought an adjournment.  These matters were argued before Mr. Justice Funt over two days in June 2013.  In reasons given on September 10, 2013, indexed at 2013 BCSC 1666, Funt J. declined to convert the proceedings to an action on the basis the four days of hearing already scheduled were adequate for the collateral attack arguments the respondents sought to make. [29] In his reasons, Funt J. concluded permitting collateral attack on the Board’s orders made after the 2012 Order but relied on as contemptuous of that Order would not amount to impermissible collateral attack.  He concluded the collateral attack was permissible largely because of the quasi-criminal character of contempt proceedings and the fact the 2012 Order did not relegate the court’s fact-finding role to the Board. [30] When the matter proceeded on October 11, 2013, the parties agreed the respondents Mike Singh, Shawn Singh, and Seattle were in contempt of Russell J.’s September 14, 2012 order:  (unreported decision Funt J. Oct. 11, 2013, Vancouver Registry S125392).  Shawn Singh, Mike Singh, and Seattle were found in contempt of paras. 2, 4, and 10 of the order, respectively.  These paragraphs restrained the respondents from breaching the Act and Regulation .  The Board’s application for contempt findings in respect of paras. 1, 3, and 9 was dismissed by consent. [31] With respect to the findings of contempt in respect of paras. 2, 4 and 10, the penalty imposed went by consent: Seattle and Mike Singh were jointly required to pay $10,000 to the accident fund before February 28, 2014; and Shawn Singh was required to pay $5,000 to the accident fund before February 28, 2014 (the “2013 Order”). B.  Proceedings Below i.  Pleadings and Application [32] On September 29, 2015, the Board filed a notice of application seeking that Shawn Singh be found in contempt of the 2012 Order. [33] On November 4, 2015, faced with a contempt application filed by the Board relating to alleged breaches since the 2013 Order, Mr. Justice Dley granted an adjournment to permit the Singhs’ new counsel to familiarize himself with the case: 2015 BCSC 2118.  He also granted the parties the right to cross-examine one another’s affiants.  He declined to issue an interim injunction suspending the Singhs’ business operations.  His order was made November 4, 2015 and entered December 24, 2015. [34] On November 23, 2015, the Board filed notices of application seeking that Mike Singh, Seattle, and Shawn Singh be found in contempt of the 2012 Order. [35] One notice of application sought findings of contempt against Mike Singh and Seattle.  Mike Singh was, at all relevant times, the sole officer and sole directing mind of Seattle.  The Board detailed 24 instances at seven different work locations of non‑compliance with the Act and Regulation since the 2013 Order, which constituted violations of the 2012 Order.  Particulars of the alleged violations at each work location were provided, including the dates and the statutory provision(s) violated.  The Board relied on seven affidavits in addition to all material previously filed and served in the proceeding. [36] The other notice of application sought a finding of contempt against Shawn Singh.  The notice was similar to that filed on September 29, 2015, before the adjournment granted by Dley J. on November 4, 2015.  The Board detailed 12 violations of the Act and Regulation by Shawn Singh since the 2013 Order, which constituted violations of the 2012 Order.  Particulars of the alleged violations were provided, including the address of the work location, the dates, and the statutory provision(s) violated.  The Board relied on nine affidavits in addition to all material previously filed and served in the proceeding. ii.  Response [37] The respondents filed a response on December 4, 2015 opposing the granting of contempt orders.  They denied having breached any provisions of the Act or Regulation , in particular denying having exposed anybody to asbestos or put anybody at risk of asbestos exposure. [38] Much of the response material was devoted to advancing allegations of bias, discrimination, misfeasance in public office, defamation, and intentional interference with contractual relations against the Board and its officers.  The respondents relied on this alleged misconduct as a defence, citing ex turpi causa non oritur actio and the clean hands doctrine. iii.  Cross-application and Response [39] On February 3, 2016, the respondents filed an application seeking to set aside the 2012 Order.  Their notice of application emphasized alleged misconduct and misrepresentations by Board officers and the Board’s counsel.  These allegations largely mirrored those advanced in their response to the Board’s November 2015 contempt application.  On the basis of their allegations of perjury and misleading the court, they said the court should refuse to hear the Board.  The respondents also sought special costs on the basis the Board’s conduct was reprehensible. [40] The Board filed a response on February 5, 2016, opposing the respondents’ application to set aside the 2012 Order.  It noted the respondents cross-examined eight affiants in January 2016, pursuant to Dley J.’s November 2015 order permitting cross-examination.  The Board emphasized the respondents’ application was deficient in that it failed to provide any evidence for challenging the granting of the 2012 Order, and instead focused on allegations of Board misconduct subsequent to the 2012 Order. [41] The Board argued that the test for the statutory injunction under s. 198 of the Act , as granted in the 2012 Order, was “clearly satisfied”.  Furthermore, the Board alleges the respondents have committed further breaches of the Order, which while not yet proven, “are supported by evidence” given a positive preliminary characterization by Dley J., 2015 BCSC 2118.  The Board says that although the alleged violations are breaches of the Act and Regulation rather than exposing persons to asbestos, the defiance of the 2012 Order is no less contemptuous. iv.  Evidence [42] The evidence before Macintosh J. was extensive.  The Board’s affidavits totalled over 900 pages.  These affidavits were sworn by Board officers and detailed various professional interface interactions with Mike Singh, Shawn Singh, and Seattle.  The format generally identified: (1) the location of the property at issue; (2) the nature of the work deficiencies and violations of the Act or Regulation uncovered; and (3) the process by which those violations were discovered, inspected, and confirmed.  Each affiant attached the material documents as exhibits (for instance a pertinent WorkSafe bulletin or guideline, a hazardous material survey, an inspection report, a notice of compliance, and follow-up inspection report). [43] For the respondents, only Shawn Singh provided an affidavit that, including exhibits, was over 800 pages.  In addition to various court filings and documents, Shawn Singh included inspection reports, review documents, reports from various job sites, compliance letters, photographs of various properties and safety equipment, and WorkSafe guidelines. [44] For illustrative purposes, I will detail one example of the evidence available to the judge on the contempt application.  In the application relating to Shawn Singh, one of the enumerated locations where Mr. Singh allegedly breached the 2012 Order was a property at 6449 130th Street, Surrey, B.C.  The Board’s pleading particularized the alleged violations as follows: a) Between March 9, 2015 and April 19, 2015, in conducting an inspection of and identifying hazardous materials at that location, the respondent SHAWN SINGH did not collect representative samples of material that may be hazardous material, did not identify each representative sample, and/or did not make a written report of the inspection that included the location and identity of each hazardous sample, and in so doing breached section 20.112(3) of the Regulation, when the Respondent SHAWN SINGH took ten samples identified as coming from ten rooms of the building without identifying the materials as homogenous or taking a sufficient number of samples from each non-homogenous material; and b) Between March 9, 2015 and May 28, 2015, in conducting an inspecting of and identifying hazardous material at that location, the Respondent SHAWN SINGH did not collect representative samples of material that may be hazardous material and did not determine whether it was a hazardous material, and in so doing breached section 20.112(3) of the Regulation, when the Respondent SHAWN SINGH failed to collect samples or and identify as hazardous several materials with the building, including drywall joint compound, textured wall material, and textured ceiling material. [45] In support of this pleading, the Board provided the 1st Affidavit of Kimiko Banati, made June 11, 2015.  Ms. Banati details her attendance and observations at the 6449 130th Street property where a building was being demolished in April 2015.  A summary of her affidavit evidence and the relevant exhibits is as follows: · She observed workers removing drywall who were not wearing respirators, coveralls, or other personal protective equipment; she did not observe any decontamination facility. · She attaches a copy of the Hazardous Material Survey for the property provided to her in April 2015, which was authored by Shawn Singh on behalf of ESS Environmental Ltd. · She was told all asbestos-containing materials had been removed already. · She notes and attaches a copy of a WorkSafe Bulletin noting locations where asbestos-containing materials can be found in older homes.  She also specifies the relevant section of the Regulation , and the applicable Guideline published by the Board. · She notes the deficiencies between the Survey and the Guideline requirements.  After noting these deficiencies, she ordered ESS Environmental to ensure the Survey is complete as required by the Regulation .  Her inspection report and order are attached as exhibits. · The same day as her report and order, she received a revised survey from ESS, also authored by Shawn Singh, dated ten days prior (the “second survey”).  That second survey is also attached.  She found the second survey contained inconsistencies and relied on information that could only have been available after removal of potentially asbestos-containing materials.  She requested confirmation of the renovation dates relied on by Shawn Singh.  She did not receive that information from him. · Out of concern about the potential ongoing presence of asbestos, Ms. Banati commissioned a third-party consultant to conduct sampling and determine the presence of asbestos in certain materials.  She did not provide them with specific instructions on sampling, nor did she provide them with Mr. Singh’s surveys.  She received the report in May 2015, and it is attached as an exhibit to her affidavit.  The report identified asbestos as present in two materials in various locations, all not identified in either of Mr. Singh’s surveys. · At Shawn Singh’s request, a meeting with WorkSafeBC was held where he disputed the third-party consultant’s findings.  A copy of the meeting report is attached as an exhibit. · A new third-party consultant was engaged to conduct a full hazardous materials survey on the property, with two sets of samples taken and sent to two separate labs.  ESS Environmental was onsite during the sample collection and also took its own samples.  ESS produced a third survey.  The third-party consultant provided a survey.  A lab report from the second lab was also provided in respect of the second set of samples.  Copies of each of the three surveys/reports are attached as exhibits.  They are substantially in accordance with one another.  The third ESS survey identified asbestos-containing materials not identified in the first and second ESS surveys. [46] The respondents’ response does not explicitly respond to the specific Board pleadings.  As already noted, the response largely contains broad allegations of discrimination and abuse by the Board.  The respondents do “deny that they have breach[ed] any provision of the Regulations, in particular they deny that they exposed anybody to asbestos or that they put anybody to the risk of exposure to asbestos.” [47] Although the response does not directly address the allegations in respect of the 6449 130th Street property, Shawn Singh’s affidavit sworn December 2, 2015 directly responds to Ms. Banati’s affidavit and the Board’s pleading in respect of that property.  His evidence is as follows: · He says his first survey complied with the Regulation and guidelines.  He says after that report, an abatement company did abatement work and “caused a complete mess” when conducting demolition, which exposed asbestos-containing materials that were not visible during his original inspection.  He attaches photos of the situation after the abatement work.  He notes inspectors are not required to conduct destructive sampling. · He says he informed Ms. Banati that renovations in recent years may have covered asbestos-containing materials.  He complied with her request to amplify his report.  He says he conducted new sampling and issued a new survey that contained a “Warning” noting the importance of having a qualified abatement contractor supervise and carry out all work, and the need to stop work immediately and seek advice “if any suspicious materials [are] found on site after this report”. · He says he took an adequate number of samples pursuant to the guidelines and square footage of the home and properly recorded the results from the lab.  He says the guidelines are not specific as to the requisite number of samples for particular areas, beyond a number of samples per square footage. · Shawn Singh disputes Ms. Banati’s claim he failed to provide her with information about the renovations to the property. · With respect to the WorkSafeBC meeting convened in May 2015, he says he identified discrepancies in the third-party consultant’s report, which deficiencies were acknowledged by a WorkSafeBC prevention manager.  He attaches various documents he says demonstrate “the double standards and discrimination applied by WorkSafeBC” as between the third-party consultant and ESS Environmental. · Shawn Singh sought a review of the order and penalty levied against ESS, and attaches a copy of his review application. [48] Ms. Banati’s affidavit is representative of the affidavits and exhibits provided by other Board officers.  The referenced portion of Shawn Singh’s affidavit is representative of the whole affidavit.  However, the respondents did not otherwise provide affidavit evidence to support their position.  In particular, Mike Singh and Seattle did not provide evidence to refute the Board’s pleadings and evidence with respect to allegations made against them. C.  Decision of the Chambers Judge (Macintosh J.) [49] After a hearing held over five days in February 2016, Mr. Justice Macintosh dismissed both the Board’s and the respondents’ applications on February 26, 2016.  He declined to order costs on either application.  His order was entered April 8, 2016. [50] Mr. Justice Macintosh outlined the history of the matter, in particular the 2012 and 2013 Orders and the evidence presented by the Board in respect of the 2012 Order.  Noting that the 2013 Order, which found the respondents in contempt of the 2012 Order, went by consent, he concluded it was appropriate for him to consider whether the relevant paragraphs of the 2012 Order were capable of supporting a contempt finding: 2016 BCSC 394 at para. 13. [51] The judge said that the Board brought “substantial evidence of the Respondents breaching the Act or the Regulation, or both, since the 2013 Order”: at para. 16.  Although noting the Board advanced 13 complaints against Shawn Singh and 24 complaints against Mike Singh and Seattle, he only found it necessary to provide an overview of the general character of the evidence provided on each count and then go through a few examples.  In summarizing the general character of the evidence, he said: [18]      For each of the 37 counts, the Board started its presentation by naming the address of the house where it said the non-compliant surveying or abatement took place.  For some addresses, there were two counts or more.  For each count, first the complaint was summarized; second, the applicable section of the Act or the Regulation was set out; and third, the offending conduct was particularized.  Mike Singh and Seattle presented no evidence to defend against their counts.  However, Shawn Singh did present response evidence for his counts.  Also, the Board’s witnesses for the Shawn Singh counts were cross-examined.  In addition to the three steps named above in the Board’s presentation for each count against Mike Singh and Seattle, the Board therefore added steps four and five against Shawn Singh, being its summary of the cross-examination of the Board witness and a summary of Shawn Singh's testimony for each count. [52] The judge then detailed the evidence on the first three complaints against each of Shawn Singh, Mike Singh, and Seattle: at paras. 20‑32. [53] He framed the central question as whether the relevant paragraphs of the 2012 Order were “sufficiently clear, and not overly broad, so as to be enforceable by a finding of contempt”.  In his assessment the other contempt prerequisites (actual knowledge, intentional act or omission) were not in issue: at paras. 34, 37‑38. [54] With respect to what he deemed the “heart” of the case, namely whether the order “state[d] clearly and unequivocally what can or cannot be done”, he concluded it did not: at paras. 37‑38, 49, 58.  His conclusion the 2012 Order was unclear was based on four perceived flaws, each of which he considered a sufficient, stand-alone reason for refusing to base a contempt finding on the 2012 Order. [55] First, there was a temporal flaw, in that the order required the respondents “not to breach the Act and not to breach the Regulation”, but did not refer to the Act or Regulation as at a particular date: at paras. 39‑40.  As a result, and in particular because the Act and Regulation are frequently amended, the 2012 Order was capable of two possible interpretations: either it required compliance with the Act and Regulation “as they stood at the date of the Order”, or it required compliance with the Act and Regulation “as amended from time to time”: at para. 40. [56] Second, there was a flaw related to the scope of the Act and Regulation .  In short, they were too large and complex.  The judge noted the Act contained, at that time, 260 sections and five schedules, organized into four parts, which in turn are subdivided into divisions: at para. 41.  The Regulation was “equally or more daunting to the untrained eye”: at para. 42.  In addition to the text of the Regulation , there are “associated guidelines and Policies”, as well as “WCB Standards”, each of which are “voluminous and complex”: at paras. 43‑44.  On the basis of this breadth and complexity, he concluded the 2012 Order did not satisfy the “clear and unequivocal” requirement for a contempt finding: at para. 49. [57] Third, and related to the second flaw, there was a flaw relating to the need to cross-reference the 2012 Order with other materials to determine the nature of the obligation.  The respondents had not appealed the 2012 Order, and thus the question was not one of validity, but rather whether the order could support a contempt finding: at para. 50.  The judge noted that in Gurtins v. Goyert, 2008 BCCA 196, the contempt finding in that case was set aside because the respondent could only ascertain their precise obligation by cross-referencing material with the order: at para. 51.  Applying that reasoning, he concluded the respondents would have to cross-reference the Act and Regulation with the 2012 Order to determine whether their conduct was contemptuous: at para. 52. [58] Fourth, the 2012 Order was flawed because it lacked clarity.  As Macintosh J. put it, “[e]ven if every word of the Act and Regulation was contained in the body of the 2012 Order, it would still be impossible, in my view, for the Respondents to know, when they went to work each day, whether their work put them offside the Act, or the Regulation, and therefore in contempt of this Court”: at para. 53.  The judge’s basic concern was that many provisions were “generally worded, such that there is room for debate as to whether particular conduct complies or does not”, such as when the regulations require “methods acceptable to the Board”, where acceptable methods are either not defined or the definition requires further cross-referencing: at para. 53.  Comparing the 2012 Order to that which founded a contempt order overturned in Culligan Canada Ltd. v. Fettes, 2010 SKCA 151, he concluded the order in Culligan was not “any less clear or less focussed … than is the 2012 Order”: at paras. 54‑55. [59] As for the respondents’ application to set aside the 2012 Order, Macintosh J. dismissed it summarily.  His reasons bear repeating: [59]      The Respondents sought to avoid the risk of findings being made against them for contempt by applying to set aside the 2012 Order upon which the contempt applications were based. [60]      As I noted earlier, the Respondents did not appeal the 2012 Order, and the Court relied upon it when making the 2013 Order. [61]      The Respondents challenge the 2012 Order based on three assertions.  First, they allege that the Board published false allegations about them in the media.  Second, they alleged that the Board’s counsel behaved deceitfully and maliciously against them in the 2013 application.  They abandoned that very serious allegation toward the end of the five-day hearing before me.  Third, they allege that Board staff have now perjured themselves and tampered with the evidence against the Respondents, and discriminated against the Respondents on racial grounds. [62]      Those allegations suffer from two deficiencies.  First, it is unlikely they would constitute a basis for setting aside the 2012 Order, even if they could be proved.  Second, there is no evidence to support any of those allegations.  For the first and third allegations, which the Respondents did not abandon, the Respondents pointed to no evidence of any substance.  In one newspaper account of an earlier stage in these proceedings, there was one error which the newspaper corrected.  There is no other evidence for the first allegation.  For the third allegation, I was directed to no evidence whatever apart from uncorroborated generalizations by one Respondent. [63]      The Respondents' application to set aside the 2012 Order is dismissed. [60] With respect to costs, Macintosh J. noted that the contempt application occupied the bulk of the five-day hearing, whereas the respondents’ application took up a small part of the hearing.  He determined that while the respondents would usually be entitled to their costs for the contempt application, the “scandalous and baseless allegations” made in the respondents’ application would warrant a special costs order against them that would off-set the ordinary costs award for the other part of the hearing: at para. 69.  He therefore declined to make any costs order. [61] The judge referred to the Board having declined his invitation to amend its application to request closure of the respondents’ businesses pursuant to s. 198(1)(e) of the Act : at para. 66.  Section 198(1)(e) came into force on May 14, 2015: Workers Compensation Amendment Act, S.B.C. 2015, c. 22, ss. 14, 16.  The question of whether s. 198(1)(e) could apply was not fully argued before us. D.  Issues on Appeal [62] The following issues are raised in the main appeal: (1)      Did the chambers judge err in finding that Russell J.’s 2012 Order was not sufficiently clear to be enforceable by a finding of contempt?  Specifically, did the chambers judge err by basing his conclusion on: (a)  the order failing to specify whether the person bound is to comply with the Act and Regulation as they existed at the time of the order, or as amended from time to time; (b)  the Act and Regulation being so large as to be inherently too complex to be clear enough to found a contempt finding; (c)  the order requiring the person bound to cross-reference the Act and Regulation to determine the prohibited acts and omissions; and (d)  particular sections of the Act and Regulation being too vague to found a contempt finding. (2)      Did the chambers judge make a palpable and overriding error of fact in finding the respondents could not reasonably know what was expected of them in terms of compliance with the Act and Regulation ? [63] On the cross-appeal, the respondents raise the following issues, though at the hearing they relied primarily on their factum: (1)      Did Russell J.’s 2012 Order expire upon the hearing of the 2013 contempt application by Funt J.? (2)      Did the chambers judge make a palpable and overriding error by failing to set aside Russell J.’s 2012 Order? (3)      Should the respondents be awarded special costs in respect of the hearings before Russell J. (2012), Dley J. (2015), and Macintosh J. (2016)? IV. Workers Compensation Act A .  The Act [64] The Act is remedial legislation.  The present proceedings concern Part 3 of the Act , “Occupational Health and Safety”.  The purpose of Part 3 is broadly defined in s. 107(1) of the Act as “to benefit all citizens of British Columbia by promoting occupational health and safety and protecting workers and other persons present at workplaces from work related risks to their health and safety”. [65] Part 3 applies broadly to “every employer and worker whose occupational health and safety are ordinarily within the jurisdiction of the Provincial government” (s. 108(1)(b)).  The Board has the broad mandate to “be concerned with occupational health and safety generally, and with the maintenance of reasonable standards for the protection of the health and safety of workers in British Columbia and the occupational environment in which they work” (s. 111(1)). [66] In carrying out its mandate, the Board has authority “to establish standards and requirements for the protection of the health and safety of workers and occupational environment in which they work” (s. 111(2)(a)).  It is given broad authority to make comprehensive regulations “for the purpose of protecting the health or safety of workers, make regulations in relation to hazardous substances and other substances that are potentially harmful to workers” (s. 158). [67] The Act places obligations on workplace owners, employers, workers and supervisors.  Every employer is required to comply with Part 3 of the Act , the regulations and any applicable orders (s. 115(1)(b)).  The same obligation applies to every worker (s. 116(1)(b)), supervisor (s. 117(1)(c)), and owner of a workplace (s. 119(c)).  Every director and every officer of a corporation “must ensure that the corporation complies with this Part, the regulations and any applicable orders” (s. 121).  It is evident, then, that the Act broadly requires compliance with the Act and Regulation through the workplace chain of command. [68] Division 11 of Part 3 of the Act authorizes an officer of the Board to enter a place to investigate complaints or determine whether there has been compliance with the Act or Regulation (s. 179(1)(d)).  There are evidence-gathering procedures authorized with various procedural safeguards (ss. 180‑186).  The Board can enter into agreements with an employer in certain limited circumstances (s. 186.1).  The Board can also make orders, require compliance reports, and impose administrative penalties (ss. 187‑196.1).  Finally, the Board may apply for injunctive relief from the Supreme Court (s. 198). B.  Occupational Health & Safety Regulation [69] Part 6 of the Occupational Health & Safety Regulation applies to workplace exposure to potentially hazardous substances.  Much of Part 6 is devoted to protecting against workplace exposure to potentially hazardous levels of asbestos fibre.  The asbestos provisions in Part 6 have a comprehensive, taxonomical structure. [70] The asbestos protection provisions are engaged whenever a worker in a workplace “is or may be exposed to potentially harmful levels of asbestos fibre, including a workplace where asbestos-containing material is present” (s. 6.2).  In that case, the employer must “develop and implement an exposure control plan” that meets the requirements set out in s. 5.54 of the Regulation (s. 6.3(1)). [71] The employer must have a “qualified person” collect representative samples and determine whether each sample is an asbestos-containing material in accordance with the method set out in s. 6.1 (s. 6.4(1)).  Section 6.1 defines a qualified person as a person who has both “knowledge of” and “experience in” managing and controlling asbestos hazards.  The employer must have that qualified person prepare an inventory of all asbestos-containing materials at the workplace, and must keep the inventory current and available at the workplace (s. 6.4(3)(c)).  The employer is also responsible for ensuring all asbestos-containing materials are identified at the workplace (s. 6.5). [72] Once the inventory is prepared, the employer must have a qualified person perform a “risk assessment” on all materials identified in the inventory before any work that may disturb asbestos-containing material begins (ss. 6.6(1)‑(2)).  Before any work activity that involves working with or in proximity to asbestos-containing material begins, the employer must have a qualified person classify the work activity as low, moderate, or high risk (s. 6.6(3)).  An employer must, inter alia , ensure that friable asbestos-containing material in the workplace is controlled by removal, enclosure or encapsulation so as to prevent the release of airborne asbestos fibre, and must not allow any work that would disturb friable asbestos-containing material unless necessary precautions have been taken to protect workers (s. 6.7). [73] All procedures relating to the control, handling, or use of asbestos and asbestos-containing material must be “in accordance with procedures acceptable to the Board” and must “prevent or minimize the release of airborne asbestos fibres” (ss. 6.8(1)‑(2)).  Procedures must include “task-specific work direction” identifying hazards and controls, and must address containment of operations, controlling release of asbestos fibres, personal protective equipment and clothing, worker decontamination, and removal and cleanup of asbestos waste (ss. 6.8(3)‑(4)).  Moreover, workers at risk of exposure must be “adequately instructed and trained” in the hazards, means of identifying asbestos-containing materials, work procedures, use of personal protective equipment, operation of engineering controls, and both the purpose and significance of health monitoring (s. 6.11).  Personal protective equipment requirements and specifications are an employer’s responsibility, and are detailed in the Regulation (ss. 6.29‑6.31). [74] Depending on the risk level identified during the assessment phase, employers must conduct sampling operations to check airborne asbestos fibre levels (s. 6.12); identify, mark, secure, and restrict access to the designated work area (s. 6.13); and may have to provide a containment and decontamination facility (s. 6.16).  The design requirements for containment and decontamination facilities are specified (ss. 6.17‑6.19). [75] Additional methods of controlling exposure to asbestos, including protecting work surfaces (s. 6.20), wetting asbestos-containing material (s. 6.22), and preventing the creation and spread of asbestos dust and debris (ss. 6.21, 6.24) are all specified in the Regulation .  Waste storage, clean-up, and removal procedures are also specified (ss. 6.25‑6.28). [76] In sum, the Act gives the Board a broad mandate, and the Regulation sets out detailed requirements for various actors in the workplace to ensure proper handling of asbestos. V. Discussion and Analysis [77] Based on the record before the Court, it is clear that over the course of years of interactions between the Board and the respondents, there were many Board orders outlining breaches of the Act and Regulations , with particulars provided regarding those breaches.  In many cases where these orders were made, the respondents were required to, and did submit, a notice of compliance in which they indicated how they proposed to comply with the Act and Regulation in the future. [78] Eventually the Board sought an order under s. 198 of the Act in the face of multiple ongoing breaches of the Act and Regulation (the material before the Court indicates that over 200 orders have been made against the respondents).  At the relevant time, s. 198(1) in its relevant respects read as follows: 198 (1) On application of the Board and on being satisfied that there are reasonable grounds to believe that a person (a) has contravened or is likely to contravene this Part, the regulations or an order, or (b) has not complied or is likely not to comply with this Part, the regulations or an order , the Supreme Court may grant an injunction restraining the person from continuing or committing the contravention or requiring the person to comply , as applicable. [Emphasis added.] [79] At issue is the following term of the 2012 Order of Russell J, which stated each of Mike Singh, Shawn Singh, and Seattle: is restrained from breaching the provisions of the Workers Compensation Act of British Columbia, R.S.B.C. 1996, Ch 492, and the Occupational Health & Safety Regulation, B.C. Reg 296/97, enacted pursuant thereto. [80] The judge based his finding that the order of Russell J. was not sufficiently clear to be enforceable by a finding of contempt based on four factors which I will deal with seriatum . A.  Temporal Ambit of the 2012 Order [81] The judge found that the 2012 Order did not refer to the Act or Regulation as of a particular date, and therefore the Order is capable of two interpretations: either it requires compliance with the Act and Regulation as it existed at the time the order was made, or alternatively, compliance with the Act as amended from time to time. [82] I am not persuaded that the 2012 Order is ambiguous in this respect.  First, the only reasonable interpretation of the Order is that it requires compliance with the Act and Regulation as amended from time to time.  It would make no sense to require compliance with statutory or regulatory requirements that had been replaced or superseded, but that is what a point-in-time interpretation would require. [83] Second, the statutory obligation on employers, workers, supervisors and the directors and officers of corporations (earlier described) surely must be to comply with the Act and Regulation s as they exist from time to time .  This makes sense because the Act and Regulation s governing health and safety are contextual, reflecting changes in knowledge and technology, and reflecting the ongoing obligations of persons who elect to operate for profit in this industry to keep informed and abreast of workplace requirements.  Orders under s. 198 surely parallel those obligations as a means of ensuring compliance. [84] In any event, were it necessary to do so, I would read into the Order the requirement to comply with the Act and Regulations as amended .  Doing so does not entail the Order being unclear or unable to found an order for contempt.  Instead, it only reflects what is clearly the only reasonable understanding of the Order.  In Sound Contracting Ltd. v. Regional District of Comox-Strathcona , 2005 BCCA 167, Mr. Justice Smith, speaking for the Court, upheld a finding of contempt, holding that an order requiring the production of documents should be interpreted as requiring compliance within a reasonable period of time , rejecting the position that the failure to specify a precise time for production created impermissible ambiguity.  Similarly, in my view, it is clear that the requirement was to comply with the Act and Regulation as amended, and the failure to expressly specify that does not create impermissible ambiguity. B.  Inherently Complex [85] The judge found that the Act is “voluminous and complex, particularly for people who are not lawyers”.  Indeed, the Act and Regulation contain many sections and schedules, some of which I have outlined above.  This prolixity seems to have founded the conclusion that the 2012 Order does not satisfy the requirement for a clear and unequivocal statement of what the respondents need to do or must not do in order to avoid being found in contempt. [86] While the Act and Regulation may have some complexity, the persons to whom they apply voluntarily engage in a business for profit in a highly regulated area, and do so on the understanding that they must comply with the Act and Regulation .  The Act and Regulation are concerned with workplace safety.  Requiring familiarity and understanding of statutory and regulatory requirements for workplace safety from voluntary industry participants is not an impermissibly onerous requirement.  This is especially so, given the nature of the business in this case. [87] As the appellant points out, the respondents are not expected or required to be aware of every section of the Act and Regulation .  They are expected and required to be aware of those provisions of the Act and Regulation that apply to the industry in which they voluntarily participate.  Those include some of Part 3 of the Act and some of Parts 5, 6 and 20 of the Regulation . [88] Moreover, in this case, I do not understand the respondents to ever have contended that they did not know and understand the requirements of the Act and Regulation .  Their response materials do not so allege.  With respect to most of the breaches alleged, the respondents took no issue with the Board’s factual assertions, but rather took the position, as noted by the judge, that the “best defence was a good offence” arguing, inter alia , discrimination and racism (para. 64), suing the Board, its counsel, and bringing a human rights complaint.  The “evidentiary” matters underlying those assertions are repeated in the written arguments before us. [89] There are two cases referred to as supporting the proposition that the 2012 Order does not satisfy the requirement for a clear and unequivocal statement of what the respondents need to do or must not do in order to avoid being found in contempt: Culligan Canada Ltd. v. Fettes ; and Tiger Tool International Incorporated v. Cool‑It Hi‑Way Services Inc. , 2015 BCSC 1606. [90] In Culligan , the issue before the Court was whether an injunction was clear or ambiguous prohibiting former employees from broadly described activities in relation to customers of their former employer.  There was a significant judicial history where successive judges had attempted to clarify the order which prevented the former employees from “serving” customers of their former employer, yet was not intended to restrain competition.  The Court referred to this problematic language as follows: 30 In my respectful view, the inconsistency between the reasons of Ball J. and the Corrigendum, and the lack of clarity in the Corrigendum, make the certain and consistent application of the Order to these facts problematic. The reasons contemplate some legitimate competition on the part of Novo and the named employees (apart from Mr. Fettes). The Corrigendum defines “serve” as being “useful to”, which appears to collide with allowing legitimate competition, but then speaks of prohibiting only “initiatives,” which appears to permit contact between Novo and customers as long as the customers were not solicited by Novo, and to narrow the scope of the Order. This Court’s capacity to apply the Order to these facts, therefore, is undermined by the Order’s failure to clarify the content of the prohibition against “serving”. The definition of “serve” in its broadest sense would mean that any contact between Novo and WaterGroup customers would be enjoined, but if the term “serve” only enjoins contact initiated by Novo, none of the impugned activities in the first contempt application could support a finding of contempt. [91] The issue in Culligan thus turned on an ambiguity in the order that rendered it unclear. [92] In my view, the same observations apply to the decision in Tiger Tools .  There, the party seeking an order of contempt argued that the terms of an injunction required compliance with an agreement.  There was substantial disagreement between the parties as to what the agreement required, so it was unclear what was to be done or not done.  The Court concluded (at para. 41) that “[w]hat Tiger Tool is really seeking to do on this application is to resolve highly-contentious issues through a summary process on [a] … contempt application.”  The highly-contentious issue referred to was precisely what was required by the commercial agreement. [93] In this case, the 2012 Order required compliance with the Act and Regulation .  I do not see there is any ambiguity in the Order as was the case in Culligan and Tiger Tools .  The 2012 Order plainly required compliance with the Act and Regulation in a highly-regulated workplace environment.  It did so in the context of over 200 Board orders over several years. C.  Cross-Referencing [94] The judge found that the respondents could not know their obligations by what was said in the 2012 Order, but had to cross-reference other material (the Act and Regulation ) in order to ascertain their precise obligations.  The appellant says there are no authorities that find it is improper to enforce an order that requires compliance with a statute or regulation. [95] The judge referred to the decision of this Court in Gurtins v. Goyert , 2008 BCCA 196.  In Gurtins , the issue in a family proceeding was whether one of the parties was in contempt when they did not return a child from Victoria to Kitimat.  There was nothing on the face of the order that enjoined that although by reviewing the order, reasons for judgment and transcripts of proceedings such an “intention” could be inferred.  The cross-referencing issue was that it was impossible to determine the precise obligation without reading into the injunction implied terms garnered by reference to extraneous material.  That is not the case here. [96] Of course, the criminal law requires compliance with its statutory provisions.  Every form of release under the Criminal Code will ordinarily include a clause requiring the person released to “keep the peace and be of good behaviour”.  This requires the person to obey the law with subsequent criminal charges being treated as a breach of the term.  Breaching this term can result in a person’s imprisonment and a further conviction on the person’s criminal record.  Courts routinely enforce such terms, without finding them too vague and thus, unenforceable, because they require “cross-reference” to a host of large and complex statues, such as, inter alia, the Criminal Code. [97] In my view, the answer to this issue lies in the scheme of the Act and the statutory language.  Subsection 198(1) provides that the Supreme Court may grant an injunction requiring a person to “comply” with “this Part, the regulations or an order” on an application in the specified circumstances.  One of the specified circumstances is where “a person … (b) has failed to comply with, or is likely to fail to comply with, this Part, the regulations or an order”. [98] That is precisely the order the Board sought and obtained from Russell J., in the context of a statute that already required the respondents to comply with the statute and regulations and where, it was alleged, the persons concerned had been found to be in breach of numerous statutory and regulatory requirements leading up to obtaining the order.  While the order may be broad, it was particularly appropriate, and legislatively permitted, in the circumstances of this case. [99] In my view, it was precisely situations like the one at bar, where the alleged contemnors have a long history of breaches of the regulatory regime, that the legislature provided this avenue for court-ordered injunctive relief to ensure regulatory compliance.  The judge’s finding suggests that even though the legislature requires statutory compliance and allows a court to order certain persons to comply with the statute in defined circumstances, the court nonetheless cannot enforce such orders through its contempt powers.  With respect, I cannot agree. D.  Vagueness [100] The judge found that even if all of the applicable requirements of the Act and Regulation had been set out in the 2012 Order, it would still be impossible for the respondents to know whether their conduct was in compliance with the Act and Regulation because many sections are generally worded, leaving room for debate on whether particular conduct complies or does not comply with the Act and Regulation . [101] The respondents did not take the position in their pleadings or their evidence that they were unaware of what was required of them or that any of the obligations were worded in a manner too vague to be understood.  Of course, whether any particular alleged violation of the Act or Regulation is made out on the requisite standard is a matter of proof.  It is clearly open to a court to find that any particular breach alleged is not made out because a statutory requirement is unclear or ambiguous. [102] In my view, the fact that some provisions of the Act or Regulation may be attacked as unclear does not render an order to comply with the Act and Regulation incapable of enforcement by contempt.  If the breaches alleged are founded on an uncertain statutory provision, then the breaches might not be made out and the conduct alleged could not be found to be in breach of the court order.  The reasoning for this is that the applicant has not demonstrated, beyond a reasonable doubt, that a provision has been breached, since it may be reasonable to find that the impugned act or omission was not, for example, within the scope of the provision’s prohibition.  The heavy lifting required of the court is to review the evidence adduced and the particular statutory or regulatory provision to ascertain if the breach is made out on the applicable standard, and whether that breach warrants a finding of contempt. E.  General [103] Contempt of court rests on the power of the court to uphold its dignity and process.  The purpose of a contempt order is most importantly a declaration that a party has acted in defiance of a court order.  Civil contempt has three elements which must be established beyond a reasonable doubt: (1) the order must state clearly and unequivocally what should and should not be done, (2) the party alleged to have breached the order must have knowledge of the order, and (3) the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.  These elements, together with the heightened standard of proof, ensure that a contempt finding ensues only in the appropriate circumstances: Carey v. Laiken , 2015 SCC 17 at paras. 30‑33. [104] Further, the contempt power is discretionary and courts have generally discouraged its routine use to obtain compliance with court orders.  It should not be used merely as a means of enforcing judgments and should be used cautiously and with great restraint.  Thus, where an alleged contemnor acted in good faith in taking reasonable steps to comply with the order, the judge entertaining a contempt motion retains some discretion to decline to make a finding of contempt: Carey , paras. 36‑37. [105] By these reasons I do not mean to suggest that contempt has been made out in this case.  That issue is not properly before this Court.  The issue here is whether the judge erred in finding that the relevant paragraphs of the 2012 Order cannot form the basis of contempt of court because they were not sufficiently clear.  I would conclude that the judge did so err.  It is now necessary for the court to perform the three-element analysis with respect to the breaches alleged and the requirements for a finding of contempt, and if those elements are established on the heightened standard of proof, then to decide whether to exercise the court’s residual discretion to nonetheless deny the application for contempt.  The results of that analysis are factually driven.  It will be for the court hearing the contempt application to make those factual findings and discretionary decisions. [106] I would also note that this is somewhat of an extraordinary case.  The matter before the court involves a lengthy and continuing history of multiple types of workplace conduct said to be of a very serious nature.  It involves for-profit actors with statutory duties in a highly regulated workplace.  There have been multiple Board orders, compliance reports and administrative penalties.  In such circumstances, an order requiring compliance with the statute and regulations may be viewed somewhat differently than matters involving isolated incidents or infrequent conduct. VI. Reply and Cross-Appeal [107] In the respondents’ reply and cross-appeal, they alleged a number of errors which I have collapsed into four categories: (1) that the judge erred in failing to set aside or properly interpret the 2012 Order, (2) that the judge showed bias against the respondents by condoning the conduct of the appellant’s lawyers, (3) that the judge exhibited bias by his conduct of the proceeding, and (4) that the judge erred in failing to award special costs, or costs, to the respondents. A.  The Order of Russell J. [108] The respondents attack the 2012 Order in two respects:  (1) they say that it was wrongly interpreted, and (2) that it should have been set aside. [109] With respect to the interpretation issue, the respondents say that the order expired following the conclusion of the hearing before Funt J., which was the next hearing following the making of the order by Russell J.  I do not see how this can be so. [110] The hearing before Funt J. was not a hearing on the merits of the original application.  It seems the respondents have misunderstood the meaning of an interim order.  An interim order is an order that is in effect only until a hearing of the underlying application on the merits , where it may be set aside or varied by the Court.  It does not cease to be in effect just because the parties subsequently appeared before another judge. [111] While the Russell J. order was an interim order, it was not superseded by any subsequent order.  It did not have an expiry date.  The hearing before Funt J. was on the question of whether the respondents were in breach of the Russell J. order.  He found that they were in breach of some of its provisions.  Although the Russell J. order is an interim order, it was not set aside or challenged by a subsequent hearing on the merits.  Accordingly, it remained in force.  I can find no error in the Court’s reasoning on this issue. B.  Bias [112] The respondents say that Macintosh J. showed bias against them.  They say that he “bullied” respondents’ counsel to abandon assertions against counsel for the Board, was “not impartial” in his assessment of the evidence, and had a “closed mind” when it came to the question of costs. [113] In support of their position, the respondents refer to the affidavit of Mike Singh, which forms part of the “Respondent’s Appeal Book”.  The affidavit is sworn June 23, 2016.  The proceedings before Macintosh J. concluded with the entry of the order on April 8, 2016, arising from reasons pronounced February 26, 2016. [114] Rules 26(1) and 26(1)(b) of the Court of Appeal Rules, B.C. Reg. 297/2001, as amended, require the contents of an Appeal Book to be in Form 12.  Form 12 provides that “[t]he Appeal Books must contain only so much of the evidence, including exhibits, affidavits and other documents, as is necessary to resolve the issues raised on appeal…”.  Mike Singh’s affidavit forms no part of the evidence in the court below. [115] The affidavit is apparently the opinion of Mike Singh on the conduct of the proceedings below.  This affidavit is not properly before the court and should not have been included in the Appeal Book.  If the respondents took issue with the conduct of the proceedings below, they should have included in their materials transcripts of those proceedings.  I note that they have included transcripts from other proceedings before other justices, but those are not relevant on this point. [116] I am satisfied that the record below shows no evidence of a lack of impartiality and it does not support the assertion that the judge had a closed mind on the issues before him. C.  Conduct of Counsel [117] The respondents take issue with the conduct of counsel for the Board before the court below.  They variously describe that conduct as “troubling, reprehensible and outrageous”, “dishonest and deceptive”, and “misleading”.  These are strong assertions that should not be lightly made against an officer of the court.  I have reviewed the assertions made and the evidence said to be in support of those allegations. [118] An example of conduct that is said to support those allegations concerns representations regarding the 2012 Order.  The respondents assert that counsel misled the court because “plain and simple [the order] does not exist anymore”.  That assertion is incorrect.  As discussed above, the respondents misunderstand the nature of an interim order.  Although the order was an interim order, it remained in place until varied or set aside.  Neither occurred.  Counsel did not mislead the Court. [119] The respondents take issue with some of the representations made by counsel during the course of the hearing.  For example, they say that counsel said “That the respondents are evil” and “That the respondents are killing people”.  In support of those assertions they refer to two passages in transcripts of the proceedings. [120] With respect to the first assertion, counsel actually speaks of the “evil that we are seeking to stop here”.  The evil is “exposing people to danger” in the workplace.  Counsel did not say the respondents are evil.  There is nothing inappropriate or untoward in making such a submission in the context of this proceeding. [121] Nor did counsel say, as the respondents assert, that the respondents are killing people.  What counsel did say is the following: the violations are egregious.  They are not simply missed opportunities.  They’re in some cases conscious efforts to disobey the rules and in those circumstances have exposed people to a deadly carcinogen, asbestos, and it’s being done for money.  We have evidence that’s part of this material that asbestos is a deadly carcinogen.  In the last ten years it’s been responsible for all 30 percent of all deaths arising out of in the course of employment.  Last year alone it was responsible for 44 percent of all deaths arising out of and in the course of employment….industrial disease now kills more workers than actual injury in the course of employment. [122] That submission was made in the context of an adjournment application.  The Board opposed the adjournment because of the seriousness of the conduct it said gave rise to the breaches.  There was nothing inappropriate or untoward in counsel making a submission regarding the seriousness of conduct said to violate workplace health and safety regulation. [123] I can see no merit to the respondents’ attacks on counsel’s conduct in the proceedings. D.  Costs [124] The respondents say that they should have been awarded costs or special costs.  On the question of costs, the Court found that success was divided.  The respondents’ application to set aside the 2012 Order was dismissed.  The Board’s application for orders finding the respondents in contempt was dismissed.  While success was divided, the Court was faced with the question of what order of costs to make where one application took more court time than another application. [125] On the record before him, the judge found that the respondents’ position involved “scandalous and baseless allegations against the Board, Board staff and Board counsel” that warranted an order for special costs.  As success was divided the judge found that the costs were properly offset.  It is trite law that orders as to costs are discretionary.  The judge did not err in failing to award the respondents costs or special costs in these circumstances. VII. Disposition [126] I would allow the appeal and dismiss the cross-appeal.  I would remit the matter to the court below to determine whether the respondents were in contempt of the 2012 Order of Russell J.  The appellant is entitled to its costs of this appeal. [127] Although the appellant has been successful in this appeal, whether they are successful in the petition is for determination by the court below.  I would leave the question of the costs of the first hearing to be determined at the rehearing of the petition. “The Honourable Mr. Justice Savage” I agree: “The Honourable Mr. Justice Frankel” I agree: “The Honourable Mr. Justice Harris”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Birch v. Brenner, 2017 BCCA 22 Date: 20170116 Docket: CA42737; CA42738 Docket: CA42737 Between: Suzanne Birch Respondent (Plaintiff) And Robin Elizabeth Brenner Appellant (Defendant) And Suzanne Birch and (Others Residing at Property) Respondents (Defendants By Way Of Counterclaim) - and – Docket: CA42738 Between: Robin Elizabeth Brenner Appellant (Plaintiff) And Frances Ann Bakewell Respondent (Defendant) And Robin Elizabeth Brenner Appellant (Defendant By Way Of Counterclaim) Before: The Honourable Mr. Justice Groberman The Honourable Mr. Justice Goepel The Honourable Madam Justice Fenlon On appeal from:  An order of the Supreme Court of British Columbia, dated March 26, 2015 ( Birch v. Brenner , 2015 BCSC 466, Vancouver Docket Nos. S128262 and S138927) Counsel for the Appellant: S.A. Dawson C. George Counsel for the Respondents: S.A. Griffin P.D.H. Williams Place and Date of Hearing: Vancouver, British Columbia April 26, 2016 Place and Date of Judgment: Vancouver, British Columbia January 16, 2017 Written Reasons by: The Honourable Mr. Justice Groberman Concurred in by: The Honourable Mr. Justice Goepel The Honourable Madam Justice Fenlon Summary: The parties are the owners of lots in Roberts Creek. The Birch and Bakewell lots enjoy an easement over the Brenner lot. At trial, the judge found that the easements provided rights of way not only to the nearest public road, but also to the Gulf of Georgia. He granted an expansive order setting out the rights of the parties. Ms. Brenner appeals, arguing that the easements do not extend to the water, and also that the judge’s order did not properly reflect his interpretation of the easements. Held: appeal largely dismissed. The judge interpreted the easements correctly. His order, while understandably designed to prevent future disputes between the parties, had the effect of expanding the respondents’ rights beyond those associated with a right of way. Accordingly, some modification to the order is required. Reasons for Judgment of the Honourable Mr. Justice Groberman: [1] Ms. Brenner, Ms. Birch and Ms. Bakewell each own one of three contiguous lots in Roberts Creek. There are easements over Ms. Brenner’s lot in favour of the lots owned by Ms. Birch and Ms. Bakewell. The trial judge found that the easements extend from a public road – Lower Road – to the foreshore on the Gulf of Georgia. Ms. Brenner takes issue with that finding, arguing that the easements only provide access from Lower Road to the Birch and Bakewell properties. [2] A secondary issue on this appeal is whether the formal order entered in the court below was in conformity with the judge’s findings. The Lands and the Easements [3] The lots owned by the parties comprised a single parcel of land until 1927, when the southeast corner of the parcel was subdivided off to form Lot A. Lot A is a waterfront parcel with no public road access. An easement along the eastern boundary of the remainder lot connected it to “Lower Road”. That easement is not in issue in this litigation. [4] In 1940, the remainder was further subdivided into four lots. Most of the waterfront portion of the remainder lot became Lot C. Two upland lots fronting on Lower Road were also created: one north of Lot C, designated Lot B; and one north of Lot A, designated Lot D. The fourth lot created was a 12 foot strip of land running south from Lower Road to the foreshore. Its eastern boundary coincided with the western boundaries of Lots A and D, and its western boundary coincided with the eastern boundaries of Lots B and C. It is designated “Private Road” on the subdivision plan. The following diagram, based on the 1940 subdivision plan, shows the general configuration of the lots: [5] In 1949, the owners of the “Private Road” lot (who also owned Lot C) granted an easement over the “Private Road” lot in favour of the owners of Lots A and C. The easement is described as “a right of way over the … private road for persons, animals, and vehicles.” [6] In 1973, the owner of Lots A and D proposed to consolidate the two lots, and, in the belief that it was necessary in order to effect a consolidation, acquired an easement in favour of Lot D over the Private Road lot. The easement is in identical terms to the 1949 easement. Although the easement was registered, the lots were not consolidated. [7] Today, Lot A is held by Ms. Birch, and Lot D is held by Ms. Bakewell. Ms. Brenner, who owned Lot C and the Private Road lot, has consolidated them into a single parcel, known as Lot 1. The easements that are appurtenant to Lots A and D continue to exist over that portion of Lot 1 that was formerly the “Private Road” lot. In accordance with the terminology generally used in the law of easements, I will use the term “dominant tenement” to describe the land that benefits from the easement (here, Lots A and D) and “servient tenement” to describe the lands over which the easement passes (here, that part of Lot 1 that was formerly the “Private Road” lot). The Litigation [8] In approximately 2004, Ms. Brenner and her husband (now deceased) constructed a home on their lot. The following year, they undertook extensive landscaping of their property. They installed hedges and other plants on parts of the easement, and also erected wire fencing on it. They placed a large boulder on the easement, blocking some vehicular use, and also installed a wooden fence and locking gate. The southern 120 feet of the easement ceased to be available for use by the respondents, preventing them from accessing the foreshore using the easement. [9] Eventually, the blocking of the southern portion of the easement resulted in litigation. At trial, among other claims, Ms. Birch and Ms. Bakewell sought declarations that they were entitled to use the easements, and injunctions restraining interference with them and requiring the removal of existing impediments. Ms. Brenner, among other claims, sought declarations that the easements were void or expired, and the cancellation of the easements. Supreme Court Decision [10] A number of issues were addressed at trial. The judge found the easements to be valid and enforceable, and concluded that they should not be modified or cancelled. He granted injunctive and declaratory relief. Most importantly, the judge rejected the proposition that the easements extended only from Lower Road to the respondents’ lots, finding that the easements continued to the foreshore: [45]      I am unable to accept that the Easements in this case are so limited. They both refer to a right-of-way over “the said private road”, and not merely that portion of it that permits access to Lots A and D. It is my view that the Easements in this case were intended by the grantors and grantees to afford the grantees a right of access from the Private Road not only to their properties, but to the beach and waterfront at the southern end of the Private Road as well. Any other interpretation of the wording of the Easements, and their depiction on Plan 6851 would fail to derive a sensible meaning from those words and depiction, as required by authorities such as Anglo-Saxon Petroleum Co. Ltd. v. Adamastos Shipping Co. Ltd ., [1957] 2 Q.B. 233. [11] After the reasons for judgment were pronounced, the parties disagreed on the appropriate terms for the formal order. The judge conducted a hearing to deal with several issues including the settlement of the orders. He gave reasons following that hearing (indexed as 2015 BCSC 974), including a discussion of the appropriate terms for the order. [12] The order in the proceeding brought by Ms. Birch against Ms. Brenner was settled in terms that include the following provisions: 2.         The Plaintiff Suzanne Birch and her agents, servants, workmen, and invitees are entitled to free, full, and uninterrupted access to the whole of the Easement Area for persons, animals, and vehicles save and except that the Easement conveys no right to park vehicles on the Easement Area or construct within the Easement Area a bridge to permit vehicle traffic to cross Stephens Creek. 3.         The Defendant Robin Brenner is enjoined from restricting the free, full, and uninterrupted use by the Plaintiff Suzanne Birch and her agents, servants, workmen, and invitees of the whole of the Easement Area for persons, animals and vehicles. [13] The order in the proceeding brought by Ms. Brenner against Ms. Bakewell included identical provisions, except that they referred to the “Defendant Ann Bakewell” and the “Plaintiff Robin Brenner” rather than the “Plaintiff Suzanne Birch” and the “Defendant Robin Brenner”. [14] On appeal, the major issue is whether the judge interpreted the easements correctly in finding that they afforded the holders of the dominant tenements a right of way to the foreshore, rather than only between Lower Road and their properties. A second issue is whether, in settling the orders, the judge afforded the respondents rights beyond those granted in the easements. The Nature of a Right of Way [15] Ms. Brenner argues that the judge failed to appreciate the nature of a right of way granted by easement. She says that, as a matter of law, a right of way in an easement carries with it only a right of access to or egress from the dominant tenement over the servient tenement. She says access or egress from the dominant tenements in this case is by way of Lower Road, and that any interpretation of the easements that allows access from the dominant tenements to the foreshore exceeds the proper scope of a right of way. [16] In support of her argument, Ms. Brenner cites the following passage from Colin Sara, Boundaries and Easements , 5th ed. (London: Sweet & Maxwell, 2011) at 375: A private right of way is an easement permitting people to pass to and fro over another person’s land from one point to another for the benefit of land belonging to the person entitled to the right of way. [17] A number of cases support the proposition that a person making use of a right of way granted in an easement is only entitled to use the right of way for access to or egress from the dominant tenement, and not for access to or egress from other properties. Ms. Brenner particularly relies on Purdom v. Robinson , [1899] 30 S.C.R. 64; Harris v. Flower (1904), 74 L.J. Ch. 127 (C.A.); Grant v. Lerner (1914), 7 O.W.N. 564 (Ont. H.C.); Weisner v. Blades , [1985] B.C.J. 182, 1985 CarswellBC 2764 (S.C.) and Das v. Linden Mews Ltd. , 2002 E.W.C.A. Civ. 590. I will discuss Purdom , Harris , and Das , which appear to me to be the most important authorities. It does not appear to me that the principles applied in Grant or Weisner differ in any respect from those applied in the three authorities I will discuss. [18] In each of these cases, a person who held property to which a right of way attached used that right of way for the purpose of accessing other properties that they owned. [19] In Purdom , the defendant travelled along a beach to get from his lot to a village. He had no right to do so. After the plaintiff sought to enjoin such use, the defendant acquired a second lot that purportedly benefitted from an easement over the beach. The Supreme Court of Canada rejected the proposition that the easement in respect of the second property constituted a defence to the trespass claim brought against the defendant. Citing Ackroyd v. Smith (1850), 10 C.B. 164 and Skull v. Glenister (1864), 16 C.B. N.S. 81 the Court said, at 71: [A] right of way granted as an easement incidental to a specified property cannot be used by the grantee for the same purposes in respect of any other property... [20] In Harris , a factory was constructed on two lots, one of which had a right to access over an easement on an adjacent lot, and the other of which did not. The English Court of Appeal held that the owner of the factory was not entitled to use the easement for the purpose of accessing that part of the factory that lay on the lot that did not benefit from the easement. To do so would be to allow the burden of the easement to be expanded beyond the scope of the grant. [21] In Das , the owner of a residence had a right to use the carriageway in front of the residence for limited purposes. At para. 5, the court described the easement as allowing “a right to pass and repass over the [carriageway] to and from the highway to their respective properties by foot and with vehicles and a right to halt a single vehicle immediately adjacent to their respective properties for the purposes of loading and unloading the said vehicles.” The owner acquired a separate property that was separated from the carriageway by a wall. He modified the wall to allow passage into an area of the second property, which he used for parking his car. The court held that the use of the carriageway to access the second property was beyond the scope of the easement: [23]      What the owner wishes to do is to drive a car up the carriageway, past number 4, on to the garden ground, and then leave the car parked there while he enters number 4: by going either through the garden ground or through the front door that abuts on to the carriageway. All that is said to accommodate the dominant tenement, in that it is an adjunct to, ancillary to, the owner’s enjoyment of life in number 4. But even if the latter were, in law, an available analysis in general terms, on the facts of this case it presents an insuperable problem. … The great benefit of access to the garden ground is not simply to be able to access number 4, because that can already be done by using the easement according to the grant. What the garden ground adds is somewhere where the car can be left: a parking space. [24]      … [T]hat is a separate use from mere access. It is a use that takes place other than on the dominant tenement, and by using the carriageway to access that parking space the owner extends the dominant tenement. [22] Ms. Brenner argues that this case is analogous to Purdom , Harris , and Das . She says that the easements only grant a right of way for access to or egress from the Birch and Bakewell lots, and do not give a right of access to the foreshore. [23] Ms. Brenner’s position is premised on the assumption that an easement must start at a public highway and end at the dominant tenement. Such an assumption is not correct as a matter of law. While an easement will, most often, start from a public highway and end at the dominant tenement, there are other possibilities. Sara discusses the issue at p. 377 of his book: It is sometimes said that a right of way must have a terminus a quo and a terminus ad quem , i.e. that it must lead from one fixed point to another. Usually one of these fixed points will be a public highway and the other will be the dominant tenement. There is no requirement, however, that the way must lead directly to the dominant land. There is nothing to stop a person obtaining a right of way over one parcel of land tor the purpose of gaining access to his own land over intervening land. [citations omitted] [24] Equally, there is nothing to stop a person obtaining a right of way that extends from the dominant tenement to other land that the owner of the dominant tenement wishes to access from their land. A landowner can acquire an easement providing a right of way extending from the dominant tenement to the foreshore. [25] In the case before us, the judge interpreted the easements as allowing access not only between the dominant tenements and Lower Road, but also between the dominant tenements and the foreshore. There is no legal impediment to the existence of such rights of way. [26] This case is not like Purdon or Harris , in which the owners of lands that enjoyed the benefits of an easement purported to be entitled to use the easements for access to other lands. Ms. Birch and Ms. Bakewell do not claim a right to use their rights of way for properties to which they are not appurtenant. They wish to use them only in connection with the dominant tenements. [27] This case does resemble Das in some respects. Das could be characterized as a case in which the property owner was asserting a right to pass back and forth from the highway to his home and back and forth from his home to a parking spot. It is important to recognize, however, that the easement in Das was not a general right of access to the property over the carriageway, but rather a specific right to proceed from the highway to the property, drop off passengers, and return to the highway. By continuing along the carriageway to a different property on which the parking spot was located, the owner was exercising rights beyond those given by the easement. [28] In contrast, the case before us is one in which the easements simply provide for a right of way through the easement area. I see no difficulty in the judge’s characterization of them as extending both to Lower Road and to the foreshore. The Interpretation of the Easement [29] Ms. Brenner’s contention that, as a matter of law, an easement cannot allow access to the foreshore, then, is without merit. She contends, however, that, as a matter of interpretation, the easements in issue in this case do not afford access to the foreshore. She points out that Lot A was, at all times, a waterfront lot, with no need to have foreshore access by way of the easement. While Lot D does not have any other access to the foreshore, it is clear that the easement was acquired for Lot D solely in order to facilitate its consolidation with Lot A, and not for the purpose of providing independent access to the foreshore. [30] The trial judge heard extensive evidence on the history of the easements, and gave cogent reasons for his conclusions. The interpretation of the easements is a mixed question of fact and law, and the judge is entitled to deference in respect of it. I am not persuaded that the judge made any error in construing the easements. [31] Indeed, I am of the view that the interpretation reached by the judge was completely consonant with the language of the easement. It also conformed with the history of the easement. When it was granted, it was over a narrow lot designated as “Private Road”. On the face of it, the only practical use for that lot was as a transportation corridor for the adjoining landowners to access Lower Road and the foreshore. [32] In my view, the judge’s reasons represent a thorough canvassing of the history and nature of the easements, and his conclusions are well-supported. The Scope of the Order [33] An easement involves use of land by both the owners of the dominant and servient tenements. In order to accommodate such joint use, the rights of each are subject to limitations. The easement itself will contain limitations as to its extent and purpose. Beyond those limitations, the easement will be interpreted as not allowing the owner of the dominant tenement to make use of the easement beyond what is reasonable. Equally, the owner of the servient tenement must not unreasonably interfere with the use of the easement by the dominant tenement. [34] The judge in this case was called upon both to construe the terms of the easement and to decide whether certain uses of the dominant and servient tenements were reasonable. In his original judgment, the judge construed the easement as providing rights of way from Lower Road to the dominant tenements and from the dominant tenements to the foreshore. He also made certain determinations with respect to the use of the easement, particularly at paras. 50-56: [50]      Ms. Brenner relies on the decision of the Court of Appeal in Duncan v. Sherman , 2006 BCCA 14 [ Duncan ] to support her contention that the Easements only afford the owners of the dominant tenements access to their properties at their respective driveways. In that case, the easement for the benefit of the dominant tenancy provided that: The Lot A Owner, as the registered owner of Lot A, grants to the Lot B Owner, as the registered owner of Lot B, for the benefit of and to be appurtenant to Lot B, for the use and enjoyment of the Lot B Owner at any time and from time to time, the non-exclusive right, liberty and easement to enter on, go across, pass and repass over and through, with or without motor vehicles, the Lot A Easement Area for the purposes of obtaining access to and egress from Lot B. [51] In Duncan the purchaser of Lot B agreed, by an addendum to his contract of sale and purchase, to restrict his access to the easement from only two locations along its length. In the result, at para. 17, Madam Justice Levine held: [17]      … [A]s a matter of law, as noted by the chambers judge, Lewis v. Wakeling (in which the Ontario Court of Appeal relied on the principles articulated by the English Court of Appeal in Pettey v. Parsons , [1914] 2 Ch. 653), is authority for the principle that a grantee of an easement is entitled to reasonable access to his property, not access “along the whole unfenced line”. The Addendum provided for reasonable access, and there is no reason not to enforce the agreement. The respondent is not entitled to access to the easement at gate 2. [52] As no such agreement exists between Ms. Brenner and the owners of the dominant tenements, the case is of no assistance to Ms. Brenner. The intention of the parties who agreed to the Easements was to afford the owners of the dominant tenancies access from the Private Road not only to their properties, but to the beach and waterfront as well. [53] That does not mean, of course, that the owners of the dominant tenements can expect to access their properties at all points along the Private Road, or that Ms. Brenner cannot fence or plant hedges along the eastern boundary of her property, so long as she affords that reasonable access from the Private Road to the dominant tenements and to the beach and waterfront that were previously enjoyed, or subsequently agreed to: see, for example, Fisher v. Bosse , 2006 BCSC 674. [54]      However, it does mean that Ms. Brenner cannot maintain uninterrupted hedges or fencing along the entirety of the eastern boundary of her property or the wooden fence and locked gate to the south of the driveway into Lot A, the large boulder, or significant landscaping and planting on the Private Road that would prevent the passage of vehicular traffic along the Private Road as far as the northern side of Stephens Creek. [55]      I am not, however, persuaded that the owners of the dominant tenements are entitled to park vehicles on the Private Road or construct a bridge to permit vehicular traffic to cross Stephens Creek. Such use to the south of Stephens Creek is contrary to the topography and the vegetation in that area, which is necessary to reduce the likelihood of further erosion of Ms. Brenner’s property above the tide line. [35] These paragraphs appear to have led the parties to differing views as to the proper form of order. Ms. Brenner, in particular, wished to have the orders spell out specific points of access from the right of way to the dominant tenements, and specific details with respect to the use of the easement. The judge did not agree with her view. In his reasons settling the order, he said: [19]      In my view, the forms of orders proposed by Ms. Brenner are a recipe for further unpleasantness between the litigants, and are unnecessarily detailed. While I agree that the areas covered by the easements should be set out in the orders, with some minor exceptions, it is unnecessary to reiterate in the orders the rights afforded and duties required by the easements. [36] The approach taken by the judge cannot be faulted. The case before him was a broad-ranging one, touching on many nuances of the easements. He was required to decide certain fundamental issues – whether the easement allowed the respondents access to the foreshore, and whether the obstructions placed by the appellant on the easement violated the respondents’ rights. The judge’s order specifically addressed these issues. [37] The judge was entitled, as well, to determine whether particular actions by the parties, and particular uses proposed by them, were reasonable in light of the existence of the easement. He enjoyed considerable leeway in deciding how far to go in this regard. The action before him did not touch on every possible future scenario. He wisely refrained from making his order too detailed, reasoning that doing so would increase the likelihood of future disputes between the parties. [38] I am of the view, however, that the terms in which the order was settled were not wholly appropriate. The easements are rights of way, and as such, they only allow the respondents to use the servient tenement for the purpose of passing from Lower Road to their lands, and from their lands to the foreshore. The order, in stating that the respondents have “free, full and uninterrupted use” of the servient tenement fails to recognize this limitation. Further, the provision enjoining Ms. Brenner from “restricting the free, full, and uninterrupted use” by the respondents of “the whole of the Easement Area for persons, animals and vehicles” is inconsistent with the judge’s recognition that Ms. Brenner is not prohibited from placing some fencing or hedging along the eastern boundary of her property, provided that doing so does not unreasonably restrict the respondents’ use of the right of way. [39] Given the unfortunate history of this matter, I am persuaded that it is necessary to modify the formal order granted in the court below to ensure that it does not have the effect of enlarging the respondents’ rights beyond what they are entitled to as holders of a right of way granted by easement. [40] In the result, I would replace paragraphs 2 and 3 of the order in the Birch proceeding with the following: 2.         The Plaintiff Suzanne Birch is entitled, with or without other persons, vehicles or animals, to use the Easement Area to pass: a) from Lower Road to Lot A b) from Lot A to Lower Road c) from Lot A to the foreshore d) from the foreshore to Lot A and is entitled to authorize agents, servants, workers and invitees to pass from and to the same points, with or without other persons, vehicles, or animals. 3.         The Plaintiff Suzanne Birch does not have the right to park vehicles on the Easement Area or to construct within the Easement Area a bridge to permit vehicular traffic to cross Stephens Creek. 4.         Nothing in this order grants the Plaintiff Suzanne Birch authority to use her right of way over the Easement area in an unreasonable manner. 5.         The Defendant Robin Brenner is enjoined from doing anything that restricts the ability of Plaintiff Suzanne Birch or her agents, servants, workers and invitees to pass through the Easement Area as set out in this Order. [41] The other paragraphs of the original order will have to be renumbered to accommodate these changes. [42] I would replace paragraphs 2 and 3 of the order in the Bakewell proceeding with the following: 2.         The Defendant Ann Bakewell is entitled, with or without other persons, vehicles or animals, to use the Easement Area to pass: a) from Lower Road to Lot D b) from Lot D to Lower Road c) from Lot D to the foreshore d) from the foreshore to Lot D and is entitled to authorize agents, servants, workers and invitees to pass from and to the same points, with or without other persons, vehicles, or animals. 3.         The Defendant Ann Bakewell does not have the right to park vehicles on the Easement Area or to construct within the Easement Area a bridge to permit vehicular traffic to cross Stephens Creek. 4.         Nothing in this order grants the Defendant Ann Bakewell authority to use her right of way over the Easement area in an unreasonable manner. 5.         The Plaintiff Robin Brenner is enjoined from doing anything that restricts the ability of the Defendant Ann Bakewell or her agents, servants, workers and invitees to pass through the Easement Area as set out in this Order. [43] Again, the succeeding paragraphs of the original order will have to be renumbered. [44] I acknowledge that there remains potential for future disputes between the parties surrounding what use of the right of way is “reasonable”. They also may disagree on the extent of fencing and hedging Ms. Brenner may erect on the eastern boundary of Lot 1 without restricting the ability of the respondents to make use of their right of way. It is inappropriate, however, for the order to resolve these matters, as they have not specifically been the subject of the litigation. I am hopeful that the parties will be willing and able to agree on such matters as necessary. [45] I am aware that there may also remain some uncertainty as to whether the easement authorizes the use of vehicles on the portion of the easement lying south of the north side of Stephens Creek. The judge was clearly aware of the topography, and specifically found that the easement did not allow for the construction of a bridge over the creek. He did not specifically deal with the ability of the respondents to operate vehicles south of the creek (or, indeed, assuming it is private property covered by the easement, through the creek). It seems obvious from the evidence that conventional automobiles are wholly unsuited to the topography, and that it would be difficult for any vehicle to traverse the creek itself. The judge did not specifically address the question of whether any vehicular traffic could use the area south of the creek to access the foreshore. It seems to me that if such a question arises in future (something I would think unlikely), a court would have to determine whether such access was a reasonable use of the easement. Costs [46] It does not appear that any order for costs has yet been made in the Court below. I would not interfere with the discretion of the trial judge to address the issue of costs if that remains outstanding. [47] With respect to costs in this Court, I am of the view that there has been divided success on distinct issues. In such circumstances, it is open for the court to award the more successful party a portion of their costs: Cowper-Smith v. Morgan, 2016 BCCA 509. I am of the view that a fair order would be for the appellant to pay 75% of the respondents’ costs. Conclusion [48] In the result, the appeal is allowed only to the extent of modifying the formal order entered in the court below as indicated in paras. 40-43 of these reasons. The appeal is otherwise dismissed. The respondents are entitled to 75% of their costs of the appeal on scale 1. “The Honourable Mr. Justice Groberman” I AGREE: “The Honourable Mr. Justice Goepel” I AGREE: “The Honourable Madam Justice Fenlon”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Mehan, 2017 BCCA 21 Date: 20170116 Docket Nos.: CA43036; CA43041 Docket: CA43036 Between: Regina Respondent And Christopher Lloyd Mehan Appellant - and - Docket: CA43041 Between: Regina Respondent And Jeremy Albert Stark 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 witness/undercover officer referred to in this judgment as the Agent. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Madam Justice Saunders The Honourable Madam Justice D. Smith The Honourable Mr. Justice Groberman On appeal from:  An order of the Supreme Court of British Columbia, dated April 16, 2015 ( R. v. Mehan , New Westminster Docket No. X77681). Counsel for the Appellant, C. Mehan: M. Peters Counsel for the Appellant, J. Stark: H. Patey Counsel for the Respondent: J. Walker Place and Date of Hearing: Vancouver, British Columbia September 30, 2016 Place and Date of Judgment: Vancouver, British Columbia January 16, 2017 Written Reasons by: The Honourable Madam Justice D. Smith Concurred in by: The Honourable Madam Justice Saunders The Honourable Mr. Justice Groberman Summary: Mr. Stark and Mr. Mehan were convicted of conspiracy to import cocaine from California to British Columbia, contrary to s. 465(1)(c) of the Criminal Code. Mr. Stark also was convicted of conspiracy to traffic cocaine, contrary to s. 465(1)(c). Both appeal their convictions on the basis that the trial judge erred in his application of the Vukelich test, by declining to hold a voir dire in order to determine whether Canadian law enforcement agents (the CFSEU) had breached their s. 8 Charter rights. The CFSEU did not obtain a Part VI authorization before receiving and reviewing email communications that were lawfully intercepted by American law enforcement agents (the DEA) in California and electronically transmitted to the CFSEU in near real-time. Mr. Mehan also appeals his conviction on the basis that the trial judge erred in admitting evidence of an inculpatory statement he provided to the police while he was impaired by drugs and alcohol. Held: Appeals dismissed. The trial judge correctly held that a voir dire was not required to determine the admissibility of lawfully-gathered foreign evidence by the DEA that it voluntarily shared with the CFSEU as the Charter does not apply in these circumstances. The DEA intercepted emails were not part of the Canadian “communication process”. On the admissibility of Mr. Mehan’s inculpatory statement, there was an evidentiary basis to support the judge’s factual findings that the statement was voluntary and that Mr. Mehan had knowingly waived his right to counsel. Reasons for Judgment of the Honourable Madam Justice D. Smith: [1] Jeremy Stark and Christopher Mehan were convicted by a judge sitting with a jury of conspiracy to import cocaine from Los Angeles, California to British Columbia, Canada at or near the cities of Surrey, Langley and Abbotsford, contrary to s. 465(1)(c) of the Criminal Code (the “Code” ). Mr. Stark also was convicted of conspiracy to traffic cocaine, contrary to s. 465(1)(c). He was sentenced to 13 years’ imprisonment. Mr. Mehan was sentenced to 10 years’ imprisonment. Both appeal their convictions. [2] For the reasons below, I would dismiss both appeals. In my view, the trial judge correctly held that a voir dire was not required to determine the admissibility of the communications that were lawfully intercepted by the Drug Enforcement Agency at Los Angeles, California (the “DEA”) and shared electronically with RCMP officers in the Combined Forces Special Enforcement Unit at Delta, British Columbia (the “CFSEU”) in near real-time. The CFSEU receipt and viewing of the foreign-gathered evidence was not, in my opinion, an “intercept” of communications within the “communication process” as completed in R. v. TELUS Communications Co., 2013 SCC 16 [ TELUS ], so as to engage Part VI of the Code. In these circumstances, the Charter does not apply to the lawful actions of foreign law enforcement agencies. [3] I would also dismiss Mr. Mehan’s challenge to the voluntariness of his post-arrest inculpatory statement to the police and to the validity of his waiver of his right to counsel. There was, in my view, an evidentiary basis to support the judge’s findings on both questions of fact. Background [4] In January 2008, the United States and Canada were cooperating on parallel investigations of cross-border illicit drug importation and trafficking from the United States into Canada. The DEA had used a civilian agent (the “Agent”) to communicate with a number of targets in its investigation. One of those targets was Mr. Stark. [5] The DEA had learned from the Agent that Mr. Stark resided in Canada and had travelled to California to communicate with the Agent for the purpose of engaging in drug-trafficking activities. Those activities involved transporting large-scale bulk currency and brokering cocaine transactions with various suppliers for importation into Canada. The Agent also informed the DEA that Mr. Stark communicated with him and others via email on a Blackberry device. [6] In May 2008, the DEA arranged for the Agent to distribute encrypted Blackberry devices (the “Devices”) to the targets of the investigation. One of the Devices was delivered to Mr. Stark at his business address in Langley, B.C. [7] The Devices were connected to a Blackberry Enterprise Service (the “BES”) and an email server operated by the DEA (the “DEA Server”). The email domain name associated with the DEA Server and the Devices was @goosebomb.com. Each of the Devices had its own @goosebomb.com email address, which was stored on the DEA Server, and each was configured to only send and receive emails. The Devices could not be operated as telephones. [8] Between June 23, 2008 and February 25, 2009, the DEA obtained a series of judicial authorizations to intercept the targets’ communications to and from the Devices, including those of Mr. Stark. The appellants did not challenge the validity of the DEA judicial authorizations. [9] The intercepted email communications were forwarded directly to the BES and DEA Server, where they were stored. On July 15, 2008, the DEA began forwarding Mr. Stark’s intercepted emails to an archived email address set up by the CFSEU. The electronic transmission of those communications occurred within seconds of their real-time receipt by the DEA Server. [10] During this period, Mr. Stark used his Device to communicate by email with Mr. Mehan. At the time, Mr. Stark was resident in Langley and Mr. Mehan was resident in Burnaby. Mr. Mehan was not a target of the DEA investigation and therefore did not have one of the Devices. However, his email communications to and from Mr. Stark were captured by the interception of the communications to and from Mr. Stark’s Device. They in turn were transmitted to the CFSEU by the DEA Server. This is how Mr. Mehan’s involvement in the conspiracy came to the attention of the RCMP. [11] The DEA’s interception of Mr. Stark’s and Mr. Mehan’s communications led the Canadian Border Services Agency (the “CBSA”) to seize two shipments of cocaine, which were being transported from the United States into Canada. The first shipment was seized on December 20, 2008. It contained 121 kilograms of cocaine. The cocaine was discovered in a hidden compartment of the cab of a tractor-trailer commercial vehicle. The intercepted communications disclosed that 65 kilograms of the shipment were brokered by Mr. Stark. [12] The second shipment was seized on December 24, 2008. It contained 97 kilograms of cocaine, which were found with a cargo of bananas in a commercial transport vehicle. The intercepted communications disclosed that: (1) Mr. Stark had arranged the purchase and acquisition of the cocaine; (2) Mr. Mehan had organized its transportation from Los Angeles into Canada; and (3) both had arranged for the sale of 42 kilograms of cocaine from the shipment to local buyers in British Columbia. [13] The DEA investigation was scheduled to end on February 22, 2009, however, the CFSEU investigation was still ongoing at that time. The DEA agreed to loan the CFSEU the DEA Server until the completion of its investigation. On February 23, 2009, the DEA Server was moved to the CFSEU Delta office. [14] On February 20, 2009, relying in part on the communications transmitted by the DEA, the CFSEU obtained a Part VI authorization to intercept the email communications of Mr. Stark to and from his then email address, baileys@goosebomb.com. At the time, the CFSEU was investigating an extortion in Canada related to the 97 kilograms of cocaine seized by the CBSA at the Canadian border on December 24, 2008. The emails intercepted under the Part VI authorization also implicated Mr. Mehan, who was using a personal email address. On April 21, 2009, the CFSEU obtained another Part VI authorization to intercept email communications to and from Mr. Mehan’s personal email address. [15] Most of the intercepted email communications admitted into evidence at the appellants’ trial had been intercepted by the DEA. Those that were intercepted by the CFSEU’s Part VI authorizations were obtained after the conspiracy had ended and were primarily relied upon to identify the appellants. Mr. Mehan’s arrest [16] Mr. Mehan was not arrested until July 26, 2012, when Cst. Jones was conducting a routine traffic stop. Mr. Mehan was a passenger in the stopped vehicle. A computer check of its occupants disclosed an outstanding warrant for Mr. Mehan for “conspiracy to commit s. 465(1)”. [17] Cst. Jones arrested Mr. Mehan and informed him of the subject matter of the outstanding warrant. He also gave Mr. Mehan his Charter rights and warning, which Mr. Mehan said that he understood. Cst. Jones asked him if he wished to speak with a lawyer, to which Mr. Mehan replied “no”. While being transported to the police detachment, Mr. Mehan asked the police officer if he was being arrested for the “U.S. thing”. Cst. Jones wrote in his notes that Mr. Mehan was polite and cooperative throughout his dealings with him. He did not observe Mr. Mehan exhibiting any symptoms of impairment. [18] Cst. Tourangeau interviewed Mr. Mehan at the detachment. The interview was videotaped and transcribed. Cst. Tourangeau had been involved in the CFSEU investigation of Mr. Mehan in 2008 and 2009. In June 2009, she was present during a search of Mr. Mehan’s residence. During the interview, Cst. Tourangeau reviewed the circumstances of the charge against Mr. Mehan for conspiracy to import cocaine. When she advised Mr. Mehan that the arrest warrant was for conspiracy to import “coke”, he responded: “I know what you’re talking about”. Mr. Mehan also told Cst. Tourangeau that he remembered her as one of the officers who was present during the search of his residence. He said that he recalled she was “nice and polite” and that she had found him a place to go to while the police executed the warrant and had made arrangements for the care of his dogs. He also confirmed with Cst. Tourangeau that: (i) he understood he could speak to a lawyer at any time; (ii) he did not have to talk to her; (iii) she could not make him any promises; and (iv) anything he said could be used as evidence. [19] Mr. Mehan challenged the admissibility of his statement to Cst. Tourangeau because, in the three days preceding his arrest, he had been on an alcohol and drug binge. He had consumed approximately 40 ounces of vodka, 1½ bottles of red wine, three 80 milligram tablets of OxyContin and four grams of cocaine. During the interview, Cst. Tourangeau did not detect any odour of alcohol emanating from Mr. Mehan. She did note however that his speech was slurred, he was mumbling, he was moving around a lot and he was constantly scratching his skin and other body parts. [20] During the voir dire on the admissibility of his statement, Mr. Mehan testified that while he remembered his arrest, he recalled nothing thereafter. He stated that he knew the search of his residence in 2009 was related to the 2008 investigation by the DEA. He also stated that he knew, upon being arrested, he did not have to answer questions asked by a police officer and that anything he said to a police officer, or answers he gave to questions asked by a police officer, could be used in evidence against him. [21] In addition to his own evidence, Mr. Mehan called several witnesses on his behalf in the voir dire. His former wife testified that when he visited her the day before his arrest, he was intoxicated by alcohol and drugs. His neighbour, who was present at his arrest, described Mr. Mehan as having blood shot eyes, slow and slurred speech, poor balance, and appeared to be sleep deprived. Dr. Kennedy, a clinical pharmacologist and toxicologist, provided opinion evidence about the effects of consumption of alcohol and drugs. He opined that the amount of alcohol and drugs consumed by Mr. Mehan before his arrest would have negatively impacted his speech, coordination, cognitive abilities, judgment and ability to understand consequences. Reasons for Judgment A.       The appellants’ application for a voir dire on the admissibility of the intercepted communications [22] In the court below, the threshold issue was whether the appellants had met the legal test in R. v. Vukelich, [1996] 108 C.C.C. (3d) 193 (B.C.C.A) for embarking on a voir dire with respect to the admissibility of the foreign-gathered evidence from the email communications intercepted by the DEA. [23] The appellants had applied for a voir dire to cross-examine the Canadian and American authorities about the scope of their investigation and to assess the seriousness of the alleged s. 8 Charter breach, including whether the officers had acted in good or bad faith. The appellants submitted that what occurred in this case amounted to an “intercept” of the private communications of two Canadian residents during a “communication process” in Canada. Based on TELUS, they submitted that their private communications could only be received and reviewed by the CFSEU pursuant to a Part VI authorization. Absent such an authorization, they said the actions of the CFSEU were an unreasonable search and seizure, contrary to s. 8 of the Charter, and that the foreign-gathered evidence had to be excluded from the trial. [24] The judge disagreed. In his reasons, indexed at 2014 BCSC 2242, he concluded that an evidentiary hearing was unnecessary to determine whether a s. 8 Charter breach had occurred. In his view, such an inquiry would serve no purpose as: (1) the underlying facts of the acquisition and transmission of the communications were not in dispute; and (2) the law with respect to the application of the Charter in foreign jurisdictions is settled. He stated: [12]      In the case at bar, the defence seeks a voir dire to cross-examine Canadian and American investigative authorities. However, this evidence is irrelevant to the issue of whether there has been a breach of s. 8 of the Charter. Based on the material the Crown has disclosed to the defence, all of the factual information relevant to the s. 8 inquiry is before the Court on this application. The proposed defence evidence would only be relevant to the question of whether evidence gathered in violation of the accused’s Charter rights should be excluded pursuant to s. 24(2). In other words, it is only if the factual scenario in this case constitutes a breach of s. 8 of the Charter that a voir dire will be necessary. [25] The judge framed the threshold issue as whether the accused had demonstrated “that a voir dire is necessary and would assist the court with ‘the proper trial of real issues’” (emphasis added). He cited the test from Vukelich that a judge “need not embark upon an enquiry that will not assist the proper trial of the real issues” (emphasis added). He also referred to R. v. Pires, 2005 SCC 66, where the Court described the test as requiring the applicant to show “a reasonable likelihood that the hearing can assist in determining the issues before the court” (emphasis added). As well, he noted that in R. v. Malik, 2002 BCSC 484, he had stated that the “threshold for embarking on an evidentiary hearing into an alleged Charter breach is low” and that “the applicant need only demonstrate a reasonable basis upon which the Court could find a breach of the Charter” (emphasis added). Last, the judge noted that in R. v. McDonald, 2013 BCSC 314, Mr. Justice Fitch (as he then was) had explained that the applicant had to demonstrate “a reasonable basis upon which the Court [ could] find a breach of the Charter .” [26] In this case, the judge concluded that the appellants had not established that “a voir dire [ would ] assist in the proper trial of the real issues” or “a reasonable likelihood that the hearing [could] assist in determining the issues before the court” for three main reasons. [27] First, he concluded that the effect of acceding to the appellants’ submission would have been to apply the Charter extraterritorially to a criminal investigation in a foreign state: [29]      … Once the communications were intercepted by the DEA Blackberry server in Los Angeles, they became foreign obtained evidence. The fact that they were shared contemporaneously with the CFSEU in Vancouver does not alter the nature of this evidence. Thus, the viewing of the previously intercepted communications is not an “intercept”, but rather the viewing of previously intercepted communications. The CFSEU was not required to obtain Part VI authorization to view the communications disclosed by the DEA, as pursuant to settled legal principles, Canadian law does not apply to foreign obtained evidence. There was thus no unlawful search, as s. 8 of the Charter does not apply . [28] He held that it is settled law that Canada has no jurisdiction to enforce the Charter abroad: R. v. Harrer, [1995] 3 S.C.R. 562; R. v. Terry, [1996] 2 S.C.R. 207; R. v. Hape, 2007 SCC 26; and R. v. Tan, 2014 BCCA 9. He noted that the rules of international law generally bear on the interpretation of legislation, in this case the interpretation of “intercept” under s. 183, absent ambiguous language. To interpret the term “intercept” as applying to the circumstances of this case, and to require a Part VI authorization before Canadian authorities can receive and review the transmitted communications, in his view, would have the effect of imposing Canadian judicial scrutiny to the DEA’s decision to contemporaneously relay the intercepted communications to the Canadian authorities. Imposing such judicial scrutiny would run counter to the approach adopted in Terry and Hape. [29] Second, he held that cooperation between Canadian peace officers and foreign law enforcement agencies does not change the fact that the Charter is not enforceable in foreign jurisdictions because of the principle of comity between foreign states: see Hape at para. 52 and Harrer at para. 15. [30] Third, he held that there was no principled reason to distinguish the circumstances of this case with the circumstances in Wakeling v. United States of America, 2014 SCC 72, an extradition case in which the RCMP lawfully intercepted communications disclosing a plot to transport drugs from Canada into the United States. In Wakeling , the Court held that the disclosure of lawfully intercepted communications by the RCMP to a foreign investigative agency pursuant to s. 193(2)(e) of the Code was not a “search” in the context of s. 8 of the Charter but “simply the communication to a third party of previously acquired information” (para. 34 per Moldaver J. for the plurality). Although, in this case, the disclosure of the lawfully intercepted communication was by the American DEA to the Canadian CFSEU, the communication disclosed was previously acquired information, like the information disclosed in Wakeling . [31] On appeal, Mr. Mehan submits the trial judge erred in framing and applying the Vukelich test. Both appellants say that the judge erred in declining to embark on a voir dire to determine whether the CFSEU breached their Charter rights by not obtaining a Part VI authorization before receiving and reviewing the intercepted email communications. B.       The admissibility of Mr. Mehan’s post-arrest statement [32] Before the trial judge, Mr. Mehan submitted that the Crown had failed to establish beyond a reasonable doubt that his post-arrest statement to Cst. Tourangeau was voluntary because he was intoxicated immediately prior to his arrest and at the time he gave his statement. He argued that his state of intoxication had negatively impacted his cognitive capacity to understand the nature of his rights and the consequences of speaking to Cst. Tourangeau without having consulted with counsel. He also submitted that his ss. 10(a) and (b) Charter rights to be informed promptly of the reasons for his arrest, to be advised of his right to counsel, and to have the opportunity to retain and instruct counsel without delay, were violated. With respect to his s. 10(b) right, he contended that he did not have the capacity to understand or appreciate the consequences of his decision to waive his right to counsel before speaking with Cst. Tourangeau. The voluntariness of the statement [33] The judge referred to the test set out in R. v. Oickle, 2000 SCC 38 at paras. 69 and 71, to determine whether Mr. Mehan’s statement was voluntary. That test requires the Crown to establish beyond a reasonable doubt that: (1) no threats or promises were made to the accused; (2) the statement was not taken in an atmosphere of oppression; (3) the accused had an operating mind; and (4) the statement was not induced by police trickery that would shock the community. [34] With respect to whether Mr. Mehan had an operating mind when he gave his statement, the judge referred to Oickle (at para. 69), which sets out criteria that: (1) the accused understands what he or she was saying; and (2) that he or she understands that their evidence could be used in proceedings against them. [35] The judge found that Mr. Mehan had reduced cognitive capacity due to his consumption of alcohol and drugs immediately before his interview with Cst. Tourangeau. However, he was satisfied beyond a reasonable doubt that Mr. Mehan had an operating mind during the interview, based on his recollection of what had occurred during the search of his residence in 2009, his understanding of his rights, his responsive answers to the questions put to him, and his understanding of his right to silence and of the judicial process. No appeal is taken from this finding. [36] The judge also found that Cst. Tourangeau did not engage in police trickery when she took his statement. Mr. Mehan appeals this finding principally because the judge dismissed his submission on this point simply because it was “totally without merit” at para. 24: 2015 BCSC 522. Right to be informed of and waiver of right to counsel [37] The judge referred to the test in R. v. Evans, [1991] 1 S.C.R. 869 to address Mr. Mehan’s right to be advised of the reason for his arrest, as well as the test in R. v. Smith, [1991] 1 S.C.R. 714 at 728-9, to address the validity of his waiver of his right to counsel. He concluded that Mr. Mehan had been properly advised of the reason for his arrest and that he had provided a clear and unequivocal waiver of his right to counsel: [32]      The police fully complied with their obligations under the Charter upon and after the arrest of Mr. Mehan. The arresting officer was acting on an outstanding warrant for the arrest of Mr. Mehan and informed him the charges were for conspiracy, without further particulars. Mr. Mehan revealed his belief that the offence was related to the United States DEA investigation, later confirmed by Cst. Tourangeau and Mr. Mehan himself. The video and transcript between Cst. Tourangeau and Mr. Mehan at the commencement of the interview suggest Mr. Mehan’s waiver of his right to counsel was clear and unequivocal. While it may not have been a good or a wise choice for Mr. Mehan to waive his right to counsel, I am satisfied that it was an informed choice. (2015 BCSC 522.) [38] On appeal, Mr. Mehan submits that the judge erred by failing to substantially address the requirements that Mr. Mehan understood his “jeopardy” and had an “awareness of the consequences” when he waived his right to counsel. Discussion A.       Admissibility of intercepted communications [39] Mr. Mehan contends that the judge erred in law in his articulation of the Vukelich test. Both appellants submit that he erred in his application of that test by declining to hold a voir dire for the purpose of determining whether the CFSEU had breached their s. 8 Charter rights by not obtaining a Part VI authorization before receiving and reviewing the intercepted communications. [40] With respect to the judge’s application of the Vukelich test, the appellants allege two errors. First, they submit the near-contemporaneous speed with which the intercepted communications were shared, effectively meant they were captured by the Canadian “communication process” when they were received and viewed by the CFSEU in Canada. In these circumstances, they say, TELUS required the CFSEU to obtain a Part VI authorization before it could receive and review those communications. [41] Second, the appellants submit the judge erred in applying the reasoning in Wakeling to the circumstances of this case. They say the principle of comity does not permit a Canadian investigative agency, operating in Canada, to avoid obtaining the proper legal authorization before receiving and viewing the private communications of Canadian residents, in Canada, from a foreign state. [42] In my view, the second issue is subsumed in the first issue. If the CFSEU’s receipt and review of the DEA-intercepted communications was within the Canadian “communication process” it would have required a Part VI authorization, absent which, the appellants’ s. 8 Charter rights were violated. If, however, the receipt and review of the DEA-intercepted communications remained within the U.S. communication process, the principle of comity does not permit the Charter to apply to the lawfully-gathered evidence of a foreign state. 1.       The Vukelich test [43] The test for the discretionary decision to engage in a voir dire was set out in Vukelich. Writing for the Court, Chief Justice McEachern stated: [25]      … In Hamill [ R. v. Hamill (1984), 14 C.C.C. (3d) 338 (B.C.C.A.)], Esson J.A., at pp. 366-7 said this: In those cases where the accused does apply to exclude the evidence, it will be for the trial judge to decide what procedure should be followed but, at the least, counsel for the accused should be required to state with reasonable particularity the ground upon which the application for exclusion is made. That much is essential for an orderly trial of the issue. It follows that, if the statement of grounds does not disclose a basis upon which the court could make an order excluding the evidence, the application may be dismissed without hearing evidence. [26]      Based on these authorities, it does not follow that an accused is always entitled as of right to a voir dire in the course of a criminal trial in order to challenge the constitutionality of a search. The trial judge must control the course of the proceedings, and he or she need not embark upon an enquiry that will not assist the proper trial of the real issues . [Emphasis added.] [44] Mr. Mehan contends that the judge’s interchangeable use of the words “would assist”, “will assist” and “can assist” to the reasonable likelihood that the remedy sought “could” be granted, as articulated by Esson J.A. in Hamill, resulted in the application of the wrong test for dismissing the appellants’ application for a voir dire. I do not agree. [45] The judge used the word “would” when he first identified the Vukelich test in para. 9 of his reasons (cited in para. 25 above). Mr. Mehan submits “would” incorrectly raises the threshold standard for a Vukelich hearing . The judge then quoted para. 26 of Vukelich, which framed the test as whether such an inquiry will assist the trial judge in a proper trial of the real issues. The judge also referred to Pires where the Supreme Court described the test as whether a party could show a reasonable likelihood that a hearing “ can assist ” in determining the issues before the court. As well, the judge noted the decisions in Malik and McDonald where the respective trial judges used the word “could” in their articulation of the test. [46] The language used in the above articulations of the Vukelich test varies. The Supreme Court used the “can assist” standard in Pires. I am satisfied the “would” standard initially stated by the judge falls within the range of these various articulations of the test for an inquiry into the admissibility of evidence. [47] The significance of a Vukelich hearing is to determine the relevance of the proposed evidence to the issues at trial. The judge recognized that the threshold is a low one. However, as a matter of law, he found there was no evidentiary basis to advance a claim of a s. 8 Charter breach, and therefore, the inquiry was irrelevant to the determination of the issues at trial. [48] I find no error in the judge’s articulation of the Vukelich test. 2.       The Application of the Vukelich test [49] It is common ground that there is no absolute right to a voir dire where a Charter right is alleged to have been violated: R. v. Bains, 2010 BCCA 178 at para. 69. A judge may exercise his or her discretion to decline to hold an evidentiary hearing if there is no demonstrated remedy available: R. v. Mastronardi, 2015 BCCA 338 at para. 63. An evidentiary hearing is a discretionary order that is “case-specific and highly contextual”: McDonald at para. 21. [50] The single issue was whether the process by which the CFSEU received and viewed the appellants’ communications constituted an “intercept”—as defined in s. 183 of the Code —of communications that were acquired from a “communication process” in Canada. The appellants submitted that it was and said that absent a Part VI authorization, their communications should have been excluded from the trial pursuant to s. 24 (2) of the Charter. [51] Section 183 of the Code defines “intercept” as “includ[ing] listen to, record or acquire a communication or acquire the substance, meaning or purport thereof”. The CFSEU review of the intercepted communications initially seems to fall within this broad definition. However, the context in which the private communications were acquired informs the meaning and scope of this provision: TELUS at paras. 18-19. [52] The context in this case is provided by the jurisdiction in which the interception was authorized and undertaken. The “search” of the appellants’ communications was authorized by a Californian court. It concerned criminal activities that had occurred in that state. It was undertaken by the DEA, an American law enforcement agency, in Los Angeles. The DEA Server that intercepted the appellants’ communications was located in Los Angeles. In short, all of the evidence obtained in the U.S. investigation of the appellants’ criminal activities in California was gathered in the U.S. The fact that the appellants were residents of Canada, and that their intercepted email communications occurred in Canada, did not convert the U.S. investigation into a Canadian investigation. Only when the U.S. investigation was completed, did the DEA loan its server to the CFSEU. [53] The appellants contend that the CFSEU’s actions in the Canadian investigation and prosecution brought the interceptions within the Canadian “communication process”. Their submission relies on the near-contemporaneous speed with which the DEA transmitted the appellants’ communications to the CFSEU. However, the timing of the transmissions alone cannot convert the U.S. interception into a Canadian interception. There is, in my view, no principled distinction to be made between the pony express delivering the DEA-intercepted communications to the CFSEU and the almost simultaneous delivery by electronic transmission that occurred in this case. The appellants’ communications were still captured and stored, however briefly, on the DEA Server before being shared with the CFSEU. In these circumstances, the subsequent actions of the CFSEU, in receiving and reviewing the communications, occurred outside the Canadian communication process and therefore TELUS does not apply. [54] It is common ground that the Charter does not apply to actions of foreign law enforcement agencies with respect to the investigative techniques or procedures they use to obtain evidence in their jurisdictions, so long as they are not acting as agents of the Canadian authorities, and the manner in which they obtained the evidence would not render the trial unfair (e.g., torture): Harrer at paras. 11-12 and Hape at para. 113. Nor does the Charter govern the actions of foreign law enforcement agencies that choose to cooperate with Canadian law enforcement agencies on an informal basis: Terry at para. 19. McLachlin J. (as she then was), noted in Terry : 19        … any cooperative investigation involving law enforcement agencies of Canada and the United States will be governed by the laws of the jurisdiction in which the activity is undertaken [55] Similarly in Hape, the Court held that the Charter did not apply to searches and seizures in other jurisdictions. In that case, the RCMP suspected that the accused Canadian was money laundering through his investment company in the Turks and Caicos Islands. The Islands’ authorities permitted the RCMP to continue their investigation on the Islands under the authority of the Islands’ police. Corporate records and other evidence incriminating the accused were obtained without a warrant, which was not required in that jurisdiction. The accused objected to the admissibility of that evidence at trial. However, the trial judge held that the Charter did not apply to foreign-gathered evidence and convicted the accused. His conviction was upheld on appeal to the Supreme Court, where Mr. Justice Lebel, for the majority wrote: [87]      The theoretical and practical impediments to extraterritorial application of the Charter can thus be seen more clearly whether the s. 8 guarantee against unreasonable search and seizure is in issue than where the issue relates, as in cases discussed above, to the right to counsel. Searches and seizures, because of their coerciveness and intrusiveness, are by nature vastly different from police interrogations. The power to invade the private sphere of persons and property, and seize personal items and information, is paradigmatic of state sovereignty. These actions can be authorized only by the territorial state. From a theoretical standpoint, the Charter cannot be applied, because its application would necessarily entail and exercise of the enforcement jurisdiction that lies at the heart of territoriality. As a result of the principles of sovereign equality, non-intervention and comity, Canadian law and standards cannot apply to searches and seizures conducted in another state’s territory. [56] The decision in R. v. Della Penna, 2012 BCCA 3, offers additional insight into this issue. There, lawfully obtained information from a U.S. interception of a telephone conversation, placed by the Canadian accused, in Canada, to a civilian agent of the DEA in the state of Washington, was shared with Canadian police. The Canadian police relied on the information to obtain a Part VI authorization in the Canadian prosecution of the accused for importing and trafficking drugs into Canada. The trial judge excised the information from the affidavit in support of the application, which ultimately resulted in the accused’s acquittal. On appeal, this Court set aside the acquittal and ordered a new trial, finding that the judge erred in law by excising admissible evidence from the affidavit. Writing for the Court, Mr. Justice Hall held that Hape “is conclusive in favour of the admissibility of the contents of the telephone conversation” (at paras. 45 and 48). [57] Cooperation between law enforcement agencies in different jurisdictions is common for combatting transnational crime, including illicit drug importation and trafficking. Cooperation between jurisdictions to address international criminal activity has been recognized by the Supreme Court as a necessary and effective feature of multi-jurisdictional investigations: United States of America v. Cotroni, [1989] 1 S.C.R. 1469 at 1485; Hape at para. 98; and Wakeling at paras. 1 and 57. As Moldaver J. observed in Wakeling : [57]      … Multi-jurisdictional cooperation between law enforcement authorities furthers the administration of justice in all of the jurisdictions involved. It must not be forgotten that Canada is often on the receiving end of valuable information from foreign law enforcement authorities. … [Emphasis added by Moldaver J.]. [58] Based on the undisputed underlying facts and the above jurisprudence, in my view, the judge did not err in finding there was no evidentiary or legal basis that required him to embark on a voir dire to determine the admissibility of the intercepted communications. Those communications were disclosed by the DEA to the CFSEU in cooperation and in the context of an investigation into organized crime. The CFSEU relied on the communications to investigate the appellants in Canada. A voir dire would not have assisted the court in determining the real issues as the Charter was not applicable in these circumstances. The evidence was properly admitted at trial. B.       The Admissibility of Mr. Mehan’s Post-Arrest Statement [59] Mr. Mehan contends that the judge erred in finding that his statement was voluntary because he failed to sufficiently address the claim that it was obtained by police trickery. He does not challenge the judge’s finding that he had an operating mind despite being intoxicated when he gave the statement; rather, he submits that Cst. Tourangeau engaged in trickery by taking advantage of his intoxicated state to obtain a statement that included privileged communications with his lawyer that he would never otherwise have provided. [60] A finding that a statement is voluntary beyond a reasonable doubt is a finding of fact, or mixed fact and law. If the trial judge applies the correct legal test, an appellate court cannot interfere with the weight the trial judge gives to the various pieces of evidence: Oickle at para. 22. [61] When addressing an allegation of police trickery in obtaining an accused’s statement, the court is not concerned as much with the reliability of the statement as it is in maintaining the integrity of the criminal justice system: Oickle at para. 65. In Oickle , quoting from Rothman v. The Queen, [1981] 1 S.C.R. 640, Iacobucci J. noted that police trickery is difficult to establish: 66        … courts should be wary not to unduly limit police discretion [T]he 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 . As examples of what might “shock the community” Lamer J. suggested a police officer pretending to be a chaplain or a legal aid lawyer, or injecting truth serum into a diabetic under the pretense that it was insulin [Emphasis added by Iacobucci J.] [Citations omitted.] [62] Mr. Mehan does not suggest the judge applied the wrong legal test. Rather, he takes issue with how the judge weighed the evidence because he says the judge failed to consider that “the police took advantage of his condition to obtain a statement.” [63] Cst. Tourangeau’s conduct during the interview was exemplary. She was polite throughout the interview. At no time did Mr. Mehan indicate that he was in any distress. It is also difficult to see how the officer took advantage of Mr. Mehan’s intoxicated state as alleged, when he was found to have had an operating mind throughout the interview. There is nothing apparent with the manner in which Cst. Tourangeau conducted the interview that would have shocked the community. With respect, I find no error in the trial judge’s summary dismissal of this claim. [64] Mr. Mehan further submits the judge erred in the legal test he applied to the issue of whether he had waived his right to counsel. [65] The judge relied on the legal test set out in R. v. Smith, [1991] 1 S.C.R. 714 to determine this issue. In Smith, the court set out the test as follows: In Canada, we have adopted a different approach [from that in the U.S]. We take the view that the accused’s understanding of his situation is relevant to whether he has made a valid and informed waiver. This approach is mandated by s. 10(a) of the Charter, which gives the detainee the right to be promptly advised of the reasons for his detention. It is exemplified by three related concepts: (1) the “tainting” of a warning as to the right to counsel by lack of information; (2) the idea that one is entitled to know “the extent of one’s jeopardy”; and (3) the concept of “awareness of the consequences” developed in the context of waiver (at 726-7). [66] Tainting is the failure to advise a detainee of critical information pertaining to his or her detention or arrest, such as the death of the victim: R. v. Greffe, [1990] 1 S.C.R. 755. The police advised Mr. Mehan of the critical information with respect to his detention, which he appeared to already know. Knowledge of the extent of his jeopardy required the police to advise Mr. Mehan generally of the reason for his arrest. They were not required to provide a detailed account of all of the circumstances of the alleged offences or the precise charge(s) he was facing. Again, however, it is clear that Mr. Mehan understood that he was being arrested for his involvement in the 2008 offences in California. Indeed, he confirmed with Cst. Tourangeau that he knew what she was talking about when she was reviewing some of the circumstances of the offence with him. [67] Mr. Mehan also had to have been aware of the consequences of his waiver for it to have been valid. The degree of his awareness of the consequences of his waiver of the right to counsel only needed to be general and could reasonably have been assumed in all of the circumstances ( Smith at pp. 728-9). The circumstances included his confirmation with Cst. Tourangeau that: (i) he understood he could speak to a lawyer at any time; (ii) he did not have to talk to her; (iii) she could not make him any promises; and (iv) anything he said could be used as evidence. [68] The Court in Smith ultimately concluded: What is required is that he or she be possessed of sufficient information to allow making an informed and appropriate decision as to whether to speak to a lawyer or not. The emphasis should be on the reality of the total situation as it impacts on the understanding of the accused, rather than on technical detail of what the accused may or may not have been told (at p. 729). [69] In my view, the judge’s findings at para. 32 of his reasons (reproduced in para. 37 above) canvass each of these elements. Mr. Mehan clearly understood his Charter rights. Based on the judge’s finding that Mr. Mehan’s waiver was clear and unequivocal at the commencement of the interview, and his expressed understanding of the nature of the charges he was facing, it was open to the judge to reasonably assume he was aware of the consequences of waiving his right to counsel and his decision to do so was informed. [70] For these reasons, I would dismiss the appeals. “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Madam Justice Saunders” I AGREE: “The Honourable Mr. Justice Groberman”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Leung v. Yung, 2017 BCCA 35 Date: 20170117 Docket: CA43278 Between: Tsui Yu Leung Appellant (Claimant) And Kapo Yung also known as Ka Po Yung and Menno Leendert Vos Respondents (Respondents) Corrected Judgment: The front cover was corrected on February 14, 2017. Before: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Harris The Honourable Madam Justice Dickson On appeal from: An order of the Supreme Court of British Columbia, dated October 29, 2015 ( Leung v. Yung , 2015 BCSC 2434, Vancouver Registry E120389). Oral Reasons for Judgment The Appellant appeared in person: T.Y. Leung Counsel for the Respondent, Menno Leendert Vos: J.W. Bilawich Place and Date of Hearing: Vancouver, British Columbia January 17, 2017 Place and Date of Judgment: Vancouver, British Columbia January 17, 2017 Summary: Ms. Leung appealed a decision concluding that a judgment registered against property alleged to be family property had priority over any interest she may have had in the property because the judgment was registered before her interest arose, but in any event, the judgment was a family debt to be taken into account in the apportionment of property between the spouses.  Appeal dismissed.  The judge applied the correct principles to the facts. [1] HARRIS J.A. :  Ms. Leung appeals from an order in a family action which dismissed her claim to an interest related to two properties in British Columbia. Her claim was made under the Family Relations Act , R.S.B.C. 1996, c. 128 [the Act ]. Ms. Leung claimed the properties were family assets in which she had an interest under that Act . [2] The first claim was to 50% of the net proceeds paid into court from the sale of a leasehold property in Richmond which was registered in the name of Mr. Yung, her former husband. The leasehold interest had originally been in the name of Ms. Leung, although purchased by Mr. Yung, and was transferred back to her husband for $1 in 2001, the day before she was declared bankrupt in Hong Kong. The second claim was to a 50 percent interest in a condominium property in Vancouver, which is registered in the name of Mr. Yung, but which she occupied at the time of the application, with the two adult children of the marriage. [3] The trial judge summarized the proceedings as follows (paras. 2‑6): Ms. Leung’s original notice of family claim was filed in February 2012 in which she sought relief under the Family Relations Act , R.S.B.C. 1996, c. 128. Her amended family claim in February 2012 was also under the Family Relations Act , as was her further amended family claim of May 27, 2013. Her second further amended notice of family claim filed June 25, 2015 appears to seek relief under the Family Law Act , S.B.C. 2011, c. 25. Mr. Yung filed a response to the amended claim in which he opposed Ms. Leung's property claims for an equal division, and counterclaimed for an unequal division of family property and debts under the Family Relations Act . Ms. Leung did not respond to the counterclaim. Dr. Vos was added as a respondent to the action by court order and opposed the property claim sought by Ms. Leung. [4] Complicating the application was the fact that Dr. Vos is a judgment creditor of Mr. Yung for a large amount of money that significantly exceeds the value of the money in court and the condominium. He claimed to be entitled to payment out of the remaining moneys in court and to priority over any interest of Ms. Leung in the condominium because he had registered both a certificate of pending litigation against the condominium properties and a BC judgment enforcing a Hong Kong judgment against Mr. Yung before the order of divorce was made. Dr. Vos also has a judgment against Ms. Leung in the same Hong Kong proceedings, though that judgment is irrelevant to the appeal and to the judgment below. The judge summarized the situation (paras. 38‑40): On June 14, 2012 this court made an order that Mr. Yung pay Dr. Vos the equivalent of the Hong Kong judgment, namely approximately $1.2 million, ongoing interest at the Hong Kong statutory rate, and costs to be assessed. On June 15, 2012 Dr. Vos registered a British Columbia judgment against both of the BC properties and in February 2012 Ms. Leung filed a notice of family claim in this action. The property claims are made under the Family Relations Act . As I mentioned, on June 9, 2015 a final order for the divorce of Ms. Leung to Mr. Yung was entered and the divorce was obtained without notice to Dr. Vos. [5] It is not necessary to recite the complicated history of Dr. Vos’s efforts to enforce his judgment and Ms. Leung’s and Mr. Yung’s efforts to frustrate him. It is sufficient to note that the judgment below rested on two grounds. [6] First, the judge found that any interest Ms. Leung had in the two properties arose only on the triggering event of the divorce order under s. 56 of the FRA . By that time, Dr. Vos had registered his judgment against the properties. As a result, his interest had priority over Ms. Leung’s. The judge must be taken to have found that Ms. Leung did not establish any interest in the properties pre-existing the triggering event. [7] Second, the judge found that the judgment owed by Mr. Yung to Dr. Vos was a family debt. The judge rested this conclusion on his analysis of the Hong Kong judgment which he observed had found that “Ms. Leung and Mr. Yung were involved together in certain of the activities which were found to be wrongs against Dr. Vos; activities for which it is clear that the two were seeking a joint benefit. The liabilities have been found and determined against both for their respective roles in the same general set of wrongful activities.” [8] Based on this finding and Mr. Yung’s counterclaim to reapportion family debt, any interest Ms. Leung had in the properties, assuming they were family assets, was subject to a reapportionment of the family debt between husband and wife. The effect of the reapportionment was again to give Dr. Vos a priority over Ms. Leung’s interest, if any, based on Dr. Vos’s judgment against Mr. Yung. This conclusion is stated a para. 49 and 50 of the reasons: To the extent that the Vancouver property and the monies related to the sale of the Richmond property are family assets, the fair allocation of the debt owed to Dr. Vos by Mr. Yung is to allocate the debt over the interests Ms. Leung holds in the monies and property. I would say the same for the debt which Ms. Leung identifies in her claim against Mr. Yung. I find this having taken into consideration the factors set out in section 65 of the Family Relations Act . In this regard I have considered the duration of the marriage, which was fourteen years according to Ms. Leung, that the Richmond property was acquired and paid for by Mr. Yung in 1989, registered in Ms. Leung's name and transferred by Ms. Leung into Mr. Yung’s name for $1. The Vancouver property it appears was bought by Mr. Yung in 1997. I have also considered the needs of Ms. Leung, who volunteers for many community organizations but has not sought remunerative employment. I note she funded the purchase of properties in Blaine and sole trustee of the trust that holds them. I also considered the liabilities of the spouses and the results and findings in the Hong Kong litigation and reasons for judgment, particularly in regards to the involvement of Mr. Yung and Ms. Leung in those activities as described in the judgment. [9] It should be noted that the judge’s conclusions were not based on any direct liability Ms. Leung may have to Dr. Vos arising out of the Hong Kong judgment. In other words, it is not based on the default judgment taken against Ms. Leung in Hong Kong, contrary to the apparent assumption she makes in this appeal. [10] In my opinion, the judge did not err in his analysis of either ground supporting his order, either one of which is sufficient to support the result he reached. [11] It is not necessary, in my view, at this point to set out in any further detail the factual circumstances and procedural history leading to the current appeal. They are set out in the judgment indexed at 2015 BCSC 2434. What is apparent is that the appellant does not appreciate the basis on which the judge ruled against her. She alleges 31 errors in judgment, some of which simply attempt to reargue the facts or rest on a misapprehension of the basis of the judgment. [12] In my view, the judge’s conclusions about the facts underlying his judgment are supported by the evidence. There is no basis on which we are entitled to interfere with them. He recognized and referred to the absence of cogent evidence concerning the status of the BC properties as family assets before separation. He properly noted the circumstances surrounding the transfer of the Richmond property as it related to legal proceedings in Hong Kong. He referred to and properly relied on the Hong Kong judgment which underlay the BC judgment against Mr. Yung. The judge gave proper effect to Dr. Vos’s judgment against Mr. Yung and its registration against the properties in issue before Ms. Leung established any interest in them. He also considered and relied on Mr. Yung’s counterclaim against his wife, which was not opposed by her. [13] Accordingly, and substantially for the reasons of the trial judge, I would dismiss the appeal. [14] I have reached this conclusion without considering the application to adduce fresh evidence or the application that was brought by Ms. Leung today. Dr. Vos in his factum lays out the tangled procedural history of his efforts to enforce his judgment against Dr. Yung, and Dr. Yung and Ms. Leung’s efforts to frustrate those efforts. That history lays a foundation for a reasonable inference that this family action is an attempt to continue to frustrate those efforts. The fresh evidence purports to demonstrate that this action and appeal is an abuse of process and that the appeal should be dismissed on that basis with special costs to Dr. Vos. [15] This family action is premised on the separation of the spouses and their subsequent divorce. The divorce was granted by desk order in June 2015 in part on Mr. Yung’s affirmation that he and Ms. Yeung had lived separate and apart since 2003 and that he was not part of a conspiracy or an agreement to subvert the administration of justice or suppress or fabricate evidence. The fresh evidence consists of text messages in which Mr. Yung apparently acknowledges that in September 2015 he and Ms. Yeung were in a spousal relationship and that this appeal was “his appeal” in which he sought to recover his property. The evidence lays a foundation possibly to conclude that there has been collusion between Ms. Yeung and Mr. Yung in relation to these proceedings. The evidence has not been answered or explained either by Ms. Yeung or Mr. Yung, although an application was brought before us today which addresses some of the issues and challenges of some of the conclusions that were in the application for fresh evidence. It may be that there is some explanation for what the text messages suggest, but if there is, it is not before us. [16] I have concluded that we are not in a position to make the findings of fact requested by Dr. Vos. This is particularly so in relation to the suggestion that the proceedings in the Supreme Court are an abuse of process. In my view, the question whether there has been an abuse of process should be referred back to the Supreme Court. I would adjourn the application for special costs in this Court until findings of fact about whether this action is an abuse of process have been made by the Supreme Court. [17] In addition to dismissing the appeal, I would order payment of the security for costs posted by the appellant to be paid forthwith to the solicitors for Dr. Vos in trust. [18] LOWRY J.A. :  I agree. [19] DICKSON J.A. :  I agree. [20] LOWRY J.A .: There will be an order accordingly. “The Honourable Mr. Justice Harris”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Rahimi, 2017 BCCA 33 Date: 20170118 Docket: CA43407 Between: Regina Respondent And Amir Rahimi Appellant Restriction on publication : A publication ban has been mandatorily imposed under s. 486.4(1) of the Criminal Code restricting the publication, broadcast or transmission in any way of evidence that could identify the complainant. This publication ban applies indefinitely unless otherwise ordered. Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Frankel The Honourable Madam Justice Dickson On appeal from: An order of the Provincial Court of British Columbia, dated July 30, 2015 ( R. v. Rahimi , Vancouver Docket 230968-2-KC). Oral Reasons for Judgment Counsel for the Appellant: L. Rudovica Counsel for the Respondent: J.R.W. Caldwell Place and Date of Hearing: Vancouver, British Columbia January 18, 2017 Place and Date of Judgment: Vancouver, British Columbia January 18, 2017 Summary: Appeal by R. from his convictions for attempting to procure a person to become a prostitute, extortion, and threatening to cause death or bodily harm. The offences were committed by means of text messages and calls to the victim’s cellular telephone. The principal issue at the trial was whether the texts and calls originated from R. In convicting, the trial judge rejected R.’s evidence and accepted that of the victim and a person who had overheard one of the calls. Held: Appeal dismissed. There was no basis on which to interfere with the judge’s credibility and reliability assessments. The judge did not misapprehend the evidence or render an unreasonable verdict. This was not a circumstantial evidence case. [1] FRANKEL J.A. : Amir Rahimi was convicted by Judge Galati of the Provincial Court of British Columbia of attempting to procure a person to become a prostitute, extortion, and threatening to cause death or bodily harm. In each case, the victim was a teenage girl who I will refer to as T.R. All of the offences were committed on April 24, 2014, by means of text messages and calls T.R. received on her cellular telephone. That T.R. received those texts and calls was not seriously in dispute at the trial. What was in dispute was whether those texts and calls came from Mr. Rahimi. He was not the listed subscriber of the cellular telephone from which those texts and calls originated. [2] T.R., who had a history of substance abuse issues, testified to having been in an intimate relationship with Mr. Rahimi and to having lived with him at his mother’s apartment for three months in 2013. She stated the texts and calls came from the cellular telephone number she had for Mr. Rahimi; that number was stored in the directory of T.R.’s cellular telephone under a nickname she used for him. T.R. identified Mr. Rahimi’s voice as being that of the person with whom she spoke. [3] One of the telephone calls was overheard by T.R.’s youth worker when T.R. put her own cellular telephone on speakerphone. The youth worker testified that during the speakerphone call T.R. referred to the man with whom she was speaking as “Amir”, to which the man replied “[d]on’t use my real name”, or words to that effect. [4] Mr. Rahimi testified. He denied having an intimate relationship with T.R. and denied sending the texts or making the calls. He also denied that he and T.R. had lived together at his mother’s apartment. Rather, he stated that, with a view to helping T.R. get off drugs, he paid her rent for three months so she could live at a townhouse belonging to one of his friends. During that time he purchased groceries and cigarettes for her, gave her money, and provided her with a cellular telephone. I note, as did the trial judge, that it was never suggested to T.R. in cross-examination that Mr. Rahimi had arranged for her to live at the townhouse. [5] In convicting, the trial judge: (a) rejected Mr. Rahimi’s evidence; (b) accepted the youth worker’s evidence with respect to the overheard call; and (c) accepted T.R.’s evidence that the texts and calls came from Mr. Rahimi. After reviewing the evidence of these witnesses and discussing it various frailties and inconsistencies, the judge said this: [27]      On a consideration of all the evidence, I do not believe Mr. Rahimi with respect to the nature of his relationship with [T.R.] or with respect to his denial of having made the threatening calls and sent the threatening texts. It is very unlikely that a person who worked temporary jobs and was not willing to commit to paying a second rent for himself would pay that rent for a troubled young girl that, by his own admission, he did not know very well at all. It is unclear on the evidence how he could have afforded the arrangement that he described. It is also unlikely that a person who did not have a cellphone himself would provide one to someone else. [28]      I agree with the submission made by Crown that Mr. Rahimi tried in his evidence to convey the impression that he had no reason to threaten [T.R.] and that he never became close enough to her for the court to accept her evidence in relation to the threats that she, number one, knew who she was talking to and who had provided her with a cellphone from which the text messages originated. [29]      Although lacking in detail, [T.R.’s] evidence has an air of reality to it missing from Mr. Rahimi's very detailed evidence. I accept that [T.R.] had been involved in an intimate relationship with Mr. Rahimi, that she received the calls and texts from the phone number he had given her, and that she was able to recognize his voice as well as put context to the threats made on the phone and in the texts to determine who she was speaking to and I note in this regard that she did call him by what appears to be his real first name during the last phone call. [30]      I reject Mr. Rahimi's evidence and, on a consideration of the entirety of the evidence, I am satisfied beyond a reasonable doubt that he is the person who made the threatening calls and texts. In the result, I find the Crown has proven Mr. Rahimi's guilt beyond a reasonable doubt in respect of all three counts. [6] In his factum Mr. Rahimi states his grounds of appeal are as follows: 54.    The appellant respectfully submits that when considering all of the evidence the trial judge erred with respect to: a. Reasonable Doubt: The appellant respectfully submits that the trial judge erred in his consideration and application of the doctrine of “reasonable doubt”, as it related to the assessment of witness credibility and reliability. b. Circumstantial Evidence : The trial judge erred by misapprehending the law concerning circumstantial evidence and incorrectly applied the law to the evidence. c. Unreasonable & Unsupported Verdict: The appellant respectfully submits that verdict of the trial judge is unreasonable and unsupported by the evidence. The factual inferences made by the trial judge such as it being “unlikely” that someone in Mr. Rahimi’s position would help someone in [T.R.’s] position are not logical nor supported by the evidence. 55.       The appellant further submits the trial judge erred by misapprehending the evidence of [the youth worker] in relation to what words or phrases she had contemporaneous notes of in contrast to what words she recalled from her own memory almost a year after over-hearing the conversation, that did not appear in her notes , and that she was not sure the man on the phone specifically said. The appellant submits this significant error amounted to a misapprehension of evidence and compromised the appellant’s right to a fair trial. [Emphasis in original.] [7] In my view, there is no merit to any of these grounds. For the most part, Mr. Rahimi seeks to have this Court reweigh the evidence and make findings that the trial judge was not prepared to make. He seeks to dissect and isolate aspects of the judge’s reasons in an attempt to show the judge made findings incompatible with the evidence. [8] For example, Mr. Rahimi submits the evidence as a whole should have left the trial judge with a reasonable doubt as to whether he was the person who communicated with T.R. In support of that argument Mr. Rahimi points to aspects of the evidence touching on credibility and reliability assessments made by the judge with which he disagrees, in particular in relation to T.R. However, the judge was alive to and considered the inconsistencies and other matters that bore on credibility and reliability. It was open to him to reach the conclusions he did. As Mr. Justice Bastarache and Madam Justice Abella noted in R. v. Gagnon , 2006 SCC 17 at para. 20, [2016] 1 S.C.R. 621, “[a]ssessing credibility is not a science” and “[i]t 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.” See also: R. v. R.E.M. , 2008 SCC 51 at para. 48 – 49; [2008] 3 S.C.R. 3. [9] Another example is Mr. Rahimi’s argument that the trial judge should not have accepted the youth worker’s evidence that she overheard T.R. refer to the man with whom T.R. was speaking as “Amir”. This argument focuses on the fact that when the youth worker made notes of what she overheard shortly after the event, she put some words in quotation marks but did not put quotation marks around the word Amir. In addition, Mr. Rahimi points to the fact that the judge placed no weight on the youth worker’s in-court identification of Mr. Rahimi as someone she had met once briefly in 2013, and little weight to her testimony that that man’s voice was the same as the voice she overheard in 2014. [10] It is well-established, however, that triers of fact are entitled to accept all, none, or some of a witness’s evidence and are in the best position to make findings with respect to the credibility and reliability of witnesses: R. v. Fran ç ois , [1994] 2 S.C.R. 827 at 837; R. v. R.W.B. (2003), 174 O.A.C. 198 at para. 9. Here, the trial judge had the benefit of hearing the youth worker testify, observing her demeanor, and considering her evidence as a whole. Overall, the judge found the youth worker to be an “honest witness”: para. 11. It was open to him to accept her evidence that the name Amir was mentioned during the conversation she overheard. Mr. Rahimi has failed to demonstrate any basis on which this Court could interfere with that finding. [11] Also in regard to the youth worker, Mr. Rahimi contends the trial judge misapprehended what was in her notes of the overheard conversation. Those notes were canvassed in detail during the youth worker’s cross-examination. Indeed, at the conclusion of that cross-examination the trial judge asked several questions to clarify whether the word Amir appears in the notes. The witness reiterated that it did, although not in quotation marks. It is clear from the judge’s reasons that he appreciated the notes were not a verbatim account of the conversation and that some of the witness’s evidence was based on her recollection of the gist of what was said. [12] Although Mr. Rahimi contends the trial judge misapplied the law with respect to the assessment of circumstantial evidence, this was not a circumstantial evidence case. To the contrary, this was a case in which the Crown relied on direct evidence to establish all of the essential elements of the offences. [13] Mr. Rahimi also contends the trial judge reversed the burden of proof by placing an onus on him to show why T.R. would falsely accused him of being the originator of the texts and calls. This argument focuses on the last sentence of para. 23 of the judge’s reasons, wherein he stated: In a nutshell, Mr. Rahimi testified to having nothing but an altruistic motive to help [T.R.] partly because his own father had been a heroin addict and he wanted to assist [T.R.] because she was a heroin addict or at least was using heroin. Mr, Rahimi was unable to suggest any reason given the help that he provided to [T.R.] why she would make these allegations against him several months after their last contact. [14] To put this paragraph into context regard must be had to the fact that Mr. Rahimi testified he did not have any contact with T.R. after they parted ways in October 2013. T.R., on the other hand, testified they got back together approximately two weeks before she received the texts and calls that are the subject matter of the charges. [15] The following exchange took place during Mr. Rahimi’s cross-examination: Q         And there was no need for you to threaten her. A          Why would I need to threaten her? I was sad. Q         All right. So you didn’t threaten her? A          No, I did not. Q And equally, I'm going to suggest to you, as far as you're aware there’s absolutely no reason why Taylor would suggest that you were threatening her? A          Well, I don't understand why she would be saying that. [Emphasis added.] No objection was taken to this cross-examination. [16] In her closing submissions, Crown counsel, after referring to the fact that Mr. Rahimi denied being the originator of the texts and calls and denied having any contact with T.R. since October 2013, said this: He denies making the threats; the text, however, on his evidence, he had ceased all contact with this young woman who he had tried to help in October of 2013. So what could possibly be the motive for her conjuring up or fingering Mr. Rahimi as the threatener, where does this animus come from, where does this -- if it is a mistake, it is a pretty significant one. [17] I begin by noting that although Mr. Rahimi does not raise the propriety of the impugned question as a ground of appeal, it does come perilously close to asking an accused why a Crown witness would lie. As discussed in R. v. Ellard , 2003 BCCA 68 at para.21, 172 C.C.C. (3d) 28, such questions are improper. However, unlike Ellard , this was a judge-alone trial, and therefore, the trial judge’s reasons can be examined to determine what, if any, impact that question had on the outcome. [18] In my view, in the impugned sentence, all the trial judge was doing was observing that Mr. Rahimi’s version of events involved T.R. fabricating a very serious allegation against someone who had been her benefactor and with whom she had had no contact for a number of months. As a matter of logic and common sense, this was something the judge was entitled to consider. As Mr. Justice Doherty stated in R. v. Batte (2000), 145 C.C.C. (3d) 449 (Ont. C.A.) at para. 120, “the absence of any reason to make a false allegation is a factor which juries, using their common sense, will and should consider in assessing a witness’ credibility.” See also R. v. Brown , 2006 BCCA 100 at para. 14, 223 B.C.A.C. 96; R. v. Jackson , [1995] O.J. No. 2471 at para. 5 (C.A.). It is also of significance that the impugned sentence appears in the portion of the reasons in which the judge is reviewing the evidence. The judge’s reasons for rejecting Mr. Rahimi’s evidence come later, in paras. 27 and 28. [19] Mr. Rahimi also contends the trial judge erred by failing to recite and follow the well-known formula set out in R. v. W.(D.) , [1991] 1 S.C.R. 742, in concluding that the Crown had proven its case beyond a reasonable doubt. However, judges are not required to slavishly follow the steps set out in that case. As Madam Justice Charron stated in R. v. Dinardo , 2008 SCC 24 at para. 23, [2008] 1 S.C.R. 788: What matters is that the substance of the W.(D.) instruction be respected. In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused’s guilt beyond a reasonable doubt. [Emphasis added.] [20] In this case, it is clear that Mr. Rahimi’s evidence did not raise a reasonable doubt in the trial judge’s mind and that, having considered the whole of the evidence, the judge was satisfied as to his guilt. [21] Finally, I would reject Mr. Rahimi’s submission that the verdict was unreasonable. It is enough to say that the verdict is supported by the evidence the trial judge accepted. [22] I would dismiss this appeal. [23] SAUNDERS J.A. : I agree. [24] DICKSON J.A. : I agree. [25] SAUNDERS J.A. : The appeal is dismissed with thanks to counsel. “The Honourable Mr. Justice Frankel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Chow v. The Owners, Strata Plan NW 3243, 2017 BCCA 28 Date: 20170119 Dockets: CA43257; CA43258 Docket: CA43257 Between: Angela Yick Ying Chow, Kuo Wei Chin, Tien-Min Chao, Shu-Chen Lin, Zhe Lu, Yu Huang, Dominic Ching Ming Ng, Barbara Cheuk Mee Ng, and Alice Sao Kuan Chan Respondents (Petitioners) And The Owners, Strata Plan NW 3243 Appellant (Respondent) - and - Docket: CA43258 Between: Bryan Co, Li Chang, Hsiao-Jung Chia, Franklin Chow, Pau Tseng Chu, Wen Chen Chu, Margaret Mary Forgie, Aurelee Gromada, Pearl Kaushal, Permod Kaushal, Wu Yeh Kung, Sai Keung Lam, Alicia Waj Yee Lau, Yin Yi Lau, Kwok Wing Mak, Siu Yee Mui, Woodming Mui, Lori Murakami, Terry Kit Kwan Ng, Chien-Yu Ou, Annie Sung, Jacqueline Lin Sun, Kung-Ming Tsui, Richard Xu, Choi Miu Fong Yung, and Wang Zhao Appellants (Petitioners) And The Owners, Strata Plan NW 3243 Respondent (Respondent) Before: The Honourable Mr. Justice Harris The Honourable Madam Justice Fenlon The Honourable Madam Justice Dickson On appeal from:  An order of the Supreme Court of British Columbia, dated October 23, 2015 ( Chow v. The Owners, Strata Plan NW 3243 , 2015 BCSC 1944, Vancouver Registry Nos. S143231 & S154891). Counsel for The Owners, Strata Plan NW 3243; and Bryan Co, Li Chang, Hsiao-Jung Chia, Franklin Chow, Pau Tseng Chu, Wen Chen Chu, Margaret Mary Forgie, Aurelee Gromada, Pearl Kaushal, Permod Kaushal, Wu Yeh Kung, Sai Keung Lam, Alicia Waj Yee Lau, Yin Yi Lau, Kwok Wing Mak, Siu Yee Mui, Woodming Mui, Lori Murakami, Terry Kit Kwan Ng, Chien-Yu Ou, Annie Sung, Jacqueline Lin Sun, Kung-Ming Tsui, Richard Xu, Choi Miu Fong Yung, and Wang Zhao: P. Dougan Counsel for Angela Yick Ying Chow, Kuo Wei Chin, Tien-Min Chao, Shu-Chen Lin, Zhe Lu, Yu Huang, Dominic Ching Ming Ng, Barbara Cheuk Mee Ng, and Alice Sao Kuan Chan: G.S. Hamilton Place and Date of Hearing: Vancouver, British Columbia December 9, 2016 Place and Date of Judgment: Vancouver, British Columbia January 19, 2017 Written Reasons by: The Honourable Mr. Justice Harris Concurred in by: The Honourable Madam Justice Fenlon The Honourable Madam Justice Dickson Summary: The respondents, owners of units in a townhouse complex, petition to the court for an order enforcing their exclusive use of certain “visitor parking” spots adjacent to their units, based on their designation in the registered strata plan as limited common property (“LCP”). The appellants, other owners and the strata corporation, argue that the LCP designation was an error, or alternatively, it was “significantly unfair” to not remove the LCP designation. Held: appeal allowed. New hearing ordered. The chambers judge erred in determining that, in any event, a finding on whether the LCP designation was an error was irrelevant given the principle of land title indefeasibility. Section 14.12 of the Strata Property Regulation provides for the rectification of errors in registered strata plans, and a definitive finding of whether there was an error is necessary for the proper disposition of the petitions. Reasons for Judgment of the Honourable Mr. Justice Harris: [1] These appeals arise out of two petitions at the core of which is the common question of the legal status of seven parking spaces in a long-established complex of 37 strata-title townhouses in Richmond. [2] Each townhouse has a two-car garage, but there is an additional parking space adjacent to each of seven units. The strata corporation has for many years treated these parking spaces as guest parking; so too had the owners of the units in the complex, including the owners of the units adjacent to the extra parking spot. They were described as visitor parking in the original disclosure statement when the townhouses were developed. Units, including those with the additional adjacent parking space, have been bought and sold on the basis that each unit has access to two parking spots, a fact reflected in the documents of sale. Until relatively recently, everyone operated on the assumption that each unit came with two parking spots. It turns out, however, that that assumption may have been wrong. On the strata plan, these parking spaces are not shown as common property. They are described rather as “limited common property”. The strata plan was deposited and registered in the Land Title Office (“LTO”) in May 1990. The effect of describing these lots as “limited common property” is that the owners of the adjacent units can assert the exclusive right to use the space adjacent to that unit. While limited common property is not part of indefeasible title under s. 23(2) of the Land Title Act , R.S.B.C. 1996, c. 250, it is a registered right associated with title constituting a special category of property “over which the unit owner has a substantial degree of control and something approaching a beneficial interest”: see Moure v. The Owners , Strata Plan NW2099 , 2003 BCSC 1364 at para. 22. [3] A conflict has arisen within the strata corporation. The majority of the owners argue that the description of these parking spaces as “limited common property” was obviously a mistake. Six of the seven owners of units adjacent to these parking spaces assert a right to exclusive use of them because of their description in the registered strata plan. Efforts to resolve the problem by passing a resolution to amend the strata plan foundered because such an amendment requires unanimous approval, which was not obtained. [4] The dissenting owners, identified by the judge as the Chow petitioners, brought a petition claiming exclusive use of the parking spaces, an order preventing the strata corporation from interfering with that use, and ancillary orders, including the cancellation of fines and penalties assessed against them by the strata corporation. [5] The majority of the owners, identified by the judge as the Co petitioners, brought their own petition, supported by the strata corporation, alleging that the description of the parking spaces in the strata plan was in error and the corporation has acted unfairly in failing to amend it. [6] Although expressing some sympathy for the position the majority found themselves in, the judge dismissed the Co petition and made the orders sought in the Chow petition. [7] The judge reviewed the evidence about the description of the parking spaces, how units had been marketed, and what current owners understood they were purchasing when they bought their townhouses. He noted evidence from a Mr. David Dyck, who is the British Columbia land surveyor who signed the strata plan that was subsequently registered. Mr. Dyck deposed that, based on the difference between the strata plan and the original disclosure statement, he now believes that he must have made a drafting error on the strata plan in referring to the seven parking spots as limited common property. The judge dealt with his evidence and its relevance at paras. 17‑20 of the judgment: [17]      In the absence of direct recollection or additional documents, Mr. Dyck’s evidence that he made an error is purely speculative. His evidence is at least as consistent with a change in plans having been made in the year between the disclosure statement and the strata plan. [18]      In any event, neither the disclosure statement nor Mr. Dyck’s evidence can affect the status of the registered strata plan. The most fundamental principle underlying the B.C. land registry system is set out in s. 23(2) of the Land Title Act , R.S.B.C. 1996, c. 250: 23 (2)  An indefeasible title, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title as registered owner is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title…. [19]      The Chow petitioners each hold indefeasible title to their respective strata lots. The limited common property is not part of the indefeasible title, but it is a registered right associated with that title. In Moure v. The Owners , Strata Plan NW2099 , 2003 BCSC 1364, Groberman J., as he then was, said at para. 22 that [L]imited common property must be seen as a special category of property over which the unit owner has a substantial degree of control and something approaching a beneficial interest. [20]      The nature of the right is confirmed by s. 257 of the SPA and its requirement that a designation of limited common property in the original strata plan can only be changed by a unanimous vote, meaning that it must have the consent of the owner of the affected unit. [8] He then turned to consider the argument that a strata plan can be amended, but that by failing to amend it, the strata corporation acted unfairly. This argument is based on s. 164 of the Strata Property Act , S.B.C. 1998, c. 43 [ SPA ], which provides: 164 (1) On application of an owner or tenant, the Supreme Court may make any interim or final order it considers necessary to prevent or remedy a significantly unfair (a) action or threatened action by, or decision of, the strata corporation, including the council, in relation to the owner or tenant, or (b) exercise of voting rights by a person who holds 50% or more of the votes, including proxies, at an annual or special general meeting. (2) For the purposes of subsection (1), the court may (a) direct or prohibit an act of the strata corporation, the council, or the person who holds 50% or more of the votes, (b) vary a transaction or resolution, and (c) regulate the conduct of the strata corporation’s future affairs. [9] The judge took the view, relying on Dollan v. The Owners, Strata Plan BCS 1589 , 2012 BCCA 44, that this section permits a court to interfere when the conduct of a majority oppresses a minority. At para. 24 of the reasons he said: [24]      Section 164 is generally considered to be a provision that is “intended to allow the court to interfere when the conduct of the majority becomes oppressive to a minority”: Owners of Strata Plan NW 2212 (Re) , 2010 BCSC 519 at para. 29. In Dollan v. The Owners, Strata Plan BCS 1589 , 2012 BCCA 44 the Court of Appeal said: [24]      Section 164 is remedial. It addresses that, despite using a fair process and holding a democratic vote, the outcome of majoritarian decision-making processes may yield results that are significantly unfair to the interests of minority owners. Section 164 provides a remedy to an owner who has been treated significantly unfairly by co-owners or the strata council that represents them. [10] The test, from Dollan, is twofold (at para. 30): 1.         Examined objectively, does the evidence support the asserted reasonable expectations of the petitioner? 2.         Does the evidence establish that the reasonable expectation of the petitioner was violated by action that was significantly unfair? [11] I take it that the Co petitioners invoked s. 164(1)(a) in support of its argument, since s. 164(1)(b) is engaged only by the exercise of the voting rights by a person who holds 50% or more of the votes at an annual or special meeting. Section 164(1)(a) is engaged by the action or threatened action by, or decision of, the strata corporation or council. Hence, I take it that the argument must have been that the strata corporation’s or council’s failure to amend the by-law as it wanted to do was significantly unfair and that the Chow petitioners are responsible for that unfairness because of the way they exercised their voting rights. I do not intend to comment on whether s. 164(1)(a) provides a remedy in these circumstances or the soundness of the argument advanced, if that indeed was the theory underlying the Chow petitioner’s position, given the basis on which the judge chose to deal with the matter. [12] The judge accepted that the Co petitioners had a reasonable expectation that the parking spaces were available for visitor parking, but he was not satisfied that the evidence demonstrated that that reasonable expectation was violated by a significantly unfair action by the Chow petitioners. He noted that this case involves a majority alleging unfair treatment arising from a minority’s exercise of a right derived from the governing legislation. He summarized his conclusion at paras. 33 and 34: [33]      In requiring a unanimous vote to remove a limited common property designation, the SPA contemplates that the change can be blocked by a single vote from the affected unit holder—an indication of the importance the legislature placed on the individual rights arising from that designation. I fail to see how reliance on that express statutory protection can be characterized as significantly unfair. [34]      While I sympathize with the Co Petitioners, who have been faced with an unpleasant and potentially expensive surprise, that sympathy cannot override the Chow petitioners’ reliance on rights that the strata plan and the SPA specifically gave them. [13] As I would state the issues on appeal, the Co petitioners and the strata corporation contend that the chambers judge failed to give proper effect to the surveyor’s admission that he had made a mistake. As a result, he did not properly define the true state of the record before embarking on his analysis under s. 164 of the SPA to decide whether the effective exercise of a veto by the Chow petitioners resulted in action (or failure to act) by the corporation or council that was “significantly unfair”. And when he engaged in that analysis, he failed to give effect to the significant unfairness of permitting the Chow petitioners to rely on the strata plan when to do so defeated the reasonable expectations of all owners, imposed costs on the strata corporation to replace the visitor parking, put the strata corporation in contravention of municipal parking bylaws, and conferred a significant financial windfall on the Chow petitioners by increasing the value of their units. [14] The Chow petitioners defend the judgment, arguing that the judge appreciated the factual circumstance relating to the strata plan finding, in effect, that it had not been shown that there had been a mistake when it was deposited, but in any event of that fact, the judge properly applied the law recognizing that it was not “significantly unfair” to rely on rights conferred by statute and the rights derived from registration of the strata plan in the LTO to resist the proposed amendment. [15] Much of the argument on appeal focused on how the case had been argued before the judge. There seems to be no dispute that the judge was invited to decide whether the strata plan identified the parking lots in error as limited common property. It appears though that the thrust of the Co petitioners’ argument was to use the fact of the alleged error as a factor to be taken into consideration in assessing whether refusing to support the motion to amend the strata plan was significantly unfair on the basis I have described above. In other words, the focus was on whether the use of a veto provided by s. 257 led to significant unfairness given the apparent need to amend the strata plan to deal with the mistake in the plan. Section 257 provides, insofar as is relevant: To amend a strata plan to designate limited common property, or to amend a strata plan to remove a designation of limited common property made by the owner developer at the time the strata plan was deposited or by amendment of the strata plan, the strata plan must be amended as follows: (a) a resolution approving the amendment must be passed by a unanimous vote at an annual or special general meeting; [16] In my view, the issue as it was framed before the judge did not adequately focus on the issues he had to decide and, as a result, he was led into error given his view of the status of the registered strata plan. Those errors are the following. [17] First, the judge expressed the view that the only way to amend the strata plan was by way of a resolution passed under s. 257: at para. 20. Respectfully, I disagree. [18] Second, and linked to the first error, he therefore concluded that “neither the disclosure statement nor Mr. Dyck’s evidence can affect the status of the registered strata plan” at para. 18. Again, I disagree because there is another statutory provision to correct an error. [19] As a result, he appears to have proceeded on the basis that it was irrelevant whether the strata plan contained an error because the statute as a whole contemplated that the Chow petitioners were entitled to rely on the strata plan as deposited and registered when it came to exercising rights in connection with a resolution under s. 257. It may be for this reason that the judge did not make a definitive finding of fact one way or the other about whether there had been an error in the drafting of the plan. Rather, the judge focused on Mr. Dyck’s evidence, describing it as “purely speculative” and suggesting that it was “at least as consistent with a change in plans” after the disclosure statement of a year earlier: at para. 17. The judge did not grapple with the totality of the evidence bearing on the question because he appears to have regarded it as essentially irrelevant. [20] In my opinion, the first question that needed to be answered definitively was whether the strata plan contained an error in its description of the parking spots as limited common property. Such a finding is the foundation for the rest of the analysis. [21] Section 257 is not the only means by which errors in the designation of property in a strata plan can be rectified. Errors may be corrected under the Strata Property Regulation, B.C. Reg 43/2000 (the “ Regulation ”). Section 14.12 of the Regulation provides: Correction of errors 14.12 (1) In this section: “error” means any erroneous measurement or error, defect or omission in a registered strata plan; “registered strata plan” includes any document, deposited in the land title office, that (a) is referred to in section 245(a) or (b) of the Act, (b) forms part of a strata plan under the Condominium Act , R.S.B.C. 1996, c. 64 or a former Act, or (c) amends or replaces a document referred to in paragraph (a) or (b). (2) If it appears to the registrar that there is an error in any registered strata plan, the registrar may give notice or direct that notice be given to any person, in the manner and within the time determined by the registrar, and the registrar, after considering submissions, if any, and examining the evidence, may correct the error. [22] There is clearly a jurisdiction for the registrar to correct an alleged error such as the one engaged in this case because what is alleged is an error or defect in a registered strata plan. The registrar may give notice to any person, examine the evidence, and consider submissions in reaching a decision about whether there has been an error, and whether and how to correct it. [23] If that procedure had been followed here, there may have been no need to resort to a resolution under s. 257. Clearly, s. 257 is not the only way to amend a registered strata plan. Indeed, it may not be the appropriate section under which to proceed, because, as I read the section, it contemplates a procedure for amending a strata plan when there is no issue about the correctness of the plan, but where for other reasons a strata corporation wants to change the designation of property from one status to another. In light of the existence of s. 14.12 in the Regulation , s. 257 is not the only means to amend a registered strata plan and, prima facie , is not the relevant provision for correcting errors. [24] The registrar was asked to exercise the jurisdiction under s. 14.12 but declined, apparently because the issue was before the courts. Whether or not that is all that can be said about the reason for declining jurisdiction, the rectification issue was before the court. The “Legal Basis” portion of the respondents’ Amended Response to Petition, filed April 28, 2014, expressly sought rectification of the “mistake” as provided for under s. 14.12. I am satisfied that in these circumstances a court has the jurisdiction to deal with the issue posed by s. 14.12 and make a declaration determining rights under the section and, if the court determines there was such an error that should be rectified, pronounce an order directing the registrar to correct the record. I do not rule out the possibility that a court might refer the matter back to the registrar to exercise his or her powers under the Regulation and stay proceedings in the court pending that determination. [25] In the result, there needed to be a definitive finding of fact on whether the strata plan contained an error that should be corrected. As I read his reasons, the judge did not make such a finding, and was misdirected into stating that such a finding was irrelevant. Had that finding been made, the issue of whether the strata corporation was acting in a significantly unfair manner in failing to pass the s. 257 resolution may have been irrelevant. Indeed, the judge seemed to rely on the Chow petitioners’ exercise of a “right arising from the governing legislation” to find that there was no significant unfairness: at paras. 32‑33. A finding as to any error could affect that right, and in turn, affect the significant unfairness assessment. [26] In any event, I cannot agree that whether or not there had been an error is irrelevant to the analysis undertaken by the judge in dealing with the case as it was presented to him. In my respectful view, the “equities” of that analysis can only properly be undertaken if it is known whether the Chow petitioners were relying on a “state of title” that reasonably they knew was in error, for example, or that was in fact, to the surprise of most involved, the true state of title. I do not think it advisable to go any further in this analysis. Respectfully, I think the judge erred in treating it as irrelevant. [27] I am not persuaded that the judge was properly invited to decide what I see as the essential first question in the analysis, although clearly there was much argument about the “error” and a mass of evidence before him. However, the issue was properly pleaded and its relevance to the proper disposition of the petitions is not in doubt. [28] Had the issue been fully addressed, one might expect to have seen an explicit effort to grapple with the relevant evidence. The issue was whether the strata plan, as deposited, erroneously described the parking stalls as limited common property. The disclosure statement filed by the developer a year earlier than the plan described the stalls as visitor parking. A disclosure statement is a document required to be filed by statute, and purchasers are entitled to rely on it. Material changes to a development require an amendment to the disclosure statement: Woo v. Onni Ioco Road Five Development Limited Partnership, 2014 BCCA 76. A change to these parking spots from common to limited common property would, it was accepted, have required the filing of an amended disclosure statement. There was no such amendment in relation to these stalls, although there was an amended disclosure statement dealing with other matters. The Chow petitioners acknowledged that there was no evidence that the developer was not complying with its regulatory obligations. The amendment that was made would tend to suggest that it was complying with them. The only evidence of a change in plan respecting these parking stalls is derived from the plan itself, the suggestion being that the error would not be repeated within the plan unless it was a deliberate change. But that does not appear to follow because once the error was first made, it may simply have been repeated in respect of each stall. Finally, subsequent conduct may also be probative of whether an error had been made. All of these issues need to be weighed and assessed to determine the fundamental question whether the strata plan contained an error. [29] For these reasons, I would allow the appeal in the Co petition and set aside the orders below in both petitions. I have reluctantly concluded that this Court is not in a position on the record before us to make the necessary findings to substitute an order disposing of the petitions. Unfortunately, it is necessary to remit the petitions to the Supreme Court for new hearings. Although they were requested, this is not, in my opinion, a case justifying an award of special costs. “The Honourable Mr. Justice Harris” I agree: “The Honourable Madam Justice Fenlon” I agree: “The Honourable Madam Justice Dickson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. De Aquino, 2017 BCCA 36 Date: 20170119 Docket: CA43417 Between: Regina Respondent And Iury Martins De Aquino Appellant Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Frankel The Honourable Madam Justice Stromberg-Stein On appeal from: an order of the Provincial Court of British Columbia, dated February 25, 2014 ( R. v. De Aquino , Colwood Docket No. 160904). Oral Reasons for Judgment Counsel for the Appellant: J.J. Blazina Counsel for the Respondent: J. Walker Place and Date of Hearing: Vancouver, British Columbia January 19, 2017 Place and Date of Judgment: Vancouver, British Columbia January 19, 2017 Summary: Appeal of conviction for possession of cocaine for the purpose of trafficking based on circumstantial evidence. Appeal dismissed. The trial judge’s inferences, based on common sense, could reasonably be drawn from the evidence. This was a strong and compelling circumstantial case where the judge was entitled to draw the inferences he did and the verdict is one that a properly instructed trier of fact, acting judicially, could reasonably have rendered. INTRODUCTION [1] STROMBERG-STEIN J.A. : The appellant, Iury Martins De Aquino, appeals his conviction in provincial court for possession of cocaine for the purpose of trafficking. The evidence implicating the appellant was circumstantial. He argues the verdict is unreasonable; or to the extent the verdict is reasonable it is still unreasonable because the trial judge came to conclusions based on irrational or illogical reasons. FACTS [2] Around 12:30 a.m. on July 18, 2013, two constables attended at the scene of an accident involving a motorcyclist and a skateboarder. When they arrived, an ambulance was present and the motorcycle had been moved off to the side of the road. Four or five people were standing on the northeast corner of the intersection, including two or three with skateboards. [3] A bystander, who lived nearby, had come to the accident scene when he heard the accident. When he “heard the lights and sirens”, he saw the motorcyclist stop pacing around, and reach his hand under a hedge at the northeast corner of the intersection. The bystander could only see the top of the motorcyclist’s hand, so he could not see what, if anything was in the hand. The motorcyclist then continued pacing. The bystander told one of the constables that just before the police arrived he saw the motorcyclist place one hand underneath the hedge. He took the constable to the spot. The constable searched with her flashlight and found the remains of a bag of chips and a plastic bag stuck in the hedge about three inches off the ground, containing 26 smaller bags of white powder, which was conceded at trial to be cocaine. The appellant was arrested when he came out of the ambulance. [4] The appellant did not testify at trial and did not call any other evidence. He conceded that if the court found he possessed the cocaine in the manner it was packaged (.75 grams per package for a total of 19.5 grams) it would lead to the inference it was for the purpose of trafficking. The value of the cocaine was in the range of $1,500-$2,000. TRIAL JUDGMENT [5] The issue at trial was whether the Crown had proven beyond a reasonable doubt that the appellant was in possession of the cocaine. The trial judge began by noting the criminal standard of proof and how that applied where the Crown’s case was largely circumstantial. He stated: [8]        The Crown’s case here is, in large part, circumstantial. In cases of circumstantial evidence, the standard of proof is often stated in a slightly different way. In a circumstantial case, it is often said that criminal conviction can only follow if the evidence satisfies the court that there is no other rational explanation for the circumstances apart from the guilt of the accused. I emphasize, however, that the use of that phrasing in not intended to suggest that there is any difference in the general standard of proof in a circumstantial case as opposed to any other criminal case. [6] The judge noted that beyond a reasonable doubt is “a very high standard indeed”, but it does not require “proof to a mathematical certainty”; and further, that he must consider all of the evidence in its totality in drawing inferences and determining whether the guilt of the accused person has been established beyond a reasonable doubt: at paras. 9-10. [7] The judge first considered whether the person the bystander observed placed the cocaine in the hedge. He found that it was, because: · Both the bystander and the constable identified the same general area in the northeast corner of the intersection when asked to point out where the hedge was on a photo at trial. More importantly the bystander had led the constable to the precise location where he had seen the hand go under the hedge just a few minutes earlier, and that was the same location where the cocaine was found: paras. 17-18. · The substance was valuable, and it was “unlikely” a person would put it there unless there was some perceived urgency and it was unlikely it remained there, unclaimed, for any substantial period of time: paras. 17, 28. Therefore, it was put there recently by someone at the scene of the accident: para. 19. [8] Next, the judge considered whether the person the bystander observed was the accused person. He concluded he was, because: · The bystander had no doubt that it was the “motorcycle rider” at the accident scene who put his hand under the hedge, because he “was the only person wearing that kind of jacket”, which the trial judge took to mean a motorcycle jacket: para. 21. · According to both constables and the bystander, there was only one motorcycle at the scene of the accident and only one person (the accused) in motorcycle garb, including a motorcycle jacket and a helmet: paras. 21, 25. · The bystander described the person as “being in some pain and seeking some medical assistance by going inside the ambulance.” The accused person was the only one injured, no one else sought medical treatment, and he was inside the only ambulance. The skateboarder was not injured, and the constable noted the skateboarder was “in regular street clothes”: paras. 22-23. · The accused was arrested just as, or just after, he exited from the ambulance: para. 25. [9] The judge found the following facts did not raise a reasonable doubt: · The bystander did not see anything actually being stashed away because he could not see what was in the motorcyclist’s hand. He saw only the top of the motorcyclist’s hand: paras. 14-15. · The bystander described the person who placed his hand under the hedge as being in his “twenties or thirties” and disagreed that the person was “approaching 40.” In fact, the accused person was 38 years old at the time. However, the judge said he appeared “youthful”: paras. 26-27 . [10] Further, the judge considered that because the appellant was involved in the accident he would anticipate dealing with the police and would want to quickly dispose of the cocaine. [11] Having considered the whole of the evidence the trial judge found “the evidence implicates Mr. De Aquino in such a way that it is not possible to say that there is any other rational conclusion to be drawn apart from his possession of the cocaine and an attempt on his part to hide it in the hedge prior to the arrival of the police and ambulance personnel at the accident scene.”: para. 32. He found the appellant guilty of possession of cocaine for the purpose of trafficking. ISSUE [12] The sole issue on appeal is whether the guilty verdict was unreasonable, and therefore should be set aside pursuant to s. 686(1)(a)(i) of the Criminal Code, R.S.C. 1985, c. C-46. [13] The appellant advances two main arguments. [14] First, he argues the judge failed to appreciate that the evidence at trial did not establish that only the appellant had the opportunity to place the drugs under the hedge. In other words, the evidence did not support a finding that the appellant had the exclusive opportunity to place the drugs under the hedge. [15] Second, he argues the judge erred in his reasoning process by “imputing a motive to hide drugs”. In essence, the appellant argues that he would only possibly have the motive to hide drugs if he had possessed the drugs to begin with, and by finding he had that motive, the “judge’s reasoning puts the cart before the horse” and “wrongly reversed the burden of proof by imputing a motive that could only have existed if the appellant were already guilty.” LAW Unreasonable Verdict [16] Section 686(1)(a)(i) of the Criminal Code , R.S.C. 1985, c. C-46, provides, in relevant part: 686 (1) On the hearing of an appeal against a conviction…the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence [17] In R. v. Villaroman, 2016 SCC 33 at para. 55, Cromwell J. for the Court described the characteristics of a reasonable verdict as follows: [55]      A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered: R. v. Biniaris , 2000 SCC 15, [2000] 1 S.C.R. 381. Applying this standard requires the appellate court to re-examine and to some extent reweigh and consider the effect of the evidence: R. v. Yebes , [1987] 2 S.C.R. 168, at p. 186. This limited weighing of the evidence on appeal must be done in light of the standard of proof in a criminal case. Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence: Yebes , at p. 186; R. v. Mars (2006), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 4; R. v. Liu (1989) 95 A.R. 201 (C.A.), at para. 13; R. v. S.L.R. , 2003 ABCA 148 (CanLII); R. v. Cardinal (1990), 106 A.R. 91 (C.A.); R. v. Kaysaywaysemat (1992), 97 Sask. R. 66 (C.A.), at paras. 28 and 31. [56]      The governing principle was nicely summarized by the Alberta Court of Appeal in Dipnarine , at para. 22. The court noted that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences” and that a verdict is not unreasonable simply because “the alternatives do not raise a doubt” in the jury’s mind. Most importantly, “[i]t is still fundamentally for the trier of fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt.” [18] The test to be applied under s. 686(1)(a)(i) in determining whether a verdict is reasonable is whether the verdict is one that a properly instructed trier of fact acting judicially could reasonably have rendered. This test is the same for a judge-alone trial: R. v. Sinclair , 2011 SCC 40. The application of this test involves some element of subjective assessment, as this Court re-examines and to some extent reweighs and considers the effect of the evidence. This Court is required to bring its judicial experience to bear: Biniaris at paras. 40-42. However, while this Court may engage in a re-examination and reweighing of the evidence for the limited purpose of deciding whether the verdict is reasonable, it is not the function of this Court to substitute its views for those of the trial judge. It is for the trier of fact to distinguish between reasonable doubt and speculation, and such an assessment is only set aside if it is unreasonable. Circumstantial evidence [19] A guilty verdict based on circumstantial evidence is sound if the trier of fact is “satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts”: R. v. Cooper, [1987] 1 S.C.R. 860. [20] In Villaroman , Cromwell J. noted that the words “rational” and “reasonable” are “virtually synonyms” and the reasonable alternatives do not need to be exclusively drawn from proven facts. In explaining the trier of fact’s task, he said: [35]      …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 Lifchus , 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. 396; R. v. Baigent , 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 the absence of evidence, not on speculation. [21] In explaining the difference between a plausible theory and speculation, Cromwell J. said: [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 logically and in light of human experience, is reasonably capable of supporting an inference other than the accused is guilty. [39]      I have found two particularly useful statements of this principle. [40]      The first is from an old Australian case, Martin v. Osborne, 55 C.L.R. 367, at p. 375: In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation . This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [41]      While this language is not appropriate for a jury instruction, I find the idea expressed in this passage - that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative - a helpful way of describing the line between plausible theories and speculation. [42]      The second is from R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at paras. 22 and 24-25. The court stated that “[c]ircumstantial evidence does not have to totally exclude other conceivable inferences;” that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible. [43]      Where the line is to be drawn between speculation and reasonable inferences in a particular case cannot be described with greater clarity than it is in these passages. [Emphasis by Cromwell J.] [22] In this case, on appellate review, this Court must consider whether the properly instructed trier of fact, acting judicially and considering the totality of the evidence, could reasonably conclude that the only reasonable conclusion to be reached is that the appellant possessed the cocaine found under the hedge for the purpose of trafficking. The assessment of the evidence is made in light of human experience and common sense. DISCUSSION Exclusive Opportunity [23] The appellant’s first and primary contention is that the judge did not, and could not, find that the evidence supported a conclusion that the appellant had the exclusive opportunity to place the cocaine in the hedge. This submission is based primarily on the evidence that other people were present in the general area identified by the bystander. [24] The Crown argues that the possibility that someone else placed the drugs there is speculative in light of the totality of the evidence. [25] There is no suggestion that the judge misapprehended the evidence. He acknowledged that the bystander did not see the appellant put the cocaine under the hedge and only observed the appellant reach his hand under a few minutes before the police arrived. [26] The appellant relies on R. v. Bock , 2016 BCCA 195. In Bock , this Court allowed an appeal from a guilty verdict on the basis that other rational conclusions were available on the evidence. In that case, the evidence disclosed specific facts supporting a reasonable conclusion that, at the time, the accused person actually did not reside at the apartment where drugs were found, and had perhaps moved. Such evidence included a signed lease for another residence, moving boxes, and the presence of other people and personal items belonging to other people in the apartment. Many people were observed moving in and out of the apartment, and the police admitted that they had not watched or maintained continuity of the apartment. [27] In this case, the appellant essentially relies on the presence of other people at the accident scene to argue that other reasonable conclusions were available; namely, that one of the other bystanders placed the cocaine there. [28] In my view, the appellant’s argument ignores the bystander’s uncontested evidence that he saw the “motorcycle rider” place his hand under the hedge in the location where the cocaine was found a short time after. It is not disputed there were other people at the scene. But it is similarly not disputed that the appellant was the only motorcyclist present, and the only person there dressed in motorcycle garb. The judge correctly and fairly noted the evidence on this point, including the inconsistencies regarding the material of the jacket, which inconsistencies he concluded were immaterial. [29] Looking at the evidence “through the lens of judicial experience” and applying a good dose of common sense , ( R. v. Swales, 2014 BCCA 350 at para. 65) I would not accede to the appellant’s argument on this point. Bock is distinguishable based on its substantially different facts. I conclude it was reasonable for the trial judge to find that the only reasonable conclusion supported on the evidence here is that the appellant placed the cocaine under the hedge. On an assessment of the totality of the evidence in this case, the appellant’s theory was not a plausible one based on logic and experience and was, at best, speculative: Villaroman at paras. 35-36. Imputing a Motive [30] The appellant’s second argument is that the judge improperly imputed to him a motive by inferring that, because of the value of the cocaine, it must have been placed there recently and under some sense of urgency. He argues that a motive and opportunity to commit the crime, with nothing more, is insufficient to sustain a conviction absent evidence of exclusive opportunity. The appellant relies on the following passage from Yebes at para. 26: [26]      This Court, in considering an appeal where the sole issue raised is the application of s. 613(1)(a)(i) of the Code, must put itself in the place of the Court of Appeal and, pursuant to the powers given in s. 623(1) of the Code, consider the matter anew, and if error be found make such order as the Court of Appeal should have made. In pursuit of that objective, I can say that there was evidence before the jury from which it could reasonably find that the two boys were dead before the fire in the mattress was set and that they did not die from natural causes. There was evidence upon which the jury could reasonably find that the fire in the mattress was not accidental but was set by a human hand with the aid of a liquid accelerant. There was evidence upon which they could reasonably find that the appellant Yebes had a motive for killing the boys and that he had an opportunity to do so. If there were no further evidence upon which to support the Crown's case there could be no doubt that the appellant would be entitled to an acquittal, for evidence of motive alone would not be sufficient to base a conviction and coupling opportunity with motive in the absence of other evidence would not advance the case unless there were evidence of exclusive opportunity. [Emphasis added] [31] However, later in that same paragraph in Yebes , McIntyre J. reviewed the statement of the same principle in R. v. MacFarlane (1981), 61 C.C.C. (2d) 458 (Ont. C.A.), and stated that: It may then be concluded that where it is shown that a crime has been committed and the incriminating evidence against the accused is primarily evidence of opportunity, the guilt of the accused is not the only rational inference which can be drawn unless the accused had exclusive opportunity. In a case, however, where evidence of opportunity is accompanied by other inculpatory evidence, something less than exclusive opportunity may suffice. This was the view expressed by Lacourcière J.A. in R. v. Monteleone (1982), 67 C.C.C. (2d) 489 (Ont. C.A.), at p. 493, where he said: It is not mandatory for the prosecution to prove that the respondent had the exclusive opportunity in a case where other inculpatory circumstances are proved. It is also supported by further comments of Martin J.A. in R. v. Stevens (1984), 11 C.C.C. (3d) 518, at p. 534 et seq ., and see, as well, Imrich v. The Queen , [1978] 1 S.C.R. 622, per Ritchie J. at p. 627. [Emphasis added] [32] This is not a case of exclusive opportunity alone. This is a case where the evidence demonstrates opportunity is accompanied by other inculpatory evidence. In this case, the bystander’s evidence that the person wearing motorcycle clothes reached his hand under the hedge where the drugs were found shortly after is that other inculpatory evidence. No explanation was provided as to why the appellant reached under the hedge. While the appellant was entitled to remain silent, and no adverse inferences may be drawn in that regard, this Court noted in R. v. Wu, 2010 BCCA 589, at para. 46, that the fact the appellant “did not offer any explanation in the face of otherwise inculpatory facts is a matter this Court can consider in assessing the reasonableness of the verdict.” [33] In my view, the judge did not impute any motive or reverse any onus. The judge observed that the drugs were valuable. This finding is uncontested. The judge inferred from this finding that the person who placed the drugs under the hedge must have done so recently under some sense of urgency. This was a common sense inference that was open to him to make. The judge combined this common sense inference with the totality of the evidence in reaching his verdict. It is fundamentally for the trier of fact to draw the line in each case between reasonable doubt and speculation, and absent unreasonableness, it is not for this Court to speculate upon alternative inferences. In my view it was reasonable for the judge to conclude that the evidence as a whole excluded all reasonable alternatives to guilt. [34] Accordingly, I would not accede to this argument. CONCLUSION [35] In my view, the judge properly instructed himself as to the law on the criminal standard of proof in a circumstantial case. He properly evaluated the strength of the evidence. He recognized where the evidence may be weak or unpersuasive, and accorded those aspects little or no weight. His inferences, based on common sense, could reasonably be drawn from the evidence. This was a strong and compelling circumstantial case where the judge was entitled to draw the inferences he did and the verdict is one that a properly instructed trier of fact, acting judicially, could reasonably have rendered. [36] In the result, I would dismiss the appeal. [37] SAUNDERS J.A. : I agree. [38] FRANKEL J.A. : I agree. [39] SAUNDERS J.A. : The appeal is dismissed. “The Honourable Madam Justice Stromberg-Stein”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Nelson v. British Columbia (Adult Forensic Psychiatric Services), 2017 BCCA 40 Date: 20170120 Docket: CA43723 Between: Eric Konrad William Nelson Appellant And Director of Adult Forensic Psychiatric Services Respondent And The Attorney General of British Columbia Respondent Corrected judgment: The text of the front cover was corrected on January 31, 2017. Before: The Honourable Chief Justice Bauman The Honourable Mr. Justice Frankel The Honourable Madam Justice Dickson On appeal from: An order of the British Columbia Review Board, dated April 4, 2016, in the matter of Eric Konrad William Nelson Oral Reasons for Judgment Counsel for the Appellant: M.B. Rankin M. Putnam (A/S) Counsel for the Respondent, Director of Adult Forensic Psychiatric Services: D.K. Lovett, Q.C. Counsel for the Respondent, Attorney General of British Columbia L.D. Hillaby Place and Date of Hearing: Vancouver, British Columbia January 13, 2017 Place and Date of Judgment: Vancouver, British Columbia January 20, 2017 Summary: Mr. Nelson appeals the Review Board’s disposition finding that he poses a significant threat to public safety and imposing a conditional discharge. He argues the Board erred in interpreting the “significant threat” standard and in misapprehending the expert evidence and Director’s position at the hearing. Held: appeal dismissed. The Board’s decision was reasonable and supported by the evidence. While the Board misstated the Director’s position, this error was inconsequential because it fully considered the evidence and legal test to determine the appropriate disposition. The Board did not misinterpret the “significant threat” standard or misapprehend the expert evidence, which supported a finding that he poses a significant threat to public safety. Introduction [1] DICKSON J.A. : Mr. Nelson came under the jurisdiction of the British Columbia Review Board after being found not criminally responsible on account of mental disorder on December 19, 2014 on eight criminal offences. A few months later, the Board conducted an initial hearing pursuant to s. 672.47 of the Criminal Code , R.S.C. 1985, c. C-46 and imposed a conditional discharge. Following a review hearing on April 4, 2016, the Board concluded that Mr. Nelson continues to pose a significant threat to public safety and ordered another conditional discharge on the same terms as the previous disposition (the "Order"). He appeals from the Order, contending the Board's conclusion was unreasonable, speculative and based on a misapprehension of the evidence. [2] On appeal, Mr. Nelson seeks an order from this Court quashing the Order and remitting the matter back to the Board for a fresh determination. For the reasons that follow, I would dismiss the appeal. Background [3] Mr. Nelson committed the index offences while in a prolonged state of acute mania. The index offences include assault, attempted murder, theft, firearms offences, and mischief, all committed over the course of several days in May 2013. In summary, Mr. Nelson engaged in a series of rash and violent acts in which he damaged property and repeatedly fired a shotgun at a stranger, seriously injuring him. He also harassed employees at an Indian Band office, stole a truck and drove it erratically, and behaved bizarrely following his arrest. [4] Mr. Nelson is 57 years old. Prior to these events, he had no criminal record and no formal contact with mental health professionals. However, he had long experienced mood problems, including depression and occasional episodes of mania. In October 2014, he was diagnosed as suffering from Bipolar Disorder Type 1 by Dr. George Wiehahn, the forensic psychiatrist charged with treating him in connection with the Order. [5] Mr. Nelson's bipolar disorder presents in an unusual manner. Most individuals with the diagnosis experience a manic episode about once every 18 months, but Mr. Nelson experiences them only once every 10 years or so. However, the exact periodicity of his manic episodes is unknown, and, when they occur, they may be accompanied by psychosis. None of his prior episodes involved violence and all subsided spontaneously, without medical intervention. [6] Because of the long intervals between his manic episodes, Mr. Nelson does not take medication to help control his bipolar disorder. Dr. Wiehahn recommends this treatment approach. Since being diagnosed, he has regained his mental stability and suffered no further mania or psychosis. He has also demonstrated good insight into his illness and cooperated with his treatment team by attending appointments and abiding by their recommendations. His likely response to symptom development and intervention is unknown because he has not experienced a manic episode since his illness was diagnosed. Review Board Hearing [7] As is common at its hearings, the Board received a large volume of written and oral evidence for its review and consideration. This included several medical-legal reports, community case management reports, and documents concerning the index offences. The Board also heard viva voce testimony from three witnesses: Dr. Wiehahn, Mr. Nelson's case worker, Lisa Daily, and Mr. Nelson. The Director of Adult Forensic Psychiatric Services, the Crown and Mr. Nelson were represented by counsel at the hearing. [8] Mr. Nelson described his current circumstances and future plans in his viva voce testimony. He explained that he has a supportive new partner who hopes to move with him to Grand Forks, where he plans to take up a new job and rebuild his life. Although he had not contacted mental health professionals in the area, he told the Board that he has their contact information and does not believe he would ever go without a meaningful relationship with a counsellor. He expressed uncertainty as to what pushed him to violence in 2013, but noted that he was subject to a myriad of stressors at the time. [9] Mr. Nelson also acknowledged that, due to his illness, he is not the best judge of when he is in a manic state. [10] Dr. Wiehahn testified regarding his opinion on Mr. Nelson's condition and responded to the Board's questions. He confirmed that Mr. Nelson suffers from Bipolar Disorder Type I which presents with infrequent manic episodes of unknown periodicity, although they seem to occur only once every 10 years or so. Dr. Wiehahn also noted that more collateral information from family and friends might help determine the periodicity of Mr. Nelson's manic episodes, but said he had not yet made any such inquiries. He characterized the present lack of information in Mr. Nelson's case as "the strongest fact here". [11] Given the infrequency of his manic episodes, Dr. Wiehahn explained that psychiatric medications are inappropriate for treating Mr. Nelson. This is so despite the fact that medication is typically prescribed to disrupt the natural course of bipolar disorder for most individuals who suffer from the disease. If Mr. Nelson had more frequent manic episodes, Dr. Wiehahn said, the cornerstone for treatment would have been mood stabilizing medication. However, in the unusual circumstances of his case, the "sovereign treatment" for risk management purposes over the long term is psychiatric supervision and monitoring. [12] Dr. Wiehahn told the Board that his treatment focus is longitudinal tracking to help understand Mr. Nelson's baseline functioning so that any mood changes can be detected early. However, it is not presently possible to predict how effectively Mr. Nelson could handle a manic episode without professional supervision and strong community ties. According to Dr. Wiehahn, had Mr. Nelson experienced manic symptoms since committing the index offences, it would have tested whether his enhanced knowledge and the treatment team’s assessment of his baseline would enable early detection and mitigating interventions. As matters have transpired, that has not yet occurred. [13] Based on a risk management assessment tool called the HCR20, Dr. Wiehahn told the Board that Mr. Nelson’s likelihood for engaging in violent behaviour in the next year was low. He also explained that the HCR20 does not assist in predicting Mr. Nelson's long-term risk given the infrequency of his manic episodes. He went on to say there is a risk Mr. Nelson could cause serious harm if his mental state deteriorates and he suffers another severe manic episode: a prospect he described as "very possible" but not necessarily "probable". He said further that people suffering from mania may act impulsively and violently, and those who suffer psychosis during a manic episode, like Mr. Nelson, represent a heightened risk for violence. [14] Given the potential severity of Mr. Nelson's manic response, Dr. Wiehahn highly recommended that he remain under the supervision of a professional treatment team "probably for the rest of his life". He went on to say "I will not describe exactly how that team must look" and had the following exchange with the Board Chair: Q.        …. And in terms of preparing Mr. Nelson for reintegration into the community, an essential component of that would be hooking him up with a non-forensic treatment team. Now, all we know about Mr. Nelson's plans are that they involve the Kootenays or Boundary area. We don't know that he has any friends there. We don't know that he has any employment lined up there. We don't know that he's made any effort to be referred to a treatment team or that any steps are underway currently to hook him up with a community-based treatment team or, indeed even if there is one available - - A:         I agree with all of that. Q         - - as opposed to a forensic team. A          Yes. Q         … So then the crucial aspect … is the introduction of … Mr. Nelson to some kind of community-based professional treatment team? A.         Correct. Q.        And then secondarily … so as to minimize stressors, determining what employment is available, because … you've indicated that employment is a significant protective factor for him? A.         Yes. Q.        Okay. So … all of those things not having occurred, would it be fair for me to say that you're probably tilting towards not having an absolute discharge without those things being in place? A.         Purely as Mr. Nelson's … treating psychiatrist, I would prefer to have some of those professional ties before I bid my goodbyes. [15] At the conclusion of the hearing, Mr. Nelson sought an absolute discharge. The Director took no position. The Crown sought a conditional discharge. Reasons for Disposition [16] The Board began its reasons by reviewing Mr. Nelson’s personal circumstances, the index offences, and his diagnosis. After summarizing the procedural history of the case, it outlined the evidence, the statutory framework and the relevant principles to be applied. In describing Mr. Nelson's experience with mania, the Board stated: [11]      When manic, Mr. Nelson’s occupational, interpersonal and social functioning are all severely impaired. His most recent episode of mania involved bizarre ideation, bizarre behaviour, paranoia, dangerous attitudes, grandiose and unusual thinking and possible suicidal ideation. When he is manic, he can become psychotic and then is quite capable of extremely dangerous and life-threatening behaviour. It would appear that these symptoms have become worse over time and that the index offences represent his most serious episode to date. [17] The Board described its understanding of Dr. Wiehahn’s evidence regarding Mr. Nelson's risk of committing significant harm in the future and appropriate risk management. At paras. 29 and 32, the Board stated: [29]      In cross-examination, Dr. Wiehahn stressed that any risk analysis based on HCR 20 V3 protocols is in general considered valid only for a period of approximately one year. The prime factor in Mr. Nelson’s presentation is the paucity of manic episodes over his life. It is therefore difficult to project his risk over a lengthy period of time using this assessment tool. The unusual nature of his presentation suggests that risk management must be long term. The only effective treatment, in view of his unusual presentation, is supervision and observation. [32]      In summary, Dr. Wiehahn agreed that he would describe Mr. Nelson'[s] risk of committing significant harm in the future as significant, even though when that risk would eventuate is unknown due to the lack of information respecting periodicity and the manner in which Mr. Nelson might handle such an episode. [18] The Board concluded that Mr. Nelson represents a significant threat to public safety despite his good insight, cooperative attitude, lack of symptoms, and social support, and notwithstanding Dr. Wiehahn’s testimony that he presents a low risk of committing serious harm in the next year. In explaining its conclusion, the Board stated: [46]      … The onset and periodicity of Mr. Nelson’s episodes of mania, with or without psychosis, are unpredictable and unknown. They cannot be controlled by long term administration of medication because of the lengthy periods between episodes. In Dr. Wiehahn’s opinion, prescribing medications during the lengthy periods between manic episodes would not be responsible. Because there have been no further episodes since the index offence[s], it is not possible to predict how a manic episode will eventuate or whether Mr. Nelson, his community supporters, if any, or his treatment team will be able to recognize the onset of his symptoms and deal with them appropriately. As he himself stated candidly in his testimony, he is not the best person to recognize mania when it occurs. [47]      There is little doubt that Mr. Nelson will experience further manic episodes. The only form of mitigation of risk that is available is supervision and support on a consistent and ongoing basis. This would be provided generally in the first instance by professional counsellors and psychiatrists; and in the second instance by knowledgeable members of family and knowledgeable friends who can assist Mr. Nelson in monitoring his own state of mind and mood. His ability to apply the strategies and insight he has learned and gained to mitigate his own risk can only be tested when such an episode occurs. [19] The Board also expressed concern that Mr. Nelson's discharge plan was not sufficiently detailed to justify a conclusion that he would receive the support and supervision necessary to mitigate the risk he would otherwise pose and thus to protect the public. It referred to various unknown factors, including where he would live, any psychiatric support and follow-up in that location, and the ability of his new partner to cope and assist with his mental disorder. The Board acknowledged counsel’s submission that this conclusion might lead to long-term supervision despite Mr. Nelson's mental stability, and cause him financial hardship. However, it found these submissions were not relevant to the question of risk, stating: [49]      … Neither of these points address the question of risk that we must consider in determining the threshold question of jurisdiction. Neither point renders the risk he poses insignificant and in any event, we are mandated to firstly consider the safety of the public [20] Having found that Mr. Nelson represents a significant threat, the Board turned to the question of an appropriate disposition. It concluded that a conditional discharge was needed to protect the public and made an order in the same terms as the previous disposition. These include a term that Mr. Nelson reside and report as directed, remain at the Forensic Psychiatric Hospital when his mental condition requires assessment, and not possess firearms or have any contact with the victims. The Order is reviewable within 12 months. On Appeal [21] Mr. Nelson appeals to this Court pursuant to s. 672.72 of the Code , which provides that a Review Board disposition may be appealed on a question of law, fact or mixed fact and law. Pursuant to s. 672.78(1), this Court may allow such an appeal if: the disposition is unreasonable or cannot be supported by the evidence; the disposition is based on a wrong decision on a question of law; or there was a miscarriage of justice. [22] Counsel for Mr. Nelson contends that the Board erred in two separate, but related, ways: (i) concluding that he presents a “significant threat to the safety of the public”; and (ii) misapprehending Dr. Wiehahn's evidence as to his risk to public safety and the position of the Director at the hearing. In consequence, he submits, the Order should set aside and the matter remitted for a fresh determination by the Board. Discussion Standard of Review [23] The standard of review on appeal from a decision of the Review Board is reasonableness. Mr. Justice Harris described the applicable standard in Calles v. British Columbia (Adult Forensic Psychiatric Services) , 2016 BCCA 318: [14]      The standard of review for this appeal is reasonableness: R. v. Owen , 2003 SCC 33, [2003] 1 S.C.R. 779 at para. 33. Courts recognize that the assessment of whether the mental condition of an NCR accused renders him a significant threat to public safety “calls for significant expertise”: Owen, at para. 30 . As stated in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 at para. 61, “[a]ppellate courts reviewing the dispositions made by a court or Review Board should bear in mind the broad range of these inquiries, the familiarity with the situation of the specific NCR accused that the lower tribunals possess, and the difficulty of assessing whether a given individual poses a ‘significant threat’ to public safety”. [24] This Court does not make its own judgment on the significant threat issue when evaluating whether a Review Board decision under review was reasonable. Rather, it considers the Board's reasoning and substantive decision to determine whether an acceptable and defensible outcome was reached: Carrick (Re) , 2015 ONCA 866 at paras. 24-26 Significant Threat to Public Safety [25] Where a verdict of NCRMD has been rendered, the Board must grant an absolute discharge if, in its opinion, the accused does not pose a significant threat to public safety: s. 672.54(a) of the Code. A "significant threat to public safety" is defined in s. 672.5401 of the Code . Its meaning was explained in Calles : [15]      A significant threat to public safety is defined in s. 672.5401 of the Criminal Code to mean “a risk of serious physical or psychological harm to members of the public – including any victim of or witness to the offence, or any person under the age of 18 years – resulting from conduct that is criminal in nature but not necessarily violent”. The threat posed must be more than speculative and be supported by the evidence. It must be significant “both in the sense that there must be a real risk of physical or psychological harm occurring to individuals in the community and in the sense that this potential harm must be serious. A minuscule risk of grave harm will not suffice”, nor will a high risk of trivial harm: Winko , at para. 57. [26] There is no legal or evidentiary burden on an accused to establish that he or she does not pose a significant threat to public safety. Nor is there any presumption that such an individual is dangerous. Rather, there must be evidence of a significant risk to the public before the Board may restrict an accused's liberty: Winko v. British Columbia (Forensic Psychiatric Institute) , [1999] 2 S.C.R. 625 at paras. 46, 49, 54. If the Board concludes that he or she poses a significant threat, it must fashion a disposition which is “necessary and appropriate”, meaning the least onerous and least restrictive available in the circumstances: Carrick (Re) at para. 15; s. 672.54 of the Code . [27] The Board has expert members and broad inquisitorial powers to assist in making these difficult assessments: R. v. Owen , 2003 SCC 33 at para. 29. In assessing the nature and gravity of risk, it may accept some, all or none of the evidence, including the expert evidence, provided that it explains and justifies its decision: Carrick (Re) at para. 38. However, the Board may not engage in speculation or impose a conditional discharge out of an abundance of caution based merely on a desire to "wait and see" what might happen when an accused moves into an untested environment. Its decision must be based on the accepted evidence, considered in light of the legal test that applies: Marzec (Re) , 2015 ONCA 658 at paras. 27-33. [28] The Board may have recourse to a broad range of evidence in determining the significant threat issue. This includes the past and expected course of treatment, the accused's present condition, future plans and community supports, and the expert assessments. A past offence committed by the accused while suffering from mental illness is not, by itself , evidence of a continued significant threat to public safety, but it may be considered together with the other circumstances where it is relevant to identifying a behavioural pattern and thus to the issue of significant threat: Winko at paras. 61-62. [29] In Marzec (Re) , the Ontario Review Board imposed a conditional discharge despite the uncontroverted expert evidence that the index offence was likely an isolated event, it was speculative to suspect the accused might act out in a harmful manner, and the significant threat threshold was no longer met in the opinion of the expert. The Ontario Court of Appeal set the Board's disposition aside and substituted an absolute discharge. In doing so, the Court noted the Board's apparent concern that the accused was untested in the community since his post-index offence hospitalization and stated: [30]      Such an approach, however, would erroneously place the onus on the appellant to prove that he is not a risk before he is entitled to an absolute discharge. [31]      The current disposition allows the appellant to resume living in his home, next to the same neighbours with whom he had the initial conflict. The only restrictive measures in place are the requirement that he have no contact with his neighbours and that he report to the hospital on a weekly basis. [32]      If the appellant poses a serious risk of harm to the public, it is difficult to see how it could be safe to return him to his home on these conditions. The Board would essentially be leaving the appellant's neighbours to protect themselves. The Board's disposition is at odds with its reasoning. [33]      The only reasonable conclusion -- one that is supported by the totality of the evidence -- is that the appellant does not pose a significant risk of harm. The Board appears to have ordered a conditional discharge out of an abundance of caution. That is not the legal test. As per Winko , if the appellant does not pose a significant risk to the public, the Board must order an absolute discharge. Was the Board's decision unreasonable or unsupported by the evidence? [30] Mr. Nelson contends that, as in Marzec (Re) , the Board ordered a conditional discharge out of an abundance of caution where the evidence did not support a finding that he poses a significant threat to public safety. On the contrary, he says, the evidence unequivocally indicated that he poses a low present risk of violence and there was no evidence of a future risk of violence if and when he has another manic episode. Accordingly, he says, the Board's conclusion on the significant threat issue was speculative and based on a misapprehension of Dr. Wiehahn's evidence and the Director's position. It was also based on a misinterpretation of the significant threat standard, which does not permit a conditional discharge where, as here, the potential risk to public safety is unknown or unclear. [31] In support of his submission, Mr. Nelson emphasizes the fact that he has no history of violence other than the index offences, which occurred in highly unusual circumstances that no longer prevail and are unlikely to be repeated. He also emphasizes his good insight into his illness, cooperative attitude and strong coping skills. He characterizes any risk of future violence as minuscule and says the Board is not entitled to adopt a "wait and see” approach without evidence of a legitimate concern for public safety. In addition, he challenges the Board's statements in its reasons that Dr. Wiehahn agreed he posed a significant threat to public safety in the future (para. 32) and that the Director argued in favour of a conditional discharge (para. 42). In his submission, both statements are inaccurate, misapprehend the record and go to the root of the Board's decision. [32] Given all of the foregoing, Mr. Nelson submits that the Board's decision is unreasonable and unsupported by the evidence. In consequence, he says, the Order should be quashed and the matter remitted back to the Board for a fresh determination. [33] I would not accede to these submissions. [34] The Board did misstate the Director's position at the hearing in its reasons. The Director did not advocate in favour of a conditional discharge, as stated by the Board. Rather, the Director took no position on the appropriate disposition. However, in my view, the error was inconsequential as the Board went on fully to consider the evidence and applied the proper legal test in reaching its own conclusion on an appropriate disposition. [35] Importantly, the Board did not misapprehend Dr. Wiehahn’s evidence on the significant threat issue, or any other, in undertaking this exercise. The impugned statement at para. 32 of the reasons was not a purported, but erroneous, quote from his testimony. It was a summary of its overall import, as reasonably interpreted by the Board, expressed in the language of the applicable legal test. [36] A "significant threat to public safety" is a real risk of serious harm to others resulting from criminal conduct. Dr. Wiehahn testified that it is "very possible", though not necessarily "probable", that Mr. Nelson could suffer another severe manic episode and discussed the relationship between mania, impulsivity and violence. He also noted that psychosis, which Mr. Nelson experienced during his most recent manic episode, represents a heightened risk for violence and that his unusual presentation means that standard risk mitigation through medication is unavailable. Although he testified that Mr. Nelson presents a low risk of acting violently in the short term, he also opined that psychiatric supervision and monitoring are required for long-term risk management and noted the current absence of an informed community-based treatment team to fulfill this important role. [37] Dr. Wiehahn’s testimony, considered as a whole, may be reasonably interpreted to mean that Mr. Nelson poses a real, not minuscule, risk of causing serious harm to others in the future. The Board did not misapprehend his evidence by interpreting and describing it in this way. Nor did it misinterpret the significant threat standard as mandating a conditional discharge where the potential risk to public safety is unknown or, as in Marzec (Re) , speculative and ungrounded in the evidence. As the Board concluded, although it is presently unknown when another manic episode will eventuate, it is likely that such an episode will occur and there is a real possibility that it will involve serious violence. [38] Given the foregoing, in my view the Board's decision is reasonable, supported by the evidence and entitled to deference. Its conclusion is fully explained and the outcome is defensible on the evidence and the law. Accordingly, I would dismiss the appeal. [39] BAUMAN C.J.B.C. : I agree. [40] FRANKEL J.A. : I agree. [41] BAUMAN C.J.B.C. : The appeal is dismissed. “The Honourable Madam Justice Dickson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Colligan, 2017 BCCA 42 Date: 20170120 Docket: CA43254 Between: Regina Respondent And Adam James Colligan Appellant Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Frankel The Honourable Madam Justice Stromberg-Stein On appeal from: an order of the Supreme Court of British Columbia, dated March 13, 2015 ( R. v. Colligan , Kamloops Registry No. 96272-2) Oral Reasons for Judgment Counsel for the Appellant: D.M. Melville Counsel for the Respondent: D. Layton, Q.C. Place and Date of Hearing: Vancouver, British Columbia January 20, 2017 Place and Date of Judgment: Vancouver, British Columbia January 20, 2017 Summary: The appeal from conviction by a jury of aggravated assault, discharge of a firearm with intent to wound, using a firearm to commit extortion, and breach of probation is dismissed. The appellant contended that the judge’s instructions did not adequately deal with allegations made by the Crown counsel in his opening statement that were not proved, and that the verdict was unreasonable because the identification evidence was too frail to support the verdict. Held: the instructions adequately instructed the jury on the use to which it could put the submissions of counsel. The evidence was such that the jury, properly instructed, could convict. [1] SAUNDERS J.A. : Mr. Colligan appeals from conviction by a jury of aggravated assault, discharge of a firearm with intent to wound, maim or disfigure, using a firearm to commit extortion, and breach of probation. Two other counts were conditionally stayed by the trial judge applying the Kienapple principle. [2] The appellant raises two grounds of appeal. He contends that the trial judge erred in his instructions to the jury by failing to deal with comments made by Crown counsel in the opening statement that, in the end, were not supported by evidence. Second, he contends the verdict was unreasonable because the identification evidence was so weak as to be incapable of supporting the jury verdict. [3] The charges arose from an incident on May 11, 2013, at Mr. Powell’s home wherein he was shot in the leg. Mr. Powell was a user and distributor of marihuana. There was evidence Mr. Powell had some acquaintance with the appellant for about a year-and-a-half – that Mr. Colligan had earlier sought to be Mr. Powell’s supplier but Mr. Powell had declined, being unsatisfied as to quality. Mr. Powell testified that two men visited him at his home on May 11, 2013, and demanded Mr. Powell buy his marihuana from them. Mr. Powell said that when he refused they became angry and left, saying they would return. Later that day three people attended Mr. Powell’s home and said they wanted to talk. One had a gun. Mr. Colligan took two of the men into the bathroom. During the events the gun was passed from one man to the second. Mr. Powell was struck in the face. There was an altercation and the person Mr. Powell subsequently identified as the appellant, pointed the gun at Mr. Powell. Mr. Powell knocked the gunman’s hand down and the gun discharged into Mr. Powell’s knee. [4] Mr. Powell called 911. In the course of the call he mentioned the name “Adam”. In speaking to the police Mr. Powell described one of the men as having stubble hair. Mr. Powell was shown a photo pak line-up. He first picked the appellant out as one man in the bathroom and then picked out another person as the other man. It turned out the selection of the second man was a misidentification, and Mr. Powell eventually picked a man who he said was taking pictures at the hospital from a second photo pak line-up. [5] No objection is taken to the photo line-up procedure. [6] Mr. Colligan testified in his own defence. He denied the events and said he had never met Mr. Powell. He provided alibi evidence. The judge correctly instructed the jury on the approach it must take to the evidence given by Mr. Colligan and defence witnesses. [7] I turn to the grounds of appeal. I observe, first, that Mr. Melville quite properly abandoned a complaint made in his factum of a ruling by the trial judge refusing to give a directed verdict, and any complaint of the in-dock identification, which was properly handled by the trial judge. [8] The first ground of appeal is that the trial judge did not instruct the jury to disregard particular comments of the Crown made in opening. The opening included the statements that Mr. Colligan “sold crystal meth”, “he sold to young people” and “nobody really wanted to cross him”. It is agreed there was no evidence that the appellant sold crystal meth or that he sold to young people, and there was no evidence Mr. Powell feared the appellant. The instructions to the jury did not include a particular reference to these portions of the opening statement. There was, however, more than one pre-charge conference between counsel and the trial judge looking at the instructions proposed by the judge to be given to the jury. In these conferences no request was made to include such a specific instruction to augment the usual instructions that were included, to the effect that what counsel said was not evidence and that the jury was to decide the case only on the evidence. Further, some use of this failure to prove these statements were made by defence counsel trial in his closing submissions to the jury. In my view, the instruction now contended for, in the circumstances, was not required. The judge’s instructions on the issue of the effect of counsels’ submissions were fully adequate. I would not accede to this ground of appeal. [9] The second ground of appeal concerns the identification evidence. There is no doubt that the identification evidence was open to submissions by the defence that it was not to be accepted as establishing proof of identification beyond a reasonable doubt. Such submissions were, of course, made and the instructions to the jury fully canvassed the frailties of the evidence and fully addressed the issue of photo pak line-ups, eyewitness identification, and the evidence in the case. No objection is taken to the instruction. [10] On appeal Mr. Colligan focuses on the misidentification by Mr. Powell of the second man in the photo line-up, and Mr. Powell’s evidence that he did not observe distinctive tattoos on the gunman’s hands that corresponded to tattoos across the knuckles of Mr. Colligan that spelled HARD LUCK. Mr. Powell explained the latter by saying he was looking not at the gunman’s hands but at the gun pointed at him and the finger on the trigger. [11] Notwithstanding the frailties of the evidence, in my view it was evidence capable of supporting the verdict. I say this noting that there were other threads of evidence that tended to corroborate the identification. These included Mr. Powell’s use of the name “Adam” in his call to 911, which is the appellant’s first name, that the photo picked out by Mr. Powell in the line-up had the sort of hair he had described, evidence that a man named “Adam” had once delivered marihuana to the house and said he would like to be Mr. Powell’s exclusive supplier, and some post-offence conduct that, on a correct basis (as to which there was no complaint) was left with the jury. [12] In my view, the evidence was such that this jury, properly instructed as it was, could return a guilty verdict. [13] I would dismiss the appeal. [14] FRANKEL J.A. : I agree. [15] STROMBERG-STEIN J.A. : I agree. [16] SAUNDERS J.A. : The appeal is dismissed with thanks to counsel. “The Honourable Madam Justice Saunders”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Wolff v. Canada (Attorney General), 2017 BCCA 30 Date: 20170120 Docket: CA43467 Between: Frank Albert Wolff Appellant (Plaintiff) And Attorney General of Canada Respondent (Defendant) Before: The Honourable Madam Justice Saunders The Honourable Mr. Justice Tysoe The Honourable Madam Justice Dickson On appeal from:  An order of the Supreme Court of British Columbia, dated February 1, 2016 ( Wolff v. Canada (Attorney General) , 2016 BCSC 147, Victoria Docket 15-0700). Counsel for the Appellant: C.N. Christie Counsel for the Respondent: O.R. Pulleyblank Place and Date of Hearing: Victoria, British Columbia December 1, 2016 Place and Date of Judgment: Vancouver, British Columbia January 20, 2017 Written Reasons by: The Honourable Mr. Justice Tysoe Concurred in by: The Honourable Madam Justice Saunders The Honourable Madam Justice Dickson Summary: The summary trial judge declared that the appellant had an equitable easement by virtue of proprietary estoppel to access his property by way of a laneway, but that the easement did not include the right to install a power line to the property.  The judge awarded costs of the proceeding to the respondent.  Held: Appeal dismissed, except on the costs issue.  The judge did not err in failing to consider the reasonable expectations of the parties or in failing to do minimum equity.  Both those matters go to the issue of the appropriate remedy, and not to the extent of the equity established by the evidence.  Any rights ancillary to the easement did not include the right to install a power line within the easement area.  The issue of costs is remitted to the summary trial judge. Reasons for Judgment of the Honourable Mr. Justice Tysoe: Introduction [1] The issues on this appeal relate primarily to the scope of an equitable easement in favour of the appellant over a laneway within the Pacific Rim National Park (the “Park”).  The summary trial judge ordered that the appellant has an equitable easement to access his property using the laneway but that the easement did not include the right to install a power line along the laneway. [2] The appellant appeals the order, asserting that the judge made three errors in applying the doctrine of proprietary estoppel to determine that the equitable easement did not include the right to install an underground power line. [3] For the reasons that follow, I would dismiss the appeal except to the limited extent of remitting the issue of costs to the summary trial judge. Facts [4] The parties submitted an agreed statement of facts and two affidavits to the summary trial judge.  I will summarize the facts briefly. [5] The appellant is the owner of a property in Port Renfrew, B.C. (the “Property”), which is not immediately adjacent to a paved road.  The Property is bordered on the north and west by four privately owned properties, and is otherwise surrounded by the Park.  The only access to the Property is by way of a narrow gravel path along the east boundary of the property, which runs across approximately 100 metres of the Park. [6] The Property and the adjoining part of the Park were initially part of a single parcel that fronted on Pacheena Road.  There was a subdivision in 1961 that made the Property its own parcel.  There was an occupied house on the Property at the time of the subdivision. The approving officer with the Ministry of Highways who approved the subdivision plan was initially concerned that there would be no legal access to the Property but he approved the plan after being satisfied that the laneway in question, which was used by the occupant of the house, was maintained as a public road. [7] The lands on which the laneway is situate had been owned by British Columbia Forest Products, but were transferred to the provincial government in 1987, and then to the federal government in 1992, when they became part of the Park. [8] The appellant purchased the Property in 2006.  The former owner had a conditional authorization from Parks Canada to access the Property by motor vehicle via the laneway.  The appellant has continued to access the Property by way of the laneway without objection by Parks Canada.  The Property has never had electricity. [9] In March 2007, the appellant made a request of Parks Canada for an easement giving him the right to install an electric line to the Property.  Parks Canada refused the request on the basis that utility corridors across national park reserve lands were not permitted.  In 2014, the appellant approached three of the adjacent neighbours for such an easement without offering them any payment, and they all refused. [10] In August 2015, the appellant commenced the underlying proceeding seeking a declaration of an easement of necessity or an equitable easement and a declaration that he was entitled to use the easement for any lawful purpose necessary for his reasonable enjoyment of the Property, including the right to install a hydro line. [11] The appellant made an application to have the proceeding determined by way of a summary trial.  In the response to the application, the respondent stated there was no dispute that the appellant has the lawful right to access the Property.  The respondent took the position that the real issue was about the appellant endeavouring to improve the Property by acquiring electric service as a right ancillary to what the respondent referred to as an “unnecessary easement”. Decision of the Summary Trial Judge [12] The claim for an easement of necessity was not pressed at the summary trial and, in his reasons for judgment indexed as 2016 BCSC 147, the summary trial judge dealt primarily with the claim for an equitable easement based on the doctrine of proprietary estoppel. [13] The judge reviewed several case authorities dealing with the doctrine of proprietary estoppel, including Maritime Telegraph and Telephone Co. v. Chateau LaFleur Development Corp. , 2001 NSCA 167, leave to appeal ref’d [2002] S.C.C.A. No. 14; Idle-O Apartments Inc. v. Charlyn Investments Ltd. , 2014 BCCA 451; and Pogachar v. Ontario (Minister of Natural Resources) (2005), 54 R.P.R. (4th) 201 (Ont. S.C.). [14] The judge inferred that by maintaining the laneway as a travelled highway, British Columbia Forest Products had represented there would be continued access to the Property across the laneway.  He found that this representation was relied on by the owner of the Property and the approving officer at the time of the 1961 subdivision when it was concluded that the Property could forgo its other access in favour of access by way of the laneway.  His reasoning continued as follows: [28]      On that basis, I would say that Mr. Wolff has a specific right to access the property based on the representation that was made by the conduct of the owners and the [approving officer].  Whether the right to access the property through the path is a mere “right” or an equitable easement I think is a matter of form rather than substance.  But I would find that based on equitable principles, Mr. Wolff has a right to access his property using the laneway.  Canada does not dispute that right exists and seems to concede that it will be a continuous right associated to the property. [15] The judge then considered whether proprietary estoppel could provide an implied right beyond mere access to the property (i.e., the right to install an electric line).  He concluded that there was no history associated with the Property in connection with a power line that fit within the test for proprietary estoppel and that there was no evidence of any reliance such that it would be “unconscionable” to refuse the right to install a power line in the laneway (para. 33). [16] The judge next considered the issue of ancillary rights.  He referred to the decision in Kasch v. Goyan (1993), 103 D.L.R. (4th) 51, 81 B.C.L.R. (2d) 268 (C.A.) at para. 11 for the proposition that ancillary rights are associated with the exercise or enjoyment of the easement, but commented that there are cases in which the ancillary rights benefited the dominant tenement as well as expanding the use or enjoyment of the easement.  He then distinguished the decision in Pogachar , which had been relied upon by the appellant, and concluded that an ancillary right to install an underground power line would not be justified (para. 41). [17] In the concluding paragraph of his reasons, the judge stated that he could not find the right to install an electric line based on the doctrine of proprietary estoppel or the concept of ancillary rights.  He then stated that the action must be dismissed and that the respondent was entitled to costs.  However, the order signed by the judge did not dismiss the action.  Rather, the order declared that the appellant had a right to access the Property using the laneway but that the appellant did not have the right to install a power line along the laneway.  The order also gave costs to the respondent. Issues on Appeal [18] The appellant contends the summary trial judge erred in three respects when applying the doctrine of proprietary estoppel: a.         … in failing to consider the reasonable expectations of the appellant’s predecessors in title. b.         … in treating ancillary rights as being frozen in time. c.         … in finding that the minimum equity did not include a right to hydro-electric access. The appellant also maintains the judge erred in granting costs to the respondent when success was divided. [19] Although I have concluded that the appellant’s arguments on the first and third grounds of appeal suffer from a similar flaw, I will deal with the grounds in the order in which they were presented by the appellant. Discussion on Proprietary Estoppel [20] Before addressing the specific errors alleged by the appellant, it will be useful to briefly outline the general principles of proprietary estoppel.  The approach to be taken was set out by Lord Justice Scarman in the seminal case of Crabb v. Arun District Council , [1976] 1 Ch. 179 at 192-93: In such a case I think it is now well settled law that the court, having analysed and assessed the conduct and relationship of the parties, has to answer three questions.  First, is there an equity established?  Secondly, what is the extent of the equity, if one is established?  And, thirdly, what is the relief appropriate to satisfy the equity? [21] In order to determine the question of whether an equity has been established, some cases have posed four sub-questions (see Idle-O Apartments at paras. 22 and 24).  Those sub-questions were combined into the following two-pronged test by Madam Justice Bennett in Sabey v. Rommel , 2014 BCCA 360 at para. 30 (which the summary trial judge set out at para. 21, quoting from Idle-O Apartments at para. 49): 1. Is an equity established? An equity will be established where: a.   There was an assurance or representation, attributable to the owner, that the claimant has or will have some right to the property, and b.   The claimant relied on this assurance to his or her detriment so that it would be unconscionable for the owner to go back on that assurance. For the purposes of the present case, it is important to note that the assurance or representation need not be express and can be inferred from the conduct of a party, and that acquiescence can amount to an assurance or representation. [22] The summary trial judge held that an equity was established.  As there was no express assurance or representation by the former owner of the laneway, he effectively found that the former owner had, by its acquiescence, represented to the owner of the Property that he or she could use the laneway to access the Property.  The owner relied on this implicit representation in causing the Property to be subdivided with no other access, and it would have been unconscionable for the owner of the laneway to go back on this representation.  The judge’s holding that an equity was established is not in dispute on this appeal. [23] What is in dispute on this appeal relates to the second and third questions articulated in Crabb ; namely, the extent of the equity and the appropriate remedy. (a) Reasonable Expectations [24] The appellant submits that the reasonable expectations of his predecessors in title ought to be considered when determining the equitable interest.  In that regard, he points to two competing theories of proprietary estoppel as discussed in W. David Rankin, “Concerning an Expectancy-Based Remedial Theory of Promissory Estoppel” (2011) 69(2) U.T. Fac. L. Rev. 116.  In brief terms, the reliance theory protects the detrimental reliance by the promisee, but no more (at 124).  The expectation theory is not limited to the reliance loss of the promisee but serves to fulfil the expectation engendered by the promise (at 126–27). [25] The appellant says this Court, in Idle-O Apartments at para. 75, has endorsed the expectation theory of proprietary estoppel, and the summary trial judge erred in para. 33 of his reasons by considering reliance only and failing to consider the reasonable expectations of people living on the Property.  He goes on to argue that the laneway was part of a public road and that the reasonable expectations of the owners were that services such as hydro power would be installed underneath the laneway when they became available because services are commonly installed within the right-of-way of public roads. [26] In my view, the appellant is conflating two of the questions to be asked in claims of proprietary estoppel.  He is attempting to import the expectation theory that is to be considered as part of the third question (the appropriate remedy) into the second question (the extent of the equity). [27] In para. 33 of his reasons, the judge was determining the extent of the equity.  He had already concluded that an equity was established and he was considering whether the extent of the equity went beyond the right of access and included the right to install an underground power line.  In that regard, he looked to any evidence with respect to an assurance or representation made by the owners of the laneway and any evidence with respect to reliance by the owners of the Property.  He concluded there was no evidence of an assurance or representation regarding the installation of a power line or any reliance on any such assurance or representation.  Thus, he held that it would not be unconscionable for the owner of the laneway to refuse the right to install a power line in the laneway.  In my opinion, the judge followed the correct approach. [28] The reasonable expectations of the promisee are to be considered at the remedy stage of the test, not at the stages of determining whether an equity exists and the extent of the equity.  This is apparent from the introduction in the Rankin article (at 117): The question of the proper remedy when an estoppel has been raised has relatively recently found itself at the centre of much academic attention.  Prominent scholars … have presented arguments in favour of limiting relief to the reliance loss of the promisee. .. other leading academics have argued that, once raised, a promissory estoppel should prevent ( estoupe ) the promisor from acting inconsistently with the promise … thereby protecting the expectation interest engendered by them. [Footnotes omitted; underlining added.] [29] Similarly, it is clear that this Court’s discussion of reasonable expectations in Idle-O Apartments was in the context of the appropriate remedy once the extent of the equity is determined: [75]      That said, there is no doubt that the claimant’s reasonable expectations will usually be a very important factor, and perhaps the primary factor, in the fashioning of a remedy for proprietary estoppel . [Underlining added.] [30] In my view, the judge did not fail to consider the reasonable expectations of the owners of the Property.  After concluding that the extent of the equity was restricted to accessing the Property, he fashioned a remedy that accommodated the reasonable expectations of owners of property who had been given an assurance of access, namely an equitable easement of access.  Thus, the judge did not err as asserted by the appellant. [31] I wish, however, to add two comments about the appellant’s submissions on this point.  First, he places reliance on the fact that the laneway was part of a public road.  While it is true that the approving officer approved the 1961 subdivision because the laneway was maintained as a public highway, there was no evidence that the owners of the laneway gave an assurance or made a representation that it would continue to be maintained as a public road.  One could question whether it was a reasonable expectation of an owner of the Property that the laneway would continue to be maintained as a public road. [32] My second comment is that the reasonable expectations of the holder of an easement over what may be regarded as a public road does not necessarily include the expectation that services will be installed within the easement.  A case touching on this point in the context of determining the intentions of the parties to an express easement is Robb v. Walker , 2014 BCSC 408, aff’d 2015 BCCA 117.  In that case, an express easement was granted over what was considered to be a public road.  The easement was expressed to permit the grantee to “use, enter, pass and repass over and upon” the easement area.  It was held that the easement did not include the right to install a sewer line within the easement area. (b) Ancillary Rights [33] The parties are agreed that an accurate description of ancillary rights is contained in the decision of Kasch v. Goyan : [11] In my opinion, the question of what rights are reasonably necessary incorporates into it the usual factors that accompany any question of reasonableness, namely, a consideration of all of the circumstances which are in any way relevant. That consideration should be followed by a decision whether in all of those circumstances what is done or what is proposed is “reasonably necessary” to the exercise or enjoyment of the easement. [34] The appellant says that ancillary rights are not frozen in time and evolve with social conditions.  In that regard, he relies on the following passage from Depew v. Wilkes (2002), 60 O.R. (3d) 499 (C.A.): [24]      In the present case, I agree with the respondents that the appellants had to establish that parking was, in the words of Ellenborough Park [ In re Ellenborough Park; In re Davies, Powell v. Maddison , [1955] 2 All E.R. 38, [1956-57] Ch. 131] “reasonably necessary for the better enjoyment” of the dominant tenements.  The reasonable necessity requirement is fact specific and must be applied in a flexible manner.  As was said in Anger and Honsberger, [Anger and Honsberger: Law of Real Property , 2nd ed. (Aurora: Canada Law Book, 1985)] at p. 927: What is reasonably necessary must be a flexible criterion and have reference to current social conditions and the prevailing patterns and trends of conduct.  What today might not be regarded to be a reasonable amenity for the better enjoyment of a property might be regarded as a reasonable amenity tomorrow. [35] The appellant submits that the summary trial judge made the correct inquiry at paras. 29 and 30 of his reasons but arrived at the incorrect legal conclusion at para. 41 of his reasons.  In reply, the respondent says that it was unnecessary for the judge to have considered the topic of ancillary rights because the doctrine applies only to expressly granted easements (relying on statements made in Fallowfield v. Bourgault (2003), 68 O.R. (3d) 417, 235 D.L.R. (4th) 263 (C.A.) at para. 11, and Gale on Easements , 17th ed. (London: Sweet and Maxwell, 2002) at 47). [36] I need not decide whether the respondent is correct in its position and, in the absence of persuasive authority, I would be reluctant to hold that equitable easements do not carry any ancillary rights.  The authorities relied upon by the respondent stand for the proposition that a grant of an express easement includes ancillary rights, but they do not state that non-express easements do not include such rights. [37] Indeed, it would seem odd to me that a person entitled to an equitable easement to access his or her property over a roadway would not have the ancillary right to maintain the roadway in a condition that permitted such access to be exercised.  In the Pogachar decision referred to by the summary trial judge, the Ontario Superior Court of Justice held that the claimant was entitled to a prescriptive easement to use and maintain a road that would permit access by cars.  It seems to me that another way of viewing this decision is that the Court granted a prescriptive easement for access by cars and also declared that the claimant had the ancillary right to maintain the road. [38] The summary trial judge did make reference to the evolution of rights in para. 30 of his reasons, but he did so in the context of determining the extent of the equity.  He was not discussing the topic of ancillary rights at that point.  More importantly, however, the judge did not expressly or implicitly hold in para. 41 that ancillary rights are frozen in time and cannot evolve. [39] What the judge held in para. 41 was that any ancillary rights included in the equitable easement to which the appellant was entitled did not include the right to install an underground power line.  In my view, the judge was correct in his conclusion. [40] An ancillary right is a right that is reasonably necessary for the exercise or enjoyment of the easement.  The right to install an underground power line does not relate to the exercise or enjoyment of the equitable easement.  Rather, it benefits the dominant tenement (i.e., the Property).  What the appellant is endeavouring to accomplish through this argument is to expand the extent of the equity through the guise of an ancillary right.  If the appellant is not entitled to an equitable easement for an underground power line, he cannot indirectly achieve one through the mechanism of ancillary rights. [41] I note the judge commented that there are cases where the ancillary rights benefited the dominant tenement as well as expanding the use or enjoyment of the easement.  Counsel on this appeal were unable to assist us in determining what cases the judge had in mind.  I can envisage that an ancillary right could incidentally benefit the dominant tenement in addition to being reasonably necessary to the exercise or enjoyment of the easement.  However, a right that is intended to benefit the dominant tenement and is not necessary for the exercise or enjoyment of the easement is not, in my opinion, an ancillary right.  Rather, it is an expansion of the easement which must be justified on the principles underlying the establishment of the easement which, in this case, required the right to be established under the doctrine of proprietary estoppel.  The judge correctly held that the entitlement to install an underground power line was not established under the doctrine of proprietary estoppel because there were no assurances or representations by the owners of the laneway regarding the installation of a power line. (c) Minimum Equity [42] The appellant argues that the minimum equity in the circumstances included a right to hydro-electric power.  He says the summary trial judge erred by failing to find that the minimum equity to do justice included such a right. [43] In my view, the appellant’s submission on this ground of appeal suffers from a flaw similar to the flaw I identified in respect of the first ground.  The appellant is attempting to expand the extent of the equity by relying on principles that are applicable to the issue of remedy. [44] The law is clear that the concept of “minimum equity” in cases of proprietary estoppel relates to remedy.  This is reflected in the following statement made by Madam Justice Newbury in Idle-O Apartments : [73]      The notion that the appropriate remedy in proprietary estoppel is the “minimum equity necessary to do justice” has been widely adopted: see Megarry and Wade, The Law of Real Property (7th ed., 2008) at 716-8. [Underlining added.] [45] The concept of minimum equity was not in issue in this case.  The summary trial judge found that an equity had been established with respect to access to the Property by way of the laneway.  He concluded that the appropriate relief was a declaration of an equitable easement.  Given the extent of the equity that was established, this was the maximum relief the judge could properly have granted.  There was no error by the judge in fashioning the appropriate remedy. [46] It is not sufficient to simply say, as the appellant does, that the minimum equity in the circumstances included the right to hydro-electric access.  The court must look to the extent of the equity that has been established and grant a remedy that corresponds to that equity.  If the extent of the equity does not relate to the installation of an underground power line because no assurance or representation was made in that regard, then equity does not require a remedy to address the absence of a power line.  It is not a matter of minimum equity.  It is a matter of the extent of the equity not calling for such a remedy. Discussion on Costs [47] The appellant submits the summary trial judge erred in awarding costs to the respondent when the appellant was successful in obtaining a declaration of an equitable easement, albeit one that did not include the right to install an underground power line.  The appellant contends he is entitled to the costs of the proceeding or, alternatively, each party should bear their own costs.  In reply, the respondent says success was not divided because Parks Canada acknowledged the right of the appellant to use the laneway to access the Property and the only real issue at the summary trial, as stated by the judge at para. 2 of his reasons, was whether the appellant had the right to install an underground power line. [48] Although Parks Canada acknowledged the right of the appellant to use the laneway for access, the respondent did oppose the granting of a declaration of an equitable easement as being unnecessary.  While the judge did comment, at para. 28 quoted above, that whether the right to access the Property was a mere “right” or an equitable easement was a matter of form rather than substance, it is apparent from his reasons that he was prepared to grant the declaration of an equitable easement.  In para. 36 of his reasons, when he introduced the topic of ancillary rights, the judge stated that an easement of access had been found to exist. [49] The matter is complicated by the fact that, in the concluding paragraph of his reasons, the judge stated the action must be dismissed and the respondent was entitled to costs.  However, the order did not dismiss the action, and it contained a declaration of an equitable easement of access.  It did give costs to the respondent. [50] Counsel could not agree on the form of the order, and an appointment to settle the form of the order was made before a master.  The master did not consider herself in a position to settle the order and referred it to the summary trial judge.  No submissions were apparently made to the judge, and it is not known whether his attention was drawn to the aspect of costs when he settled the order in a form that was different from the last paragraph of his reasons (i.e., granting a declaration rather than dismissing the action).  It is not known whether the judge directed his mind to Rule 14-1(15) of the Supreme Court Civil Rules that gives the court the discretion to award costs that relate to a particular matter in a proceeding. [51] The matter is further complicated by the advice given to us by counsel for the respondent that there is certain evidence relevant to the topic of costs.  I infer that an offer to settle was made, and it could have an impact on costs. [52] In all of these circumstances, I would allow the appeal on this ground and remit the issue of costs to the summary trial judge so that it may be fully considered by him. Conclusion [53] I would dismiss the appeal except to the extent of setting aside the award of costs to the respondent.  I would remit the issue of costs to the summary trial judge.  I would grant costs of the appeal to the respondent despite the appellant’s limited success with respect to the costs of the underlying action. “The Honourable Mr. Justice Tysoe” I agree: “The Honourable Madam Justice Saunders” I agree: “The Honourable Madam Justice Dickson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Oh v. Langley (City), 2017 BCCA 43 Date: 20170123 Docket: CA43634 Between: Serena Oh Appellant (Petitioner) And City of Langley and Carolyn Mushata Respondents (Respondents) Before: The Honourable Madam Justice Newbury The Honourable Mr. Justice Harris The Honourable Mr. Justice Willcock On appeal from: an order of the Supreme Court of British Columbia, dated April 12, 2016 ( Oh v. Langley (City) , 2016 BCSC 1357, New Westminster Registry No. 178985) Oral Reasons for Judgment Appellant Appearing In Person: S. Oh Counsel for the Respondents: F.V. Marzari Place and Date of Hearing: Vancouver, British Columbia January 23, 2017 Place and Date of Judgment: Vancouver, British Columbia January 23, 2017 Summary: The court below did not err in finding the appellant’s petition, which effectively sought a recount of votes cast in a municipal by-election, was out of time and that a case was not made out. Appeal dismissed. [1] NEWBURY J.A.: Ms. Oh, who is unrepresented in this court, seeks to appeal an order of Madam Justice Brown made April 12, 2016 which dismissed her petition, with costs to the respondents, the City of Langley and Ms. Mushata, who is the City’s Chief Election Officer. [2] Ms. Oh’s petition contested the results of a municipal by-election held on February 27, 2016 to fill a single vacant seat on Langley’s city council. Nine candidates ran for election in the by-election, including Ms. Oh. The official election results were certified and declared by the Chief Election Officer on March 2, 2016 in council chambers. The result was that Mr. Nachal was elected with 740 votes, or just over 1/3 of the vote. Ms. Oh received 57 votes or 2.7% thereof. [3] The Chief Election Officer submitted her report of the election results to the City on March 21, 2016. It disclosed no fraud or irregularities. [4] On March 23, 2016, Ms. Oh filed her petition, in which she sought relief under the Local Government Act , R.S.B.C. 2015, c. 1, as follows: 1. An Order that an election should be declared invalid because it was not conducted in accordance with this Act or a regulation or bylaw under this Act or a regulation or bylaw under this Act. 2. An Order for Judicial Recount, 148(2)(b) that a ballot account does not accurately record the number of valid votes for a candidate; 148(2)(c) that the final determination under section 145 [determination of official election results] did not correctly calculate the total number of valid votes for a candidate. [5] Under the headings “Factual Basis” and “Legal Basis”, the petition stated: Part 1: FACTUAL BASIS 1. That a ballot account does not accurately record the number of valid votes for a candidate; 2. That the final determination under section 145 did not correctly calculate the total number of valid votes for a candidate. Part 2: LEGAL BASIS 1. The Election Act Officials, [sic] s. 4-13 The Chief Electoral Officer (CEO) applies the Election Act in a fair and neutral way. The CEO must be impartial. 2. Every vote must count, no matter who you vote for. [6] In their Response, the respondents pointed out that insofar as a judicial recount was concerned, the petition was out of time because of the limitations imposed by ss. 148 and 149(1) of the Local Government Act . They provide: 148 (1) An application may be made in accordance with this section for a judicial recount, to be undertaken by the Provincial Court, of some or all of the votes in an election. . . . . (3) The time period during which an application may be made is limited to the time between the declaration of official election results under section 146 and 9 days after the close of general voting. . . . 149 (1) A judicial recount must be conducted in accordance with this section and completed by the end of the 13 th day after the close of general voting. [Emphasis added.] [7] As far as the prayer for a declaration that the election was invalid, s. 153 of the Local Government Act provides: 153 (1) The right of an elected candidate to take office or the validity of an election may not be challenged except by an application under this section. (2)       An application may be made in accordance with this section to the Supreme Court for a declaration regarding the right of a person to take office or the validity of an election. (3)       The time limit for making an application is 30 days after the declaration of official election results under section 146. (4)       An application may be made only by a candidate in the election, the chief election officer or at least 4 electors of the municipality or electoral area for which the election was held. (5) An application may be made only on one or more of the following bases: a. that a candidate declared elected was not qualified to hold office at the time he or she was elected or, between the time of the election and the time for taking office, the candidate has ceased to be qualified to hold office; b. that an election should be declared invalid because it was not conducted in accordance with this Act or a regulation or bylaw under this Act : c. that an election or the election of a candidate should be declared invalid because section 161 [vote buying], 162 [intimidation] or 163 (2) (a) [voting when not entitled] was contravened. (6) As a restriction on subsection (5) (b), an application may not be made on any basis for which an application for judicial recount may be or may have been made. (7) At the time the petition commencing an application is filed, the court registry must set a date for the court to hear the application, which must be at least 10 days but no later than 21 days after the date the petition is filed . [Emphasis added.] [8] The City took the position that Ms. Oh was effectively seeking a judicial recount – an argument clearly supported by the affidavit evidence filed by Ms. Oh. She deposed that she had carried out various “inspections” on March 24, March 29, March 31 and April 1, 2016 of ballots of people “that I randomly picked who voted for me.” She deposed that their ballots had been destroyed or were not counted and indeed she asserted that “Over 95 percent or over 1,500 to 2,000 ballots have been destroyed or ballots are not counted.” This statement contravenes the Chief Election Officer’s report and affidavit, which states that every ballot was accounted for in the vote tallies. Ms. Mushata suggests that Ms. Oh seems to be under the impression that every person listed in the voting books attended to vote in the election – obviously  an erroneous belief Ms. Oh continues to hold. [9] The chambers judge heard the petition on April 12, 2016 and dismissed it on two bases. First, Ms. Oh was out of time under the relevant provisions of the Local Government Act I have quoted above , and second, her evidence was “entirely deficient”. In the words of the chambers judge: [5]        … It is difficult to understand where the information is coming from, how Ms. Oh is reaching the conclusions which it appears she has reached by looking at some sort of documentation. It is just not possible to determine what the basis of the evidence is. It is simply hearsay, hard to know exactly what is being said or what the source of the information is. Accordingly, the judge ruled that the evidence did not “rise to the level necessary to make a challenge under s. 153(5)(b) of the [ Local Government Act ] and indeed that she had not met the “preliminary burden” of establishing a failure of some kind in the election process. [10] In this court, Ms. Oh has argued that the chambers judge “ignored” the evidence she had filed. She insisted that 123 people had registered and voted for her but that their votes had not been counted. We have questioned Ms. Oh today at some length as to how she can state categorically that the votes of particular people were not counted. What we gleaned from her was that since she had expected to receive 123 votes at least, some fraud must have occurred because she received only 57. However, as Ms. Mushata deposes, the names of voters in the voting books are crossed off when they attend at the voting station. People who do not attend do not have their names crossed off. Further, there is no means by which, after an election, one can identify from the record who has voted for whom: it is, after all, a secret ballot. Although Ms. Oh remains convinced that her “inspections” establish that some fraud occurred, she is unable to offer anything further than her evidence of conversations with people who, she says, voted for her. With respect, this “evidence” is simply not probative of Ms. Oh’s claim of electoral misfeasance.  I agree with the judge’s finding that no evidence was adduced that provides support for that claim. [11] Even if this were not the case, Ms. Oh has not shown that the chambers judge erred in finding that her petition was aimed at obtaining a judicial recount, or in ruling that her petition was out of time under s. 148(3) of the Local Government Act . [12] It follows in my opinion that the appeal must be dismissed, with costs to the respondents. [13] HARRIS J.A. : I agree. [14] WILLCOCK J.A. : I agree. [15] NEWBURY J.A. : The appeal is dismissed. [Counsel requests that signature of appellant on the form of order be dispensed with.] [16] NEWBURY J.A. : The appellant’s signature is dispensed with on this order. “The Honourable Madam Justice Newbury”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: JEKE Enterprises Ltd. v. Northmont Resort Properties Ltd., 2017 BCCA 38 Date: 20170125 Docket: CA43568 Between: JEKE Enterprises Ltd. Appellant (Plaintiff) And Northmont Resort Properties Ltd. Respondent (Defendant) 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 March 8, 2016 ( JEKE Enterprises Ltd. v. Northmont Resort Properties Ltd. , 2016 BCSC 401, Vancouver Docket S154134) Counsel for the Appellant: D. Wotherspoon R. Coad Counsel for the Respondent: J.E. Virtue V. Naranjo Place and Date of Hearing: Vancouver, British Columbia October 24, 25, 2016 Place and Date of Judgment: Vancouver, British Columbia January 25, 2017 Written Reasons by: The Honourable Chief Justice Bauman Concurred in by: The Honourable Madam Justice D. Smith The Honourable Mr. Justice Goepel Summary: JEKE appealed the trial judge’s dismissal of its claim alleging breach of contract in connection with its time share interests at a resort. It alleged that Northmont breached its vacation interval agreements by charging to lessees a renovation project fee that included certain capital costs, and by charging delinquencies and its legal expenses. The trial judge found that the agreements permitted Northmont to charge these amounts as “Operating Costs” such that there was no contractual breach. Held: appeal dismissed. The trial judge’s contractual interpretation is subject to review on a palpable and overriding error standard. She made no such error in her analysis or findings. The contractual language clearly contemplates Northmont charging the costs associated with the proposed renovations, delinquent accounts of other owners and lessees, and its legal expenses. Nothing in the surrounding circumstances detracts from the unambiguous contractual language. Reasons for Judgment of the Honourable Chief Justice Bauman: Introduction [1] Before the courts of British Columbia the purchaser, as lessee, of two time share units in a large development in the beautiful Columbia Valley of this province seeks to avoid the effect of relatively clear language in the governing contractual documents with its new lessor. These provisions assign responsibility for all costs incurred in the operation, continuing maintenance and repair of the resort to the purchasers/lessees of the units. The appellant would ignore the plain words of the contract and impose on the lessor a duty to always provide a fit and proper resort and to spend the significant sums to make this so. [2] No provisions in the applicable documents expressly so provide. No provisions in the applicable documents qualify the clear responsibility on the lessees to pay their way in the enjoyment of their resort community. My reasons for so concluding and finding no reversible error in the trial judge’s analysis follow. Facts [3] The appellant, JEKE Enterprises Ltd. (“JEKE”), is a holding company owned by the Belfry family. It holds two time share interests in a resort known as “Sunchaser Vacation Villas” located in Fairmont Hot Springs, BC (the “Resort”). [4] Fairmont Resort Properties Ltd. (“Fairmont”) developed the Resort over a number of years, but ultimately sought creditor protection pursuant to the Companies’ Creditors Arrangement Act , R.S.C. 1985, c. C-36. In June 2010, Fairmont entered into a foreclosure agreement which led to the respondent, Northmont Resort Properties Ltd. (“Northmont”), acquiring all interests held by Fairmont in the Resort. [5] Time share interests in the Resort are governed by the terms of vacation interval agreements (“VIAs” or, when used in the singular, “VIA”). There were approximately 14,500 owners holding time share interests in the Resort pursuant to the terms of VIAs. Prior to signing the VIAs, JEKE received a prospectus from Fairmont. It also signed a consumer protection agreement (the “CPA”). Key to the present appeal is clause 9 of the JEKE VIAs, which reads: OPERATING COSTS AND RESERVE FOR REFURBISHING: In addition to the Management Fee described in paragraph 10 of this Lease, the [Lessee] shall be responsible for his proportionate share of all administration[,] maintenance and repair costs (the "Operating Costs") and replacement costs incurred with respect to the Vacation Resort and the Vacation Properties including, without limiting the generality of the foregoing , the following: (a) property taxes; (b) water and sewer rates; (c) lighting and heating; (d) insurance; (e) clearance of walks and roadways from snow and debris; (f) housekeeping services, on a hotel standard basis, including the provision of towels, linens, bathroom soap and paper products (ie., normal housekeeping encompasses linen changes and general clean up following the termination of a week period, and any services in addition are classified as special housekeeping services and are subject to a special charge); (g) painting, redecorating and refurbishing as required; (h) garbage disposal; (i) repairs to both the exterior and interior of the Vacation Properties; (j) service fees and costs of the Trustee; (k) maintenance staff and equipment; (I) administrative staff; (m) office space and equipment; (n) accounting costs; (o) furniture and equipment replacement costs; and (p) all expenses incurred by the Lessor In the management of the Vacation Properties (i.e., see paragraph 10 of this Lease). All maintenance and repairs to the Vacation Properties will be apportioned equally between the lessees in accordance with the number of weeks and the type of Vacation Property specified on page 1 of this Lease. A yearly assessment shall be made of the furnishing and fixtures to permit replacement as required. [Emphasis added.] [6] Northmont is the successor in interest to Fairmont’s rights and obligations under the VIAs. [7] When Northmont took over there were significant financial and maintenance issues associated with the Resort. In late 2012, Northmont determined that it was necessary to raise funds from the time share owners and lessees to carry out extensive renovations and repairs and resolve outstanding financial deficits. It levied a renovation project fee (“RPF”) upon owners and lessees in April 2013. At the same time, it gave owners and lessees the option to surrender their interests and terminate the VIAs on payment of a cancellation fee. The majority of interest holders have either paid the RPF or surrendered their interests to Northmont. As of the date of the trial judgment, around 25% had done neither. [8] JEKE is in the group that has done neither. It has also refused to pay annual maintenance fees. It commenced this litigation in October 2014, alleging that Northmont is in breach of the VIAs as a result of, among other things, insisting on payment of the RPF or cancellation fee. [9] Northmont has commenced thousands of superior and provincial court actions against owners and lessees who have refused to pay. These actions have been stayed pending the outcome of this action. JEKE has had some success in garnering support for its position from other interest holders and described its case as a “test case” in the court below. Related Litigation [10] There are two other proceedings related to the present appeal. In April 2013, Northmont wrote to the Trustee holding beneficial title to the Resort on behalf of owners and lessees, requesting his cooperation in implementing a 4-stage “realignment plan” (the “Plan”). The Plan involves assessing the RPF, providing the cancellation option, amending VIAs by agreement, and reducing the Resort by removing units transferred to Northmont. The Trustee filed a petition seeking advice and direction from the court regarding whether Northmont can remove properties from the Resort as contemplated by the Plan. This proceeding is being held in abeyance pending the resolution of this action by order of Justice Fitzpatrick dated 19 May 2015. [11] The second related proceeding is this Court’s decision in JEKE Enterprises Ltd. v. Philip K. Matkin Professional Corp. , 2014 BCCA 227. This was an appeal of a special case on interpretation issues arising under the VIAs — namely, Northmont’s ability to levy the cancellation fee and the RPF. This Court held that it was inappropriate to determine the issues by way of special case. It therefore overturned Justice Loo’s decision that Northmont was entitled to levy the fees at issue ( Philip K. Matkin Professional Corp. v. Northmont Resort Properties Ltd. , 2013 BCSC 2071) (“ Special Case (BCSC)”). Decision Under Appeal [12] At trial, JEKE sought a declaration that Northmont is in breach of the VIAs, and that its breaches are fundamental and constitute a repudiation of the VIAs such that it is relieved from any further obligations under the VIAs. It claimed the remaining value of its interests and amounts it alleged Northmont improperly charged to it. [13] Justice Fitzpatrick was not persuaded by JEKE’s interpretation of the VIAs. In the course of her exhaustive reasons, indexed as 2016 BCSC 401, she considered the nature of the interests held by JEKE; the role of Northmont as developer/lessor/manager; whether Northmont is in breach of the VIAs; and whether repudiation is available if such breaches are found. [14] On the issue of JEKE’s interest, the trial judge concluded that JEKE did not acquire any specific interest in the Resort’s real property but rather acquired a time share interest to be used generally in conjunction with other time share owners and lessees. [15] As it relates to Northmont’s role, she found that, as the developer, Northmont retains a residual interest in the Resort after the term of any lease. The developer also holds various units from time to time in which case it is treated the same as any other owner or lessee in sharing operating expenses. As manager, Northmont is required to maintain the Resort in a reasonable fashion and deal with maintenance issues. This includes addressing required repairs left behind by Fairmont. [16] As it relates to contractual interpretation and the alleged breaches, the trial judge resolved the interpretation issues within the four corners of the contract based on the plain meaning of the words in the context of the VIAs. At trial, both JEKE and Northmont argued that this was the proper interpretive approach because the wording of the JEKE VIAs is clear and unambiguous. The trial judge concluded that costs for delinquent accounts, capital expenses and Northmont’s legal fees all fall within the meaning of “Operating Costs” in clause 9. With respect to capital costs, she noted the difficulties associated with JEKE’s interpretation, including that there is no reference to “capital costs” in the VIAs. She reasoned that it would defy logic that the parties failed to turn their minds to who would pay for significant maintenance issues. She further concluded that even if she had found ambiguity in the terms of the VIAs such that she could consider extrinsic evidence, that extrinsic evidence supported her interpretation. [17] The trial judge also found that Northmont did not err in calculating the management fee or its proportionate share of operating expenses. She also rejected JEKE’s submissions regarding a number of alleged wrongful acts and omissions committed by Northmont in managing the Resort. On appeal, JEKE does not take issue with these findings and instead focuses on the liability for delinquencies, capital costs and legal fees. [18] In light of her finding that Northmont acted in accordance with its obligations under the VIAs, the trial judge concluded that repudiation was not available to JEKE. Even if it was available, she held that JEKE failed to communicate to Northmont its election to accept the repudiation within a reasonable period of time, or at all. Grounds of Appeal [19] JEKE seeks to have this Court set aside the trial judge’s order and substitute a declaration that JEKE has no further obligations under the VIAs. Alternatively, it asks that the matter be remitted to the Supreme Court to be decided in accordance with this Court’s judgment. [20] JEKE alleges a number of errors concerning the trial judge’s interpretation of the VIAs. It says the trial judge erred in: 1. interpreting clause 9 of the VIAs; 2. concluding that Northmont had not fundamentally breached and repudiated the VIAs; and 3. concluding that JEKE was not entitled to accept Northmont’s repudiation of the VIAs. [21] JEKE argues that the first two grounds of appeal reflect errors of law. It says the third ground of appeal concerns an error in principle or, alternatively, a palpable and overriding error of fact. [22] If this Court finds that the first ground of appeal fails then it is unnecessary to consider the remaining grounds of appeal. Submissions Interpretation of the VIAs [23] JEKE submits that the standard of review for the trial judge’s contractual interpretation is correctness due to two extricable errors of law: the trial judge’s failure to consider the parties’ intentions and the circumstances at the time the agreement was made; and the trial judge’s reliance on incorrect and irrelevant factors as context for the interpretation of the VIAs. At the hearing of this appeal, JEKE noted the recent decision in Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co ., 2016 SCC 37, but acknowledged that it had not pleaded that the VIAs are standard form contracts such that the new standard of review test applicable to such contracts does not apply. [24] JEKE submits that the trial judge failed to consider relevant surrounding circumstances at the time of contract formation. It says the trial judge focused on Northmont’s position after its acquisition of the Resort and reasoned backward to determine whether the renovations and Plan were reasonable. This led her to consider irrelevant factors. [25] JEKE argues that on a proper construction it is not responsible for the RPF, the delinquent accounts of other owners or lessees, or legal fees incurred by Northmont. It says this interpretation is supported by the plain language of s. 9, read in the context of the entire agreement and the proper factual matrix, and business efficacy. [26] Northmont submits that the appropriate standard of review is whether there is a palpable and overriding error. It says appellate courts should be cautious in identifying extricable questions of law in issues of contractual interpretation. [27] Northmont argues that the trial judge made no error in applying the principles of contractual interpretation to the VIAs. The trial judge properly considered s. 9 within the context of the entirety of the VIAs, the factual matrix, and what reasonably ought to have been within the common knowledge of the parties at the time of execution. Northmont says the alleged ignored circumstances were all addressed by the trial judge. The irrelevant factors alleged by JEKE were post-contract events that the trial judge considered in determining whether Northmont had complied with its duties as manager and not in interpreting the contract. [28] Northmont further submits that JEKE’s interpretation fails to account for the tripartite relationship the VIAs create between a time share interest owner, other owners and lessees, and the developer/manager. It says the trial judge properly found that all costs relating to repairs proposed in the RPF fell within the language of clause 9. Fundamental Breach [29] JEKE submits that the trial judge’s ruling that there was no fundamental breach flowed from her mistaken interpretation of the VIAs, which was an error of law. It says her flawed analysis of the parties’ rights and obligations led her to conclude, in the alternative, that JEKE was not deprived of the benefits of the bargain it had struck. JEKE says the alleged breaches are fundamental; if it refuses to pay the fees then it loses its ability to benefit from the use right. This deprives it of the entire benefit of the VIAs. [30] Northmont responds that the trial judge correctly determined that it had not breached, or fundamentally breached, the VIAs by assessing delinquency costs and legal fees to owners and lessees, and in levying the RPF. It says JEKE’s interpretation distorts the plain meaning of clauses 9, 13 and 14 of the VIAs. [31] Northmont says JEKE’s position on delinquency costs would effectively designate Northmont as guarantor of any owner in default. It says that legal expenses, the RPF and any associated “capital costs” are all Operating Costs of the Resort. Whether a replacement or repair cost is “capital” does not determine whether it is chargeable under clauses 9 and 10 of the VIAs. [32] In the alternative, Northmont argues that a mere breach of contract does not terminate the contract. The VIAs create a long-term relationship for which the insistence of a payment beyond what a party is entitled to cannot constitute a fundamental breach. Moreover, the disputed invoice is with Northmont as manager and not as lessor. [33] Northmont says even if the breaches were proven; they do not fundamentally change the bargain. JEKE could still get the benefit of its time share interest if it were not in default of the maintenance fees owing under the VIAs. Acceptance of Northmont’s Repudiation [34] JEKE submits that the trial judge erred in holding that JEKE failed to give prompt notice of its acceptance of Northmont’s repudiation. JEKE says it has never resiled from its position since receiving notice of Northmont’s intentions in December 2012, and that it has communicated its position to Northmont throughout that time. [35] In the alternative, JEKE submits that it communicated its acceptance of Northmont’s repudiation when it participated in the Trustee’s petition and the special case; and when it filed its notice of civil claim in the present case. It says it was entitled to assess its circumstances and options before electing to accept Northmont’s repudiation. [36] Northmont submits that JEKE did not elect to disaffirm at the time of the alleged breaches. Throughout the proceedings JEKE has said different communications formed its acceptance of Northmont’s repudiation. It notes that the notice of civil claim was not issued until several years after the alleged breaches. JEKE is not entitled to “wait and see” what suits it best—it must promptly communicate its acceptance of the repudiation. Analysis [37] The issue before us on appeal centers on the trial judge’s interpretation of the contract between the parties. The standard of review to be applied in our consideration of the disposition by the judge is at the threshold of that enquiry. [38] To advance that consideration we must first determine just what the contract includes, orally or in writing. The trial judge discussed this issue at paras. 32–38 of her reasons. She concluded (I take it as a matter of fact or at least mixed fact and law) that the VIA and the CPA constituted the entirety of the contract in place between the parties. The latter document (the CPA) is one page in length and it summarizes the essential terms of the VIA. It includes this as clause 14 in bold print: 14.       I understand that the salesperson is not authorized to make written or verbal offers which represent modifications, alterations or additions to the Lease Agreement or Consumer Protection Agreement, and that work sheet number 103978 includes all agreements and considerations which I based my purchase decision on. [39] The trial judge did not agree with JEKE that the prospectus was part of the written contract between the parties but did allow that it was part of the factual matrix to which resort may be had in the interpretation exercise before the court (reasons for judgment at para. 32). JEKE accepts this conclusion on appeal but maintains that the so-called “Owner’s Album” is part of the prospectus. Northmont disagrees with the latter point but nothing really turns on it. [40] The judge eventually turned to discuss the “applicable principles of contract interpretation” (at paras. 228–233) and adopted Justice Loo’s summary of the principles in the Special Case (BCSC) at para. 61, as follows: 1          courts must give effect to the intention of the parties as expressed in their written agreement as a whole; 2.         words and provisions in an agreement must be interpreted not standing alone, but in light of the agreement as a whole; 3.         courts will deviate from the plain meaning of words, only if a literal interpretation leads to an absurdity or to a result that is clearly repugnant to the parties’ intentions; 4.         absent any ambiguity in the words of an agreement, the intention of the parties must be determined objectively by attributing to the words a meaning that would be conveyed to a reasonable person having the background knowledge that would have reasonably been available to the person at the time they entered into the contract; 5.         terms may not be implied into a contract unless it can be said that “it goes without saying”; and terms may not be implied that contradict any express term of the agreement. [41] The judge of course cited and discussed the decision of the Supreme Court of Canada in Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53. Sattva discussed the court’s ability to look to the factual matrix – the surrounding circumstances – in play at the time of the contract’s formation. While the surrounding circumstances can be considered “they must never be allowed to overwhelm the words of that agreement…” (at para. 57). [42] Sattva also, importantly, addressed the standard of review to apply to a trial judge’s interpretation of a contract. It is a standard of deference; contractual interpretation involves issues of mixed fact and law. Questions of law are subject to review on a standard of correctness. There is room for that standard to apply in a matter of contract interpretation where one can (cautiously) find an extricable question of law ( Sattva at para. 53): Nonetheless, it may be possible to identify an extricable question of law from within what was initially characterized as a question of mixed fact and law ( Housen , at paras. 31 and 34-35). Legal errors made in the course of contractual interpretation include “the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor” ( King , at para. 21). Moreover, there is no question that many other issues in contract law do engage substantive rules of law: the requirements for the formation of the contract, the capacity of the parties, the requirement that certain contracts be evidenced in writing, and so on. [43] Sattva was distinguished by the majority in Ledcor . There, Justice Wagner said (at para. 24): I would recognize an exception to this Court’s holding in Sattva that contractual interpretation is a question of mixed fact and law subject to deferential review on appeal. In my view, where an appeal involves the interpretation of a standard form contract, the interpretation at issue is of precedential value, and there is no meaningful factual matrix that is specific to the parties to assist the interpretation process, this interpretation is better characterized as a question of law subject to correctness review. [44] Before us, JEKE specifically declined to adopt Ledcor as guiding the standard of review here; it specifically stated that this was not a case of a standard form contract. [45] Rather, JEKE maintained that there are here extricable errors of law in the trial judge’s analysis which are subject to review on a standard of correctness, namely: (1)      a failure to consider the parties’ intentions and the circumstances at the time the agreement was made; and (2)      reliance on incorrect and irrelevant factors including Northmont’s circumstances and intentions, as context for the interpretation of the VIAs. [46] I disagree. In my view, there are no extricable errors of law in the trial judge’s analysis and it is, accordingly, subject to review on the palpable and overriding error standard. It is certainly arguable that this is a “standard form contract” case where the result, given the number of outstanding cases awaiting disposition by provincial and superior courts, will have significant precedential value. But that was not the position put before us. That said, it is the duty of the court in most circumstances to determine the standard of review, not for the parties to dictate it. However, in the result, it is not necessary to definitively resolve the issue as even applying the correctness standard of review, I can identify no error in the trial judge’s analysis. [47] I advance then to the issue of contractual interpretation. [48] The trial judge began her analysis by considering various provisions in the VIA in order to determine the nature of JEKE’s interest in the Resort. I have related above the judge’s conclusion in this regard. She rejected JEKE’s submission that its position under the contract was akin to that of a commercial lessee who would not normally enjoy responsibility for capital costs associated with “common areas” (although no authority was cited for this proposition). The trial judge concluded (at paras. 112–115): [112]    All of the above provisions confirm the fundamental nature of a time share plan in creating an interest that is not specific, but is to be used generally in conjunction with other time share owners. This, in essence, creates not only a relationship as between the lessor and lessee, but one between all of the time share owners, whose interests are to be managed in a manner that gives effect to their collective interests. [113]    That these are long-term contractual relationships is more than evident; the leases are for 40 years and later VIAs would create permanent ownership interests. In addition, the VIAs provide only limited circumstances in which a lessee’s responsibilities can be terminated and do not provide for any right of a lessee to unilaterally terminate the VIAs. This, of course, became an important aspect of the VIAs that, in part, led to the Resort Realignment Plan being proposed by Northmont in April 2013. [114]    Mr. Belfry would have been well-aware of this by his careful reading of the Prospectus, which states, by way of a capitalized and bolded statement on the first page of that document: TIME SHARING INVOLVES A CONTINUING RELATIONSHIP WITH A SUBSTANTIAL NUMBER OF OWNERS OF EACH TIME SHARE INTEREST ... [115]    In summary, JEKE’s interest, under the JEKE VIAs, is not that of a commercial tenant, but is a part of a substantial number of other interests in the Resort which are to be collectively managed for the benefit of all owners or lessees . [Emphasis added.] [49] JEKE does not apparently take issue with these conclusions on appeal. The critical issue of contractual interpretation involves determining where responsibility lies for payment of the costs associated with the renovation program proposed by Northmont: the RPF. To answer this question it is necessary to describe these “renovations” in more detail. [50] The trial judge accepted Justice Loo’s summary of the proposed remediation and renovation planning set out in the Special Case (BCSC) at para. 18 thereof: (a)        Replacement of Polybutal (“Poly-B”) Domestic Water Piping (i)         The construction of the initial 14 buildings in the resort used Poly-B plumbing pipe which at the time was permitted under the BC Building Code. Use of Poly-B has been discontinued in Canada and its CSA certification removed as a result of wide spread failures. (ii)        The 14 buildings have and continue to experience frequent water leaks from failed Poly-B piping, many of which have resulted in catastrophic damage. (iii)       The Poly-B piping is behind walls and ceilings, and smaller non-catastrophic leaks cause mould and fungal growth, due to the length of time it takes to discover these type of pinhole leaks. (iv)       The resort risks losing insurance coverage for water leaks due to the continued presence of Poly-B, and the mechanical engineering consulting firm recommends that all Poly-B piping be removed and replaced. (b)        Exterior Building Envelope and Decks/Patios (i)         The exterior envelope of all of the buildings is compromised and exterior stucco was installed to a depth of 1/2 inch rather than to the current construction practice of 3/4 inch which is more resistant to damage and water penetration. (ii)        Repair of the exterior decks and cladding components of the building envelope is required as a result of areas of moisture ingress which has resulted in areas of building envelope failure. (iii)       Moisture penetration contributes to mould and fungal growth, a known health issue. (c)        Civil Repairs (i)         Storm water infrastructure is inadequate and must be addressed through the installation of an additional storm water pipeline, additional catch basins, and the tie-in of perimeter drainage from the buildings. (ii)        Parking and drive surfaces are beyond their designed life and must be replaced. This can be done in conjunction with the storm water work as it occurs above or adjacent to these surfaces. (d)        Furnishings, Fixtures and Equipment (i)         The interior of the units is original dating from 1990-2004. Replacements have been sporadic on an “as needed” basis. There are issues of functional obsolescence as well as wear and tear. (ii)        Large areas of the exterior and interiors of the buildings must be demolished in order to deal with the water penetration, mold, and removing and replacing the Poly-B piping. The required demolition creates an opportunity to update the interior design of the resort during reconstruction of the demolished areas. (iii)       Samantha Pinksen Design and Décor was retained to develop a scope of refurbishment to deal with obsolete design and colour as well as new functional requirements of modern electronic amenities. Information gathered from surveys of vacation interval owners conducted by the resort manager was used in the proposed updating of in-suite amenities. (v)        Care has been taken to replace “like with like” adjusted to 2013 specifications by using mid-quality materials such as vinyl wrapped cabinetry, tile and counter top selections, flooring materials, plumbing fixtures and the reuse of other components such as railings and doors. [51] The RPF contemplated a budget of some $40.8 million; added to this was the operating deficit for the Resort of approximately $4.3 million. JEKE’s assessed share of the RPF (before taxes) was $5,992.77 (and without interest since). [52] This brings us to the VIA and specifically clause 9, the opening words of which are very broad indeed. I reproduce that portion of the clause below for ease of reference: OPERATING COSTS AND RESERVE FOR REFURBISHING: In addition to the Management Fee described in paragraph 10 of this Lease, the [Lessee] shall be responsible for his proportionate share of all administration[,] maintenance and repair costs (the "Operating Costs") and replacement costs incurred with respect to the Vacation Resort and the Vacation Properties including, without limiting the generality of the foregoing, the following: [53] JEKE seeks to restrict the generality of these words through a number of submissions. First, it says that nothing in clause 9 makes mention of “capital costs”. JEKE seizes on the phrase “Operating Costs” in clause 9 and submits that “operating costs” are by definition distinct from capital costs. English authority is cited to suggest this is so. But this is an erroneous take on the interpretation exercise. The VIA in clause 9 does not use the phrase “operating costs” simpliciter and thereby possibly leave its meaning to be determined by commercial or accounting usage. It rather simply uses the phrase as a defining term for “all administration, maintenance and repair costs”. To put it another way, “Operating Costs” in the VIA are not necessarily “operating costs” in commercial or accounting parlance. [54] Contracting parties are free to define words or phrases in a manner that differs from their ordinary usage. Where they have clearly done so, a court need go no further than this unambiguous language in interpreting the meaning of that word or phrase ( Belsat Video Marketing Inc. v. Astral Communications Inc. (1999), 86 C.P.R. (3d) 413 at paras. 7, 8 (O.N.C.A.)). [55] In any event, as the trial judge lamented, JEKE led no expert evidence, in particular from a construction expert, analyzing the capital cost issue (at para. 265): [a]t best, JEKE’s counsel was only able to give their own opinions on what constituted a “capital cost” or not, submissions that were largely unhelpful. [56] The judge continued (at para. 266): [a]t bottom, JEKE did not provide any analysis on this issue beyond admitting that some of the work contemplated in the Renovation Plan was properly chargeable to the owners. That led to the submission that since some charges were “capital” in nature, the entirety of the Renovation Project Fee is not payable by the owners. I see no basis for such a bald statement. JEKE argues that this Court should declare the amount that is properly chargeable to the owners as part of the Renovation Project Fee, without absolutely any evidence being introduced or submissions made as to what that amount is and why it is chargeable or not. I can only conclude from this approach that JEKE has chosen not to spend the time and effort in pre-trial procedures available to it to prove its case on this point. It is hardly the responsibility of Northmont to address the issue for the benefit of JEKE, which is exactly what JEKE suggests it should have done. [57] Before us, counsel for JEKE (who was not counsel at trial) went even further. In his submission none of the RPF falls to JEKE under the VIA. JEKE’s fluid position on this elementary point does not assist it before the court. Even if “capital costs” are to be distinguished from “operating costs”, there are surely many repair costs in the renovation project that would come within the rubric of “operating costs”. [58] Then JEKE has resort to the principle of noscitur a sociis – or the associated words rule – which states that the generality of a term can be limited by a series of more specific terms which precede or follow it. True, the application of this principle may result in the scope of the broader term being limited to that of a narrower term ( McDiarmid Lumber Ltd. v. God’s Lake First Nation , 2006 SCC 58 at para. 31). However, that narrowing is dependent on whether the specific terms indicate just how the broader term should be narrowed. Justice Bastarache, dissenting but not on this point, explained the interpretive principle this way in Marche v. Halifax Insurance Co. , 2005 SCC 6 at paras. 67, 70: [67]      It is a well-known rule of interpretation that a term or an expression cannot be interpreted without taking the surrounding terms into account. “The meaning of a term is revealed by its association with other terms: it is known by its associates” [70]      When applying the noscitur a sociis rule (associated words rule) to a term that is part of a list, one must look for a common feature among the terms , “the meaning of the more general being restricted to a sense analogous to the less general” [Emphasis added, citations omitted.] [59] In the present case, the problem with this submission is that the specific items listed in clause 9 after the general words are so varied that no genus can be said to have been created to effectively limit the general words to expenses of a like matter and kind. [60] Even in the specific list we find broad descriptions of costs that are the responsibility of the lessees. For example, clause 9(i) describes costs incurred in respect of “repairs to both the exterior and interior of the Vacation Properties”; and in clause 9(p) “all expenses incurred by the Lessor in the management of the Vacation Properties (i.e. see paragraph 10 of this lease)”. Clause 10, in turn, charges the manager to “manage and maintain the Vacation Resort in a prudent and workmanlike manner”. The trial judge found as a fact (and no issue is taken with this finding on appeal) that the projects to be funded by the RPF are necessary and reasonable (at paras. 402, 404): [402]    JEKE’s counsel, while conceding that some work was necessary, argued that the entire Renovation Plan did not need to be done. That may technically be the case, but this decision is one that was made reasonably within the managerial discretion afforded to Northmont under the JEKE VIAs. JEKE has produced no evidence to indicate that some other course of action was reasonably available to the Manager and should have been selected. Again, JEKE could have engaged a construction expert to inspect the Resort to review the proposed Renovation Plan and inspect the ongoing repairs. No such evidence was tendered in support of any argument against the reasonableness of the Renovation Plan, whether in whole or in part. [404]    In conclusion, I am satisfied that the Manager does have the ability to impose the Renovation Project Fee on the owners and that, in these circumstances, it was a necessary and reasonable course of action to address the significant maintenance issues facing the Resort. [61] Where, as here, the Manager complies with its clause 10 duty in managing and maintaining the Resort, expenses incurred to repair and manage the Resort are properly chargeable to lessees under clause 9. [62] Moreover, JEKE’s submission on this point also ignores the words that precede the listing in clause 9: including, without limiting the generality of the foregoing, the following [63] This would seem to expressly oust the operation of the associated words rule to narrow the meaning of Operating Costs. [64] JEKE then goes beyond clause 9 of the VIA in its efforts to limit the general words therein to some concept of “operating costs” as distinct from “capital costs”. It asks this Court to find that Operating Costs takes on a different meaning when considered in the context of the contract as a whole. [65] For example, JEKE points to clause 17 of the VIA which deals with damage to the Vacation Properties (as that term is defined in the VIA): If during the term of this Lease, a Vacation Property is destroyed or damaged by fire or other hazards for which insurance is carried, then the proceeds of insurance shall be used to rebuild or replace the Vacation Property and, during the period of rebuilding, the Lessee will not be entitled to any claim for loss of occupancy; provided, however, that the Lessor shall use reasonable efforts to provide the Lessee with an alternative Vacation Properties at rates to be negotiated by the Lessor with the Lessee. The Lessor agrees to rebuild, repair or replace the Vacation Property provided insurance proceeds are available for such purpose. [66] JEKE makes the general submission, which I will address below, that Northmont, as lessor, has a duty to pay capital costs associated with maintaining the Resort to a level such that JEKE always would enjoy access to what it bargained for: useable, prudently maintained units in a functioning resort. This duty being present, JEKE then submits that the implication in clause 17 becomes clear: by expressly contracting out of its duty to rebuild, repair or replace in the circumstances set out in clause 17 beyond the total of insurance proceeds received, Northmont implicitly has not otherwise limited its general duty to be responsible for capital costs incurred in rebuilding, repairing or replacing the Vacation Property. [67] Such an argument is really two-edged, it can just as readily be said that the express reference to this limited duty on the lessor in clause 17 is an implicit indication that the lessor does not otherwise have a duty to rebuild, repair or replace at its expense. [68] In any event, I do not credit the submission that the essential obligation the lessor took under the VIA was to provide merchantable units throughout the term of the lease at its cost. That is not said anywhere expressly in the VIA. Indeed, to the contrary, where ongoing costs are contemplated, clause 9 makes it clear that they “all” are the responsibility of the lessee. This is again illustrated by the responsibility for management costs. Clause 10 of the VIA imposes a duty on the lessor to “manage and maintain the Vacation Resort in a prudent and workmanlike manner”. The lessor’s expenses incurred in this regard – “all expenses” – are expressly the responsibility of the lessees under clause 9(p). [69] Again, this was not the position taken by JEKE at trial. Indeed, JEKE’s submission that the contract did not call for it to pay such costs led the trial judge to state (at para. 277): It defies logic that the parties intended any uncertainty regarding who would pay to fix the Resort buildings and infrastructure when faced with maintenance issues of this magnitude. If JEKE is right, but the Lessor was unable or unwilling to pay and contribute to such expenses (assuming no express liability), then no one would pay to repair the resort, which would inevitably result in a decline in the Resort. I do not accept that this was what the parties intended. The JEKE VIAs were intended to set out the responsibility for these very expenses in paragraph 9. [70] JEKE adds to its submission by referring to the prospectus where, for example, it states in clause 2.06(5): The price of the Vacation Lease paid at the time of purchase is fixed and will not change throughout the duration of the Vacation Lease. The maintenance cost will increase only as actual costs of operation increase. [71] JEKE also refers to clause 10 of the CPA: I understand that the annual maintenance fee is currently 463 + GST per week of ownership. Said fee shall cover maid service, utilities, insurance, taxes, refurbishing and general maintenance. Fees are subject to increases as costs increase. [72] And to this question and answer in the “Owner’s Album”: Q.        Will the maid/maintenance fees go up in the future? A.         Your annual maintenance charge will increase or decrease only in direct relation to actual expenses. Each year’s charge is based on an estimate of the total annual cost of operation. This total includes maintenance of the facility, replacement of furniture and equipment, taxes, utilities and other expenses. [73] None of these statements that form part of the factual matrix blunt the very general words in clause 9 of the VIA — “all administration[,] maintenance and repair costs”. I repeat my earlier statement of principle that the surrounding circumstances “must never be allowed to overwhelm the words of that agreement” ( Sattva at para. 57). [74] JEKE finally resorts to “commercial efficacy” in aid of its submission that the trial judge’s view of cost responsibility under the VIA lacks commercial efficacy from the perspective of the lessees. In considering this submission, it is instructive to look at another question and answer in the Owner’s Album, which points to an important factor when considering the business efficacy of JEKE’s bargain; namely, the fact that the interests of the lessees are theirs to sell. We find this in the Album (as of the date of JEKE’s purchase): Q.        Will my Villa appreciate in value? A.         The value of the vacation leases at Fairmont have more than doubled since 1979. It is reasonable to assume that the future value will vary with the future value of rentals in luxury accommodations. [75] Today, there is apparently no secondary market for these units. But there apparently was one historically and when we talk of “commercial efficacy” one could note the possibility at the time of purchase (based on the experience to that date) that lessees might enjoy appreciation in the value of their units. Commercial efficacy is not served if JEKE has all of the upside benefits of that potential appreciation and none of the downside costs to maintain and replace the vacation properties during the term of the lease. [76] Moreover, the first page of the prospectus provides, in bold print, the following statement that further assists in evaluating the commercial efficacy of JEKE’s bargain: THE PURCHASE OF A TIME SHARE INTEREST SHOULD BE BASED ON ITS VALUE TO THE PURCHASER AND NOT THE PROMISE OF FUTURE EXCHANGE RIGHTS, RESALE OR INVESTMENT POTENTIAL. [77] Key then is “the value to the purchaser”. It is consistent with this purpose to require owners and lessees to pay the manager’s costs to make necessary and reasonable repairs such that the Resort maintains its “value”. [78] In my view, after applying the above principles of contractual interpretation, the invariable conclusion is that JEKE is responsible for its proportionate share of what it has termed “capital costs” included in the RPF. [79] JEKE also takes issue with the trial judge’s conclusion that delinquencies and Northmont’s legal fees are to be borne by lessees under clause 9 of the VIA. The delinquencies arise out of other owners and lessees failing to pay their assessments. The trial judge concluded (at para. 240): Delinquency refers to the failure of some owners and lessees to pay the costs assessed to them. Mr. Wankel testified that delinquency is a typical and anticipated cost of operating the Resort. Common sense would dictate, and Mr. Wankel, as a chartered accountant confirms, that if you anticipate having expenses of $100 for the ensuing year and only collect $90, you will have a deficit. The JEKE VIAs expressly contemplate that, as a result of the budgeting process, deficits or surpluses may occur. In my view, such delinquencies do constitute part of the “Operating Costs” referred to in paragraph 9 of the JEKE VIAs and are chargeable to the lessees and owners. [80] JEKE refers to clauses 13 and 14 of the VIA and submits that they clearly make Northmont responsible for these costs. Clause 14 has no application to the case of the delinquent lessee. It makes Northmont responsible for costs as though it was a “Lessee” in respect of weeks (units) not sold in any year (except for the one week maintenance period). The unit of the delinquent lessee of course has been sold to that individual (at least until it is, if ever, assumed by the lessor under clause 13). [81] Clause 13 of the VIA provides: 13.       DEFAULT OF THE LESSEE IN ANY PAYMENT REQUIRED UNDER THIS LEASE: In the event that the Lessee should default in making any payment required to be made by the Lessee hereunder, within the time stipulated for payment, then the Lessee agrees that the Lessee's right to occupy a Vacation Property shall be suspended until such time as all payments due have been duly paid. If a default in any payment required to be paid according to this Lease has not been remedied within 90 days from the date of such default, and the Lessee has been given a minimum of one written notice of such default, the Lessor may terminate this Lease upon written notice to the Lessee, and from the date of such notice all of the Lessee's rights to the Vacation Property pursuant to the provisions of this Lease shall be terminated. Furthermore, from the date of such notice of termination the Lessor shall be entitled to the full and exclusive right to use and occupy the Vacation Property free and clear of all rights of the Lessee pursuant to this Lease or otherwise and Lessor may grant the right to use the Vacation Property during the week period to which the Lessee is entitled hereunder to another person or may retain it for any other purpose. The monies received by Lessor on account of rights of occupation or otherwise following such default or termination shall be retained by the Lessor as its sole and exclusive property as liquidated damages and not as a penalty. In the event of termination as hereinbefore provided, the Lessee shall, following such termination, be released from all obligations hereunder except for any monies then owing to the Lessor, or any other liabilities then outstanding of the Lessee, under this Lease. [82] Clearly, clause 13 gives Northmont an option in the circumstances noted. If it terminates the lease, it steps into the shoes of the lessee and is responsible for ongoing costs in respect of that unit. But if it does not, Northmont takes no responsibility for those costs; that responsibility continues to rest on the defaulting lessee. Absent payment by such lessee, delinquencies are chargeable to non-defaulting lessees as Operating Costs under clause 9. Of course, this does not absolve the defaulting lessee of its responsibility to repay these amounts to the manager on behalf of its fellow lessees. In my view, the trial judge committed no error in her conclusion on this issue. [83] I reach the same conclusion with respect to Northmont’s litigation expenses relating to the Special Case , both in the Supreme Court and in the Court of Appeal. The trial judge held that these were costs arising from the management of the Resort by Northmont and properly chargeable under sub-clause 9, in particular under clause 9(p) thereof. In this regard, JEKE points to clause 38 of the VIA. It provides: 38. INDEMNITY: The Lessee covenants with the Lessor to indemnify and save harmless the Lessor from any and all actions[,] suits, claims, liabilities, damages, costs, losses and expenses incurred or sustained by the Lessor arising from or connected with: (a)        any breach, violation or non-performance of any covenant, agreement, condition or proviso in this Lease set out and contained on the part of the Lessee to be fulfilled, kept, observed and performed[;] (b)        any damage to any Vacation Property or other part of the Vacation Resort by the Lessee or the Lessee’s agents, sublessees, licensees or invitees; (c)        any injury to the Lessee or any agent, sublessee, licensee or Invitee of the Lessee, including death resulting at any time therefrom, occurring in or about the Vacation Property or the Vacation Resort, or (d)        any other act or omission of the Lessee. [84] JEKE submits that the trial judge failed to consider this provision as a limit on Northmont’s right to indemnity for costs caused by the default of a lessee. I disagree. The fact that Northmont may be able to look to individual lessees for indemnification in some cases does not take away from the fact that the expenses are properly within clause 9(p). Northmont, in making chargebacks, would obviously give credit for any sums collected under clause 38. Conclusion [85] Applying a standard of deference in my review of the trial judge’s interpretation of the provisions of the agreement before this Court, no error has been demonstrated. Indeed, in my view, applying a standard of correctness yields the same result. In light of this conclusion, it is not necessary to consider JEKE’s argument on the issues of fundamental breach and whether JEKE accepted Northmont’s alleged repudiation. [86] I would dismiss the appeal. The parties apparently wish to make further submissions on costs in this Court and in the Supreme Court proceedings. I would grant leave to do so. I would trust that counsel will come to an agreement on an appropriate schedule for the exchange of submissions. “The Honourable Chief Justice Bauman” I agree: “The Honourable Madam Justice D. Smith” I agree: “The Honourable Mr. Justice Goepel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Garcia v. Tahoe Resources Inc., 2017 BCCA 39 Date: 20170126 Docket: CA43295 Between: Adolfo Agustin Garcia, Luis Fernando Garcia Monroy, Erick Fernando Castillo Pérez, Artemio Humberto Castillo Herrera, Wilmer Francisco Pérez Martinez, Noé Aguilar Castillo, and Misael Eberto Martinez Sasvin Appellants (Plaintiffs) And Tahoe Resources Inc. Respondent (Defendant) And Amnesty International Canada Intervenor Before: The Honourable Mr. Justice Groberman The Honourable Madam Justice Garson The Honourable Madam Justice Dickson On appeal from:  An order of the Supreme Court of British Columbia, dated November 9, 2015 ( Garcia v. Tahoe Resources Inc. , 2015 BCSC 2045, Vancouver Docket S144726). Counsel for the Appellants: J. Fiorante, Q.C. R. Mogerman J. Winstanely Counsel for the Respondent: P. Reardon A. Sandhu L. Yang Intervenors, Amnesty International Canada: P. Champ J. Klinck Place and Date of Hearing: Vancouver, British Columbia November 1, 2016 Place and Date of Judgment: Vancouver, British Columbia January 26, 2017 Written Reasons by: The Honourable Madam Justice Garson Concurred in by: The Honourable Mr. Justice Groberman The Honourable Madam Justice Dickson Summary: The appellants appeal from a chambers order granting the respondent’s application for a stay based on forum non conveniens under s. 11 of the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28. The chambers judge held that an extant criminal proceeding and a potential civil suit in Guatemala made Guatemala clearly the more appropriate forum for the appellants’ claims. The chambers judge also found that the appellants had not established that justice could not be done in Guatemala. On appeal, the appellants seek admission of new evidence relevant to the extant criminal proceeding and to the risk of unfairness in the Guatemalan judiciary. The appellants say the chambers judge erred in the legal test she applied when considering the appellants’ evidence of corruption and injustice in the Guatemalan judiciary. Held: appellants’ application to admit new evidence granted in part; appeal allowed; respondent’s application for a stay dismissed. The new evidence concerning the extant criminal proceeding casts doubt on whether the proceeding will go forward in a timely manner or at all; this evidence is admitted because it is likely to have affected the outcome of the chambers judge’s decision. The new evidence leads to the inescapable conclusion that the extant criminal proceeding is not a clearly more appropriate forum for the appellants’ claims. The judge erred in concluding that a potential civil suit in Guatemala is also clearly a more appropriate forum. Three factors weigh against such a finding: (1) the limited discovery procedures available to the appellants; (2) the expiration of the limitation period for bringing a civil suit; and (3) the real risk that the appellants will not obtain justice in Guatemala. Evidence of corruption and injustice in a defendant’s proposed alternate forum should be considered as a single factor among all relevant factors and concerns to be weighed together in one stage in the forum non conveniens analysis with the overall burden on the defendant to establish that the alternate forum is in a better position to dispose of the litigation fairly and efficiently. The judge erred by placing the onus on the appellants to prove that Guatemala was incapable of providing justice. Reasons for Judgment of the Honourable Madam Justice Garson: [1] On April 27, 2013, private security personnel employed at a Canadian-owned mine in Guatemala allegedly shot and injured Adolfo Agustin Garcia as well as six other Guatemalan individuals during a protest outside the Escobal mine. The mine is owned by the respondent, Tahoe Resources Inc., through its wholly owned subsidiaries. The seven plaintiffs commenced an action for damages against Tahoe in the Supreme Court of British Columbia. Tahoe, a British Columbia company, conceded that the Court had jurisdiction over the claim but applied for an order that the court exercise its discretion to decline jurisdiction on the grounds that Guatemala was the more appropriate forum for adjudicating the plaintiffs’ claims. Madam Justice Gerow granted the forum non conveniens application sought by Tahoe and stayed the British Columbia action. [2] The application primarily turned on the judge’s assessment of the plaintiffs’ ability to obtain a fair trial in Guatemala. The judge concluded that they could. The plaintiffs appeal from the judge’s order. (For consistency, I will refer to them as “the appellants” hereafter, even when discussing their role as plaintiffs in the Guatemala and British Columbia proceedings.) [3] On this appeal, the appellants contend that the judge erred in law in imposing on them the burden of proving that justice could never be done in Guatemala; they say that the correct test is “whether the evidence discloses a real risk of an unfair trial process in the foreign court”. Tahoe says that the appellants’ arguments demonstrate a “parochial attitude towards countries that follow the civil law procedural tradition”. It says that the judge properly concluded that the appellants’ evidence did not meet the necessary standard of proof to justify a refusal to decline jurisdiction. [4] On appeal, the appellants seek to introduce new evidence. This evidence touches upon developments in the related criminal proceeding in Guatemala and provides further opinions concerning the Guatemalan legal system. Tahoe opposes the introduction of the new evidence. [5] Amnesty International Canada intervenes. It supports the appellants’ contention that the judge erred in her articulation of the legal test to be applied in assessing the risk that the appellants could not obtain a fair trial in Guatemala. I. Background Facts to the Claim A. The April 27, 2013, Incident [6] Through its wholly owned subsidiaries, Tahoe manages and controls all significant aspects of the operation of the Escobal mine, a silver, gold, lead, and zinc mine in Southeast Guatemala in the municipality of San Rafael Las Flores. [7] Six of the appellants are farmers and one is a student; they are all residents of San Rafael Las Flores. [8] On April 27, 2013, the appellants participated in a protest outside the gates of the mine. [9] Tahoe’s security manager, Alberto Rotondo Dall’Orso, was concerned that the protestors would interfere with the operation of the mine. He and Tahoe were aware of strong opposition to the mine within the local community. Leading up to the day of the incident, there had been a number of violent conflicts at several mines between protestors, mine staff, and local officials. On the evening of April 27, 2013, the protestors assembled in front of the gates to the mine. In their notice of civil claim, the appellants allege that security guards opened the mine gates and “opened fire on the protestors using weapons that included shotguns, pepper spray, buckshot and rubber bullets”. [10] The appellants plead that the shooting was planned, ordered, and directed by Rotondo and that Tahoe “expressly or implicitly authorized the use of excessive force by Rotondo and other security personnel, or was negligent in failing to prevent Rotondo and other security personnel from using excessive force”. [11] The appellants allege that the security personnel acted at the direction of Rotondo, the Security Manager at the mine. [12] The appellants allege that, after the incident, Rotondo instructed security personnel to falsify accounts of the shooting and destroy or cover up evidence. B. Criminal Proceedings [13] A Guatemalan prosecutor charged Rotondo with assault, aggravated assault, and obstruction of justice. No charges were brought against Tahoe or its Guatemalan subsidiary, Minera San Rafael S.A. (“MSR”), in connection with the shootings. [14] At the appellants’ request, they were joined as civil complainants in the criminal proceeding (as is permitted under Guatemalan law), and, within that derivative proceeding, they seek compensation. C. Escobal Mine Ownership and Management Structure [15] Three of Tahoe’s directors reside in Reno, Nevada, and five reside in Canada. The President, Chief Operating Officer, and General Counsel of Tahoe all reside in Reno and work from Tahoe’s U.S. offices. Tahoe has no office in British Columbia other than a registered and records office necessary to meet its statutory requirements as a reporting British Columbia company. Tahoe has no officers or employees employed in British Columbia. Tahoe holds its annual general meetings in either Vancouver or Toronto. Its directors meet once or twice a year in Vancouver. [16] Don Gray, the General Manager and Country Manager of MSR at the time of the incident and current Vice President of Operations for Tahoe, is a resident of Guatemala. [17] Tahoe is the parent company of MSR, a Guatemalan company which owns the Escobal mine. [18] Gray has responsibility for the day-to-day operation of the mine. Rotondo reported to Gray. On security matters, Gray reported to Ron Clayton, the President and Chief Operating Officer of Tahoe who is based in Reno. [19] The employment contracts concerning Rotondo and other security personnel are in Spanish. D. Tahoe’s Corporate Social Responsibility Initiatives [20] The appellants plead that Tahoe has direct responsibility for the conduct of Rotondo. As part of that liability they refer to Tahoe’s Corporate Social Responsibility (“CSR”) initiatives. [21] Gray deposed that “[a]s a demonstration of genuine commitment to the region and sensitivity to socio-economic issues in the communities in which MSR operates, numerous CSR initiatives have been implemented...” He describes how “Tahoe’s Board of Directors formed a Health, Safety, Environment, and Community Committee (“HSEC”) to oversee health, safety, environmental and other community issues at a high level”. Tahoe also established a CSR Steering Committee which includes executive officers of Tahoe. Tahoe has retained CSR consultants to assist it in complying with various business and human rights conventions. MSR also employs personnel locally to build relations with the local community. II. Pleadings [22] On June 18, 2014, the appellants filed a notice of civil claim against Tahoe in the Supreme Court of British Columbia. [23] The appellants plead three causes of action against Tahoe for which they seek damages, including punitive damages: (1) direct liability for battery; (2) vicarious liability for battery; and (3) negligence. [24] On the direct liability claim, the appellants plead that Tahoe controls all significant aspects of MSR and the Escobal mine and expressly or implicitly authorized the unlawful conduct of Rotondo and the security personnel. [25] On the vicarious liability claim, the appellants plead that MSR expressly or implicitly authorized the unlawful conduct of Rotondo and the security personnel and that, as the parent company of MSR, Tahoe is vicariously liable for the battery. Alternatively, the appellants assert that Tahoe is vicariously liable for the battery committed by Rotondo and the security personnel as parent company of MSR who contracted for their services. [26] On the negligence claim, the appellants plead that Tahoe owed them a duty of care because it controlled all significant aspects of the operation of MSR and the Escobal mine, including establishment and implementation of security and community relations policies and practices in Guatemala and strategies for dealing with opposition to the mine. They also plead that Tahoe owed them a duty of care given Tahoe’s knowledge of the extensive local opposition to the mine and the risk of harm to protesters if Tahoe’s security personnel did not adhere to its CSR policies. The appellants assert that Tahoe breached its duty of care by failing to conduct adequate background checks on Rotondo and the security personnel, failing to establish and enforce clear rules of engagement for them, failing to adequately monitor them, and failing to ensure they adhered to Tahoe’s CSR policies. They allege that Tahoe’s CSR policies governed the manner in which it supervised its operations and its security personnel. That policy bound Tahoe to observe international humanitarian law and local law, including the proportional use of force, and the adoption of policies respecting human rights. The location where Tahoe implemented and oversaw its alleged CSR policies – Reno, Nevada, or British Columbia or both – is important to the analysis that follows. [27] The appellants claim punitive damages for the alleged “malicious, arbitrary, highly reprehensible” conduct of Tahoe. III. Tahoe’s Forum Non Conveniens Application [28] On August 8, 2014, Tahoe filed a notice of application seeking an order staying the proceeding on the grounds that Guatemala was a more appropriate forum for the action. IV. Reasons for Judgment [29] The judge granted Tahoe’s forum non conveniens application and ordered a stay of proceedings because she found that Tahoe had satisfied its burden of establishing that Guatemala was clearly the more appropriate forum for determination of the matters in dispute. [30] She noted that the appellants characterized the central issue as whether Tahoe “has responsibility under Canadian law for the brutal conduct of security personnel hired to protect its prize asset” (at para. 4). She noted that the appellants said that question can only be answered in a Canadian court “as they have no faith in the Guatemalan legal system to hold the company accountable” (at para. 4). [31] She noted that the onus was on the defendant Tahoe to show why the court should decline to exercise its jurisdiction (at para. 31). [32] The judge found that s. 11 of the Court Jurisdiction and Proceedings Transfer Act , S.B.C. 2003, c. 28 [ CJPTA ], sets out the principles which govern the Supreme Court’s discretion to decline jurisdiction over a proceeding when there is a more appropriate forum for the action. Section 11(2) of the CJPTA provides a non-exhaustive list of factors relevant to the proceeding to consider when determining whether to decline jurisdiction. What emerges from the s. 11(2) analysis is that the defendant must establish an alternate forum that is clearly more appropriate: Club Resorts Ltd. v. Van Breda , 2012 SCC 17 at paras. 103, 108 and 110. [33] The judge began her analysis of the s. 11(2) factors by noting that all the appellants reside in Guatemala, their alleged injuries and losses occurred in Guatemala, and the evidence is in either Guatemala or Nevada. She noted that all the evidence of the appellants is in Spanish. MSR, the direct operator of the mine, is a Guatemalan company and all of its employees are resident in Guatemala or Reno. MSR carries on business in Guatemala. She noted that Tahoe carries on business in Reno, Nevada, and that its operating officers were located there, not in British Columbia. [34] The judge decided that the ordinary factors set out in the CJPTA pointed to Guatemala as the more appropriate forum. She rejected the appellants’ assertion that systemic corruption in the Guatemalan legal system posed a serious risk that they would not obtain a fair trial. She identified the issue as whether the foreign legal system is capable of providing justice. She said: [64]      In my view, where the ordinary factors set out in the CJPTA and case law point to Guatemala as the more appropriate forum, the question is not whether Canada’s legal system is fairer and more efficient than Guatemala’s legal system. It is whether the foreign legal system is capable of providing justice . As stated in Connelly , where the forum non conveniens analysis points to a clearly more appropriate forum, then the plaintiff must take the forum as he finds it even if it is in certain respects less advantageous to him unless he can establish that substantial justice cannot be done in the appropriate forum. [Emphasis added.] [35] She found that the evidence of corruption within the Guatemalan criminal justice system was not relevant to the appellants’ civil claims for personal injury: [65]      The plaintiffs’ experts refer to corruption in the context of criminal prosecutions against state officials or organized crime syndicates, not cases involving claims for personal injuries such as this one. [66]      It is clear from the evidence that Guatemala has some problems with its legal system. However, the evidence, even from the plaintiffs’ experts, is that Guatemala has been involved in justice reform since the early 2000s. While its justice system may be imperfect, it functions in a meaningful way. It provides laws and procedures through which parties can, and do, pursue rights and remedies such as the ones raised by the plaintiffs in their notice of civil claim. Further, Guatemalan citizens who have lesser means to pursue their claims are supported by organizations like El Centro de Accion Legal-Ambiental y Social de Guatemala (CALAS), which provides free legal assistance to claimants. The plaintiffs in this case have the benefit of such representation and are using it. [36] She concluded: [105]    In my view, the public interest requires that Canadian courts proceed extremely cautiously in finding that a foreign court is incapable of providing justice to its own citizens. To hold otherwise is to ignore the principle of comity and risk that other jurisdictions will treat the Canadian judicial system with similar disregard. In this case, as noted earlier, Guatemala has a functioning legal system for both civil and criminal cases, and the plaintiffs are already seeking compensation for their injuries in Guatemala. [37] She found that the alleged battery and breaches of duty by Tahoe occurred in Guatemala and perhaps Nevada. [38] She determined that Tahoe could be added to the criminal proceeding against Rotondo or sued civilly: [71]      The plaintiffs assert Tahoe will not be a party to the action in Guatemala and that is a very significant factor in determining Guatemala is not a convenient forum. However, the evidence is that parties can be added to both the criminal proceedings and that a separate civil suit can be commenced . The expert evidence is that Tahoe can be held vicariously liable if its personnel directed or supervised the alleged battery. MSR could also be found vicariously liable. [72] This is not a case where the plaintiffs will not have a trial or hearing in the other jurisdiction . They are advancing a claim for compensation for their injuries in the criminal proceedings in Guatemala. They are able to add other parties. The plaintiffs can also commence a civil action in Guatemala. [Emphasis added.] [39] She noted that Mr. Gray was responsible for overseeing all national and local CSR initiatives and that all those activities occurred in Guatemala. [40] She held that the choice of law (Guatemala), the desirability of avoiding multiplicity of legal proceedings and conflicting decisions, and the ability to enforce an eventual judgment all favoured Guatemala. [41] She noted that six of the seven appellants were joined to the criminal proceeding and could obtain compensation for their injuries in that proceeding. She considered the appellants’ argument that in Guatemala they cannot advance a claim directly against Tahoe for its negligence or for vicarious liability by piercing the corporate veil, and therefore, there is a juridical advantage to proceeding in British Columbia. The judge noted that it was far from clear whether such a novel negligence claim against a parent company for the activities of its subsidiary could succeed in a Canadian court: Piedra v. Copper Mesa Mining Corp. , 2010 ONSC 2421 aff’d. 2011 ONCA 191. [42] She rejected the appellants’ argument that the lack of a Guatemalan document discovery process similar to that provided for under British Columbia rules was an impediment. [43] She concluded that there are two types of procedures by which the appellants may obtain civil compensation in Guatemala: a stand-alone civil suit; and through a criminal proceeding in which both the accused Rotondo and other liable parties can be ordered to pay compensation: [28]      The expert evidence sets out that the following framework exists in Guatemala’s legal system: * Guatemala has a Civil Code. Guatemalan law provides remedies for the claims arising from intentional or negligent acts that cause injury. * The tort of negligent action requires the plaintiff to prove he suffered a damage or injury; the relationship between the defendant’s acts or omission or lack of care owed and the damage the injury caused. * Battery is considered a crime and any party responsible for a crime or offence is also civilly liable. Under Guatemalan law, a person can be added as a claimant seeking civil reparation/damages from an accused in a criminal proceeding. Damages can include restitution, payment of loss income, and damages for moral and material reparation. * In a filed criminal claim, claimants seeking civil reparation can seek damages against any person found liable for any alleged physical and/or psychological damages. Other parties potentially responsible for the actions of an accused can be added as parties to the civil claim. * Vicarious liability exists, but a plaintiff has the burden of proving that the company directed or supervised the acts against them. If the plaintiffs can prove the people who attacked them were acting under the parent company’s supervision or direction, then the parent company would be held responsible. * When a lawsuit related to acts or business in Guatemala is initiated, Guatemalan courts are qualified to summon foreign or Guatemalan individuals or corporations who are not in the country. * The plaintiffs can also file a civil suit claiming payment for damages. Within the civil procedure, plaintiffs can bring vicarious liability, direct battery and negligence claims. Plaintiffs can claim damages suffered including lost income, lost profit and medical expenses. The concept of damages is not defined in the Code and it is possible to claim compensation for moral or psychological damages suffered. * Various parties may be plaintiffs or defendants in the same proceedings. Defendants may bring third parties into a suit by joinder. * Discovery procedures are available prior to a hearing. * Parties have a right to appeal final judgments of a trial court. [96]      … As noted earlier, the plaintiffs would have to establish that Tahoe either directed or supervised the actions of the wrongdoers in order to establish liability on the part of Tahoe. [97] The fact that the plaintiffs would not be able to advance claims based on agency in Guatemala is a factor in favour of British Columbia as the appropriate jurisdiction. I note that the plaintiffs would also face impediments in British Columbia in piercing the corporate veil; however, I agree the law in that regard appears less restrictive in British Columbia. [44] The judge did not consider that the expiration of the one-year limitation period to commence a civil suit would impede the appellants from bringing a civil suit against Tahoe in Guatemala if British Columbia had declined jurisdiction on the basis of forum non conveniens (at para. 87). [45] After considering all the s. 11(2) CJPTA factors, the judge concluded that Guatemala was clearly the more appropriate forum for adjudication of the dispute. She granted Tahoe’s application for a stay of the British Columbia proceedings. V. Application to Admit New Evidence on Appeal [46] I shall refer to the application to admit new evidence on appeal in more detail below. Put briefly, the evidence relates to the indefinite adjournment of the criminal proceeding in Guatemala owing to Mr. Rotondo’s flight to Peru. This has implications for the appellants’ derivative claim for compensation within the criminal proceeding. The appellants also submit new evidence concerning judicial corruption in Guatemala. VI. Issues on Appeal [47] I would state the issues on this appeal in the following way: - Should new evidence concerning the Guatemalan criminal proceeding against Rotondo be admitted? - In light of the new evidence, is the criminal proceeding still a more appropriate forum for the action? - Did the judge err in finding that a potential stand-alone civil suit in Guatemala is a more appropriate forum? - Did the judge misapprehend the expert evidence regarding the effect that the expiration of the Guatemalan limitation period for bringing a civil claim would have on the appellants’ claim against Tahoe in a stand-alone civil suit? - Did the judge err in her application of the forum non conveniens analysis? More specifically, did the judge properly consider all factors that she was required to consider? - Should new evidence concerning corruption in the Guatemalan judiciary be admitted? - How should evidence regarding corruption in a defendant’s proposed forum be assessed in an application of the forum non conveniens analysis? VII. Discussion [48] In the analysis that follows, I consider, in light of new evidence, whether the Guatemalan criminal proceeding – in which the appellants have a derivative civil claim – is a more appropriate forum for the dispute. I conclude that it is not. Turning to the potential stand-alone civil suit in Guatemala, I discuss three factors: (1) the limitation period for bringing civil suits in Guatemala; (2) the Guatemalan discovery procedures for civil suits; and (3) the risk of unfairness in the Guatemalan justice system. [49] I conclude that those three factors all weigh against finding that Guatemala is clearly the more appropriate forum for the action. A. Statutory Provisions [50] Jurisdictional applications of this type are governed by Rule 21–8 of the Supreme Court Civil Rules , B.C. Reg. 168/2009. The pertinent part of the Rule permits a defendant to apply to strike out, or stay a proceeding, where the defendant seeks an order declining jurisdiction: 21 – 8 Disputed jurisdiction (1)        A party who has been served with an originating pleading or petition in a proceeding, whether that service was effected in or outside British Columbia, may, after filing a jurisdictional response in Form 108, (a) apply to strike out the notice of civil claim, counterclaim, third party notice or petition or to dismiss or stay the proceeding on the ground that the notice of civil claim, counterclaim, third party notice or petition does not allege facts that, if true, would establish that the court has jurisdiction over that party in respect of the claim made against that party in the proceeding, (b) apply to dismiss or stay the proceeding on the ground that the court does not have jurisdiction over that party in respect of the claim made against that party in the proceeding, or (c) allege in a pleading or in a response to petition that the court does not have jurisdiction over that party in respect of the claim made against that party in the proceeding. [am. B.C. Reg. 119/2010, Sch. A, s. 35.] Order declining jurisdiction may be sought (2)        Whether or not a party referred to in subrule (1) applies or makes an allegation under that subrule, the party may apply to court for a stay of the proceeding on the ground that the court ought to decline to exercise jurisdiction over that party in respect of the claim made against that party in the proceeding. [51] Sections 7 and 11 of the CJPTA are pertinent to this application and appeal. Section 7 provides that a corporation is ordinarily resident in British Columbia if the corporation has a registered office in British Columbia. Tahoe concedes that it has a registered office in British Columbia and that the Supreme Court therefore has jurisdiction simpliciter . However, it argues that British Columbia is not the most appropriate forum. [52] Section 11 of the CJPTA governs the exercise of the Court’s discretion to decline jurisdiction and stay a proceeding on the grounds that another jurisdiction – in this case, Guatemala – is the more appropriate forum for adjudication of the claim. Section 11 provides: Discretion as to the exercise of territorial competence 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. [53] The factors enumerated in s. 11(2) are not exhaustive. As Mr. Justice LeBel noted in Van Breda , a diverse array of context-specific factors and concerns may be considered by the court in deciding whether to apply forum non conveniens (at paras. 105, 110). B. Burden of Proof and Standard of Review [54] Writing for the Court in Van Breda , LeBel J. explained that the burden of proof in a forum non conveniens analysis is on the party who seeks the stay of proceeding (at para. 109): The use of the words “clearly” and “exceptionally” should be interpreted as an acknowledgment that the normal state of affairs is that jurisdiction should be exercised once it is properly assumed. The burden is on a party who seeks to depart from this normal state of affairs to show that, in light of the characteristics of the alternative forum, it would be fairer and more efficient to do so and that the plaintiff should be denied the benefits of his or her decision to select a forum that is appropriate under the conflicts rules . The court should not exercise its discretion in favour of a stay solely because it finds, once all relevant concerns and factors are weighed, that comparable forums exist in other provinces or states. It is not a matter of flipping a coin. A court hearing an application for a stay of proceedings must find that a forum exists that is in a better position to dispose fairly and efficiently of the litigation. But the court must be mindful that jurisdiction may sometimes be established on a rather low threshold under the conflicts rules. Forum non conveniens may play an important role in identifying a forum that is clearly more appropriate for disposing of the litigation and thus ensuring fairness to the parties and a more efficient process for resolving their dispute. [Emphasis added.] [55] In Black v. Breeden , 2012 SCC 19, LeBel J. again writing for the Court summarized the application of the forum non conveniens analysis and the standard of review on appeal, at para. 37: In the end, some of the factors relevant to the forum non conveniens analysis favour the Illinois court, while others favour the Ontario court. The forum non conveniens analysis does not require that all the factors point to a single forum or involve a simple numerical tallying up of the relevant factors. However, it does require that one forum ultimately emerge as clearly more appropriate . The party raising forum non conveniens has the burden of showing that his or her forum is clearly more appropriate. Also, the decision not to exercise jurisdiction and to stay an action based on forum non conveniens is a discretionary one. As stated in Club Resorts , the discretion exercised by a motion judge in the forum non conveniens analysis “will be entitled to deference from higher courts, absent an error of law or a clear and serious error in the determination of relevant facts” (para. 112). In the absence of such an error, it is not the role of this Court to interfere with the motion judge’s exercise of his discretion. [Emphasis added.] [56] Therefore, on this appeal, the standard of review is deferential insofar as this Court is reviewing the judge’s weighing of the forum non conveniens factors. But it is a correctness standard where the basis of the point on appeal is a question of law: Housen v. Nikolaisen , 2002 SCC 33. C. Criminal Proceeding Against Rotondo i. New Evidence Concerning the Criminal Proceeding [57] The appellants seek to introduce new evidence concerning the Guatemalan criminal proceeding against Mr. Rotondo. This evidence is set out in affidavits from: the appellants’ legal expert, Mynor Melgar; the appellants’ CALAS legal representative in Guatemala; a translator, Roger Barany; and a paralegal in the office of the appellants’ British Columbia lawyers. The affidavits describe events relevant to the criminal proceeding that have occurred subsequent to the judge’s order under appeal. [58] Mr. Rotondo had been under house arrest in Guatemala City awaiting trial. The guard posted at the front gate of his residence went off duty. When he returned three days later he did not see Mr. Rotondo. On November 29, 2015, the police obtained permission to enter the residence at which time it was discovered that Mr. Rotondo was not in the home. After Mr. Rotondo escaped from house arrest, he travelled to Peru, his birthplace and country of origin. The Guatemalan authorities are seeking his extradition from Peru. There is no evidence as to when or if that will occur. The evidence of the public defenders acting for the appellants in Guatemala is that on December 1, 2015, the Guatemalan court declared Mr. Rotondo in contempt, ordered his arrest, and suspended the trial. Mr. Rotondo has been arrested in Peru and is under house arrest in Peru. [59] Tahoe does not dispute the veracity of any of the new evidence about the Guatemalan criminal proceedings against Mr. Rotondo. [60] The appellants contend that the whole underpinning of the order under appeal was the existence of the criminal proceeding through which the appellants could apply for compensation for their injuries. Importantly, the judge held that: [72]      This is not a case where the plaintiffs will not have a trial or hearing in the other jurisdiction. They are advancing a claim for compensation for their injuries in the criminal proceedings in Guatemala. They are able to add other parties. [61] The new evidence casts serious doubt on that conclusion. I agree with the appellants that the existence of the ongoing criminal proceeding in Guatemala was a significant, if not pivotal, point in the judge’s decision to grant a stay. [62] The test for the admission of new evidence on appeal is a stringent one. Writing for the Court in Palmer v. The Queen , [1980] 1 S.C.R. 759 at 775, Mr. Justice McIntyre set out the following test: (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. [63] New evidence may be considered by the court only in exceptional circumstances. The evidence must be considered “likely to affect the result” and “its admission must be clearly in the interests of justice”: Animal Welfare International Inc. v. W3 International Media Ltd. , 2015 BCCA 148 at para. 10. The test is somewhat more flexible where the order is interlocutory in character: Kaynes v. BP P.L.C. , 2016 ONCA 601. [64] The appellants say that the order under appeal is a stay which could be lifted and therefore it is interlocutory in character. As already noted, the appellants contend that this new evidence goes to the very underpinnings of the order under appeal and is likely to have affected the outcome. [65] Tahoe says that the order under appeal is not an interlocutory order. It says that the result of the judge’s order is the end of the British Columbia proceeding. Tahoe relies on North Vancouver (District) v. Lunde (1998), 60 B.C.L.R (3d) 201, for the proposition that new evidence is almost never admitted in the interests of finality in litigation. [66] In my view, Lunde is not applicable to this case. The premise of the order staying the British Columbia proceeding was that there was an ongoing criminal proceeding which was a more appropriate forum to adjudicate the dispute. As it is now doubtful whether that proceeding will go forward in a timely manner or at all, contrary to the assumption made by the judge, the evidence should be before the Court. [67] Tahoe argues that the Guatemalan proceedings, including the extradition request to Peru, should be left to run their course. Tahoe argues in its written submissions on the new evidence application that: The further delay in returning Mr. Rotondo to Guatemala for trial is a function of due process as to extradition between Guatemala and Peru; it does not follow that this should cause the Guatemalan legal system to be viewed in a negative light. Indeed, Mr. Melgar concedes that Mr. Rotondo “has every right to exhaust all available legal remedies in his country of origin, and it is impossible to foresee with absolutely legal certainty the outcome of these domestic proceedings or how long they are likely to take...”. Tahoe submits that this conclusion could be made regarding extradition proceedings involving any two countries and is not germane to the matter under appeal. [68] The burden of the evidence sought to be admitted as new evidence on appeal is that Mr. Rotondo has fled Guatemala and is now in Peru. It is uncertain if he will be successfully extradited to Guatemala. As I have said, the underlying basis of the judge’s decision to stay the proceeding in British Columbia was that there was an adequate extant proceeding in Guatemala in which the appellants’ civil compensation claims against Tahoe and others could proceed. Now the appellants say that there is doubt as to whether the criminal proceeding will proceed in a timely way or at all. [69] The new evidence establishes that the criminal proceeding against Rotondo is adjourned indefinitely. Tahoe did not adduce evidence to suggest when or if it is likely to resume. Resumption is dependent on Peruvian extradition proceedings about which there is no evidence. [70] The evidence of Mr. Rotondo’s flight, the subsequent adjournment of the criminal proceeding, his arrest in Peru, and his stated intention to oppose extradition is relevant and affects the outcome of the forum non conveniens analysis. I would admit this evidence on appeal. ii. Conclusion Regarding Criminal Proceeding [71] Admission of the new evidence leads to the inescapable conclusion that the Guatemalan criminal proceeding – to which the appellants’ civil compensation claims have been joined – is not a more appropriate forum for adjudicating the dispute. D. Stand-alone Civil Suit [72] Although the judge’s primary focus was on the existence of the derivative claims joined to the criminal proceeding, she also found that a potential stand-alone civil suit in Guatemala was a more appropriate forum. I therefore turn to a consideration of whether the judge erred in her finding that the availability of a civil action established Guatemala as a more appropriate forum. [73] The appellants contend that she erred in so finding. They advance three main grounds to support this aspect of their appeal: 1) Inadequate discovery rules and other procedural difficulties make Guatemala a wholly inconvenient and inefficient forum; 2) The limitation period to commence a civil suit in Guatemala has expired; and 3) The Guatemalan judicial system is corrupt and there is a real risk they cannot obtain a fair trial. The appellants seek the admission of new evidence to support this third ground of appeal. [74] Below, I discuss how Canadian jurisprudence establishes that the relevant forum non conveniens factors should be considered and weighed together in one stage when determining whether a defendant has proven that its proposed alternate forum is clearly the more appropriate forum. i. Guatemalan Discovery Procedures [75] The appellants say that there are important differences in the available discovery procedures in Guatemala compared to those available in British Columbia which would put them at a distinct disadvantage in Guatemala. [76] The appellants submit expert evidence from Carol Zardetto, a Guatemalan lawyer practicing for over 25 years. She describes these difficulties in her report: A civil claim is commenced in Guatemala by filing a document known in Spanish as a Demanda. There are very specific rules for the Demanda. First, Article 105 of the Civil and Mercantile Procedures code indicates that it must specify the evidence which the party intends to rely on to prove the claim. Evidence that is not described in the Demanda may not be submitted to the court later. Second, Article 108 requires that the essential documents that constitute the basis of the claim must be presented with the Demanda or described in detail, indicating where the originals are. Third, Article 108 establishes that if the documents are not presented with the Demanda they will not be accepted afterwards, except if there is a justified reason for not possessing them. Fourth, article 109 permits the Judge to reject a claim that doesn’t comply with these requirements. In addition, the evidence referenced in the Demanda must be sufficient to establish the legitimacy of the claim. In practice, these rules mean the plaintiff must know the evidence he or she intends to rely on to prove the case at the beginning of the case. There are very limited procedures available to the plaintiff to obtain evidence from a foreign defendant before filing a Demanda and commencing the case. Basically, the plaintiff would have to petition the court to issue letters rogatory to a foreign court to request production of evidence from the foreign company. This would be a complex and time consuming process with no assurance of success. The request would likely have to be based on Guatemalan rules of procedure, not the foreign procedures, in order to ensure that any evidence obtained in this process could be used in the court case here. As will be described below, there are very real limitations on the ability of a requesting party to prove the document exists and what its contents are in order to obtain a ruling to produce the document. [77] Tahoe’s expert, Francisco Chávez Bosque, is a Guatemalan lawyer practicing for over 40 years. He did not contradict any of Ms. Zardetto’s evidence on this issue. [78] The judge considered the differences between Guatemalan and British Columbia discovery procedures and nevertheless concluded that they did not rise to a level that could alter her conclusion about the choice of forum. The judge made the following findings: [70]      The plaintiffs argue they will be unable to obtain discovery in Guatemala. However, that is not borne out by the evidence. CALAS represents four of the seven plaintiffs in the criminal proceeding involving Mr. Rotondo in Guatemala. As counsel, CALAS has a right to a copy of all the evidence in the case. The evidence included the security video from the Escobal mine and audio intercepts of conversations in which the plaintiffs say Mr. Rotondo participated. The security video and audio intercepts were adduced on this application. [98]      The plaintiffs argue there is a juridical advantage to the plaintiffs in proceeding in British Columbia because otherwise they will be unable to obtain the documents to pursue their claims against Tahoe. [99]      However, as noted earlier, the plaintiffs have been able to obtain documents in Guatemala. Most of the other evidence relevant to the plaintiffs’ claims is in the possession of the MSR and its employees in Guatemala, such as evidence of security protocols, interaction between head office and MSR, etc. As well, the majority of the damage documents are in Guatemala with the plaintiffs for their wage loss claims, and the plaintiffs’ medical care providers and caregivers for their general damages and future cost of care claims. [100]    There is evidence from Tahoe’s expert outlining the procedures for obtaining and submitting evidence in civil procedures, including obtaining declarations of material witnesses and conducting depositions. While the plaintiffs’ experts point to the fact there may be challenges, the procedures outlined resemble those used in other civil law jurisdictions and are available to the plaintiffs. [79] The appellants submit that the judge erred by equating the appellants’ access to documents in the prosecutor’s file in the criminal proceeding with a right to civil discovery of documents possessed by Tahoe. I agree. In my view, the judge did not give adequate consideration to the difficulties the appellants will face in bringing a stand-alone civil suit against Tahoe in Guatemala when they cannot discover documents in Tahoe’s possession without going through a “complex and time consuming process” of petitioning a Guatemalan court to issue letters rogatory requesting that a British Columbia court require Tahoe to produce the documents. This lack of consideration on the judge’s part can be explained, in part, by the fact that the judge considered the stand-alone civil suit as an adjunct to the existing criminal proceeding. As that criminal proceeding is now mired in uncertainty, closer scrutiny must be given to the stand-alone civil suit. [80] I am mindful that in Van Breda , the Court cautioned against placing too much emphasis on procedural variances between Canada and other jurisdictions when assessing the juridical advantage factor. As the Court said, “[d]ifferences should not be viewed instinctively as signs of disadvantage or inferiority” (at para. 112). In this case, however, the evidence regarding civil discovery procedures in Guatemala points away from finding that Guatemala is clearly the more appropriate forum for bringing tort claims against a British Columbia corporate defendant, particularly in light of the fact that new evidence shows the criminal proceeding has stalled. ii. Limitation Period [81] The parties all agree that the applicable limitation period under Guatemalan law for the appellants to commence a civil suit against Tahoe is one year. This period has long since expired. Tahoe contends that the expiration of the limitation period should not factor in favour of the appellants in the forum non conveniens analysis. Tahoe also contends that a judge might exercise his or her discretion under Guatemalan law to permit such a claim notwithstanding the expiration of the primary limitation period. [82] I turn first to this question of whether the limitation period may be extended. [83] The judge found that the expiration of the limitation period in Guatemala would not bar the appellants from bringing a civil suit against Tahoe. I find that the expert evidence does not support such a finding. [84] In Mr. Bosque’s first report, he said the following regarding limitation periods: In case of damages caused intentionally or by carelessness or imprudence, which are civil damages that can be pursued in a civil claim, the right to claim damage compensation expires in one year as of the day the damages were caused or as of the day the victim knew of the damage and who had caused it [Article 1673 of the Civil Code]. The same limitation period applies both to the direct damage authors and to those vicariously liable. The statute of limitation must be raised as a defence and cannot be applied officiously by the Courts of law. Notwithstanding the aforementioned, the party that benefits from the limitation period may waive it in several ways: by an express waiver; by acknowledging the Plaintiffs right to the claim; and by not raising the statute of limitations defence. [85] Tahoe has not undertaken to waive the limitation period. [86] In Ms. Zardetto’s report, she said: In my opinion, recommencing such a case in Guatemala would face an additional problem that the limitations period in Guatemala for damage claims of one year may have expired. It is impossible to know if a Guatemalan judge would consider the limitations period interrupted by an action filed in BC and dismissed under such basis as the inconvenience of the forum, especially when Guatemala doesn’t recognize the validity of this doctrine. [87] In Mr. Bosque’s reply report to Ms. Zardetto’s report, he did not address the limitation period issue at all. In response to Ms. Zardetto’s assertion that Guatemala cannot accept a transfer of the case from British Columbia because, once a claim is validly filed in a foreign jurisdiction, Guatemalan courts are no longer competent to consider it, Mr. Bosque said: a.         Ms. Zardetto is correct in stating that a Guatemalan Court cannot accept a transfer of a case. If a civil complaint is not heard in a foreign court for a forum non conveniens decision, the Guatemalan plaintiff must file a new complaint in Guatemala under Guatemalan procedural rules and requirements , and Guatemalan courts have the obligation to hear the case. Refusing to hear a case concerning damages caused in Guatemala could be construed as a negation of justice. Congress Decree 34-97 does not bar the filing of a new lawsuit in Guatemala in case a foreign court has decided to accept the forum non conveniens defense. b.         The difficulties Plaintiffs may encounter in succeeding in their complaint do not counter the fact that Guatemalan courts have jurisdiction over the case and that Guatemalan laws rule over the acts that allegedly took place in Guatemala. [Emphasis added.] [88] The judge found: [87] Although the plaintiffs argue they may not be able to commence a civil action because the limitations period had passed, the evidence indicates that a law suit can be filed in Guatemala if it is determined that the British Columbia courts will decline jurisdiction on the basis of forum non conveniens . As noted earlier, similar causes of actions to the one pleaded in this action are available under Guatemalan law. [Emphasis added.] [89] Regarding the judge’s above finding, I infer two possibilities: (1) the judge misapprehended Mr. Bosque’s evidence in his reply report and found that Guatemalan courts would be obligated to hear a civil suit against Tahoe notwithstanding the expiration of the limitation period; or (2) the judge simply found that the appellants could file a civil suit in Guatemala but made no finding on how the raising of a limitation period defence might affect that claim. It is not clear what the judge understood. As the party seeking a stay, Tahoe has the burden of proof to establish that the limitation period does not foreclose the appellants from suing in Guatemala. The expert evidence is not clear on this point. In my view, the judge erred in her conclusion. [90] The next question is how the possible expiration of the limitation period factors into the analysis. [91] In a forum non conveniens analysis, facts regarding limitation periods are considered under the “juridical advantage” factor: see Tolofson v. Jensen , [1992] 3 W.W.R. 743 (B.C.C.A.); Gotch v. Ramirez , [2000] O.J. No. 1553 at para. 16 (S.C.). Many courts have found that the expiration of a limitation period in the other jurisdiction is a juridical disadvantage to the plaintiff that weighs against granting a stay of proceedings based on forum non conveniens : see Tolofson ; Gotch ; Butkovsky v. Donahue (1984), 52 B.C.L.R. 278 (S.C.); Ang et al. v. Trach et al. , [1986] O.J. No. 1117 (S.C.); Jordan v. Schatz , 2000 BCCA 409 at para. 28. However, some courts have found that a plaintiff’s failure to bring an action within time in the other jurisdiction militates against attaching any weight to the juridical advantage factor because, in some circumstances, a plaintiff could successfully oppose a defendant’s forum non conveniens application in one jurisdiction by simply allowing the limitation period to expire in the other jurisdiction: see Kennedy v. Hughes , [2006] O.J. No. 3870 at para. 12(v)-(vi) (S.C.); Hurst v. Société Nationale de L’Amiante , 2008 ONCA 573 at paras. 51-52. [92] It appears that the weight attached to the juridical advantage factor when considering the expiration of a limitation period in another jurisdiction is a case-specific inquiry that turns on the facts. [93] In its factum, Tahoe cites Breeden where the Court cautioned that “a focus on juridical advantage may put too strong an emphasis on issues that may reflect only differences in legal tradition which are deserving of respect, or courts may be drawn too instinctively to view disadvantage as a sign of inferiority and favour their home jurisdiction” (at para. 26). [94] In view of the fact that the appellants have been joined to the criminal proceeding and have also commenced an action against Tahoe in British Columbia, it cannot be said that they have not diligently pursued their claims. Nor can it be said that the appellants are “forum shopping” by bringing a claim in British Columbia; I find that they have sought legitimate juridical advantages by commencing their claim here against a British Columbia corporate defendant. In my view, the appellants’ failure to sue Tahoe in Guatemala within the limitation period should not militate against attaching any weight to the juridical advantage factor when the appellants have actively sought remedies in dual jurisdictions. [95] Put in other words, the judge misapprehended the evidence on the potential impact of the limitation period (i.e., she either thought the Guatemalan court would have to hear the civil suit despite the expired limitation period or she ignored the possible impact of the expired limitation period). As a result of her misapprehension, she failed to account for the juridical advantage to the plaintiff that weighs against granting the stay. This is not one of those cases in which the juridical advantage factor should have no weight because the appellants have been diligent and are not forum shopping. For that reason, I conclude the judge erred in failing to weigh this significant factor in the balance. [96] I conclude that the expiration of the limitation period factors against finding that Guatemala is clearly a more appropriate forum. I attach significant weight to this factor because it casts doubt on whether the appellants will be able to pursue a civil suit against Tahoe in Guatemala at all. iii. Risk of Unfairness in the Guatemalan Justice System a. New Evidence Concerning Judicial Corruption [97] The appellants adduce new evidence concerning judicial corruption set out in a further affidavit of their expert, Mynor Melgar, in which he describes recent events involving arrests of members of the judiciary. This new evidence underscores the evidence already before the judge but is not qualitatively different from it. I would not admit it on appeal because it cannot affect the outcome, and therefore, does not meet the test for admission of new evidence. b. Evidence that was before the Chambers Judge [98] The judge considered expert evidence submitted by the parties on the climate of the Guatemalan justice system. [99] The appellants submit that their evidence shows the structural weakness of the Guatemalan judiciary and the real risk that they may not receive justice in Guatemala. The evidence of the appellants’ expert Mr. Melgar, a former Secretary General of the Public Prosecutor’s office, is relevant to the question of whether the appellants’ claim should be considered in a broader context. Mr. Melgar’s report was not specifically challenged by Tahoe’s expert, Mr. Bosque. While the judge held that the claims against Tahoe were personal injury claims, Mr. Melgar’s evidence highlights the political context of the dispute and the large power imbalance between the parties. Mr. Melgar asserts that “the close economic ties between the mine and multiple levels of political power in Guatemala” create a very real risk that the appellants will not receive a fair trial in Guatemala. The appellants cite from Mr. Melgar’s report in their factum to illustrate their point: Given the above context, and considering the statements contained in the documents provided to me, in particular the affidavit of Donald Paul Gray, I find this to be a case where there are economic interests that transcend the companies that own the project and involve the different levels of political power. Locally, that power is represented by mayors who derive economic benefits for their municipalities, and regionally by parliamentary deputies representing the provinces where the plant Is located; and at a yet higher level, those interests affect the Guatemalan state, whose national budget benefits from a revenue source in the form of royalties, in addition to the potential importance of attracting foreign investment. With this amalgam of common interests at play, in my opinion and based on my experience, it would be difficult to ensure a fair and impartial trial in a legal contest between those who represent those common interests and a group of seven farmers injured as a result of their actions in opposition to a mining project. [100] The appellants argue that the expert evidence shows that endemic corruption in the Guatemalan legal system is not isolated to high profile criminal prosecutions but reaches all levels of the Guatemalan judicial system. The appellants rely on the expert evidence of Mirte Postema in this regard. Ms. Postema is a lawyer with the Due Process of Law Foundation in Washington, D.C., an organization which promotes the rule of law and human rights in Latin American countries. Her evidence describes the commission established by Guatemalan officials and members of the international community to investigate powerful criminals and corrupt politicians because of the Guatemalan criminal justice system’s endemic weakness. In her report she says: The situation in Guatemala’s judiciary is so severe that in the past decade, international pressure led Guatemalan officials and civil society leaders to work with the international community to establish the International Commission Against Impunity in Guatemala (CICIG). Because national institutions such as the Public Prosecutor’s Office (MP) and the National Civil Police (PNC) proved unable to effectively investigate crimes committed by members of illegal security forces and clandestine security structures, let alone disband such structures, it was decided that the only way to counter such forces was in creating an independent, international commission with far-reaching investigative (but not prosecutorial) powers. [101] The appellants also refer to Ms. Postema’s evidence regarding the lack of judicial independence which notes that judges do not have tenure. Judges who make unpopular decisions may be subject to disciplinary proceedings and subsequent sanctions. Ms. Postema says there is a lack of basic safeguards in Guatemala to ensure judicial independence. In her report, she says: The structural weaknesses identified severely call into question the existence of basic conditions to guarantee judicial independence in Guatemala. They can be summarized as follows: The normative framework in place in Guatemala is not sufficient to effectively guarantee judicial independence and protect judges from pressures originating both outside and inside the judiciary. Although the Constitution (art. 203) and laws (such as art 2 LCJ [Ley de la Carrera Judicial - Law on the Judicial Career]) speak of the independence of the judiciary, there are no mechanisms in place to guarantee this independence in practice: there is a lack of both internal and external independence, judges lack tenure, and the judicial selection processes are not merit-based. There is no real judicial career in Guatemala. Judges are appointed for a period of only five years. This lack of tenure means that judges can, and do, lose their jobs without any justification necessary. This situation leaves judges highly vulnerable to pressures. The internal disciplinary system does not respect due process guarantees and arbitrary decisions are therefore highly likely. It is a known problem that judges who make ‘unpopular’ decisions are subject to disciplinary proceedings and subsequent sanctions. The processes for the selection of judges are not transparent or merit-based, but rather, are controlled by special interests-including those involved with organized crime. Although there is a system in place for the random assignment of cases to judges, the judges and legal practitioners interviewed for DPLF’s study indicated that this system is easily manipulated. [102] The appellants further rely on the report of Ms. Zardetto. She has also been involved in law reform in Guatemala. She opines that there is no assurance of a fair and impartial legal proceeding in Guatemala. She characterizes Guatemala’s legal system as dysfunctional, formalistic, lacking in internal judicial independence, demonstrating little concern for human rights, and favouring the powerful. She says that a civil case is generally conducted by a judicial officer and not a judge. The system is slow. Lawyers can act without a strict ethical posture and use many tactics to cause delay, making justice “almost impossible to attain”. In addition, Ms. Zardetto says that there are “virtually no reported cases” in which Guatemalan individuals have sued a foreign corporation in tort. [103] Tahoe relies on the evidence of Mr. Bosque for the proposition that the kind of corruption addressed by the appellants’ experts is anecdotal and inapplicable to this kind of case. [104] Although Mr. Bosque does not disagree that tort actions against foreign corporations are extremely uncommon in Guatemala, he explicitly disagrees with Ms. Zardetto’s opinion regarding corruption. He says that Guatemala has a functioning civil justice system and that the appellants “can be assured of a fair and impartial proceeding in Guatemala against Tahoe as any plaintiff can be in a Guatemalan court of law”. He estimates that a civil case may take 4–6 years from the time the claim is brought to the time the Court of Appeals releases its decision. As I understand his response to Ms. Zardetto’s description of the need for the CICIG, he suggests that corrupt judges are few in number. [105] Tahoe characterizes the appellants’ expert evidence of corruption as anecdotal, not systemic. Tahoe says that courts should, as the judge did, reject such limited anecdotal evidence as a ground for refusing to recognize comity: Standard Chartered Bank (Hong Kong) Ltd v. Independent Power Tanzania Ltd , [2015] E.W.H.C. 1640 (Comm.) at para. 174. [106] The appellants say that these expert opinions should have led the judge to conclude that, despite reforms, systemic weaknesses in the Guatemalan judicial system persist, and impunity for human rights violations remains a current and pervasive feature. [107] The intervenor, Amnesty International Canada, notes that the context of this case is important. It disagrees with the judge’s characterization of the case as a personal injury case. Amnesty emphasizes that the context of this claim involves a transnational company embroiled in human rights violations. I do not understand Amnesty to disagree that this is a tort claim, nor to suggest international laws should govern. I understand it simply to contend that, in considering the risk of not receiving a fair trial, the context of the dispute should be taken into consideration. [108] The judge’s analysis on this question of corruption in the Guatemalan legal system is found at paras. 65-66 of her reasons for judgment (set out above). She determined that the evidence of corruption referred to in the expert reports was relevant to criminal prosecutions against state officials and organized crime syndicates but not to personal injury claims such as the one before her. The judge accepted the appellants’ expert evidence showing that “Guatemala has some problems with its legal system”, but she concluded that Guatemala’s justice system has been undergoing positive reform since the early 2000s and that “it functions in a meaningful way”. [109] I agree with the appellants and the intervenor that in characterizing the appellants’ claim as a personal injury case, the judge was insufficiently attentive to the context in which the conflict arose. This claim is not akin to a traffic accident. Rather, it arose in a highly politicized environment surrounding the government’s permitting of a large foreign-owned mining operation in rural Guatemala. The protest that led to the battery at issue in this case was not an isolated occurrence, as I have mentioned above. However, I am sensitive to Tahoe’s submission that the expert evidence is anecdotal and does not establish specific risks of corruption. I agree that the appellants’ expert evidence is of a general nature. The appellants have not produced detailed evidence showing instances where the Guatemalan judiciary has been corrupted by the power of foreign corporations. Indeed, a key point of the appellants’ evidence is that tort cases between individuals and transnational corporations are virtually unknown in Guatemala. While it is logical to infer that, in a country that has significant issues with judicial independence, there is an increased risk of corruption in the politicized context of this case, doing so is a somewhat speculative exercise. [110] In the UK and Canadian case authorities put before the judge where corruption was a determinative factor in the forum non conveniens analysis, detailed evidence was relied upon by the courts. [111] In 889457 Alberta Inc v. Katanga Mining Ltd , [2008] E.W.H.C. 2679 (Comm.), the judge concluded that the Democratic Republic of Congo (“DRC”) was not an available forum for the dispute because the evidence established that the normal infrastructure of a justice system did not exist there. The judge also found that even if the DRC was an available forum, he would have concluded that it was not the more appropriate forum because there was a real risk of corruption in the DRC judiciary. The judge based this conclusion on expert evidence which drew on “respected, independent and authoritative sources”. These sources included reports of various organizations such as: the Foreign Commonwealth Office; the Border and Immigration Agency of the Home Office; the Special Rapporteur to the UN General Assembly on the Independence of Judges and Lawyers; the US State Department; Transparency International; and the Global Witness and Human Rights Watch. [112] In Norex Petroleum Limited v. Chubb Insurance Company of Canada , 2008 ABQB 442, the judge found that there was a risk the appellants would not obtain justice in Russian courts. The appellants’ expert evidence was that one of the defendant corporations was controlled by a powerful Russian oligarch. This same Russian oligarch had been a defendant in a recent English case where the court had declined to grant a stay in favour of the Russian forum because there was a risk that this oligarch would improperly influence the Russian proceedings. [113] In contrast to the above cases, the expert evidence provided by Tahoe is less detailed and does not point to any instance where Tahoe or any other foreign corporation improperly influenced the Guatemalan judiciary. It does, however, show that corruption in the Guatemalan justice system is widespread and Guatemala does not have normative structures in place to ensure judicial independence. c. Legal Test for Risk of Unfairness in Foreign Judiciary [114] The test the judge applied was whether the foreign court was “capable of providing justice”. The judge concluded that to hold otherwise would be to ignore the principles of comity (at para. 105). [115] The appellants say that the judge erred in describing the legal test. The appellants submit – and in oral submissions, Tahoe concedes – that the correct test is whether there is a real risk of an unfair process in the foreign court : AK Investment CJSC v. Kyrgyz Mobil Tel Ltd (2011) , [2012] 1 W.L.R. 1804 at 1828. In their factum, the appellants say: 39. The Supreme Court of Canada did not specifically formulate a test of fairness in Van Breda. UK courts considering this question have consistently held that an action in the English courts should not be stayed where there is a real risk of an unfair process in the foreign court . In AK Investment the Privy Council expressly rejected the proposition that the plaintiff must establish with certainty that justice would not be done in the foreign court in order to resist a stay of proceedings: In The Abidin Daver [1984] AC 398, at 411, Lord Diplock said that the “possibility cannot be excluded that there are still some countries in whose courts there is a risk that justice will not be obtained” and gave some examples, none of which is close to this case. He went on to say that a plaintiff in an English action seeking to resist a stay (that being a stay case) upon the ground that “even-handed justice may not be done to him in that particular foreign jurisdiction, must assert this candidly and support his allegations with positive and cogent evidence.” That was not a case in which this question arose for decision, but it is clear that Lord Diplock was speaking of evidence of risk, and that he was not requiring a higher standard, that justice would not be done. The better view is that, depending on the circumstances as a whole, the burden can be satisfied by showing that there is a real risk that justice will not be obtained in the foreign court by reason of incompetence or lack of independence or corruption. Of course, if it can be shown that justice “will not” be obtained that will weigh more heavily in the exercise of the discretion in the light of all other circumstances. [Emphasis added.] [116] The intervenor, Amnesty International Canada, endorses the AK Investments “real risk” articulation of the test. [117] In considering whether the judge applied the correct legal test, I must consider the differences between the English and Canadian approaches to the forum non conveniens analysis. [118] In England, a defendant must establish that its proposed alternate forum is more appropriate; if this burden is met, then a stay will ordinarily be granted unless the plaintiff can establish other circumstances which make the granting of a stay adverse to the interests of justice: Spiliada Maritime Corp v. Cansulex Ltd (1986), [1987] A.C. 460 at 478. One such circumstance is the real risk that the plaintiff will not obtain justice in the alternate forum: AK Investment at 1828. Consequently, in the English application of the forum non conveniens analysis, consideration of corruption and injustice in the alternate forum comes at a secondary stage with a reverse onus on the plaintiff to show that granting a stay would be adverse to the interests of justice. [119] By contrast, the Canadian jurisprudence reflects a more unified approach to the application of the forum non conveniens analysis. Writing for the Court in Amchem Products Incorporated v. British Columbia (Workers’ Compensation Board) , [1993] 1 S.C.R. 897 at 919-20, Sopinka J. said: In my view there is no reason in principle why the loss of juridical advantage should be treated as a separate and distinct condition rather than being weighed with the other factors which are considered in identifying the appropriate forum. The existence of two conditions is based on the historical development of the rule in England which started with two branches at a time when oppression to the defendant and injustice to the plaintiff were the dual bases for granting or refusing a stay. The law in England has evolved by reworking a passage from the reasons of Scott J. in St. Pierre v. South American Stores (Gath & Chaves), Ltd. , [1936] 1 K.B. 382, which contained two conditions. In its original formulation the second condition required the court to ensure that there was no injustice to the plaintiff in granting the stay. No doubt this was because the oppression test concentrated largely on the effects on the defendant of being subjected to a trial in England. When the first condition moved to an examination of all the factors that are designed to identify the natural forum, it seems to me that any juridical advantages to the plaintiff or defendant should have been considered one of the factors to be taken into account. The weight to be given to juridical advantage is very much a function of the parties’ connection to the particular jurisdiction in question. If a party seeks out a jurisdiction simply to gain a juridical advantage rather than by reason of a real and substantial connection of the case to the jurisdiction, that is ordinarily condemned as “forum shopping”. On the other hand, a party whose case has a real and substantial connection with a forum has a legitimate claim to the advantages that that forum provides. The legitimacy of this claim is based on a reasonable expectation that in the event of litigation arising out of the transaction in question, those advantages will be available. [Emphasis added.] [120] Writing for the Court in Van Breda, LeBel J. affirmed that Amchem provided the structure for the Canadian application of the forum non conveniens analysis and described the application as a weighing of “all relevant concerns and factors” (at paras. 104, 109). Thus, the Canadian approach to forum non conveniens is not a two-stage analysis as in England. All factors and concerns must be weighed together in one stage with the overall burden on the defendant to establish that the proposed alternate forum “is in a better position to dispose fairly and efficiently of the litigation”: Van Breda at para. 109. [121] Given the differences between the English and Canadian applications of the forum non conveniens analysis, I find it unhelpful to frame the issue as whether the judge applied the correct legal test for assessing evidence of corruption and injustice. It is more appropriate to frame the issue as whether the judge correctly defined a factor which she was required to consider in the overall forum non conveniens analysis. In other words, should the judge have considered the “capability” of the alternate forum to provide justice, or should she have considered the “likelihood” that the alternate forum would provide justice (i.e., whether there was a real risk that justice would not be done)? [122] The judge’s approach to the analysis reflects the English approach. Though the judge addressed the corruption evidence under the CJPTA s. 11(2)(a) “comparative convenience” factor, the judge’s reasoning shows that she viewed the question of whether the appellants could obtain justice in Guatemala as a secondary stage in the analysis. At para. 64 of her reasons, she said: As stated in Connelly , where the forum non conveniens analysis points to a clearly more appropriate forum, then the plaintiff must take the forum as he finds it even if it is in certain respects less advantageous to him unless he can establish that substantial justice cannot be done in the appropriate forum . [Emphasis added.] [123] In my view, the judge erred in considering the issue of corruption and injustice in the Guatemalan judiciary as a secondary stage in the analysis with the burden on the appellants to rebut her prima facie determination that Guatemala was the more appropriate forum. In addition, the judge erred in defining the question as whether Guatemalan courts were “capable” of providing justice. [124] There is no binding authority on this Court concerning the correct question to ask when considering evidence of corruption and injustice in a defendant’s proposed alternate forum. In light of the fact that the application of forum non conveniens focusses on whether an alternate forum is better equipped than Canada to dispose of the litigation fairly and efficiently, I find that it is inadequate to ask whether the alternate forum is “capable” of providing justice. On the other hand, the principle of comity requires that Canadian courts be cautious in determining that a foreign court is unlikely to provide justice. The “real risk” test articulated in AK Investment was formulated with these considerations in mind. Though the English analysis is structured differently, as I have noted above, I find the “real risk” standard helpful and I would adopt it. Where a plaintiff presents evidence of corruption and injustice in the defendant’s proposed alternate forum, the court must ask whether the evidence shows a real risk that the alternate forum will not provide justice. I note that two lower court decisions in Canada have considered the real risk that justice will not be done in the alternate forum when applying forum non conveniens : see Norex Petroleum Limited v. Chubb Insurance Company of Canada , 2008 ABQB 442 at paras. 115-116; Sistem Mühendislik İnşaat Sanayi Ve Ticaret Anonim Sirketi v. Kyrgyz Republic , 2012 ONSC 4351 at para. 71. [125] I am mindful of the fact that the evidentiary standard to establish “real risk” is a high bar in England. As Tahoe points out, sweeping, generalized evidence of corruption in the alternate forum does not meet that standard: Ferrexpo AG v. Gilson Investments Ltd , [2012] E.W.H.C. 64 (Comm.); Mengiste v. Endownment Fund for the Rehabilitation of Tigray , [2013] E.W.H.C. 599 (Ch.). In the two-stage English application of the forum non conveniens analysis, it is necessary for the plaintiff to satisfy a high evidentiary threshold at the second stage because, at the first stage, the court made a finding that the alternate forum is prima facie more appropriate for the dispute. In Canada, however, it is not necessary to stipulate a specific evidentiary threshold for the risk of unfairness since it is just one factor of many to weigh in a unified forum non conveniens analysis. The quality of evidence regarding the risk of unfairness should dictate the weight that is attached to that factor. Broad assertions of corruption should be given limited weight, whereas detailed and cogent evidence of corruption should attract significant weight. [126] In my view, the judge erred by considering the risk of unfairness as a secondary stage in the forum non conveniens analysis and by defining the question as whether Guatemala was “capable” of providing justice. As a result, she gave insufficient weight to the evidence of weakness and lack of independence in the Guatemalan justice system in her discretionary weighing of the factors, particularly given the context in which the alleged shooting occurred. The evidence of weakness in the Guatemalan justice system ought not to be ignored. A discretionary decision may be reversed where the lower court gives no, or insufficient weight to relevant considerations: Friends of the Oldman River Society v. Canada (Minister of Transport) , [1992] 1 S.C.R. 3. Based on the judge’s errors, it is open to this Court to reverse her discretionary decision. Though the appellants’ evidence regarding the risk of unfairness in Guatemala is of a general nature, I am of the view that the evidence factors against finding Guatemala is clearly the more appropriate forum. I place moderate weight on this factor given the quality of the appellants’ evidence. v. Conclusion Regarding Stand-alone Civil Suit [127] As LeBel J. said in Breeden , the forum non conveniens analysis does not require that all factors point to the defendant’s proposed alternate forum, but it does require that the defendant establish that the alternate forum is clearly more appropriate. In this case, the judge found that Tahoe had established that Guatemala was clearly the more appropriate forum. However, in my view, the three factors discussed above weigh against such a finding with regards to the stand-alone civil suit. The judge erred in finding that these three factors did not weigh against the suitability of Guatemala. The first factor is the limited discovery procedures available to the appellants in Guatemala; the second is the marked uncertainty as to how the expiration of the limitation period will be treated by Guatemalan courts; and the third is the real risk that the appellants will not obtain justice in Guatemala given the context of the dispute and the evidence of endemic corruption in the Guatemalan judiciary. [128] I conclude that the judge did not give adequate consideration to the difficulties the appellants will face in bringing suit against Tahoe given the limited discovery procedures available in Guatemala. This factor weighs against a finding that Guatemala is the more appropriate forum. [129] I find that the judge erred by concluding that the expiration of the limitation period for bringing a civil suit in Guatemala would not affect the appellants’ claim. The expert evidence does not support such a conclusion. In my view, the uncertainty occasioned by the expiration of the limitation period is a juridical advantage factor that weighs heavily against a conclusion that Guatemala is the more appropriate forum. This is a significant factor because it casts doubt on whether the appellants will be able to advance a claim against Tahoe in Guatemala at all. [130] I conclude that the judge erred by ignoring the context of this dispute and placing insufficient weight on the risk that the appellants will not receive a fair trial in Guatemala. That risk should not be ignored. In reaching this conclusion, I make no general pronouncement on Guatemala’s legal system. Rather, I simply conclude that there is some measurable risk that the appellants will encounter difficulty in receiving a fair trial against a powerful international company whose mining interests in Guatemala align with the political interests of the Guatemalan state. This factor points away from Guatemala as the more appropriate forum. [131] In the result, I conclude the judge erred in finding that Tahoe had established that Guatemala was clearly a more appropriate forum than British Columbia for adjudication of the appellants’ claims. VIII. Disposition [132] I would admit the new evidence concerning the criminal proceedings against Rotondo, but I would not admit the new evidence concerning judicial corruption. I would allow the appeal and dismiss Tahoe’s application for a stay of the British Columbia proceeding. “The Honourable Madam Justice Garson” I AGREE: “The Honourable Mr. Justice Groberman” I AGREE: “The Honourable Madam Justice Dickson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Vancouver Community College v. Vancouver Career College (Burnaby) Inc., 2017 BCCA 41 Date: 20170126 Docket: CA43111 Between: Vancouver Community College Appellant (Plaintiff) And Vancouver Career College (Burnaby) Inc., dba Vancouver Career College, also dba CDI College, also dba Vancouver College of Art and Design, also dba Eminata Group Respondent (Defendant) Before: The Honourable Madam Justice Saunders The Honourable Madam Justice D. Smith The Honourable Mr. Justice Savage On appeal from:  An order of the Supreme Court of British Columbia, dated August 20, 2105 ( Vancouver Community College v. Vancouver Career College (Burnaby) Inc. , 2015 BCSC 1470, Vancouver Docket No. S122258). Counsel for the Appellant: C. Wilson M. Brechtel Counsel for the Respondent: W.K. Branch, Q.C. L. Brasil Place and Date of Hearing: Vancouver, British Columbia June 2 and 3, 2016 Place and Date of Judgment: Vancouver, British Columbia January 26, 2017 Written Reasons by: The Honourable Madam Justice Saunders Concurred in by: The Honourable Madam Justice D. Smith The Honourable Mr. Justice Savage Summary: The appellant, Vancouver Community College, is a public post-secondary education institution that alleges passing off by the respondent Vancouver Career College, a private post-secondary education institute, through use of the appellant’s official mark “VCC” in its Internet advertising and domain name. It alleges, also, that Vancouver Career College wrongfully used its official mark “VCC” from 2009 onwards, contrary to the Trade-marks Act. The action was dismissed. The judge found none of the three requirements of passing off – goodwill, public confusion and damage – were established. As to unlawful use of the official marks contrary to the Act, the judge found Vancouver Career College’s use of “VCC” prior to the mark’s becoming an official mark in 1999 allowed continued use. On appeal Vancouver Community College contends that the trial judge erred in his analysis of each of these issues. Held: appeal allowed. As to passing off, the claim is established and the appellant is entitled to an injunction, with the issue of damages remitted to the trial court for assessment. “VCC” was not required to have a secondary meaning, and a significant body of evidence not referred to in the reasons demonstrates goodwill sufficient to satisfy the requirement. In respect to confusion, the moment for assessing confusion was upon the first encounter when search results appear, not when the searcher arrives at the landing page. In respect to damage, the findings of goodwill and confusion are sufficient to establish damage. As to the claim under the Trade-marks Act, there are insufficient findings of fact to determine either the application of the official marks provisions or the application of the defence of prior use, considering the questions arising, on the record, of the extent of any use, the lawfulness of such use, and the cessation of use. The claim of breach of official marks contrary to the Trade-marks Act is remitted to the trial court for fresh determination. Reasons for Judgment of the Honourable Madam Justice Saunders: [1] This appeal concerns passing off and the use of official marks registered to the appellant Vancouver Community College, in the context of Internet searches. The appellant contends it is entitled to declarations, a permanent injunction and damages for actions taken by the respondent Vancouver Career College (Burnaby) Inc. to direct search traffic to the respondent’s website. [2] It is agreed that the relevant date of assessment of the appellant’s claim is 2009, the year the respondent adopted VCCollege as a new trade-mark, adopted VCCollege.ca as a new domain name, and launched a new website using that domain name. The activity of which the appellant complains connects to the respondent’s use of the capitalized initials “VCC” in its Internet presence and the respondent’s bidding on keywords including “VCC” and “Vancouver Community College”. The appellant contends that those phrases have long been associated with it as a public post-secondary institution, and that the respondent’s activity constitutes passing off and infringement of its official marks, in effect, Internet poaching. [3] Mr. Justice Affleck dismissed Vancouver Community College’s claim. In this appeal the appellant contends the judge erred in his analysis of both the claim of passing off and the claim of breach of its official marks. [4] As to passing off, the appellant contends the judge erred in his treatment of the intrinsic concepts of goodwill and confusion, and following on those errors, erred in finding the appellant had not proven damage. [5] As to the appellant’s official marks, the appellant contends the judge erred in finding that the respondent’s use of “VCC” in 1998, before the appellant recorded “VCC” as an official mark, entitled the respondent to use that acronym, and erred in failing to address the coincidence of its official marks with the respondent’s use of them as keywords in Internet searching. [6] The appellant agrees that in order to succeed it must either satisfy this court on each of the three issues engaged in a claim of passing off: goodwill, confusion and damage; or satisfy this court that the judge committed a fatal error on the issue of its official marks. Circumstances [7] Vancouver Community College is a college designated under the College and Institute Act , R.S.B.C. 1996, c. 52. Its flagship role in the modern system of public post-secondary education in British Columbia was triggered by the release in January 1963 of Higher Education in British Columbia and a Plan for the Future authored by UBC President John B. Macdonald (Vancouver: UBC Press, 1962), dubbed the Macdonald Report . It is a matter of public record, perhaps rising to the level of notorious fact for those who watched the post-war explosion of post-secondary education in this geographically-challenged province, that Dr. Macdonald proposed a plan for the development of higher education in British Columbia to address expected population growth and increased participation in post-secondary education, projected at that time to place unsustainable pressure on our Province’s then two higher education institutions – the University of British Columbia and Victoria College. President Macdonald proposed the creation of a college system to support UBC and any future universities in the Province, which soon included Simon Fraser University (first students received in September 1965). In particular, Dr. Macdonald advocated for the creation of two-year programmed regional colleges that would provide a bridge for students between secondary and higher post-secondary education. While the Macdonald Report suggested the establishment of regional colleges throughout the Province so as to allow students to gain post-secondary education without travelling far from their home community, the first regional college was proposed in Vancouver. [8] Largely in response to the Macdonald Report , the provincial legislature immediately amended the Public Schools Act , R.S.B.C. 1960, c-319. The amendments allowed the establishment of public regional colleges under public school board control. [9] Under the Public Schools Act a cabinet committee chaired by the Minister of Education, named the Council on Public Instruction, was responsible for all education matters in the Province. The powers of the Council included the power to establish colleges. By a Minute of the Council dated January 17, 1964, Vancouver City College was created by bringing together the Vancouver Vocational Institute (established in 1949), the Vancouver School of Art (established in 1925) and King Edward Continuing Education Centre (established in 1962). [10] In September 1965, Vancouver City College opened at the King Edward Centre on Oak Street and West 12 th Avenue, Vancouver, British Columbia, becoming the first two-year community college in British Columbia and one of the first in Canada. The name of the new college was officially changed in 1974 from Vancouver City College to Vancouver Community College by Order in Council 1722-1974. It has operated under that name since. [11] Vancouver Community College now has two campuses in Vancouver and nine satellite learning centers in public libraries in Vancouver and Burnaby. As a college designated under the current College and Institute Act , Vancouver Community College is a public institution governed in accordance with the Act . It is limited in the programs and level of education it may offer, and it is charged with obligations of reporting to the minister. The minister, in turn, is charged with reporting annually to the Legislature on the state of post-secondary education and training in British Columbia. [12] The appellant caused the Registrar of Trade-marks to publish notice of “VCC” as an official mark on January 13, 1999, and “Vancouver Community College” as an official mark on October 10, 2005, both under the Trade-marks Act , R.S.C. 1985, c. T-13. In referring to the official marks, I use the word “recorded” to describe the process by which a mark of a public authority obtains the protection of the Trade-marks Act . [13] The respondent Vancouver Career College (Burnaby) Inc. is a private business. In 1995, a private training school in Abbotsford was purchased, and after a stop in Richmond, British Columbia, in 1997 the respondent moved to an office building in downtown Vancouver, operating a private career college under the name Vancouver Career College. In March 2008, the respondent acquired most of the business of the much larger CDI College, another private college operating more campuses than Vancouver Career College, with the intention of increasing the Vancouver Career College business markedly. It has done so, and now provides services under the name Vancouver Career College in numerous locations after what it describes as “explosive growth”. As a private college, the respondent was regulated in 2009 by the Private Career Training Institutions Agency of B.C., a body created by the Private Career Training Institutions Act , S.B.C. 2003, c. 79. It is now regulated by the Private Training Act , S.B.C. 2015, c. 5, a statute that dissolved the Agency, prohibits the offering of a career-related program of instruction unless the institution holds the requisite certificate under the Act , and assigns matters of certification and compliance to a registrar appointed under that Act . [14] Both parties, as is apparent, have as their initials “VCC”. [15] Although the passing off claim encompassed allegations of improper use of both “VCC” and “Vancouver Community College”, it has resolved to a claim of passing off with respect only to “VCC”. The claim of breach of the official marks, on the other hand, encompasses not only complaint of the use of “VCC” but also the respondent’s behaviour in respect to bidding on both “VCC” and “Vancouver Community College” as keywords to direct searches towards its website. [16] The reasons for judgment touch only lightly on the educational programs offered by the appellant as a publicly regulated institution and the respondent as a private business. The judge referred to the appellant as a “career training college” with a high reputation and success “in placing students with employers for practical training”. He recited: [64]      In January 2013, Catherine Clement became the plaintiff’s Executive Director of Marketing and Communications. She describes the plaintiff as a public institution controlled by the Ministry of Advanced Education with about 22,000 full and part-time students. It attempts to keep its tuition low to enable a wide variety of students to attend to “get a skill”. [17] The programs offered by the appellant and the respondent are, at least in some measure, in the same fields of learning. Examples come from programs pursued by witnesses referred to in the judge’s reasons: paralegal training, culinary programs, medical laboratory work, licensed practical nurse training, and hospitality management. [18] The appellant’s complaints focus on the steps taken by the respondent in 2009 in respect to keywords used in Internet searches, and the establishment of its domain name and website. The judge discussed the issue in terms of Google searches because Google is the dominant search engine in use today. Recognizing that other search engines exist, he used the common expression “keyword”, not a word now used by Google, to describe the advertising aspect of the case. The judge largely adopted the parties’ description of the keyword advertising in issue, set out in the notice to admit, with minor modifications. [19] The mechanism of Internet advertising, keyword searching, the bidding process to tie a website to a keyword, and the manner in which searches are made efficacious from the advertiser’s point of view is technical and not easily summarized. What is important for this case is that a bid on a keyword will make it more likely that the bidder’s advertisement with its domain name, linking to its website, will appear on the first search page revealed to the searcher. A searcher may then “click” (with touch screens, “tap”) the address in order to travel to the bidder’s landing page which will contain more information and directions for navigating the website. [20] The technical “how” of this advertising design relevant to this case, in the admitted facts adopted by the judge, is appended to these reasons as Appendix A. The judge also adopted the description of the import of keywords to Internet searching written by Mr. Justice Gaul in Private Career Training Institutions Agency v. Vancouver Career College (Burnaby) Inc ., 2010 BCSC 765, a case in which the Agency unsuccessfully sought an injunction to restrain the respondent from using certain of the keywords at issue in this appeal, and he appended portions of Interflora Inc. & Anor v. Marks and Spencer PLC & Anor , [2013] EWHC 1291 [Ch] as a schedule to his reasons. I attach the excerpts from those cases as Appendices B and C, respectively. [21] It is agreed the respondent bid on many keywords including: generic terms such as “practical nursing”; various acronyms, including “VCC”; and competitor’s names including not only “Vancouver Community College” but also the names of other educational institutions. The object was to attract traffic to the respondent’s website VCCollege.ca. Attracting traffic is an objective generally well within the proper activity of a competitive market place. The question here is whether the respondent’s behaviour crossed from the permissible to the impermissible. [22] The judge did not direct himself to the evidence as to the relative efficacy of the respondent’s bids on keywords bearing similarities to the appellant’s name, as demonstrated by evidence of “click” frequency. It appears to be undisputed that “VCC” was the keyword that generated the most “clicks” to the respondent’s website, such that the respondent’s advertisements appeared almost always in searches for VCC (over 97% of the time), and the respondent’s text advertisements always displayed VCCollege.ca in the web address line of the advertisement. In the main, the address VCCollege.ca was displayed with bold capitalized letters, thus: VCC ollege.ca, and www. VCC ollege.ca. [23] To address the issue of goodwill the appellant adduced evidence of its history, evidence of surveys taken in 2005, 2006, and 2012 that included questions on name recognition, newspaper articles, evidence that a SkyTrain station bears the acronym “VCC”, and printed material produced by it over the years. It called evidence to the effect it established its website in 1998 using the letters “vcc.bc.ca”, subsequently changed to “vcc.ca” by November 2002. The appellant also relied on the examination for discovery of the respondent’s representative and viva voce evidence. [24] To address the issue of confusion, the appellant relied upon the search results recorded for the keywords, and led evidence from several students to the effect that they were confused, or misdirected to Vancouver Career College, when seeking Vancouver Community College on the Internet, consequent on the respondent’s use of “VCC” in its advertising and its appearance in advertisements when searching for their intended college. The appellant also adduced evidence of certain employees with student contact that students had reported instances of misdirection and confusion between the college of their choice – Vancouver Community College – and Vancouver Career College, because of the appearance of the latter’s name on an Internet search for the appellant. The judge identified that evidence as hearsay and accorded it no weight. This Court’s Role [25] This appeal largely concerns the principles of law applied in the judge’s analysis of passing off and breach of official marks. On these issues the question for us is whether the judge was correct. The appellant also challenges certain conclusions of fact. As we are not a trial court, these challenges will only succeed if, as stated in Housen v. Nikolaisen , 2002 SCC 33 and re-stated in Benhaim v. St. Germain , 2016 SCC 48, there is an error of fact that is both obvious (palpable) and material in the sense that a correct appreciation of the factual matter may well have altered the result. [26] In this case I conclude the judge erred in law in respect to passing off and official marks. I conclude, as well, the judge erred in fact within the Housen v. Nikolaisen parameters when discussing passing off by failing to have regard to a substantial body of evidence as to the identification in the public mind of “VCC” with Vancouver Community College by holding in respect to the issue of goodwill that “VCC” was largely abandoned between 1990 and 2013, by misstating the year the appellant established its domain name, and by holding that the requisite connection of “VCC” to the appellant necessary to establish it had goodwill in the acronym was not established. Discussion I.   Passing off [27] The common law developed the tort of passing off. The Trade-marks Act also prohibits passing off. Section 7 of the Act provides: No person shall (b) direct public attention to his goods, services or business in such a way as to cause or be likely to cause confusion in Canada, at the time he commenced so to direct attention to them, between his goods, services or business and goods, services or business of another; [28] It is settled law that s. 7(b) is a statutory enactment of the common law tort of passing off: MacDonald v. Vapor Canada Ltd. , [1977] 2 S.C.R. 134. [29] The leading authority in Canada on passing off is Ciba-Geigy Canada Ltd. v. Apotex Inc. , [1992] 3 S.C.R. 120. Justice Gonthier, for the Court, discussed passing off in the context of the similar visual presentation of different pharmaceutical products. He said: 33        The three necessary components of passing-off action are thus: the existence of goodwill, deception of the public due to a misrepresentation and actual or potential damage to the plaintiff. [30] In Greystone Capital Management Inc. v. Greystone Properties Ltd. , 87 C.P.R. (3d) 43 (B.C.S.C.) Madam Justice Stromberg-Stein accurately summarized the three components at para. 27: 1.         The existence of reputation or goodwill at the relevant time. This includes consideration of whether the plaintiff was recognized by the trade name and whether the trade name was distinctive within the relevant field of activity. 2.         A misrepresentation leading the relevant public to believe there is a business association or connection between the parties. This includes consideration of whether the defendants’ use of the trade name is likely to deceive the relevant public. Any misrepresentation need not be deliberate and proof of intent is not necessary. Evidence of likelihood of confusion, leading to the possibility of lost business opportunity is relevant. However, the establishment of actual confusion is not required. 3.         Damage or potential damage flowing to the plaintiff as a result of any misrepresentation due to loss of control over its reputation is presumed. [31] The appellant contends that the judge erred in respect to each of these components. The nuances of the first two components is at the heart of the appeal in respect to passing off, as the error alleged in respect to damages is said to follow from errors in consideration of goodwill and deception of the public (confusion). 1. Goodwill [32] The first of the three components required for a claim of passing off is goodwill. [33] The issue of goodwill proceeded on the basis that in 2009, when the respondent assumed its Internet nomenclature, the appellant had goodwill in the words “Vancouver Community College”. What was in issue was whether the appellant had goodwill in the acronym “VCC”. The judge found the appellant did not have goodwill in “VCC”. [34] In reaching his conclusion on goodwill the judge reviewed briefly the history of the appellant and evidence of historical advertising in which “VCC” was displayed prominently. He found that the documents showed that the practice of using “VCC” had continued until 1990, after which “the use of the initials “VCC” was largely abandoned until 2013”. He found that in 2013 the initials were again prominently displayed on the literature, and then said: [50]      The plaintiff’s annual budget for online advertising at the time Ms. Chandler was hired was only about $60,000. By contrast, the defendant’s budget at that time was about $2 million annually. This disparity helps to explain the plaintiff’s realistic view that it was not able to “force” its identity with the initials “VCC”. There is no basis on the evidence to find that by 2009 this view had changed. [35] The judge found that proof of goodwill required proof that the product had acquired a secondary meaning or distinctiveness. He referred to a passage from Ciba-Geigy , referring to a statement in Oxford Pendaflex Canada Ltd. v. Korr Marketing Ltd. , [1982] 1 S.C.R. 494, to the effect that a plaintiff in a passing off action must establish that its product has acquired a secondary meaning, and to Molson Canada v. Oland Breweries Ltd. , [2001] 11 C.P.R. (4th) 199 (Ont. S.C.J.), to the effect that the plaintiff must lead evidence of distinctiveness, a concept that requires the product to have acquired a secondary meaning. He held: [52]      I accept, and the defendant acknowledges, that the plaintiff had established “goodwill” in the name Vancouver Community College in February 2009, but the evidence does not persuade me that its services had acquired distinctiveness, a “secondary meaning”, as defined by the authorities. [180]    To impose liability on the defendant for the tort of passing off the plaintiff must satisfy me that: a)   it enjoys goodwill attached to the educational services it provides; b)   its services have acquired a distinctiveness in the marketplace; [193]    I find that the plaintiff enjoys goodwill in the educational services it provides but they have not achieved a “secondary meaning” in the marketplace. [36] The appellant advances three propositions in its submission the judge erred on the issue of goodwill. It contends the judge erred: in principle in requiring it to establish a secondary meaning in “VCC” as if the acronym was a generic term used by many firms; in principle in requiring it to acquire a level of distinctiveness approaching “universally known”; and in fact in finding it had “largely abandoned” the VCC mark between 1990 and 2013 and there “was no basis in evidence” to establish the requisite level of goodwill. [37] In the 1901 case IRC v. Miller & Co. Margarine Limited , [1901] A.C. 217 (H.L.), Lord McNaughton provided this definition of goodwill at pp. 223-224: What is goodwill? It is a thing very easy to describe, very difficult to define. It is the benefit and advantage of the good name, reputation, and connection of a business. It is the attractive force which brings in custom. It is the one thing which distinguishes an old-established business from a new business at its first start. [38] Justice Binnie described goodwill in Veuve Clicquot Ponsardin v. Boutique Cliquot Lt é e , 2006 SCC 23 at para. 50, as “[i]n ordinary commercial use, it connotes the positive association that attracts customers towards the owner’s wares or services rather than those of its competitor”. [39] Where the “get-up” (mark in issue) is a name of a firm, the plaintiff must establish that the name is recognized in the marketplace as distinctive of the plaintiff’s goods or services at the time the action arose: Edward Chapman Ladies’ Shop Limited v. Edward Chapman Limited , 2007 BCCA 370 at para. 41. Thus to found an action in passing off, the “get-up” must distinguish the services of the plaintiff from the services of others. In considering that possibility, there is no rule as to the proportion of the relevant market necessary to establish the requisite reputation. A useful explanation is provided in Gill, K., Fox on Canadian Law of Trade-marks and Unfair Competition (Toronto: Carswell, 2002, 4 th edition) at 4.4(h)(ii) p. 4-72-3: First, the plaintiff need not evidence the fact that the trade indicia is distinctive to all, or even a majority, of the relevant market. In fact the question is not really what proportion of the relevant market must know that the indicia indicate a trade source, which suggest some minimal percentage threshold for the action to be successful, but rather how many people recognize it. It is generally significant and sufficient if even a small percentage of the relevant market recognizes the indicia such as a trademark. Whether the percentage is one or five really has little impact on whether the plaintiff has a protectable reputation, but is relevant to whether there is a likelihood of confusion. [40] On my review of the authorities, including Oxford Pendaflex Canada Ltd. , a secondary meaning is an aid to considering the posited attachment of the product or “get-up” to the plaintiff in cases of inherently unspecific language or “get-up”, where the primary meaning by itself does not point to a party. That was not the case here. The question in this case was always, in respect to the acronym “VCC”, whether it carried sufficient distinctiveness in its primary sense to be recognized as designating the appellant and the educational services it provides. As in Office Cleaning Services Ltd. v. Westminster Window & General Cleaners, Ltd. (1946), 63 R.P.C. 39 (H.L.), it was not a condition to success in the action that “the [acronym] in dispute had acquired a secondary meaning”. To put it another way, the appellant simply was required to establish that a sufficient portion of the marketplace in 2009 knew that “VCC” indicates Vancouver Community College. [41] I conclude it was an error in law to require Vancouver Community College to establish a secondary meaning in “VCC”. [42] Likewise, I consider the judge erred in principle in his view of the degree of public association between the acronym and the appellant required to establish goodwill. The judge’s reasons are somewhat opaque, but it appears he considered something akin to “universally known”, or known by a preponderance of people. I say this because he put reliance upon a newsletter published by the appellant in 1989 that stated “…outside the College, what the letters “VCC” stand for is not universally known, especially to newcomers”, and followed his replication of that evidence with the conclusion that there was “no basis in evidence” to find that Vancouver Community College was able to “force” its identity with the initials “VCC”. This suggests the judge considered that a significant degree of plurality, approaching ubiquity, was required to establish goodwill. As Fox on Canadian Law of Trade-marks and Unfair Competition noted in the passage above, this is not correct. [43] Apart from these two errors, I consider the judge erred in fact on the issue of goodwill in ways that are obvious and material to the outcome. Six features of the case persuade me of this error. First, I consider the judge erred in making a positive finding that the appellant had “largely abandoned” “VCC” between 1990 and 2013. In so saying the judge gave emphasis to the newsletter mentioned above, in which the then President explained a change of logo from one bearing “VCC” to a rather generic symbol intended to connote mountains. This letter explaining the change of logo does not mean, however, that “VCC” was not in public use by the appellant; the trial record contains a myriad of examples of use by Vancouver Community College of “VCC” in the years 1990 to 2013. Not the least is the appellant’s selection of its first domain name. Contrary to the judge’s finding that the initials “VCC” became part of the appellant’s domain name when Ms. Chandler took over the task of “reclaiming the plaintiff’s brand”, a hiring he says was in 2013, “vcc” was in the domain name used in 1998: “vcc.bc.ca”, changed by November 2002 to “vcc.ca”. [44] Second, in my understanding of the law of passing off, there is nothing that requires the plaintiff to establish its continuous and unvarying use of the indicia. The question is whether the indicia is recognized by members of the relevant marketplace as designating the plaintiff. This enquiry into goodwill does not need to engage an enquiry into a plaintiff’s advertising campaign, or advertising budget, and it certainly is not an enquiry into the respondent’s campaign. Rather, it is an enquiry into perceptions in the relevant marketplace. While advertising may suggest a level of public awareness, an absence of advertising using the indicia does not establish a lack of goodwill. It is for that reason I consider that the judge considered the wrong question in saying “VCC” was largely abandoned, in an advertising sense, by the appellant. I will add, here, that it is perhaps this error, combined with overlooking the historical seating of public colleges in the legislatively designed system of post-secondary education, that caused the judge to overlook the other aspects of the evidence I discuss below. That evidence, in my view, powerfully supports a conclusion that goodwill is established. [45] Third, apart from the multitude of examples in the evidence of the appellant’s use of “VCC” from 1990 to 2013 in brochures, calendars and other documents used in attracting students and delivering education, the record contains numerous examples of others using “VCC”: newspaper reports; media reports; and the name given to the SkyTrain station near the appellant’s campus and displayed prominently for riders, “VCC/Grant Station”. All of these examples indicate a level of easy public association of the initials to the appellant. [46] Fourth, the appellant led evidence of surveys it had conducted in 2005, 2006 and 2012, that included questions of name awareness. The first two of these were conducted before the relevant date, 2009, and are evidence that a percentage of the survey group associated “VCC” to the appellant. The respondent is critical of the methods used in the surveys, the reliability of the results, and the assumption one can project awareness from the 2005 and 2006 surveys to 2009, when the respondent developed its Internet presence under VCCollege.ca. It is apparent that the 2005 and 2006 surveys were not conducted in expectation of litigation. While there is room to challenge the methods used in the surveys and their implications, the 2005 and 2006 surveys are, in the least, some evidence of goodwill requiring some acknowledgment by the judge, and to the extent they demonstrate a level of identification of “VCC” to the appellant in 2005 and 2006, on the premise that public awareness of name brands and local knowledge does not have tidal action, they are evidence of goodwill at the time material to this litigation, 2009. [47] Fifth, we must recognize that the appellant is a public college long established in British Columbia. Its public character establishes a level of public awareness of the role it plays in the community. It is a short step to identifying the acronym “VCC” with it, there being no evidence of other public institutions with those initials, and the practice having been established in the province of identifying seats of higher learning by initials: UBC; SFU; BCIT. The public nature is further acknowledged by SkyTrain’s use of “VCC” to name a station. [48] Sixth, the appellant asserted use of “VCC” publicly through recording “VCC” as an official mark in 1999. [49] I conclude the judge erred in fact in misstating the scope of the evidence, and in failing to relate a significant body of evidence to the issue of goodwill. This is a factual error that is capable of correction based on the record. I have no hesitation in finding that as of 2009, the appellant Vancouver Community College had goodwill in the acronym “VCC”, which was recognized in the relevant market-place as a public provider of post-secondary education. 2. Confusion [50] The second component of passing off is deception through misrepresentation to the relevant public, in the sense that confusion in the minds of the public is a likely consequence of the impugned actions: Ciba-Geigy at p. 133. [51] The judge found that the appellant had not established this component and based his conclusion on the time, or stage of transaction, that the potential for confusion was to be assessed. He observed the critical moment was when the first impression was formed, which, he said, was after the searcher clicks on a search result to arrive at the landing page. Referring to the reasons for Mr. Justice Frankel in Insurance Corporation of British Columbia v. Stainton Ventures Ltd. , 2014 BCCA 296, he held: [183]    The authorities on passing off provide that it is the “first impression” of the searcher at which the potential for confusion arises which may lead to liability. In my opinion, the “first impression” cannot arise on a Google AdWords search at an earlier time than when the searcher reaches a website. When a searcher reaches the website of the defendant in the present proceeding it is clearly identified as the defendant’s website. As was said by Frankel J.A. in Insurance Corporation of British Columbia v. Stainton Ventures Ltd. the “relevant consumer” will “understand that it is necessary to view a website to determine whose site it is”. In my opinion that is the point during a search when the relevant first impression is made . [Emphasis added.] [52] The judge also commented on the policy issue of constraining competition, invoking a standard of unreasonableness: [181]    ... In my view, this lawsuit, and the previous attempts to enlist this Court and PCTIA in the plaintiff’s struggle to constrain the defendant's ability to compete with it has been motivated by a concern that its own inability to invest the necessary funds and expertise to create a sophisticated online advertising program leaves it at a competitive disadvantage in the marketplace in comparison with the defendant. Passing off … is not intended to be used by a plaintiff to handicap a defendant that has developed a more effective means of marketing its goods and services than has a plaintiff. And: [186]    ... It would be imprudent for this Court to attempt to preclude or even limit that practice in this jurisdiction unless it can be shown to be an unreasonable constraint on competition. That has not been shown. To award damages to the plaintiff or to enjoin the defendant from certain conduct because the defendant bids on the plaintiff’s name for the purposes of keyword advertising would be to disadvantage the defendant in a way that other online advertisers are not. It is not the defendant, or another advertiser in its position, which controls the bidding process, apart from making a decision to bid. A bid on a keyword may send a searcher to the bidder's landing page, but the process of the search is controlled by the searcher and the search engine, not by the advertiser. Google and other providers of search engines generate revenue by offering an efficient bidding process. [53] The judge then observed that a prospective student would have had the opportunity to avoid the effects of any confusion because that student wishing to enroll must attend an interview, tour the campus and complete forms for enrollment that have the respondent’s name printed on them. [54] I will observe that whether the moment at which the confusion component is to be assessed is when the search results appear, as the appellant contends, or when the searcher arrives at the landing page, as found by the judge and contended by the respondent, any evidence of a student’s opportunity to be set straight in respect to the college he or she is seeking to enrol in, is not relevant because those opportunities occur after the later of these two events. Nor, in my respectful view, do the judge’s broad statements on constraints on competition assist in resolving the claim. Both the tort of passing off and the provisions of the Trade-marks Act are directed to behaviour that is intended by the actor to achieve a competitive edge. The issue is whether the bounds of appropriate commercial behaviour have been overstepped to the detriment of a party who has an interest the law protects. While robust competition is encouraged, this does not mean anything goes. [55] The issue before us in relation to the component of confusion is whether the judge erred in principle as to the moment for assessing confusion. In my view, while the judge correctly referred to the first impression test, he erred in delaying its application to the searcher’s arrival at the landing page, a moment well past the moment of first impression; the conclusion that the first impression does not occur until the searcher has reached a website by clicking on a search result, cannot be sustained on the authorities before us. [56] The judge started his discussion of the deceit or misrepresentation required for passing off with reference to Ciba-Geigy and s. 6 of the Trade-marks Act . Section 6 provides: 6 (1) For the purposes of this Act, a trade-mark or trade-name is confusing with another trade-mark or trade-name if the use of the first mentioned trade-mark or trade-name would cause confusion with the last mentioned trade-mark or trade-name in the manner and circumstances described in this section. (2) The use of a trade-mark causes confusion with another trade-mark if the use of both trade-marks in the same area would be likely to lead to the inference that the goods or services associated with those trade-marks are manufactured, sold, leased, hired or performed by the same person , whether or not the goods or services are of the same general class. (5) In determining whether trade-marks or trade-names are confusing, the court or the Registrar, as the case may be, shall have regard to all the surrounding circumstances including (a) the inherent distinctiveness of the trade-marks or trade-names and the extent to which they have become known; (b) the length of time the trade-marks or trade-names have been in use; (c) the nature of the goods, services or business; (d) the nature of the trade; and (e) the degree of resemblance between the trade-marks or trade-names in appearance or sound or in the ideas suggested by them. [Emphasis added.] [57] Referring to the jurisprudence the judge recognized, correctly, that whether there is likely to be confusion must be answered in the context of the circumstances of the case. He referred to these observations by Justice Binnie in Mattel Inc. v. 3894207 Canada Inc. , 2006 SCC 22: 56 What, then, is the perspective from which the likelihood of a “mistaken inference” is to be measured? It is not that of the careful and diligent purchaser. Nor, on the other hand, is it the “moron in a hurry” so beloved by elements of the passing-off bar: Morning Star Co-Operative Society Ltd. v. Express Newspapers Ltd. , [1979] F.S.R. 113 (Ch. D.), at p. 117. It is rather a mythical consumer who stands somewhere in between, dubbed in a 1927 Ontario decision of Meredith C.J. as the “ordinary hurried purchasers” : Klotz v. Corson (1927), 33 O.W.N. 12 (Sup. Ct.), at p. 13. See also Barsalou v. Darling (1882), 9 S.C.R. 677, at p. 693. [58] The judge referred as well to the judgment of Justice Rothstein in Masterpiece Inc. v. Alavida Lifestyles Inc. , 2011 SCC 27, including: [70]      The focus of this question is the attitude of a consumer in the marketplace. Properly framed, consideration of the nature of the wares, services or business should take into account that there may be a lesser likelihood of trade-mark confusion where consumers are in the market for expensive or important wares or services. The reduced likelihood of confusion is still premised on the first impression of consumers when they encounter the marks in question. Where they are shopping for expensive wares or services, a consumer, while still having an imperfect recollection of a prior trade-mark, is likely to be somewhat more alert and aware of the trade-mark associated with the wares or services they are examining and its similarity or difference with that of the prior trade-mark. A trade-mark, as Binnie J. observed in Mattel , is a shortcut for consumers. That observation applies whether they are shopping for more or less expensive wares or services. [Emphasis in original.] [59] That passage, as the judge noted, was not written in the context of passing off, but it is an apt description of the mind a court should ascribe to the hypothetical relevant consumer. [60] To this discussion I would add reference to Veuve Clicquot at para. 20: 20 The test to be applied is a matter of first impression in the mind of a casual consumer somewhat in a hurry who sees the name Cliquot on the respondents’ storefront or invoice, at a time when he or she has no more than an imperfect recollection of the VEUVE CLICQUOT trade-marks, and does not pause to give the matter any detailed consideration or scrutiny, nor to examine closely the similarities and differences between the marks . As stated by Pigeon J. in Benson & Hedges (Canada) Ltd. v. St. Regis Tobacco Corp. , [1969] S.C.R. 192, at p. 202: It is no doubt true that if one examines both marks carefully, he will readily distinguish them. However, this is not the basis on which one should decide whether there is any likelihood of confusion. . . . the marks will not normally be seen side by side and [the Court must] guard against the danger that a person seeing the new mark may think that it is the same as one he has seen before, or even that it is a new or associated mark of the proprietor of the former mark. (Citing in part Halsbury’s Laws of England , 3rd ed., vol. 38, para. 989, at p. 590.) [ Emphasis added.] [61] The judge relied heavily upon ICBC in reaching his conclusion on confusion. However, in my respectful view, ICBC is not determinative of the issue as was said by the judge. ICBC concerned the domain name “ICBCadvice”. In itself that name distinguishes between the defendant and ICBC. The trial judge, Mr. Justice Grauer, explained in his reasons for judgment indexed at 2012 BCSC 608: [45]      In this way, this case is also distinguishable from Masterpiece Inc. v. Alavida Lifestyles Inc. , 2011 SCC 27, [2011] 2 S.C.R. 387, where the Supreme Court of Canada considered trade-mark priorities between two corporations involved in the retirement residence industry. One used the mark “Masterpiece Living”, while the other used the mark “Masterpiece the Art of Living”. The context of the industry in which both parties were active is important. It would be akin to the defendant in this case using the name “ICBCinsurance.com” as opposed to ICBCadvice.com. [48]      In the context of British Columbia’s universal automobile insurance scheme, I am satisfied that the average customer of normal intelligence would not be led astray, and would have no difficulty recognizing that ICBCadvice.com would probably relate to how to deal with ICBC in an arm’s length or even adversarial sense, rather than in a manner endorsed by ICBC . [Emphasis added.] [62] On appeal, Mr. Justice Frankel for the court agreed: [37]      I am unable to accept this argument as it fails to give the “relevant consumer”, i.e., an Internet user, credit for even the most basic understanding of the function of a domain name. Even though there is some resemblance between ICBCadvice.com and ICBC’s family of marks, the average Internet user with an imperfect recollection of ICBC’s marks would not likely be mistaken by the domain name . They understand, for example, that a domain name which, in part, contains the name of a business or its acronym will not necessarily be affiliated with or endorsed by that business and may, instead, be the subject matter of the website or entirely unrelated to that business. [Emphasis added.] [63] ICBC , in both courts, is consistent with BCAA v. Office and Professional Employees’ International Union , 2001 BCSC 156, a case concerning the domain name “bcaaonstrIke.com”, held not to confuse with any website of BCAA. [64] The point of both ICBC and BCAA is that the impugned domain names contained information disclaiming attachment to the plaintiff and were found by the court not to be confusing for that reason. [65] In contrast Law Society of British Columbia v. Canada Domain Name Exchange Corporation , 2005 BCCA 535 addressed a contest between the domain names of the Law Society of British Columbia “lawsociety.bc.ca” and “lsbc.org”, and the names “lawsocietyofbc.ca” and “lsbc.ca”. The Law Society learned that “lawsocietyofbc.ca” was linking to a website containing adult content, and possibly to a minor political party. It successfully applied for relief (2004 BCSC 1102), a judgment upheld on appeal for substantially the reasons of the trial judge, Mr. Justice Sigurdson. He said: [29]      Evidence of actual confusion could bolster the fact that there is a misrepresentation but it is not needed here where the misrepresentation is so obvious and that it exists is just a matter of common sense. The use of a domain name that is so similar to the name that the plaintiff is known by and has substantial goodwill in (without additional words) would lead a person surfing the web and going to <lawsocietyofbc.ca> to believe, I conclude, that they were going to the plaintiff’s web site or one that was affiliated with the plaintiff . [30]      As I noted in BCAA , supra , at para. 73: If someone uses a person’s trade-mark as the domain name, such as Marks & Spencers.com or McDonalds.com, without any other words or letters, that is likely to confuse members of the public who type in the domain name looking for the website of Marks & Spencers or McDonalds and then come to something else. They will think the website has some connection with the site they were seeking. [31]      Here the use of such a similar name and a name by which the plaintiff is specifically and commonly known would misrepresent that the domain name was associated with the plaintiff. [ Emphasis added.] [66] I consider Law Society of British Columbia precludes the idea one has to arrive at the landing page to assess confusion: the court did not require the searcher to arrive at the adult site as a condition of establishing the confusion necessary for passing off. [67] What then of the statement in ICBC relied on by the judge that the relevant consumer would “understand that it is necessary to review a website to determine whose site it is”, that is, the moment for assessing confusion is when the searcher arrives at the landing page? I read that statement as obiter dicta because the case is fully decided on the conclusion the impugned domain name disclaims association with the plaintiff. Further, the statement was made without reference to Law Society of British Columbia , which precludes that view, and does not place the issue in the circumstances of the wide range of websites a searcher can be taken to with a simple “click”. As Mr. Justice Sigurdson observed in Law Society of British Columbia : [41]      Apart from that plan which the evidence shows was in operation, it appears to me self-evident that use of “lawsocietyofbc” as the domain name effectively or potentially causes the plaintiff to lose control over its goodwill. This is particularly so when a professional body with the stature of the plaintiff, the governing body for lawyers, is suggested to be connected to an adult site or a site of a political party. [68] In Masterpiece Inc. Justice Rothstein observed: [71]      It is not relevant that, as the trial judge found, consumers are “unlikely to make choices based on first impressions” or that they “will generally take considerable time to inform themselves about the source of expensive goods and services” (para. 43). Both of these — subsequent research or consequent purchase — occur after the consumer encounters a mark in the marketplace. [73]      Indeed, before source confusion is remedied, it may lead a consumer to seek out, consider or purchase the wares or services from a source they previously had no awareness of or interest in. Such diversion diminishes the value of the goodwill associated with the trade-mark and business the consumer initially thought he or she was encountering in seeing the trade-mark. Leading consumers astray in this way is one of the evils that trade-mark law seeks to remedy . Consumers of expensive wares or services and owners of the associated trade-marks are entitled to trade-mark guidance and protection as much as those acquiring and selling inexpensive wares or services. [74] For these reasons, it was an error to discount the likelihood of confusion by considering what actions the consumer might take after encountering a mark in the marketplace . The trial judge should have instead limited his consideration to how a consumer, upon encountering the Alavida mark in the marketplace, with an imperfect recollection of the Masterpiece Inc. mark, would have reacted. … in circumstances where a strong resemblance suggests a likelihood of confusion, and the other s. 6(5) factors do not point strongly against a likelihood of confusion, then the cost is unlikely to lead to a different conclusion. [Emphasis added.] [69] The judge discussed Red Label Vacations Inc. v. 411 Travel Buys Limited , 2015 FC 18, aff’d 2015 FCA 290, finding it supported his conclusion. Red Label concerned meta tags, those being text that is not displayed to the consumer. In her concurring judgment Madam Justice Dawson explained that the case was one of use of a trademark in a meta tag, and not one of “initial interest confusion”. I do not consider it helpful in the circumstances before us. Further, the majority reasons do not refer to Masterpiece , and to the extent they are not consistent with the views expressed in Masterpiece on the temporal issue, I am bound by Masterpiece . [70] As I consider the judge erred in assessing confusion at the time of arrival at the website, the question is whether this case, viewed at the time the search results appear, is akin to ICBC and BCAA or akin to the Law Society of British Columbia . It is apparent that there is nothing about the domain name “VCCollege.ca” that distinguishes the owner of that name from Vancouver Community College. The letters “ollege” added to the acronym “VCC” are as equally reminiscent of the appellant as the respondent, and there are no words or letters that disclaim affiliation with the appellant. [71] I conclude the second component of passing off, confusion, is fully established by proof that the respondent’s domain name is equally descriptive of the appellant and contains the acronym long associated to it. In my view, it was an error for the judge to discount the likelihood of confusion before the searcher arrives at the landing page of the website. Adopting the language of Masterpiece at para. 24, the judge “should have limited his consideration to how a consumer, upon encountering the [“VCC”] would have reacted”, and on that question, the necessary likelihood of confusion is established. [72] The appellant asks us to go farther and find that the respondent’s practice of bidding on keywords, including “VCC” and “Vancouver Community College” is sufficient to satisfy the second component of passing off. It invokes Orkin Exterminating Co. Inc. v. Pestco Co. of Canada Ltd. , 5 C.P.R. (3d) 433 (Ont. C.A.) in support of that proposition. Orkin , however, is unlike this case in that it was a case of a clear misrepresentation, wherein Pestco put its telephone number in an advertisement containing Orkin’s name. More significantly, the critical factor in the confusion component is the message communicated by the defendant. Merely bidding on words, by itself, is not delivery of a message. What is key is how the defendant has presented itself, and in this the fact of bidding on a keyword is not sufficient to amount to a component of passing off, in my view. 3. Damage [73] Damage is the third component of passing off. The judge held damage was not established. He said: [193] Those findings are sufficient to dispose of the action, but I will add that, in my opinion, it is unlikely that the plaintiff has suffered damage from the conduct of the defendant of which it complains. [74] Passing off requires only that some damage is established, in which case injunctive relief may be ordered and the trial court will be put to the task of assessing damages. [75] In the trial decision of Edward Chapman Ladies’ Shop Limited , 2006 BCSC 14, Mr. Justice Shaw admirably described the jurisprudence on damage, including: [53]      The defendant argues that no financial loss has been proven by the plaintiff. In terms of demonstrable loss of business to date, I agree with the defendant. As I read the case law, however, proof of actual financial loss is not required; rather, damage may be inferred from the unauthorized use of another’s goodwill . Damage may also be inferred from the loss of control over one’s goodwill . [54]      In Sir Robert McAlpine Ltd. v. Alfred McAlpine Plc. , 2004 EWHC 630 at para. 20 (Ch.), Mann J. said: When it comes to considering damage, the law is not so naïve as to confine the damage to directly provable losses of sales, or “direct sale for sale substitution ”. The law recognises that damage from wrongful association can be wider than that. [55]      In Irvine v. Talksport Ltd. , [2002] 1 W.L.R. 2355, at 2366 (Ch.), Laddie J. said: But goodwill will be protected even if there is no immediate damage ....[A]lthough the defendant may not damage the goodwill as such, what he does is damage the value of the goodwill to the claimant because, instead of benefiting from exclusive rights to his property, the latter now finds that someone else is squatting on it. [56]      In Visa International Service Association v. Visa Motel Corporation (1984), 1 C.P.R. (3d) 109 at 119 (B.C.S.C.), Proudfoot J. (as she then was) said: [T]he lack of power to control the use of the marks to which goodwill attached by unauthorized users was recognized as an apprehended form of damage to goodwill . [Emphasis added.] [76] In this case the interference with the appellant’s goodwill is sufficient to establish damage. 4. Conclusion on Passing Off [77] As I consider a proper application of the law and full consideration of the circumstances establish all three required components, I conclude the appeal must be allowed on the passing off claim, and judgment entered in favour of the appellant. I will deal with the details of the appropriate order at the conclusion of these reasons. II.  Use of the Official Marks [78] The appellant recorded “VCC” and “Vancouver Community College” as official marks in 1999 and 2005 respectively. Independent of its claim of passing off, it says the respondent is in breach of ss. 9 and 11 of the Act by its business practices. The judge did not agree, and dismissed the claim of violation of the official marks on the basis the respondent had used “VCC” before registration of the official marks and so, as a prior user, was protected in its use of the mark: [29]      The evidence satisfies me that the defendant used the initials “VCC” to identify itself before the plaintiff had registered them as its official mark. The provisions of sections 9 and 11 of the Trade-marks Act do not operate retrospectively so as to prohibit a person from continuing to use a mark which is subsequently declared to be an official mark under the Trade-marks Act . [79] In having settled on the prior use issue, the judge did not discuss the several issues that require resolution before one can say with confidence that the impugned behaviour violates the protections afforded official marks by the Trade-marks Act , and did not make certain factual findings that such an enquiry entails. Further, the reasons are silent on the scale of and nature of prior use that the judge found had occurred, did not relate that use to what I have found was tortious behaviour in passing off in relation to “VCC”, did not consider whether any prior use (assuming it is not held as disqualifying because it was tortious) had so expanded after the recording of the official marks as to avoid the defence of prior use, and did not consider whether prior use had already been abandoned at the time the official marks were recorded. [80] In my view, this court is not in a position to perform an appellate review of the order dismissing the claim of breach of official marks; for us to do so would require us to act as a trial court, and to make conclusions of some significance to the development of the law in relation to the Internet on an incomplete record. I consider the order dismissing the claim of breach of official marks must be set aside and the claim remitted to the trial court for determination, as I shall now expand upon. [81] The official marks provisions of the Trade-marks Act provide broad and enduring protection to the marks recorded. In ICBC Mr. Justice Frankel described the system of official marks: [21]      To my knowledge, Canada is the only jurisdiction in the world with legislation that grants such a broad power to “public authorities” and others to create official marks. While bearing some similarity to trade-marks, official marks are not governed by the same rules as trade-marks. Indeed, they are not “registered” as are trade-marks. However, they are recorded by the Registrar of Trade-marks and are included in the Trademarks Database found on the website of the Canadian Intellectual Property Office, an agency of Industry Canada. [22]      In her text, Canadian Trademark Law (Markham:  LexisNexis Canada, 2010), Professor Teresa Scassa says the following about the nature of official marks and the process by which they are created: At 81: Any entity which qualifies as a “public authority” may request that the Registrar give public notice of the adoption and use of any badge, crest, emblem or mark adopted by that public authority. Public notice is not the same as registration; there is no examination process, and indeed, there is no requirement that official marks conform to any particular standards. There is thus no requirement of distinctiveness, nor is there any requirement that the official mark not be confusing with registered trademarks or marks already used or made known in Canada. They do not need to be renewed, and can only be challenged through an application for judicial review of the decision of the Registrar of Trademarks to give public notice of the mark as an official mark. [Footnotes omitted.] At 159: There is no public notice or opposition period for official marks. There is also no examination requirement for the mark — it may be identical to or confusing with existing registered trademarks. It is not necessary for wares or services to be identified with respect to official marks, although some public notices do provide this information. Even if wares or services are specified, these do not limit the scope of the mark. An official mark can be descriptive and is not required to be distinctive. It may also be confusingly similar to an already existing mark. Once public notice is given, no one may adopt the mark, or a mark “so nearly resembling as to be likely to be mistaken for” the official mark. Official marks do not expire. They are not registered trademarks, and are not subject to the same proceedings for examination, opposition, challenge or expungement. As noted by one court, “[o]nce public notice has been given with respect to the adoption and use of an official mark, the mark is ‘hardy and virtually unexpungeable’”. Any challenge to the validity of the mark must be made through the vehicle of an application for judicial review of the Registrar’s decision to give public notice of the adoption and use of the mark. [Footnotes omitted.] [82] The Trade-marks Act legislates in respect to both trade-marks and the marks available to public institutions known as official marks. “Trade-mark” is defined by the Act but official mark is not. Further, the Act addresses the terms “adopted” and “used” in reference to trade-marks, but not official marks. [83] The force of an official mark is established by ss. 9 and 11 of the Act. Section 9 identifies a list of marks protected from outside exploitation including emblems, coats of arms and other symbols associated with the Royal Family, Canada, provinces, international organizations, and other countries. The list includes marks that are recorded by public authorities, in these terms: 9 (1) No person shall adopt in connection with a business, as a trade-mark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for, (n) any badge, crest, emblem or mark (i) adopted or used by any of Her Majesty’s Forces as defined in the National Defence Act (leng/acts/N-5), (ii) adopted and used by any public authority, in Canada as an official mark for goods or services, (iii) adopted and used by any public authority, in Canada as an official mark for goods or services, in respect of which the Registrar has, at the request of Her majesty or of the university or public authority, as the case may be, given public notice of its adoption and use; [84] Section 11 prohibits use of marks adopted under s. 9 in these terms: 11 No person shall use in connection with a business, as a trade-mark or otherwise , any mark adopted contrary to section 9 or 10 of this Act ... [Emphasis added.] [85] The two official marks “VCC” and “Vancouver Community College” are registered under s. 9(1)(n)(iii). [86] A claim of breach of the official mark provisions in respect to the two official marks in issue requires consideration of, first, the provisions to determine whether the impugned behaviour fits within the prohibited activity described in ss. 9 and 11, and, second, the application of any positive defence asserted. [87] Here the alleged breach of s. 11 was said to have occurred in respect to both marks, “VCC” and “Vancouver Community College”. The allegation in respect to “VCC” addressed both the use of that acronym by the respondent in its Internet presence and bidding on “VCC” as a keyword. The allegation in respect to “Vancouver Community College” addressed only the bidding on it as a keyword. [88] In order for s. 11 to prohibit the impugned activity, the mark must have been adopted by the defendant for purposes of s. 9. I question whether the answer to that question is the same for both “VCC” and “Vancouver Community College”, it being clear the latter does not appear in the respondent’s domain name and was not used by the respondent as a description of itself. The issue of adoption must be addressed before any liability can attach to the respondent but I consider we do not have the findings of fact that would underpin that determination. [89] Second, the respondent must have used the official mark in connection with its business, as a trademark or otherwise. Again, it may be that the answers concerning the use of “VCC” and “Vancouver Community College” differ in respect to use as a “trademark” and use “otherwise”. Again, in my view, we are without the factual tools to decide these questions. [90] After determining the application of s. 11, comes the issue of prior use. Here the nature of that use, the timing of that use, the scale of that use and whether there has been expansion, and the degree to which the respondent had abandoned that use when the marks were recorded may bear upon the application of the defence. These are aspects not addressed in the reasons for judgment and they are not without controversy. Further, the judge’s decision was made in the context of his order dismissing the claim in passing off, which I consider was in error. In my view, the disposition of the claim for breach of official marks is fatally impaired. [91] Where it is possible this court provides an answer for the parties. In this case, however, I do not consider that the claim of breach of official marks is one we can resolve as there are too many factual determinations and outstanding issues for us to do so, given our function as a court of appellate review. Accordingly, and recognizing that this result will put the parties to yet further litigation, I conclude the appeal from the order dismissing the claim of breach of official marks must be allowed and that the claim must be remitted to the trial court for fresh determination. Conclusion [92] In my view, the order appealed must be set aside in its entirety. For the reasons given, I consider the cause of action in passing off is established and the appellant is entitled to a permanent injunction, in terms that may be the subject of further submissions if required, restraining the respondent from use of “VCC” and “VCCollege” in respect to its Internet presence. It will be necessary to remit the issue of quantum of damages for passing off to the Supreme Court of British Columbia for assessment. Further, I would remit the claim of breach of official marks to the Supreme Court of British Columbia for fresh determination. In my view, costs in the trial court should be determined by the trial court. “The Honourable Madam Justice Saunders” I AGREE: “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Mr. Justice Savage” Appendix A (Admitted Facts adopted by the judge at para. 33) 2.      Google AdWords is an online advertising program provided by Google. 3.      Keywords are words or phrases chosen by the AdWords advertiser that can trigger an advertisement to appear. 4.      When someone searches Google using an advertiser’s keyword, its advertisement may appear next to the Google search results. Keywords can also trigger advertisements to show on other sites across the internet which are affiliated with Google AdWords. 5.      If multiple advertisers use the same keyword to trigger their advertisements to appear, Google uses Ad Rank to determine whose advertisements will appear, and in what order. 6.      An advertisement’s Ad Rank is a score based on: (a)     The advertiser’s bid (how much the advertiser is willing to pay for the advertisement); (b)     The advertisement’s Quality Score, which is based on the expected clickthrough rate of the advertisement, the relevance of the advertisement to the search terms, and the quality of the website the advertisement links to; and (c)     The impact of the advertisement’s format. 7.      Advertisements cycle through the search results pages based on their Ad Rank. The advertisement with the highest Ad Rank appears in the first eligible position on the search results page, the advertisement with the second-highest Ad Rank appears beneath it, and so on down the page. 8.      An advertiser can use “keyword insertion” to update the text of an advertisement to include one of the advertiser’s keywords that matches a customer’s search terms. When a customer uses one of the advertiser’s keywords in their search, AdWords automatically replaces the selected portion of the advertisement with the keyword that triggered the advertisement to appear. This feature allows one advertisement to appear differently to customers depending on their search terms. 9.      The “display URL” is the webpage address that appears with an advertisement, typically shown in green text. The display URL is what appears to users who see the advertisement. 10.    The “destination URL” is the URL address for the page in the advertiser’s website where people are sent after they click the advertisement. The destination URL generally isn’t visible in the advertisement. 11.    An “ad group” is a set of keywords, ads, and bids which are managed together, in order to show ads to people likely to be interested in them. Separate ad groups can be used for different types of products or services. 12.    A “campaign” is a set of ad groups that share a budget, location targeting, and other settings. Campaigns can be used to organize categories of products or services. Where AdWords Advertisements Can Appear 13.    The “Google Network” is all of the places where AdWords advertisements can appear, including Google sites, websites that partner with Google, and other placements like mobile phone apps. 14.    The Google Network is divided into the “Search Network” and the “Display Network.” 15.    The Search Network is a group of search-related websites where AdWords advertisements can appear, including Google search sites and non-Google search sites (like AOL) that partner with Google to show search ads, called search partners. 16.    An AdWords advertisement can show on the Search Network when someone searches with terms related to one of the advertiser’s keywords. 17.    The Display Network is a group of more than a million websites, videos, and apps where AdWords advertisements can appear. 18.    AdWords advertisements can be automatically matched to websites and other placements like mobile phone apps when the advertiser’s keywords are related to the sites’ content. An advertiser can also choose to target specific sites, pages about specific topics, or specific demographic groups. 19.    “Display partners” are websites in the Display Network that partner with Google to show advertisements. 20.    “Placements” are locations on the Display Network where advertisements can appear. AdWords advertisers can choose specific websites on which they want their advertisements to appear by adding “managed placements.” Advertisers can also let Google choose relevant “automatic placements” based on keywords or other targeting methods. 21.    AdWords advertisements in the Display Network may be displayed on Gmail. Targeting AdWords Advertisements 22.    There are a variety of methods an advertiser can use to target AdWords advertisements on the Search Network and the Display Network. 23.    An advertiser can use location targeting to show advertisements to customers in a selected geographic region. For each ad campaign, an advertiser can select locations where advertisements can be shown. The location may be an entire country, areas within a country like cities or territories, or a radius around a location. 24.    An advertiser can choose targeting settings on the Display Network for each individual ad group. The advertiser can add a single targeting method, such as keywords, or more than one targeting method, such as keywords and placements. Measuring the Effectiveness of a Google AdWords Advertisement 25.    Analytics is a Google product that provides in-depth reporting on how people use websites. Analytics can be used to determine what people do on an advertiser’s website after clicking on their advertisement. 26.    AdWords advertisers can access their AdWords account history online. This history contains a variety of data, including changes to advertisements, campaign budgets, bids, network settings, keywords, and campaign targeting. 27.    A search terms report is a list of search terms that people have used before seeing an AdWords advertisement and clicking it. This report shows every search query that resulted in an advertisement being shown and clicked. It can be accessed online by an AdWords advertiser. 28.    “Impressions” are a measurement of how often an advertisement is shown. An impression is counted every time an advertisement is shown on a search result page or other site on the Google network. 29.    An advertisement’s “impression share” is the number of impressions the advertisement has received divided by the number of impressions it was eligible to receive. Impression share is a way of measuring the share of online advertising space an advertiser has obtained, 30.    When someone clicks on an advertisement, such as the blue headline of a text advertisement, AdWords counts that as a “click”. 31.    An advertisement’s “clickthrough rate” or “CTR” is a ratio showing how often people who see the advertisement end up clicking it. The CTR is calculated by dividing the number of clicks the advertisement receives by the number of impressions for the advertisement. 33.    A “conversion” occurs when someone clicks on advertisement and after arriving at the landing webpage then takes an action that the advertiser has defined as valuable to its business, such as making a purchase, filling out a form or signing a contract. An AdWords advertiser can choose what is considered to be a conversion based on what that advertiser recognizes as valuable. Appendix B (From Private Career Training Institutions Agency v. Vancouver Career College (Burnaby) Inc ., 2010 BCSC 765) [14]      Internet search engines collect and store data about websites, including keywords contained in the website and the location of the website. When a user enters a query into a search engine such as Google or Yahoo, the search terms are compared to the website information stored in the search engine. The search engine then produces a list of websites, which are ranked according to relevance, as determined by the search engine. [15]      One way in which a website operator can attempt to increase the traffic to their website is through the use of pay-per-click advertising. The relevant form of pay-per-click advertising in the case at bar is keyword advertising (“Keyword Advertising”). This service allows the website operator to pay search engines for links to their websites to appear as “sponsored links” alongside the search engine’s normal or “organic” search results. [16]      In order to use Keyword Advertising, a website operator will create an advertisement which specifies certain keywords to describe their website and set the maximum price they are willing to pay to use those keywords. The keywords then act as a trigger causing the advertisement and the associated link to be displayed. Specifically, when a user enters a search query containing a triggering keyword, the search engine checks to see which advertisement is most relevant and has placed the highest bid for the selected keywords. These advertisements and the associated links are displayed as “sponsored links” in a prominent location among the organic search results. If the user selects one of the sponsored links, that website is charged according to its bid. [17]      The website operator will provide instructions to the search engine as to how much money they want to spend in a particular advertising campaign. Those instructions can be modified daily, depending on the success of the keywords or campaign. Once the maximum amount of money to be spent in a campaign is exhausted, including daily maximums, the online advertisement will stop appearing when the keywords are searched. [18]      Assuming there are funds available in a campaign, all bids on keywords will result in the online advertisement being displayed if those keywords are used in conjunction with an online search. The higher the bid, the higher the placement of the online advertisement. Bids that are not high enough will result in online advertisements that do not appear on the first results page, which is the most desirable placement. [19]      Typically, Keyword Advertising is purchased in a campaign where keywords are grouped around themes aimed at specific marketing goals. For example, an advertising campaign built around “online degrees” could include keywords such as “online”, “online degrees”, “online education”, “online studies”, “online training” and “internet training”. The idea is to try to predict what terms the searcher will use when looking for a product or service. [20]      The keyword does not need to match the exact search term entered by the internet user in order to trigger the occurrence of a sponsored link. For example, if one bids on the keyword “college” and the user searches “Vancouver colleges”, the results could include the sponsored link. [21]      In addition, keywords are not case sensitive, so if a user searches “Business”, it may trigger the occurrence of a sponsored link where the word “business” was bid on. [22]      The actual online advertisement that appears as a part of Keyword Advertising typically consists of a title, a description and a URL, and have to fit within the following prescribed limits: · For Google online advertisements, the title line is limited to 25 characters; the two description lines are limited to 35 characters; and the URL is limited to 35 characters; · For Yahoo online advertisements, the title line is limited to 40 characters; the two description lines are limited to 70 characters; and the URL is limited to 40 characters. [23]      In the context of the present dispute between the parties, it is important to note that the advertisements that are listed in the search results as “sponsored links” do not displace or replace the organic search results that typically appear free of charge when a user conducts an online search. The sponsored links are displayed along with the organic search results and appear either to the right of the organic search results, separated by a vertical line, or above the organic search results, within either a yellow or blue shaded box. In both cases, the sponsored links are clearly designated as such or as “sponsor results”. [24]      It is also important to note that the person who has conducted a search and who has chosen to examine a sponsored link can always click on the “back” button on their browser and return to the original search results page to locate other sites of interest. [25]      Website operators will sometimes specify trademarks or operating names of their competitors as triggering keywords, since these terms are often not bid on, even by their rightful owner. If the owner of the trademark or operating name has not specified their trademark or operating name as a triggering keyword in conjunction with Keyword Advertising, or if their bid for these keywords is too low, other advertisements may appear as a sponsored link and can outrank the rightful owner of the trademark or operating name. Again, it is important to remember that the rightful owner of the trademark or operating name will still appear as part of the organic search results; they will simply not be positioned in the “sponsored links” area of those results. Appendix C (From Interflora Inc. & Anor v. Marks and Spencer PLC & Anor , [2013] EWHC 1291 [Ch]) 89.       The principal way in which Google provides advertising is by means of a service Google calls AdWords. It is important to note that Google constantly refines the way in which its search engine operates and that Google regularly changes the way in which AdWords operates. There have been a considerable number of such changes in the period from April 2008 to now which are potentially relevant to the issues in the present. I cannot hope to describe all these changes. Accordingly I shall first attempt to describe the common features of AdWords over this period, and then to indicate some of the principal changes that have occurred during this time. 90. Common features. When a user of the Google search engine carries out a search, the SERP presented to the user usually contains three main elements. The first is the search box, which displays the search term typed in by the user. This may consist of one or more than one word. The second element comprises the “natural'” or “organic” results of the search, consisting of links to websites assessed to be relevant to the search term by the search engine’s algorithm, accompanied in each case by some text derived from the website in which the search term appears, sorted in order of relevance. Typically, there is a large number of natural results, the listing of which continues on succeeding pages. Although there are various ways in which website operators can and do seek to influence their position in the “natural” search results, a process known as “search engine optimisation” or SEO, in principle the ranking is an objective one based solely on relevance. The third element comprises advertisements containing links to websites which are displayed because the operators of those websites have paid for them to appear in response to the search term in question. The advertisements are generally displayed in one or more of three sections of the SERP, namely (i) in a shaded box at the top of the SERP (often referred to as the “golden box”) which contains up to three advertisements, (ii) in a panel on the right-hand side of the SERP and (iii) a panel at the bottom of the SERP after the first ten natural results. 91.       The display of such advertisements is triggered when the user enters one or more particular words into the search engine. These words, which are referred to as keywords, are selected by the advertiser in return for the payment of a fee calculated in the manner described below. This is often referred to as “bidding on” or “purchasing” the keywords. 92.       The advertisements consist of three main elements. The first is an underlined heading (consisting of a maximum of 25 characters) which functions as a hyperlink to a landing page specified by the advertiser. That is to say, when the user clicks on the link, the user’s browser is directed to that page on the advertiser’s website. The hyperlink may consist of or include the keyword or it may not. The second element consists of two lines of promotional text (with a maximum of 35 characters for each line), which may or may not include the keyword. The third element consists of the URL of the advertiser’s website (maximum of 35 characters). It should be noted that the URL does not function as a hyperlink (although the user could type it or cut-and-paste it into his or her browser and access the website in that way). 93.       The way in which the advertiser pays for this form of advertising is that the advertiser pays a certain amount each time a user clicks on the hyperlink in its advertisement and thus is directed to the advertiser’s website (known as “click through”). Accordingly, the advertiser does not pay for the display of advertisements to users who do not click through. The amount the advertiser pays is calculated as the “cost per click” or CPC for each keyword purchased subject to a maximum daily limit specified by the advertiser. If the daily limit is exceeded, the advertisement will not be displayed. 94.       More than one person can purchase each keyword. Where more than one person purchases a particular keyword, there is an automated auction process whereby, subject to the influence of the Quality Score discussed below, the advertiser who bids the highest maximum CPC has its advertisement displayed in the highest position and so on. This means that popular keywords are more expensive than unpopular ones. 95.       In addition to the CPC, the positioning of advertisements is influenced by the Quality Score or QS which Google ascribes to the advertisement. Google does not publish all the factors it takes into account in determining the QS, and I believe that this has changed over time, but they include the relevance of the promotional text, the “click through rate” or CTR and the relevance of the landing page. An advertiser whose advertisement has a high QS, but low maximum CPC, can appear higher in the ranking than one whose advertisement has a lower QS but higher maximum CPC. 96.       Google offers advertisers the facility to match a keyword to the user’s search query so as to trigger an advertisement in various different ways. An “exact match” is where the search term entered by the user must be the same as the keyword selected by the advertiser in order for the advertisement to appear, with no additional words, A “phrase match” requires the search term to contain the same words as the keyword in the same order, but it may include additional words before or after the phrase. A “broad match” enables the search term to be matched to variants of the keyword such as plurals. By May 2008 Google’s broad match included a facility referred to by practitioners (but not Google) as “advanced broad match”, namely for a search term to be matched to a different keyword which was nevertheless relevant. For example, this enabled M & S to display advertisements associated with the keyword “florists” when the search term “flowers” was entered. “Negative match” enables advertisers to prevent advertisements from appearing when the search query includes a particular word or phrase. Negative matching is a straightforward and routine process. 97.       Google enables advertisers to organise their keyword advertising in various ways. An advertiser may have one or more accounts, which may be categorised by reference to product or service. Within each account, advertisers can have various “campaigns”. Each campaign is subject to settings determined by the advertiser that dictate the manner in which advertisements are displayed e.g. in which geographical area, on what devices, at what times of day and in what sequence. Within each campaign, there can be various “groups”. Each group contains a list of keywords and the promotional text, URL and match type associated with it. The process of creating a keyword advertising campaign as at April 2009 is illustrated in Annex 1 to my first judgment. 98.       Google enables advertisers to assess and manage their keyword advertising campaigns by means of Search Query Reports or SQRs. Depending on how they are set up and used, SQRs can produce information on a variety of performance measures for keywords, as follows: i)          Impressions – how many times the advertiser’s advertisements appeared following a search which has been conducted against a search term which, in some way, matches the keyword bid on. ii)         Clicks – how many times the advertiser’s advertisements were clicked on by users who had searched for a particular search term and had been presented with an advertisement. iii)        CTR – the proportion of clicks to impressions. iv)        CPC – on average, how much the advertiser had to pay to Google per click on the advertisement. v)         Cost – how much in total the advertiser spent on bidding for that search term. vi)        Conversions – how many tracked events were recorded from the keyword if Google AdWords tracking is implemented on the site. vii)       Revenue – how much revenue has been generated from the keyword if this facility was implemented as part of setting up Google AdWords tracking on the site. viii)       Conversion Rate – the rate at which conversions (sales) are made to the number of clicks generated. A 50% conversion rate would indicate that one in every two people that clicks on the advert purchases from the website.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: McKendry v. McKendry, 2017 BCCA 48 Date: 20170130 Docket: CA43408 Between: Jean Marie McKendry, Alexis Elaine Kent and Margaret Anne Collin Respondents (Plaintiffs) And John Alexander McKendry Appellant (Defendant) Before: The Honourable Mr. Justice Groberman The Honourable Madam Justice Garson The Honourable Madam Justice Dickson On appeal from:  An order of the Supreme Court of British Columbia, dated December 23, 2015 ( McKendry v. McKendry , 2015 BCSC 2433, Vancouver Docket No. S123298). Counsel for the Appellant: K.E. Ducey Counsel for the Respondents: R.D. Lee Place and Date of Hearing: Vancouver, British Columbia November 4, 2016 Place and Date of Judgment: Vancouver, British Columbia January 30, 2017 Written Reasons by: The Honourable Madam Justice Dickson Concurred in by: The Honourable Mr. Justice Groberman The Honourable Madam Justice Garson Summary: The appellant challenges the judge’s finding that he holds beneficial title to property on a resulting trust for his late mother’s estate.  He argues the judge erred in finding that his mother had not taken the steps necessary to perfect the inter vivos gift of the right of survivorship.  Held: appeal allowed.  The deceased was not required to take further steps to perfect the gift.  Legal title was transferred into joint tenancy years earlier, and there was clear evidence of her intention to make the gift of the right of survivorship to the beneficial interest.  The gift of the beneficial interest was not a “disposition” required to be evidenced in writing and, in any event, there was a signed written document. Reasons for Judgment of the Honourable Madam Justice Dickson: Introduction [1] This is an appeal from a trial judgment declaring that the appellant, John McKendry, holds real property in trust for his late mother’s estate.  The respondents, Margaret Collin, Jean McKendry and Alexis Kent, are three of the appellant’s four sisters, all of whom are entitled to a share of the estate.  For clarity, I will refer to the parties and their late mother, Mary McKendry, by first name. [2] The real property in question is Mary’s home in Vancouver.  In 2008, she transferred legal title to the property into joint tenancy with John, although it is clear that he was to hold the property in trust.  In 2010, Mary decided to remove the trust conditions so that John would receive the property absolutely on her death.  She informed her lawyer in writing accordingly.  The central issue on appeal is whether the trial judge erred in finding that Mary was required to execute a written deed of gift under seal for John to take beneficial ownership when she died. [3] For the reasons that follow, I would allow the appeal and dismiss both of the Respondents’ actions in the court below. Background [4] Mary and her husband Gordon had six children: Margaret, Jean and Alexis, a fourth daughter, Colleen, and two sons, James and John.  James died in early childhood.  The remaining five McKendry children survived both their parents. [5] In 1963, Mary and Gordon purchased the property, which is located on West 48th Avenue in Vancouver.  Although it was originally held in both names, in 2000 Gordon transferred the property into Mary’s name alone.  A few years later, he died.  By 2006, John had moved into the property, where he lived with Mary for the rest of her life. [6] On January 28, 2008, Mary transferred legal title to the property into her name and John’s as joint tenants.  To do so, she signed a Form A transfer which was registered at the Land Title Office the next day.  At the time of the transfer, however, Mary did not intend to give the beneficial interest in the property to John, as a gift or otherwise.  Rather, she intended to transfer legal title only, and for John to have some ability to access the equity for investment purposes.  She also intended that John would hold the beneficial interest in trust and divide it into three equal shares when she died: one share to go to him, one share to Colleen, and one share to be divided equally among Margaret, Jean and Alexis. [7] Later in 2008, a lawyer prepared a trust declaration reflecting Mary’s intentions.  The trust declaration provided that John hold the property in trust and divide the beneficial interest upon Mary’s death in accordance with her instructions.  John did not sign the trust declaration. [8] In February 2010, Mary consulted a new lawyer, Ms. Richter.  She asked Ms. Richter to dissolve the trust she thought was created when the property was transferred into joint tenancy in 2008.  She also asked Ms. Richter to create a new trust, with John as trustee, providing that the beneficial interest in the property would be divided into equal shares for each of her five children upon her death. [9] Ms. Richter prepared a new trust declaration in accordance with Mary’s instructions.  Again, John did not sign. [10] In April 2010 Mary contacted Ms. Richter and asked her to put the new trust declaration “on hold”. [11] In November 2010 John dropped off a handwritten note from Mary at Ms. Richter’s office.  In the note, Mary stated that she did not want a trust agreement with respect to the property.  Instead, she wrote: My son, John, is to have sole possession of this house and contents.  Margaret, Jean, Alexis and Colleen will receive their portions of my Estate (in my Last Will and Testament).  I trust my son, John, to take care of my family if necessary. [12] A few days later, Mary spoke with Ms. Richter on the telephone.  She told Ms. Richter that, after much consideration, she had decided it was simpler for her to leave the property in joint tenancy.  She also said that she understood the property would go to John absolutely on her death and he did not need to share it with his siblings. [13] On December 16, 2010, Mary met with Ms. Richter in person.  At the meeting, she signed a will and a two-page document that Ms. Richter had prepared.  The will appointed John and Colleen as executors and trustees of Mary’s estate and divided the residue equally among Margaret, Jean, Alexis and Colleen.  It also included a paragraph stating that the property was registered in joint tenancy with John and he would receive it subject to the registered mortgages. [14] Mary signed the two-page document on both of its pages.  The document provided: I, Mary Alice McKendry, confirm that I wish to cancel any trust agreements or other documents imposing an obligation on my son to share the property I own at [W. 48th] with my other children.  I want my home to be my son’s property on my death absolutely - no strings attached.  I have made this decision after much consideration and I fully understand that this gives my son the majority of my assets.  My house constitutes the majority of my assets. [15] Mary died on February 23, 2012. [16] In May 2012, Margaret, Jean and Alexis commenced the first of two actions against John, seeking a declaration that he holds the property in trust for Mary’s estate.  In March 2014, they commenced the second action, seeking variation of Mary’s will. The Trial Judgment [17] At trial, Margaret, Jean and Alexis contended that the January 2008 transfer of title was gratuitous and that John held his interest in the property in trust for Mary during her lifetime, and thereafter for her estate. John responded that Mary’s intention when she transferred title in January 2008 was to make an immediate gift of the joint tenancy interest. [18] The trial judge rejected John’s submission and found the evidence demonstrated that Mary did not intend to transfer a beneficial interest in the land to John when she transferred legal title to him.  Rather, she intended to make him a legal owner of the property and to allow him to use the equity for purposes of investment, subject to her control.  Mary considered that a transfer of a legal interest to John would facilitate such an arrangement. [19] The judge went on to address John’s further submission regarding the events of December 2010 and their legal implications.  In summary, according to John, by December 2010 Mary clearly intended to give him a beneficial interest in the property, including an unfettered right of survivorship upon her death.  As the property was already held in joint tenancy and he already had the legal right of survivorship, he submitted that no further steps were required to perfect the inter vivos gift. [20] The judge also rejected this submission.  She found that the events of December 2010 were not reliable evidence of Mary’s intention in January 2008 when she transferred the property into joint tenancy.  At best, she held, they reflected a change in Mary’s intention.  For purposes of analysis she went on to assume that, as of December 2010, Mary intended to make a gift to John of a right of survivorship in the property.  However, she did not accept John’s submission that nothing further was required to perfect the intended gift. [21] The judge noted that, pursuant to s. 59(3) of the Law and Equity Act , R.S.B.C. 1996, c. 253, contracts respecting land must be in writing to be enforceable.  Citing Kooner v. Kooner (1979), 100 D.L.R. (3d) 76 (B.C.S.C.), she also noted that, to make a valid gift, a donor must have done everything that, according to the nature of the property, was necessary to be done to transfer the property and make the transfer binding on the donor.  She went on to find that Mary’s statements in the December 2010 will and two-page document were insufficient to create any legal obligation with respect to the right of survivorship in the property.  Rather, in her view they were mere promises: [140]    In my opinion, the Form A transfer, signed by Mary on January 28, 2008, is not sufficient to perfect a gift of the survivorship interest in W. 48th to John, because (as I have found) Mary did not intend at that time to make such a gift to John.  Assuming that, as of December 2010, Mary did intend to make such a gift to John, she did not take the necessary steps to perfect the gift.  The statements in the December 2010 Will and the December 16 Letter are insufficient to create any legal obligation; they are (at best) mere promises to make a gift to John.  I agree with Mr. Lee that, in order for Mary to make a valid gift to John of the survivorship interest in W. 48th, Mary would have been required to execute a written deed of gift under seal (obviating the need for consideration), confirming an immediate gift of the survivorship interest in W. 48th.  Short of this, there was no legally binding gift, and I so find. [141]    In summary, I find that John has failed to discharge the burden on him to show that, on January 28, 2008, Mary intended to make an immediate gift to him of the survivorship interest in W. 48th.  If, on December 16, 2010, Mary intended to make such a gift, she failed to take the steps necessary to make a valid, legally binding gift. [142]    The result is the plaintiffs are, accordingly, entitled to a declaration that John holds W. 48th in trust for Mary’s estate. Positions of the Parties [22] The contentious aspect of the judgment is the judge’s finding that an executed deed of gift under seal was required to perfect a gift to John of the right of survivorship in the property. [23] On appeal, John contends that Mary’s actual intention is the governing consideration.  In his submission, that intention was clear: to give him survivorship rights when she transferred the property into joint tenancy in January 2008.  By late 2010, he submits, Mary also intended that his survivorship rights would be unfettered by any trust obligation and he would receive the entire beneficial interest in the property upon her death.  However, contrary to the judge’s finding, John says nothing further was required to perfect the gift because he already held legal title. [24] Margaret, Jean and Alexis respond that the judge’s conclusions are fully justified in law and on the evidence.  In their submission, Mary’s intention in January 2008 when she transferred the property into joint tenancy governs the outcome of the case.  At the time of the transfer, she clearly did not intend to gift to John a beneficial right of survivorship in the property.  Rather, she intended to retain the beneficial interest in the property for herself and continue to deal with it as she saw fit. [25] According to Margaret, Jean and Alexis, if Mary’s intention changed in 2010, she failed to make a legally binding gift to John.  This is so, they say, because she did not deliver the gift to him, immediately and irrevocably, by binding means such as a deed under seal.  In consequence, in their submission, although Mary may have wished to do so, she did not perfect the gift to John before she died.  In consequence, he continues to hold the beneficial interest in the property in trust for Mary’s estate. Discussion [26] The legal principles that apply are straightforward.  A brief summary of those principles and their application on this appeal follows below. Joint Tenancy and the Right of Survivorship [27] Joint tenancy is a form of concurrent property ownership.  When the “four unities” of title, interest, time and possession are present, co-owners hold an equal interest in property as a unified whole: Zeligs v. Janes , 2016 BCCA 280 at para. 38.  However, parties may hold legal title to property as joint tenants while beneficial ownership is held differently.  For example, a mother and son may own real property as joint tenants in law while the mother alone owns the beneficial interest.  In such circumstances, as Rothstein J. noted in Pecore v. Pecore , 2007 SCC 17 at para. 4: The beneficial owner of property has been described as “the real owner of property even though it is in someone else’s name”: [citation omitted] [28] The principal characteristic of joint tenancy is the right of survivorship.  When a joint tenant dies, his or her interest in property is extinguished. If there is more than one surviving joint tenant, they continue to hold the property as joint tenants. The last surviving joint tenant takes full ownership of the property. [29] So long as the requirements of a binding gift are met, the owner of property may, during his or her lifetime, make an immediate gift of a joint tenancy, including the right of survivorship.  This is so regardless of whether the donee of the gift is to hold it for the benefit of the donor while he or she is alive.  When gifted inter vivos , the right of survivorship is a form of expectancy regarding the future.  It is a right to what is left of the jointly-held interest, if anything, when the donor dies: Simcoff v. Simcoff , 2009 MBCA 80 at para. 64; Bergen v. Bergen , 2013 BCCA 492 at para. 37; Pecore at paras. 45-53. [30] A donor may gift the right of survivorship, but continue to deal freely with property throughout his or her lifetime.  In Simcoff , Steel J.A. explained why: 64  Simply, and conceptually, the fact that a “complete gift” may have been given and that this gift included a right of survivorship does not, prima facie , prevent a donor from dealing with the retained joint interest while alive. The right of survivorship is only to what is left. Accordingly, if one joint owner drains a bank account (in the case of personal property) or severs a joint tenancy (in the case of real property), there is nothing in the right of survivorship itself that somehow prevents this. In commenting on the issue of survivorship in Pecore , Rothstein J. wrote (at para. 50): Some judges have found that a gift of survivorship cannot be a complete and perfect inter vivos gift because of the ability of the transferor to drain a joint account prior to his or her death: see e.g. Hodgins J.A.’s dissent in Re Reid [(1921), 64 D.L.R. 598 (Ont. C.A.)]. Like the Ontario Court of Appeal in Re Reid , at p. 608, and Edwards v. Bradley , [[1956] O.R. 225] at p. 234, I would reject this view. The nature of a joint account is that the balance will fluctuate over time. The gift in these circumstances is the transferee’s survivorship interest in the account balance - whatever it may be - at the time of the transferor’s death, not to any particular amount. [Emphasis in original.] Gifts and Resulting Trusts [31] A gift is a gratuitous transfer made without consideration.  Two requirements must be met for an inter vivos gift to be legally binding: the donor must have intended to make a gift and must have delivered the subject matter to the donee.  The intention of the donor at the time of the transfer is the governing consideration.  In addition, the donor must have done everything necessary, according to the nature of the property, to transfer it to the donee and render the settlement legally binding on him or her: Kooner at 79-80; Pecore at para. 5. [32] A gift may be delivered in various manners.  For example, a donor may choose to transfer property directly to a donee or a trustee, or may retain possession and make a declaration of trust.  Once a gift is given, the donor cannot retract it.  If it is incomplete, however, the court will not perfect a gift.  Accordingly, where the gift rests merely in a promise or unfulfilled intention, the court will not compel an intending donor to follow through with making the gift: Kooner at 79-80; Pecore at para. 56. [33] The standard for proving a gift is the usual civil standard of a balance of probabilities: Singh Estate v. Shandil , 2007 BCCA 303 at paras. 24-27. [34] The intention of a person who transfers property gratuitously to another is sometimes difficult to determine.  This is particularly true where the transferor is deceased.  For this reason, common law rules have developed to guide the court’s inquiry.  In Pecore , the Supreme Court of Canada explained those rules and how they apply to property held in joint tenancy. [35] In summary, a resulting trust arises when title to property is held in the name of a party who gave no value for it.  In such circumstances, that party is obliged to return the property to the original title owner unless he or she can establish it was given as a gift.  In the case of a gratuitous transfer, a rebuttable presumption of resulting trust applies when the transfer is challenged.  The judge commences the inquiry with the presumption, weighs all of the evidence, and attempts to ascertain the actual intention of the transferor.  The governing consideration is the transferor’s actual intention. The presumption of resulting trust determines the result only where there is insufficient evidence to rebut the presumption on a balance of probabilities: Pecore at paras. 20, 22-25, 44; Kerr v. Baranow , 2011 SCC 10 at para. 18. [36] When legal title to property is transferred gratuitously and a resulting trust arises, the right of survivorship is held on trust by the transferee unless otherwise established.  In Bergen , Newbury J.A. explained why: [42]      … Consistent with this, the authors of Waters [Donovan W.M. Waters, Mark R. Gillen, & Lionel D. Smith, Waters’ Law of Trusts in Canada , 4th ed. (Toronto: Carswell, 2012)] in the most recent edition (post- Pecore ) state: If A supplies the purchase money and conveyance is taken in the joint names of A and B, B during the joint lives will hold his interest for A, B will also hold his right of survivorship − again by way of resulting trust for A’s estate , because that right is merely one aspect of B’s interest. In other words, the starting point is that B holds all of his interest on resulting trust for A, or A’s estate. However, evidence may show that, while A intended B to hold his interest for A during the joint lives, it was also A’s intention that, should he (A) predecease, B should take the benefit of the property. The presumption of resulting trust would then be partially rebutted, in relation to the situation that has arisen, so that B would not hold his interest (now a sole interest and not a joint tenancy) on resulting trust. He would hold it for his own benefit . [At 405; emphasis added.] Transfers of Land [37] Academics have sometimes questioned whether the presumption of resulting trust applies to gratuitous transfers of land, although there is authority from this Court to support the view that it does: Fuller v. Harper , 2010 BCCA 421 at para. 43.  In this case, it is unnecessary to decide the issue because there is clear evidence of Mary’s intentions.  Regardless, transfers of land are subject to statute.  In particular, the Law and Equity Act and the Land Title Act , R.S.B.C. 1996, c. 250, Part 12 both apply to transfers of real property.  Pursuant to the Law and Equity Act, contracts respecting land must be in writing to be enforceable.  Pursuant to the Land Title Act , transfers of land must be in a prescribed or otherwise acceptable form and registered against title to land. [38] The judge referred to s. 59(3) of the Law and Equity Act , but not s. 59(1), in reaching her conclusion.  In my view, both ss. 59(1) and (3) of the Act are relevant.  They provide, in part: 59 (1) In this section, “disposition” does not include (a) the creation, assignment or renunciation of an interest under a trust, (3) A contract respecting land or a disposition of land is not enforceable unless (a) there is, in a writing signed by the party to be charged or by that party’s agent, both an indication that it has been made and a reasonable indication of the subject matter, Application of Governing Principles [39] The parties agree, as I do, that Mary’s actual intention is the governing consideration.  In the light of the evidence, the presumption of resulting trust is not required to determine the outcome of the case. This is so because Mary’s intentions in 2008 and 2010 are manifest and unambiguous.  The only real question is their legal effect. [40] In January 2008, when Mary gratuitously transferred legal title to the property to John in joint tenancy, she did so with the intent that he hold the property in trust.  The judge found that she intended to retain the entire beneficial interest, including the right of survivorship, for herself and her estate: paras. 124-133. Although John did not sign the trust declaration prepared by counsel, Mary’s intentions were clear and unambiguous.  In consequence, while John held legal title with Mary jointly from January 2008 onward, he held all of the beneficial interest, including survivorship rights, in trust. [41] Unless something changed, upon Mary’s death John would have continued to hold legal title to the property only and to hold the beneficial interest in trust.  However, in December 2010 something did change.  As evidenced by the November note and the two-page document prepared by her lawyer, Mary unambiguously renounced her beneficial interest in the right of survivorship in John’s favour should he survive her.  In doing so, she clearly intended to make an immediate inter vivos gift of that incident of the joint tenancy to John.  As explained in Simcoff , the gift was to whatever remained when Mary died. [42] Pursuant to s. 59(1) of the Law and Equity Act , Mary’s renunciation of her beneficial interest in the right to survivorship did not amount to a “disposition” of land.  Accordingly, the requirements of s. 59(3) did not apply.  In addition, and in any event, the two-page document in which Mary renounced her interest was a signed writing as contemplated by s. 59(3). [43] Given that she had previously transferred legal title to the property to John in joint tenancy, Mary did everything necessary in December 2010 to give her beneficial interest to John, bearing in mind the nature of that interest.  Her intention was made manifest in the signed two-page document her lawyer prepared and no further act of delivery was required because of the existing joint tenancy.  In particular, nothing more would have been gained had Mary executed a deed of gift under seal, given her clear and formally expressed intention. The immediate inter vivos gift was complete and binding.  In my view, Mary’s intention should prevail. Conclusion [44] It follows that I conclude the judge erred in declaring John holds the property in trust for Mary’s estate.  That being so, it was unnecessary to vary Mary’s will.  In consequence, I would allow the appeal and dismiss both actions. “The Honourable Madam Justice Dickson” I AGREE: “The Honourable Mr. Justice Groberman” I AGREE: “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Hsieh v. Lui, 2017 BCCA 51 Date: 20170131 Docket: CA43084 Between: Roque Hsiang Hwa Hsieh Appellant (Claimant) And Christine Po Sing Lui Respondent (Respondent) And Wai Tsun Tom Lui in his capacity as litigation representative of the Estate of Ting Sheung Lui, Deceased Respondent (Third Party) Before: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Goepel The Honourable Madam Justice Dickson On appeal from:  An order of the Supreme Court of British Columbia, dated August 14, 2015 ( Hsieh v. Lui , 2015 BCSC 1438, Vancouver Docket No. E104049). Counsel for the Appellant: P.R. Albi, Q.C. S.L. Stepney Counsel for the Respondents: G.A. Lang Place and Date of Hearing: Vancouver, British Columbia May 24, 2016 Place and Date of Judgment: Vancouver, British Columbia January 31, 2017 Written Reasons by: The Honourable Madam Justice Dickson Concurred in by: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Goepel Summary: Mr. Hsieh appeals the judge’s order respecting the quantum of spousal support based on several alleged material errors, the validity of a mortgage in favour of the respondent’s late father, and the finding that a nanny was a valid s. 7 expense under the Guidelines.  Held: appeal allowed in part.  The judge did not err in awarding Ms. Lui retroactive spousal support to the date of trial, failing to consider the reapportionment of family property, determining the duration of the award, or declining to impute income to Ms. Lui.  However, the judge erred in calculating retroactive support based on Mr. Hsieh’s 2015 income, in finding the mortgage was valid and in holding the nanny was an appropriate s. 7 expense. Reasons for Judgment of the Honourable Madam Justice Dickson: Introduction [1] This appeal is primarily concerned with the determination of retroactive and ongoing spousal support in a family law case involving a high-income earner.  The validity of a mortgage and characterisation of a nanny expense are also at issue.  The appellant, Roque Hsieh, appeals the trial judge’s final order awarding retroactive and lump sum spousal support of $1,175,787 to the respondent, Christine Lui, contending that she made several material errors which resulted in an unduly high award.  He also appeals the judge’s order that a mortgage Ms. Lui granted to her late father which was registered against title to a family asset is valid and that the cost of a nanny was a s. 7 expense under the Federal Child Support Guidelines , SOR/97-175 [ Guidelines ]. [2] For the reasons that follow, I would allow the appeal, in part. Background [3] Mr. Hsieh is a chartered accountant.  Since the mid-1990s, he has been employed by KPMG in Vancouver.  In 2008, he became a partner with KPMG, specialising in tax accounting.  He was 48 years old at the time of the trial. [4] Ms. Lui holds a bachelor of commerce degree and worked for a few years in the banking industry.  She left that employment, however, because business was poor and clients were hard to find.  As a result of her family’s wealth and generosity, Ms. Lui had no financial need to earn employment income and she has not engaged in paid work since she left her bank job in 1998.  Rather, with Mr. Hsieh’s consent and approval, she has been a full-time homemaker.  She was 46 years old at the time of the trial. [5] Mr. Hsieh and Ms. Lui were married on June 30, 1996.  When Ms. Lui left her bank job, she was a senior account manager earning an annual income of approximately $50,000.  At the time, Mr. Hsieh was a junior accountant earning an annual income in the range of $60,000 to $70,000. [6] Mr. Hsieh and Ms. Lui have one child, Olivia. She was 12 years old at the time of the trial and in Grade 7.  Since Olivia’s birth in 2002, Ms. Lui has been the primary caregiving parent.  She has always been assisted by a nanny with her caregiving and household duties. [7] Throughout the marriage, Ms. Lui’s family made significant financial contributions to the couple, covering most of their capital costs, providing them with a vehicle and paying for Olivia’s private school education.  Amongst other things, Ms. Lui’s late father, Ting Sheung Lui, gave Ms. Lui $1.1 million in 2007 with instructions to earmark the funds for Olivia’s education (“Olivia’s Education Fund”). [8] Mr. Hsieh and Ms. Lui kept their finances separate when they were married.  Each retained their own income and each contributed jointly to household expenses, insofar as that was required.  Given the contributions made by Ms. Lui’s family, however, there were not many expenses left for the parties to cover.  As a result, most of their shared expenses were for meals and entertainment. [9] Following a two-year period of living separate and apart in the same house, Mr. Hsieh and Ms. Lui separated on July 1, 2010.  Thereafter, Ms. Lui and Olivia remained in the family home and Mr. Hsieh moved into a condominium acquired for his use by a trust.  At the time of separation, Mr. Hsieh’s annual income was approximately $400,000. [10] On June 30, 2011, a declaration that the parties had no reasonable prospect of reconciliation was made under s. 57 of the Family Relations Act , R.S.B.C. 1996, c. 128 [ FRA ].  Mr. Hsieh and Ms. Lui were divorced by the January 23, 2015 order of the trial judge.  At the time of the trial, Mr. Hsieh’s annual income was in the range of $590,000 to $640,000.  Between the dates of separation and trial, Mr. Hsieh paid some child support and no spousal support to Ms. Lui. The Hornby Street Property [11] Mr. Hsieh and Ms. Lui did not cohabit before they were married.  Immediately after they married, they moved into a condominium on Hornby Street in Vancouver (the “Hornby Street Property”).  They lived together in the Hornby Street Property until 2002, when, with Olivia, they moved into Ms. Lui’s parents’ home. [12] The Hornby Street Property was purchased by Mr. Lui Sr. in 1993, together with four other condominiums in the same building.  At the time of purchase, he registered the Hornby Street Property in Ms. Lui’s name.  He also registered another condominium in the joint names of Ms. Lui and her sister, and the other three in the names of other family members. [13] The purchase of the Hornby Street Property was partially financed by an institutional mortgage of $406,000, which was registered against title.  Mr. Lui Sr. paid the property taxes and other payments associated with the Hornby Street Property.  In April 1996, after considering tax and estate planning issues, he also repaid the entire institutional mortgage debt.  As a result, on May 2, 1996 the bank discharged the mortgage and the title became unencumbered. [14] On June 25, 1996, five days before she married Mr. Hsieh and at her father’s request, Ms. Lui signed a $635,000 mortgage in favour of Mr. Lui Sr. (the “Mortgage”).  The Mortgage was registered against title to the Hornby Street Property.  At the same time, Ms. Lui signed an acknowledgment under seal to the effect that historical advances she had received from Mr. Lui Sr. were loans; however, she testified on discovery that her father did not, in fact, loan any money to her between 1993 and May 1996. [15] Ms. Lui also testified that Mr. Lui Sr. did not advance any money to her in relation to the Mortgage and she did not make any payments on it.  She said that she signed the Mortgage because, without explanation, her father asked her to do so. She acknowledged that, when she was not living there, she received rental income from the Hornby Street Property. [16] According to Ms. Lui’s brother, Mr. Lui Sr. asked Ms. Lui to sign the Mortgage because he was not comfortable with her holding clear title to the Hornby Street Property given her impending marriage to Mr. Hsieh.  In a letter dated June 28, 1996 regarding the Mortgage, solicitors for Mr. Lui Sr. wrote: Notwithstanding the execution by the Borrower of the Acknowledgment Agreement (enclosed), the validity of the Mortgage could be challenged if the monies paid by you in connection with the Borrower’s purchase of the Lands in June, 1993 were to be viewed by a court as having been intended as a gift from you to the Borrower. [17] The appraised value of the Hornby Street Property was $965,000 in 2014. The Churchill Street Property [18] In September 2002, a house on Churchill Street in Vancouver was purchased for approximately $1.8 million with funds provided by Ms. Lui’s uncle and registered in Ms. Lui’s name (the “Churchill Street Property”).  In 2004, Mr. Hsieh, Ms. Lui and Olivia moved into the Churchill Street Property and lived there together until Mr. Hsieh left in 2010.  As with the Hornby Street Property, Mr. Lui Sr. paid the property taxes and most other property-related costs. [19] The appraised value of the Churchill Street Property was $4.4 million in 2014. The Trusts [20] Between 2005 and 2010, the families of Mr. Hsieh and Ms. Lui set up trusts to enable their participation in an investment vehicle established by one of Mr. Hsieh’s clients (the “Cutting Edge Trust”).  Due to Mr. Hsieh’s position at KPMG and KPMG’s independence rules, Mr. Hsieh and Ms. Lui were unable to invest personally.  However, Ms. Lui’s family set up the 106 LN Family Trust No. 1 in October 2005 (the “Lui Trust”) and Mr. Hsieh’s family set up the FRH Trust in September 2008 (the “Hsieh Trust”).  Both trusts acquired an interest in the Cutting Edge Trust. The Shangri-La Condo [21] In July 2010, the Hsieh Trust acquired the condominium in which Mr. Hsieh has resided since the parties separated for approximately $3.1 million (the “Shangri-La Condo”).  The acquisition was financed and Mr. Hsieh pays monthly carrying costs of approximately $13,000.  These costs include a mortgage payment, strata fees, property taxes and interest on loans. [22] As of the triggering date, the equity in the Shangri-La Condo was $348,263. Reasons for Judgment [23] The judge began her reasons by identifying the issues for determination and those concerning which there was agreement.  The former included the appropriate division of family debts and assets, the quantum of spousal support payable to Ms. Lui, the validity of the Mortgage, and whether the cost of a nanny is an appropriate shared expense under s. 7 of the Guidelines . [24] After reviewing some background facts, the judge dealt first with the question of whether the cost of a nanny is an appropriate s. 7 expense.  In finding that it is, she stated: [25]      The parties agree that, effective February 1, 2015, agreed upon s. 7 expenses shall be shared equally.  The only area in dispute is the expense of employing a nanny/housekeeper.  This, Mr. Hsieh says, is an inappropriate s. 7 expense, especially as Ms. Lui is not employed. [26]      Based on the family circumstances which previously included a nanny, I conclude a nanny is an appropriate expense to which Mr. Hsieh should be required to contribute.  Mr. Hsieh argues the tasks are more in the nature of housekeeping than child care.  I do not accept this argument.  The multitude of activities in which Olivia continues to participate, along with past circumstances, supports the need for a nanny and a finding to this effect.  While Mr. Hsieh has parenting time on the weekends, Olivia’s activities continue throughout the week. [25] The judge turned next to the central issue at trial: the identification of family debts and assets.  She noted at the outset that the division of property should be determined before a support claim to permit assessment of each party’s means taking into account the property division, citing this Court’s decision in Narayan v. Narayan , 2006 BCCA 561, in support. She went on to find the Hsieh Trust, the Lui Trust, the units in the Cutting Edge Trust held by the Hsieh Trust and Olivia’s Education Fund were not family assets, although she considered it troubling that Mr. Hsieh had no interest in the Hsieh Trust and the Cutting Edge Trust due to KPMG’s independence rules.  The judge’s findings on the nature of these assets were not challenged on appeal. [26] The parties agreed that the Churchill Street Property and the Hornby Street Property were family assets.  They also agreed that the Shangri-La Condo was not a family asset, but that the equity and carrying costs should be considered on the reapportionment issue. [27] The judge rejected Mr. Hsieh’s assertion that the Shangri-La Condo was subject to a $415,000 debt to his parents.  She also found that he had structured his financial affairs such that it would appear he has few assets and significant debt despite his high annual income.  She noted there was only one conventional mortgage on the Shangri-La Condo of close to $1 million, and concluded that the remaining debt should not weigh heavily in the reapportionment analysis. [28] The judge ordered an equal division of family debts and assets except with respect to the Churchill Street Property, which she reapportioned 70 per cent in Ms. Lui’s favour.  In doing so, she stated: [123]    Ms. Lui maintains, however, the Churchill Street Property was purchased with a gift of $1.8 million from her uncle in Hong Kong.  The home was purchased in 2002 but was left empty from 2002 to 2004.  It was not a family asset until the parties moved in in 2004.  Ms. Lui says, therefore, the property was a family asset only from 2004 to 2008, when the parties lived separate and apart in their home, or 2010, when Mr. Hsieh left the home. [29] The judge went on to note Ms. Lui’s testimony that the parties had lived separately in the house since 2008 and her assertion that she lost employment opportunities due to her homemaker role while Mr. Hsieh built a highly successful career.  In explaining her decision to reapportion the Churchill Street Property, the judge summarised and adopted Ms. Lui’s position: [126]    Ms. Lui submits that the following factors militate in favour of a substantial reapportionment in her favour: the duration of the separation between the parties since 2008, or alternatively, since the date of the physical separation in 2010 (s. 65(1)(b)); the fact that the property was 100% funded by a gift from Ms. Lui’s uncle (s. 65(1)(d) and s. 65(1)(f)); the fact that the property taxes were paid by Ms. Lui’s father (s. 65(1)(d)); the fact that Ms. Lui suffered an economic disadvantage from the role she assumed in the marriage with Mr. Hsieh’s agreement (s. 65(1)(f)); and finally, Ms. Lui’s need to become and remain economically self-sufficient and provide a primary residence for Olivia (s. 65(1)(e)).  She submits that the reapportionment should be in the amount of 70% of the equity in the Churchill Street Property with a compensation payment made to Mr. Hsieh or, depending on the division of other assets, a set-off against assets retained by Mr. Hsieh. [127]    I agree, for the reasons immediately set out above.  I will, however, deal with this as part of the overall consideration of the division of assets. [30] The remaining issues of relevance for present purposes were the validity of the Mortgage and the appropriate quantum of spousal support.  In addressing the Mortgage issue, the judge found that Mr. Lui Sr. purchased the Hornby Street Property in Ms. Lui’s name “financed by a $197,080.79 loan from him to her and a mortgage of $406,000 from the Hong Kong Bank of Canada” (para. 90).  She also noted that Mr. Lui Sr. repaid the Hong Kong Bank mortgage on April 1, 1996, and that it was discharged on May 2, 1996 (para. 91).  She noted further that Ms. Lui signed the Mortgage and sealed acknowledgment on June 25, 1996 at her father’s request (para. 92). [31] Mr. Hsieh submitted that the Mortgage was a fiction intended to protect the equity in the Hornby Street Property from a future claim by him.  After summarising his arguments the judge rejected them, agreeing instead with Ms. Lui.  In doing so, she noted that the Hornby Street Property was purchased three years before the marriage, stated that a mortgage was always maintained on it and interpreted Ms. Lui’s discovery testimony that she held the property in trust for her father as an acknowledgment of Mr. Lui Sr.’s interest in the property.  She also noted that Mr. Hsieh’s interest in the Hornby Street Property did not arise under the FRA until well after the Mortgage and sealed acknowledgment were signed in 1996. [32] The judge went on to find the Mortgage was valid.  She commented that Mr. Lui Sr. “conceivably” took the Mortgage in return for having previously paid off the institutional mortgage, which, she said, could amount to consideration, although none was required in a contract under seal (paras. 99-100).  She also noted that the FRA is a deferred community property regime and thus Mr. Hsieh did not acquire an interest in the Hornby Street Property until the triggering event on June 30, 2011.  However, she held: [102]    As Ms. Lui says, by this time, this was an encumbered gift.  While the initial mortgage was paid off, that gift changed to an encumbered gift with the mortgage subsequently placed on it at the request of Ms. Lui’s father.  The lawyer’s comments concerning the validity of the mortgage have nothing to do with the FRA .  While Mr. Hsieh says an encumbered gift is inherently contradictory, I do not agree.  The gift is simply not as large as perhaps one would wish. [33] The judge also agreed with Ms. Lui on the appropriate quantum of spousal support.  She noted that entitlement on compensatory grounds was uncontentious and the parties agreed that she should make a lump sum spousal support order.  After summarising their competing positions and conducting her analysis, she set retroactive and lump sum spousal support at $1,175,787: the order Ms. Lui sought based on DivorceMate calculations she presented.  In particular, the $1,175,787 order represented the mid-range lump sum payment for a 10.5 year period indicated by the Spousal Support Advisory Guidelines [ SSAG ] “with child” formula.  This was based on Mr. Hsieh’s 2015 Guidelines income of $647,000 and Ms. Lui’s Guidelines income of $36,000. [34] In reaching her decision, the judge noted that the parties separated in 2010 and Ms. Lui received no spousal support following the separation (paras. 129,132).  She also made findings regarding Mr. Hsieh’s Guidelines income for each year after separation, and referenced the objectives of spousal support and the necessary factors for consideration.  The judge rejected Mr. Hsieh’s request that she impute income to Ms. Lui based on her previous level of employment income and a proposed asset division, stating: [142]    I do not find it reasonable to impute annual income of $118,000 to Ms. Lui.  Ms. Lui ceased working in the bank in 1998 with the consent and approval of her husband. Since then, she has been exclusively responsible for child care and household management, while Mr. Hsieh has developed a very successful career.  Indeed, Mr. Hsieh may have enjoyed career success without those responsibilities.  His Guidelines income has averaged $560,000 in the last three years.  There is no basis to impute a higher income of Ms. Lui in the circumstances of this case at this particular time.  Utilizing a previous salary may be helpful, but it is evident circumstances have changed, including the health of Ms. Lui.  In 2007, Ms. Lui suffered from a serious ailment, had heart surgery, and took some time to recover.  This is significant and should not be disregarded in considering the appropriate lump sum. [143]    Further, I note Mr. Hsieh agreed he would have been both a trustee and beneficiary of the FRH Trust, if not for the independence rules of KPMG.  In that case, it is likely those assets may well have been family assets which Ms. Lui is not now able to claim and has been disadvantaged as a result. [150]    I conclude as follows: 14.  There will be an order for retroactive and lump sum spousal support to Ms. Lui, pursuant to the Spousal Support Advisory Guidelines in the mid-range, namely $1,175,787. Issues on Appeal [35] Mr. Hsieh contends that the judge made several material errors in determining the retroactive and lump sum spousal support award.  In particular, he says she erred in awarding any retroactive support for the period up to the trial date and, in any event, in calculating it based on the parties’ 2015 incomes.  He also says she erred in calculating the award based on a 14-year marriage after finding that the parties separated in 2008, failing to impute income to Ms. Lui and failing to account for the Churchill Street Property reapportionment in her spousal support analysis.  He contends further that she erred in finding the Mortgage was valid and in finding the cost of a nanny to be an appropriate s. 7 expense under the Guidelines . [36] Ms. Lui responds that the spousal support award was based on an individualized, fact-specific analysis which was justifiable on the law and the evidence.  Accordingly, the judge’s spousal support award is entitled to deference on appeal.  The same is true, she says, of the judge’s conclusion that the Mortgage is valid and that the cost of a nanny is an appropriate s. 7 expense. [37] The issues that emerge for determination are: a) Did the judge err in making her award for retroactive and lump sum spousal support and, if so, how and with what effect? b) Did the judge err in finding the Mortgage was valid? c) Did the judge err in finding the cost of a nanny is an appropriately shared s. 7 expense? Discussion Standard of Review [38] The standard of appellate review in family law matters is highly deferential.  An appellant must show that there was a material error, a serious misapprehension of the evidence, or an error in law for an appeal court to intervene.  This high standard recognises the discretionary nature of the trial judge’s task and the benefits of having heard directly from the parties.  It also promotes finality and limits expense in family law litigation: McKenzie v. Perestrelo , 2014 BCCA 161 at paras. 23-24, citing Hickey v. Hickey , [1999] 2 S.C.R. 518 at para. 12 and Van de Perre. v. Edwards , 2001 SCC 60 at paras. 14-15. Did the judge err in making her award for retroactive and lump sum spousal support and, if so, how and with what effect? [39] Mr. Hsieh submits that the judge found the parties separated in 2008, not 2010 as was admitted in the pleadings.  He grounds this submission in her statements in paragraphs 123 and 126 quoted above regarding reapportionment of the Churchill Street Property.  He goes on to submit that she reapportioned the Churchill Street Property based on her finding of a 2008 separation but awarded spousal support on the basis of a 2010 separation, thus unfairly prolonging the duration period used for calculating spousal support under the SSAG .  In addition, and in any event, he submits that the appropriate quantum of retroactive spousal support for the period between separation and trial should be $0 as Ms. Lui had exclusive use of the Churchill Street Property and, unlike him, did not incur debt to maintain her standard of living.  Further, and importantly, the judge erroneously used his 2015 Guidelines income of $647,000 to calculate retroactive spousal support for the preceding 4.5 years in which he actually earned considerably less. [40] Mr. Hsieh also submits that the judge erred in failing to consider the Churchill Street Property reapportionment in her spousal support analysis.  Had she done so, he says, she would have reduced the quantum significantly to avoid double recovery, given the overlapping objectives of the two awards.  In addition, she erred in failing to impute income to Ms. Lui, who is well-educated and obliged to make reasonable efforts to become self-sufficient, but chooses not to seek gainful employment.  All things considered, in his submission, an appropriate lump sum spousal support award for the remaining period of entitlement would be approximately $344,000. [41] I would not accede to any of these submissions but one. [42] As is apparent from paragraphs 123 and 126 of her reasons, the judge did not base her reapportionment analysis on a definitive finding as to the separation date, nor did she find that the parties separated in 2008 for any other purpose.  Rather, she reapportioned the Churchill Street Property 70 per cent in Ms. Lui’s favour because her uncle gifted it to her, her father paid the taxes, she was economically disadvantaged by the marriage, she needed to become self-sufficient and she needed to provide a primary residence for Olivia.  These were all relevant considerations under s. 65 of the FRA , which applied to the claim for reapportionment.  When summarising the background facts the judge did say the parties separated in 2008, but also noted that Mr. Hsieh left the family home in 2010 (para. 7).  As was appropriate, she based her retroactive and lump sum spousal support analysis on the admitted date of separation: July 1, 2010. [43] It is also apparent from the reasons, read as a whole, that the judge was alive to the need to consider the reapportionment in making her spousal support award, and that she did so.  For example, she cited this Court’s decision in Narayan in support of the proposition that a property division claim should be determined before a spousal support claim to enable a proper assessment of the parties’ means (para. 27).  She went on to analyse the two claims in the proper order and referred repeatedly to the parties’ means, Ms. Lui’s limited need and her retention of the Churchill Street Property in the spousal support analysis (paras. 128-143).  She also noted that Ms. Lui’s entitlement to support is compensatory, and emphasized this Court’s reminder in Chutter v. Chutter , 2008 BCCA 507, that marriage is a joint endeavour and the longer it lasts, the stronger the presumption of equal standards of living on dissolution (paras. 128, 140, 142). [44] Spousal support under the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.) [ DA ] is governed by s. 15.2.  The general objective of the DA with respect to compensatory support is to ensure that spouses are compensated for economic hardship or disadvantages experienced as a result of a marriage or its breakdown: Hathaway v. Hathaway , 2014 BCCA 310 at para. 52.  The objectives of spousal support under s. 15.2 of the DA and property division under s. 65 of the FRA overlap with respect to economic self-sufficiency, thus posing a risk of double recovery where awards are made under both sections.  However, it does not necessarily follow that entitlement to spousal support will be diminished or extinguished by reason of a property reapportionment, particularly where, as here, its conceptual basis is predominantly compensatory: Hathaway at para. 71, citing Bodine-Shah v. Shah , 2014 BCCA 191 at paras. 70-71. [45] The overall goal of an award in family law proceedings is to achieve an equitable sharing of the consequences of marriage and its breakdown.  An equitable division may be achieved by awarding spousal and child support, by dividing property and assets, or by a combination of both: Bodine-Shah at para. 70.  Each inquiry will be highly fact-specific: Hathaway at para. 72. [46] In my view, the judge engaged in the necessary fact-specific inquiry and accounted for the Churchill Street Property reapportionment in making her spousal support award.  I see no material error in law, principle or fact in the judge’s decision on this point. [47] Further, I see no error in the judge’s decision not to impute income to Ms. Lui for the period during which spousal support is payable.  A spouse is not obliged to become self-sufficient following a marriage breakdown; rather, a spouse is obliged to make reasonable efforts to achieve self-sufficiency.  If such efforts are not made, a judge may reduce the amount of spousal support awarded by imputing income to the unreasonably under-employed spouse: Rogers v. Rogers , 1999 BCCA 238 at paras. 44-47, citing Moge v. Moge , [1992] 3 S.C.R. 813.  A decision on whether to impute income is highly discretionary and, as such, entitled to considerable appellate deference: Marquez v. Zapiola , 2013 BCCA 433 at para. 36. [48] When a judge decides whether to impute income, the spouse’s capacity to earn income given his or her age, education, health, work history, work availability and retraining prospects should be considered.  The test for imputing income for intentional under-employment or unemployment is one of reasonableness, having regard to these factors: Marquez at para. 37.  The judge undertook the necessary exercise, and fully reviewed Ms. Lui’s background and circumstances.  She decided not to impute income to Ms. Lui largely because she had been out of the workforce for 17 years and primarily responsible for child care since Olivia’s birth (para. 142).  Her primary caregiving responsibilities are ongoing.  In these circumstances, I see no basis upon which the judge’s discretionary decision not to impute income to Ms. Lui should be disturbed. [49] However, in my view the judge did err in awarding retroactive spousal support based on Mr. Hsieh’s current annual income.  Insofar as possible, retroactive support is to be determined based on actual income earned in each year for which it is due: Tedham v. Tedham , 2003 BCCA 600 at paras. 58, 71; Cornelissen v. Cornelissen, 2003 BCCA 666 at paras. 35-42.  Although I do not accept that the judge erred in awarding spousal support for the pre-trial period, given that entitlement was compensatory and the parties’ post-separation incomes differed significantly, I agree that she calculated the retroactive portion of the spousal support award on an erroneous basis. [50] As previously noted, the judge made findings as to Mr. Hsieh’s Guidelines income in each year following the parties’ 2010 separation (para. 132).  She also described the $1,175,787 award as “an order for retroactive and lump sum spousal support” (para. 150).  However, she relied on SSAG calculations provided by Ms. Lui which produced the mid-range $1,175,787 figure awarded based on attributing income of $647,000 to Mr. Hsieh and income of $36,000 to Ms. Lui for the entire 10.5-year duration period (the midpoint for a 14-year marriage).  In other words, the judge based both the 4.5-year retroactive portion of the spousal support award and the remaining 6-year future portion on the parties’ current Guidelines incomes.  In my view, this was clearly wrong. [51] The parties asked the judge to make a lump sum award, and thus to hypothesize regarding their likely future incomes.  Given that invitation and the evidence concerning Mr. Hsieh’s positive professional trajectory, it was reasonable for her to use the $647,000 figure to determine the future portion of the spousal support award, i.e., for the years 2015 to 2021 (paras. 134-135).  However, it was unnecessary to hypothesize regarding past income and, as this Court held in Tedham , it was incumbent on the judge to award retroactive spousal support based on the parties’ actual incomes.  Accordingly, in my view the retroactive portion of the spousal support award must be recalculated on this basis for each year from July 1, 2010 to 2014 and reduced to the cumulative extent of the difference. Did the judge err in finding the Mortgage was valid? [52] Mr. Hsieh submits the judge erred in finding the Mortgage was valid because, he says, a mortgage charge cannot exist where, as here, it does not secure a debt.  He also submits that the Hornby Street Property could not be transformed into an “encumbered gift” in June 1996, as the judge held, because it had previously been fully gifted to Ms. Lui.  In support of his submission, he emphasizes the constituent elements of a mortgage and a gift and relates them to the evidence.  He further emphasizes errors on the evidence the judge made and relied upon in finding the Mortgage valid.  For example, she stated that a mortgage was always maintained on the Hornby Street Property, which is inaccurate, and suggested that the participation of Mr. Lui Sr.’s estate in the litigation evidenced an obligation on Ms. Lui’s part under the Mortgage, which it does not (paras. 96, 99). [53] In my view, Mr. Hsieh is correct. [54] A mortgage is an interest in property conferred by a borrower on a lender to provide a fall-back if repayment obligations are not met: Bruce Ziff, Principles of Property Law , 6th ed. (Toronto: Carswell, 2014) at 437; see also Duncalm Resort Inc. v. Rendezvous Lodge Ltd. (1998), 52 B.C.L.R. (3d) 64 (C.A.); Chan v. Chan , [1993] B.C.J. No. 442 (S.C.).  In Walter M. Traub, Falconbridge on Mortgages , 5th ed. (Toronto: Thomson Reuters Canada Limited, 2003) (loose-leaf updated 2016, release 22) at para. 1:40, a mortgage is described as: a conveyance of land as a security for the payment of a debt or the discharge of some other obligation for which it is given, the security being redeemable on the payment or discharge of such debt or obligation. [55] Modern mortgages do not usually take effect by way of a land conveyance.  Rather, they operate by way of security as a charge against title: Zeligs Estate v. Janes , 2016 BCCA 280 at 58; Land Title Act , R.S.B.C. 1995, c. 250, s. 231. [56] A gift is a gratuitous transfer of property for which the donor expects no remuneration.  By its nature, once a gift is given it cannot be revoked by the donor: V.J.F. v. S.K.W. , 2016 BCCA 186 at para. 49.  The key factor for consideration in identifying a gift is the actual intention of the donor when the interest in the property is transferred: Beaverstock v. Beaverstock , 2011 BCCA 413 at para. 9, citing Pecore v. Pecore , 2007 SCC 17.  A note signed after a gift was given cannot convert that which was a gift into a loan or another form of disposition: Phillips v. Phillips , 2008 BCSC 1233 at para. 35, per Savage J., as he then was, citing Locke v. Locke , 2000 BCSC 1300 at para. 25; Cabezas v. Maxim , 2016 BCCA 82 at paras 34, 41. [57] Ms. Lui’s unequivocal testimony was that Mr. Lui Sr. did not loan any money to her between 1993, when the Hornby Street Property was purchased, and May 2, 1996, when the institutional mortgage was discharged.  In other words, despite the reference to “historical advances” in the signed acknowledgment, in fact, there were none.  Nor did Mr. Lui Sr. advance any money to Ms. Lui in relation to the Mortgage after it was executed or require her to make any Mortgage payments.  Although the judge considered it “conceivable” that Ms. Lui granted the Mortgage to Mr. Lui Sr. in exchange for his previously repayment of the institutional mortgage (para. 99), she made no finding in this regard and there was no such evidence.  The judge did not make a finding as to Mr. Lui Sr.’s actual intention when he acquired the Hornby Street Property and registered title in Ms. Lui’s name or when he cleared title by repaying the institutional mortgage on April 1, 1996. [58] According to Ms. Lui’s brother, Mr. Lui Sr. asked Ms. Lui to grant the Mortgage on June 25, 1996 because he was “not comfortable” with her holding clear title given her impending marriage, not because the Mortgage secured repayment of a debt or other obligation.  In addition, after she granted the Mortgage, it was Ms. Lui, not her father, who either received the rental income or lived in the Hornby Street Property.  Further, Mr. Lui Sr.’s estate was added as a party to the litigation because the Mortgage was being challenged, not as evidence of its validity. [59] Given all of the foregoing, in my view the judge’s implicit finding that the Mortgage secured repayment of a debt or obligation was based on a misapprehension of the evidence.  It was plain on the uncontroverted evidence that it did not do so.  Accordingly, the judge erred in finding that the Mortgage was a valid charge on the Hornby Street Property.  As it did not secure repayment of a debt or obligation, it was not a valid mortgage. [60] In addition, although the judge did not expressly find that Mr. Lui Sr. intended to transfer the beneficial interest in the Hornby Street Property to Ms. Lui gratuitously, she did refer to the property as a “gift”, albeit later encumbered by a Mortgage.  To the extent the judge implicitly concluded that Mr. Lui Sr. intended to gift the equity in the Hornby Street Property to Ms. Lui when he repaid the institutional mortgage, I consider her statement at para. 102 to the effect that the “gift changed to an encumbered gift” to be an error in law.  Once he gave it to Ms. Lui, Mr. Lui Sr. could not revoke his gift of unencumbered title. Did the judge err in finding the cost of a nanny is an appropriately shared s. 7 expense? [61] Mr. Hsieh submits that the judge erred further in finding the cost of a nanny is an appropriately shared expense under s. 7 of the Guidelines in the circumstances.  In support of his submission, he emphasizes the language of s. 7(1)(a), which applies only to child care expenses “incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment”.  Given that Ms. Lui is healthy, unemployed and has no plans to study or become gainfully employed, he says there is no need to incur a nanny expense on any of the enumerated bases.  Accordingly, he contends, the judge erred in making the award under s. 7 of the Guidelines . [62] Ms. Lui responds that the s. 7 award is discretionary and entitled to appellate deference.  In support of her submission, she emphasizes the fact that Mr. Hsieh is a high-income earner and that s. 15.1(5) of the DA permits the court to depart from the applicable Guidelines where special provisions are made for a child’s benefit and application of the Guidelines would be inequitable. [63] I do not accept Ms. Lui’s submission.  The judge did not purport to depart from the applicable Guidelines pursuant to s. 15.1(5) of the DA .  Rather, she found that the cost of a nanny is an appropriately shared expense under s. 7 of the Guidelines .  In my view, she erred in so finding. [64] Section 7 of the Guidelines provides: 7 (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: (a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment; (b) that portion of the medical and dental insurance premiums attributable to the child; (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (e) expenses for post-secondary education; and (f) extraordinary expenses for extracurricular activities. [65] An order for contribution to special and extraordinary s. 7 expenses is discretionary.  The court may order payment of an enumerated expense taking into account its necessity relative to the child’s best interests and the reasonableness of the expense relative to the means of the spouses and the family’s pre-separation spending pattern: Bodine-Shah at para. 66.  In cases involving high-income earners, expenses that may not be considered reasonable for many people may, in context, be reasonable, so long as the award does not enter the realm of wealth transfer rather than support: Francis v. Baker , [1999] 3 S.C.R. 250; Sirdevan v. Sirdevan , 2010 ONSC 2375. [66] The judge considered it reasonable for Mr. Hsieh to share in the cost of a nanny/housekeeper because the family circumstances previously included a nanny and Olivia continued to engage in a multitude of activities.  In reaching this conclusion, she rejected Mr. Hsieh’s contention that the nanny’s tasks were more in the nature of housekeeping than child care, but made no specific findings as to the breakdown of her duties.  In particular, the judge made no findings as to which of Olivia’s extracurricular activities involve the nanny’s services or the nature of her current child care duties.  Nor did she identify the subsection of s. 7 she considered applicable or the extent, if any, to which Mr. Hsieh contributed to the nanny expense prior to the parties’ separation (paras. 25-26). [67] In my view, the evidence does not support the conclusion that the cost of the nanny/housekeeper is an expense within s. 7 of the Guidelines .  There was simply no evidence that Ms. Lui incurs the nanny expense for child care purposes as a result of her “employment, illness, disability or education or training for employment” (s. 7(1)(a)).  In particular, as Mr. Hsieh points out, there was no evidence that Ms. Lui suffers from an illness or disability and she does not work outside the home so does not require child care for purposes of employment.  Nor can the nanny/housekeeper’s services be characterized as “extraordinary expenses for extracurricular activities” (s. 7(1)(f)).  In the circumstances, despite the fact that Mr. Hsieh is a high-income earner and Ms. Lui was assisted by a nanny prior to separation, in my view the judge erred in awarding the nanny cost as a shared expense under s. 7 of the Guidelines . Conclusion [68] I would allow the appeal, in part, and vary the order below as follows: 1. the retroactive portion of the spousal support award in paragraph 12 of the order is to be recalculated based on the parties’ Guidelines incomes for each year from July 1, 2010 to 2014 and reduced to the cumulative extent of the difference; 2. Mr. Hsieh shall be compensated by Ms. Lui for his 50 per cent interest in the Hornby Street Property on the basis that the Mortgage referenced in paragraph 16 of the order is not valid; and 3. The cost of Olivia’s nanny is not a special and extraordinary expense to be shared and paragraph 9 of the order is accordingly deleted. [69] Mr. Hsieh was substantially successful on the appeal and is thus entitled to costs. “The Honourable Madam Justice Dickson” I AGREE: “The Honourable Mr. Justice Frankel” I AGREE: “The Honourable Mr. Justice Goepel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Northern Thunderbird Air Inc. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2017 BCCA 60 Date: 20170201 Docket: CA43818 Between: Northern Thunderbird Air Inc. Appellant (Petitioner) And Workers’ Compensation Appeal Tribunal, Ruben Cohen, Carolyn Cross, Kelly Jablonski, Jeffrey McCord, Cameron Sobolik and Troy Zanatta Respondents (Respondents) Before: The Honourable Chief Justice Bauman The Honourable Mr. Justice Willcock The Honourable Mr. Justice Fitch On appeal from: an order of the Supreme Court of British Columbia, dated July 4, 2016 ( Northern Thunderbird Air Inc. v. British Columbia (Workers’ Compensation Appeal Tribunal , 2016 BCSC 1216, Vancouver Registry No. S153073) Oral Reasons for Judgment Counsel for the Appellant: G.L.O. Wells, Q.C. and R. Moyse Counsel for the Respondent, Workers’ Compensation Appeal Tribunal M. Bennett Counsel for the Respondents: R. Cohen, K. Jablonski, J. McCord, Cameron Sobolik and T. Zanatta S. Matthews, Q.C. and M.L. Segal Counsel for the Respondent, C. Cross W. Simek Place and Date of Hearing: Vancouver, British Columbia February 1, 2017 Place and Date of Judgment: Vancouver, British Columbia February 1, 2017 Summary: Appeal from an order dismissing Northern Thunderbird Air’s petition for judicial review of the Workers’ Compensation Appeal Tribunal’s decision that the individual respondents’ injuries did not arise out of and in the course of their employment. The respondents were travelling to a CEO peer-advisory group retreat when their flight crash-landed. Held: appeal dismissed; the tribunal’s decision was not patently unreasonable. The WCAT clearly laid out the route to its decision, there was evidence before it to support the findings it made and its decision cannot be said to be “ openly, clearly, evidently unreasonable”. [1] WILLCOCK J.A. : This is an appeal from the July 4, 2016 judgment of Madam Justice Baker dismissing the petition brought by Northern Thunderbird Air Inc. for an order pursuant to the Judicial Review Procedure Act , R.S.B.C. 1996, c. 241, setting aside the decision of the Workers’ Compensation Appeal Tribunal (“WCAT”) and an order remitting the matter to WCAT for reconsideration. [2] The history of the proceedings is summarized in the judgment as follows: [1]        On October 27, 2011, an airplane owned and operated by the Petitioner crash-landed on Russ Baker Way in Richmond, B.C., having departed from the Vancouver Airport South Terminal on a charter flight heading to Kelowna Airport. [2]        The Respondents Cohen, Cross, Jablonski, McCord, Sobolik and Zanatta (“the individual Respondents”) were all passengers on the plane at the time of the crash. The Individual Respondents, other than Ms. Cross, commenced one action in this court against the Petitioner seeking to recover damages. Ms. Cross commenced a separate action in this court. In their civil actions, the Individual Respondents allege that they suffered injuries and losses as a result of the accident; and that the accident was caused by the negligence of the Petitioner and/or its employees. [3]        The Individual Respondents were flying to Kelowna on route to the Sparkling Hills Resort located near Vernon. They were travelling to the resort to attend an annual retreat organized by a corporation called TEC (The Executive Committee) Canada Ltd. (“TEC”). The Individual Respondents were members of a small sub-group of TEC that has been described by the Petitioner as a “CEO peer-advisory group” known as “TEC 335”. [4]        The Petitioner and the Individual Respondents applied to WCAT pursuant to s. 257 of the Workers Compensation Act , R.S.B.C. 1996, c. 492 (“the Act ”) for a determination as to whether the Individual Respondents’ injuries arose out of and in the course of employment within the scope of Part 1 of the Act . [6]        The parties provided WCAT with written submissions and adduced evidence in support of their respective positions, including extensive excerpts from transcripts of examinations for discovery of the Individual Respondents conducted in the two civil actions. The Petitioner also filed a report prepared by Jim Donihee. Mr. Donihee retired as a Colonel from the Canadian Armed Forces in the fall of 2000 and then embarked on a career in the oil and gas industry. He became involved with TEC in 2006 and served as a TEC Chair from 2010 to 2012. [7]        On February 18, 2015. a one-person panel of WCAT issued a single decision in WCAT-2015-00533 and WCAT-2-15-00534 (“the WCAT decision”). WCAT concluded that the Individual Respondents, with the exception of Ms. Cross, were “workers”. WCAT concluded that it was not necessary to determine whether Ms. Cross was a “worker”, but presumed she was for the purposes of determining whether her injuries arose out of and in the course of her employment. [8]        WCAT concluded that the injuries sustained by the Individual Respondents, including Ms. Cross, did not arise out of and in the course of their employment . As a result of this conclusion, the Individual Respondents are not precluded from proceeding with their civil actions against the Petitioner. [Emphasis added.] The Decision Appealed From [3] The decision of the WCAT was made under s. 257 of the Workers Compensation Act , R.S.B.C. 1996, c. 492 (“the Act ”), which authorizes the WCAT, when an action has been commenced based on a personal injury, to determine whether the injury arose out of, and in the course of, the workers’ employment. The decision can be found at WCAT-2015-00533 and WCAT-2-15-00534. [4] Herb Morton, Vice Chair, sitting as the WCAT, concluded at para. 10 that the facts were generally not in dispute. The applications involved questions of mixed fact, law, and policy, and did not involve any significant issue of credibility. The applications were therefore considered on the basis of the written evidence, including both affidavits and transcripts of examinations for discovery, and submissions, without an oral hearing. [5] The application was considered in light of Worksafe policies in effect at the time of the accident on October 27, 2011. These included Items #C3-14.00 and #C3-21.00 in the Worksafe Rehabilitation Services and Claims Manual, Volume II . The latter describes a policy for attendance at educational or training courses in the following terms: Compensation coverage does not generally extend to injuries or death that occur during educational or training courses. Such courses are generally for the worker’s own benefit, and are not considered to have sufficient employment connection as to be compensable. However, some types of educational or training courses may be sufficiently connected to the worker’s employment as to be considered part of that employment. Consideration is then given to the factors in Item C3-14.00 and any other relevant factors not listed in policy, and the evidence is weighed to determine whether the injury or death arose out of and in the course of the employment. Factors that may weigh in favour of coverage for injuries or death sustained during educational or training courses include whether the education or training: · took place on the employer’s premises; · was for the benefit of the employer’s business; · was undertaken at the direction of the employer; · involved using equipment supplied by the employer; · was during a time period for which the worker was being paid; · was paid for by the employer; or · was considered by the employer to be part of the worker’s job. No single factor is determinative. In marginal cases, it is impossible to do better than weigh the employment features of the education or training against the personal features to reach a conclusion as to whether the test of employment connection has been met. [6] The WCAT review of Worksafe policies and its prior decisions demonstrates keen awareness of the issues with respect to treatment of job training and educational programs. WCAT noted, for example, that a distinction has been drawn between things workers must do to become and continue to be qualified to perform a particular job and the things they must do as part of the job. The WCAT, cited a prior policy manual as an appropriate description of continuing norms at para. 102: Generally speaking, only the latter activities are covered. A person may, for example, need to spend some time in an educational or training institute to obtain or maintain the qualifications necessary for a particular job, but that person is not normally covered while attending that institution. [7] Further, WCAT noted that Worksafe has addressed specific courses, adopting a policy, for example, that compensation coverage does not extend to injuries occurring in first aid courses taken off the employer’s premises and outside work hours, even though the worker may receive additional pay for a first aid ticket and be reimbursed the course fees by the employer. [8] After reviewing the evidence in the light of those policies, the WCAT found the following enumerated criteria were not determinative: a) TEC meetings were generally held away from the employers’ premises; b) The plaintiffs’ membership in TEC was intended to be at least indirectly for the employers’ benefit as well as having an aspect of personal development; c) Employers did not provide instruction to the plaintiffs to participate in TEC (or attend the retreat); d) Equipment was not Supplied by the Employer; e) Payment of TEC dues by the employer could be viewed as comparable to an employee using a gym membership paid for by the employer; f) The employees (apart from Cross) were paid annual salaries, their attendance at TEC activities on weekdays occurred during a time period for which they were being paid but they had flexibility in their work hours and times; g) The plaintiffs’ participation in TEC activities was not part of their normal work activities. They kept confidential any discussions they had at TEC meetings, and did not discuss these with their colleagues or employees. [9] The WCAT concluded: [135]    While the evidence is mixed, on balance I consider that the weight of the evidence supports a conclusion that this training is better characterized as being for the plaintiffs’ own benefit in enhancing their general knowledge, and skills in relation to their functioning as CEOs. It assisted the members in developing their abilities to perform their roles in a general way, which was not related to their specific industry. On a judgment basis, I find that the personal features of the education and training were predominant. The plaintiffs’ status is appropriately determined on the basis of the general principle that compensation coverage does not generally extend to injuries or death that occur during educational or training courses. [136]    I find that the plaintiffs’ participation in TEC was not sufficiently connected to their employment as to be considered part of that employment. Furthermore, I do not consider that there were additional circumstances surrounding the October 2011 retreat to connect the plaintiffs’ participation in that retreat to their employment. While the travel to the retreat occurred on a Thursday, and the first full day of events at the retreat occurred on a Friday, the second full day of events occurred on Saturday and was followed by a half day of events on Sunday. The retreat was thus spread over what might have been viewed as normally being workdays and personal days. [10] The parties agreed on the hearing of the petition for judicial review, as they do on this appeal, that the standard of review of the WCAT decision is patent unreasonableness, the standard described in s. 58(2)(a) of the Administrative Tribunals Act , S.B.C. 2004, c. 45: 58 (1) If the tribunal's enabling Act contains a privative clause, relative to the courts the tribunal must be considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction. (2) In a judicial review proceeding relating to expert tribunals under subsection (1) a) a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable. [11] The chambers judge addressed the appellant’s argument as follows: [29] Condensed to its simplest terms, the Petitioner’s position is that in its decision, WCAT does not demonstrate that it adequately addressed or engaged with the evidence favorable to the Petitioner’s position. [30] In the Petitioner’s written and oral submissions, counsel argued that WCAT did not adequately explain the basis for its determinations and decisions; or failed to deal adequately with a critical issue, leaving its reasoning unclear. [12] The argument was canvassed in detail. The chambers judge held: [33] I am of the view that the reasons given by WCAT in the decision under review here do allow this Court to understand why WCAT made its decision and more than adequately permit this Court to determine whether the conclusions reached are within the range of acceptable outcomes. And further: [51] It is true that WCAT did not recite or set out in any detail the specific evidence it considered in relation to the conclusions drawn in respect of each of the nine factors but in my view, it was not necessary that it do so. Reading the decision as a whole, including the extensive references to evidence earlier in the decision, it is clear that WCAT understood, considered and weighed the evidence put before it by the parties. [53] In my view, paragraphs 134 to 136 set out the ratio of the WCAT decision. WCAT acknowledged that the evidence was “mixed” − that there were factors favouring the position taken by the Petitioner; and factors favouring the position taken by the Individual Respondents. WCAT weighed the conflicting evidence and for the reasons given, concluded that the weight of the evidence supported a conclusion that the personal features of the Individual Respondents’ participation in the education and training provided by TEC were predominant; and that WCAT should apply the general policy that compensation coverage does not extend to injuries that occur during educational or training courses. [54] In Anderson v. British Columbia (Workers' Compensation Appeal Tribunal) , 2015 BCSC 1443, Justice Fenlon heard, among other submissions, an argument that the reasons of the Tribunal were inadequate. She concluded that there was more than enough evidence to support the findings made by WCAT. In her conclusions, she stated: 21. Finally I note that the issue before me on this judicial review is whether the decision that the altercation arose out of and in the course of employment is patently unreasonable. That is the question. The issue is not whether each fact leading up to the conclusion is patently unreasonable: Kovach v. BC (Workers’ Compensation Board) , [2001] 1 S.C.R. 55. 22. I have addressed and considered each of the challenged facts on the basis of whether it was patently unreasonable for the adjudicator to have found those three facts. I have done so because that is how the petitioner argued the case. Nonetheless, the analysis at the end of the day requires me to step back and consider the overall decision that is contained in the certificate, the overall decision that the altercation in issue arose out of and in the course of employment. That decision is soundly and thoroughly supported on the evidentiary record and in the reasons of the Tribunal. [55]      While there was evidence supporting the contrary position taken by the Petitioner, I am of the view that there was also ample evidence supporting the conclusion reached by WCAT. It is not the task of this Court to re-weigh the evidence. I am also of the view that the decision sets out the path of reasoning followed by WCAT and adequately addresses the evidence and the arguments submitted by the Petitioner. Read as a whole, the decision demonstrates careful consideration and weighing of the evidence; and application of the applicable statutory provisions and policies to the facts as found. Argument on Appeal [13] The grounds of appeal do not differ substantially from the argument considered by the chambers judge. The appellant summarizes the case on appeal as follows: The WCAT Panel found that participation in TEC 335 did not involve employment-related activities. That determination: a) was fundamental to the overall decision; b) was meritless, for being contrary to the evidence; and c) was supported only by a one-sentence irrational explanation. Analysis [14] The chambers judge found there was evidence to support the WCAT conclusions and the decision could not be said to be patently unreasonable. There being no issue with respect to the correct standard of review, the issue on appeal is whether the standard was applied correctly by the reviewing judge. Addressing that question puts us in the position of the reviewing judge: Henthorne v. British Columbia Ferry Services Ltd. , 2011 BCCA 476; Lysohirka v. British Columbia (Workers' Compensation Board ), 2012 BCCA 457; Vandale v. Workers’ Compensation Appeal Tribunal , 2013 BCCA 391. [15] Mr. Wells, for the appellant, says the finding critical to the outcome is found at para. 125 of the WCAT decision, where the tribunal considered one of nine non-exhaustive factors described in the Claims Manual : whether the injury occurred while the worker was performing activities that were part of the worker’s job . The WCAT found: [125]    The plaintiffs’ participation in TEC activities was not part of their normal work activities. They kept confidential any discussions they had at TEC meetings, and did not discuss these with their colleagues or employees. This factor does not support a finding of employment-connectedness. [16] The appellant says that finding is inconsistent with evidence the employees used their time at TEC functions to discuss work, get input and direction on specific business issues, learn about business plans and management structures and to think strategically. In my view, however, the conclusion is not contrary to the evidence but entirely consistent with the evidence set out in paras. 22-96 of the WCAT decision. The WCAT was clearly aware of, referred to and placed some weight upon, the fact the plaintiffs participated in TEC as a peer-to-peer mentoring group, with a view to enhancing their abilities as business owners or CEOs. It did not overlook the evidence of the use made by the employees of TEC training in their employment. The WCAT concluded: [127]    Overall, the application of the factors set out in item #C3-14.00 provides some limited evidence of employment-connectedness. The factor which provides the strongest support for such a finding is (b), regarding benefit to the employer. The evidence supports a conclusion that the plaintiffs chose to be members of TEC with a view to enhancing their abilities as owners/CEOs (while also promoting a work/life balance) . But for their roles as owners/CEOs, they would not have been members of the TEC group.[Emphasis added.] [17] I see no basis upon which we might conclude the WCAT was unaware of or failed to take account of the many ways in which the claimants used TEC to enhance their job performance or used what they learned at TEC in their employment. [18] I would not accede to the argument that the WCAT’s reasons inadequately address the nexus between the TEC functions and the employees’ jobs. The reasons cannot be said to be inadequate simply because the evidence in support of the conclusion that participation in TEC was not a part of the respondents’ normal work activities is not recited in para. 125. In my view, the WCAT has clearly laid out the route to its decision. There is sufficient clarity of fact finding. To use the words Mr. Moyse cited from Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para. 16, the reasons allow the reviewing court to understand why the tribunal made its decision and permit the reviewing court to determine whether the conclusion is within the range of acceptable outcomes; the Dunsmuir criteria are therefore met. [19] The WCAT finding that participation in TEC did not involve employment-related activities was not “fundamental to the overall decision”. Examination of the nine enumerated factors was not determinative of the outcome. The WCAT itself, at para. 128, described the result of its consideration of the factors enumerated in the Worksafe policies as “mixed”. The WCAT recognized that many of the enumerated factors had little weight in the exercise because they were inapplicable to self-directed CEOs. Having done so, the WCAT referred to and applied the policy (cited above at para. 5) that “in marginal cases, it is impossible to do better than weigh the employment features of the education or training against the personal features to reach a conclusion as to whether the test of employment connection has been met”. [20] The decision, as the chambers judge noted, ultimately turned on the view that personal features of the respondents’ participation in the education and training provided by TEC were predominant. That view is clearly supported in paras. 129 and 135 of the WCAT decision. [21] The fact referred to in para. 125 of the decision, that the respondents did not communicate the lessons learned at TEC with their colleagues or employees, was one indicia of the personal nature of their participation in the TEC program. [22] An appeal that rests upon an assertion that the tribunal’s decision was not founded upon the evidence must be considered in light of what Madam Justice Levine said in Speckling v. British Columbia (Workers’ Compensation Board) , 2005 BCCA 80 at para. 37: [A] decision is not patently unreasonable because the evidence is insufficient. It is not for the court on judicial review, or for this Court on appeal, to second guess the conclusions drawn from the evidence considered by the Appeal Division and substitute different findings of fact or inferences drawn from those facts. A court on review or appeal cannot reweigh the evidence. Only if there is no evidence to support the findings, or the decision is “openly, clearly, evidently unreasonable”, can it be said to be patently unreasonable. [23] In Speckling this Court noted at para. 25 that the Board and its employees and tribunals have day-to-day experience not only in the assessment and review of workers’ claims for compensation, but also in the application of the policy and purposes of the Act: The questions in issue here: whether Mr. Specking suffered an injury in the course of his employment and whether a decision is a “medical decision”, are dealt with on a regular basis by the Board. The Court can profess no particular expertise on these questions. [24] The deference owed to the WCAT is restated in British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority , 2016 SCC 25 where Mr. Justice Brown, for the majority wrote, at para. 30: Because a court must defer where there is evidence capable of supporting (as opposed to conclusively demonstrating ) a finding of fact, patent unreasonableness is not established where the reviewing court considers the evidence merely to be insufficient ( Speckling v. Workers’ Compensation Board (B.C.) , 2005 BCCA 80, 209 B.C.A.C. 86, at para. 37). Simply put, this standard precludes curial re-weighing of evidence, or rejecting the inferences drawn by the fact-finder from that evidence, or substituting the reviewing court’s preferred inferences for those drawn by the fact-finder. [25] In my opinion, there is evidence to support the findings. The decision is not “openly, clearly, evidently unreasonable”. It cannot be said to be patently unreasonable. I would dismiss the appeal. [26] BAUMAN C.J.B.C. : I agree. [27] FITCH J.A. : I agree. [28] BAUMAN C.J.B.C. : The appeal is dismissed. “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Cellular Baby Cell Phones Accessories Specialist Ltd. v. Fido Solutions Inc., 2017 BCCA 50 Date: 20170202 Docket: CA42346 Between: Cellular Baby Cell Phone Accessories Specialist Ltd. Appellant (Respondent on Cross Appeal) (Plaintiff) And Fido Solutions Inc. Respondent (Appellant on Cross Appeal) (Defendant) And Elizabeth Poon Respondent on Cross Appeal (Defendant by Counterclaim) Before: The Honourable Mr. Justice Donald The Honourable Mr. Justice Goepel The Honourable Mr. Justice Fitch On appeal from:  An order of the Supreme Court of British Columbia, dated October 17, 2014 ( Cellular Baby Cell Phones Accessories Specialist Ltd. v. Fido Solutions Inc. , 2014 BCSC 1959, Victoria Registry Docket 11-4662). Counsel for the Appellant, Cellular Baby Cell Phone Accessories Specialist Ltd., and Respondent on Cross Appeal, Elizabeth Poon: G.N. Harney Counsel for the Respondent, Fido Solutions Inc.: K.D. Loo Place and Date of Hearing: Victoria, British Columbia September 21 and 22, 2016 Place and Date of Judgment: Vancouver, British Columbia February 2, 2017 Written Reasons by: The Honourable Mr. Justice Goepel Concurred in by: The Honourable Mr. Justice Donald The Honourable Mr. Justice Fitch Summary: Cellular Baby seeks damages against Fido for wrongful termination of a dealership agreement. The trial judge found that Fido wrongfully terminated the agreement and assessed damages at $1,222,000. He, however, awarded only nominal damages of $500 on the basis that Cellular Baby failed to mitigate its loss when it did not sell to a prospective purchaser. On appeal, Cellular Baby submits that the trial judge erred in assessing damages and in finding that Cellular Baby failed to mitigate. Fido cross-appeals, alleging that the trial judge erred in finding that it wrongfully terminated the agreement. Held: appeal allowed and cross-appeal dismissed. Fido did wrongfully terminate the agreement as Fido failed to terminate within a reasonable period of time. Fido’s breach of contract resulted in Cellular Baby’s lost opportunity to sell its business as a going concern. Cellular Baby is thus entitled to $1,617,000 for loss of opportunity. Cellular Baby did take proper steps to mitigate its damages by carrying on business as a sub-agent for another wireless carrier. The duty to mitigate does not require Cellular Baby to release Fido from potential damage claims. Since Cellular Baby met its duty to mitigate, no amount should be subtracted from the damage award. In the result, Cellular Baby is entitled to a total damage award of $2,184,000. Reasons for Judgment of the Honourable Mr. Justice Goepel: INTRODUCTION [1] In this action, the appellant Cellular Baby Cell Phones Accessories Specialist Ltd. (“Cellular Baby”) sought damages against the respondent, Fido Solutions Inc. (“Fido”) for wrongful termination of a dealership agreement pursuant to which Cellular Baby sold Fido’s products. Fido counterclaimed against Cellular Baby and its principal and sole shareholder, Elizabeth Poon, for unpaid inventory. [2] The trial judge found that Fido had wrongfully terminated the agreement and assessed damages of $1,222,000. He went on however to hold that Cellular Baby had failed to mitigate its loss and in the circumstance was not entitled to damages otherwise flowing from Fido’s breach. In the result, he awarded Cellular Baby nominal damages of $500. [3] On appeal Cellular Baby submits that the trial judge erred both in his assessment of damages and in finding that Cellular Baby had failed to mitigate. Fido has cross-appealed. It alleges that the trial judge erred in finding that it wrongfully terminated the dealership agreement. [4] Fido’s counterclaim for unpaid inventory was allowed. On the counterclaim the trial judge granted judgment against Cellular Baby and Ms. Poon in the amount of $309,345.73. No appeal is taken from that decision. BACKGROUND [5] Ms. Poon, in 2000, when she was still a university student, began selling cellular phone accessories at the Richmond Night Market. By 2001, she had incorporated Cellular Baby, opened her first free-standing store location and begun selling cellular phones and wireless plans under a dealership agreement with a company called CityFone. [6] In 2003, Cellular Baby entered into a dealership agreement with Fido. In November 2004, Rogers Communications acquired the controlling interest in Fido and assumed a role in the management of Fido dealerships in British Columbia, including Cellular Baby. In October 2005, Cellular Baby and Fido entered into a further dealership agreement. [7] On July 1, 2008, Cellular Baby and Fido entered into a third dealership agreement (the “Agreement”). The Agreement was for a term of five years. It was 88 pages long. It was prepared by Fido’s solicitors. Its terms were not the subject of discussion or negotiation. All of Fido’s dealers throughout Canada signed similar agreements. [8] The Agreement authorized Fido to unilaterally set quarterly performance criteria for its dealers. The performance criteria established sales quotas in respect of a number of facets of the dealer’s operations including voice activations and data plans. Dealers were advised of their quotas by written communication from Fido issued 15 days prior to the commencement of the upcoming fiscal quarter. Pursuant to s. 11.2(c) of the Agreement, if a dealer failed for three consecutive calendar quarters or for any three quarters in a calendar year to meet performance criteria, Fido could immediately terminate the Agreement. [9] Cellular Baby operated 12 retail outlets: 10 in British Columbia and 2 in Alberta. Several of its outlets were located in premium locations. Substantially all of Cellular Baby’s revenue was generated through the sale of Fido products. [10] Cellular Baby was one of Fido’s highest producing dealers in British Columbia. In 2009 it provided roughly 27% of Fido’s total sales from its dedicated dealers. In 2009, Cellular Baby was recognized for its high sales and high level of customer satisfaction. [11] Prior to 2010, Cellular Baby had never failed to achieve its assigned quota. In 2010 Cellular Baby failed to achieve the quotas assigned to it in Q1, Q2 and Q4 in British Columbia and all four quarters in Alberta. Following each of those quarters, Fido sent a perfunctory email to Cellular Baby reminding it of the quotas and noting Cellular Baby’s underachievement. Fido did not suggest any remedial action, but did note that Cellular Baby was contractually required to use all commercially reasonable efforts to achieve its quota. Fido did not warn Cellular Baby that its failure to achieve its quarterly quota was jeopardizing its status as a dealer. [12] Fido knew by February 2011 that it had the right to terminate the Agreement because Cellular Baby had failed to achieve its quota in three of four quarters in fiscal 2010. Fido took no steps at that time to terminate the Agreement. Rather it set out to analyse internally the impact on Fido of terminating a dealer the size of Cellular Baby. In particular it attempted to determine whether it would be able to replace and recapture the sales that would be lost if Cellular Baby was terminated. [13] Throughout 2011 the parties continued to operate under the terms of the Agreement. In 2011, Cellular Baby achieved quota for Q1, just failed to meet its quota for Q2 and was trending to achieve its quota for Q3, which ended on September 30, 2011. [14] On September 19, 2011, Fido sent a letter to Cellular Baby terminating the Agreement effective September 30, 2011 (the “Termination Letter”). The Termination Letter stated in part: Despite numerous warnings from Fido, the performance of your Fido dealerships has continued to fall below acceptable standards in all key performance areas. Specifically, Cellular Baby has persistently failed to meet the Performance Requirements set by Fido for the last six (6) quarters. The Performance Requirements pursuant to the Agreement are set out in quarterly quota letters and in section C.3.2 of Schedule “A-1” to the agreement. Cellular Baby’s failure to meet these requirements and cure all defaults and breaches within the prescribed time under the Agreement, despite having received numerous notices, gives rise to Fido’s right to immediately terminate the agreement. [15] The Termination Letter was factually incorrect in many areas. No warnings had been issued to Cellular Baby, nor had Cellular Baby fallen below acceptable standards in all key areas. It had not failed for the last six quarters to meet its performance requirements. No notice of default had ever been delivered such that it could have taken any curative steps. [16] At trial Fido resiled from the broad allegations contained in the Termination Letter and relied exclusively on Cellular Baby’s failure to achieve its assigned quota for three of the four quarters in fiscal 2010 to justify the termination. [17] In the Termination Letter, Fido indicated it was prepared to offer residual continuance in accordance with s. 11.3(2) of the Agreement under certain terms. Those terms included Cellular Baby releasing Fido of any potential claims, Cellular Baby being bound by the non-competition clause contained in the Agreement and Cellular Baby signing over to Fido its premium leases. Cellular Baby was given but four days to accept Fido’s offer. [18] The residual payments referenced in the Termination Letter were payable by Fido to a dealer upon expiration of a dealership agreement if the dealer was in compliance with its obligations under the dealership agreement. The residual payments represented a portion of the payment made by customers who had entered into contracts or voice or data plans through the dealer and remained Fido customers following the dealership expiration. [19] On September 23, 2011, Fido wrote to Cellular Baby offering different terms. Fido was now prepared to take over all of Cellular Baby’s leases, not just the premium ones. It also offered to pay the residual payment as a lump sum. The offer was extended by four days. [20] Cellular Baby declined both offers. [21] On November 18, 2011, Cellular Baby commenced these proceedings. On November 30, 2011, it filed an application for an interim injunction to prevent Fido from terminating the Agreement until final determination of the action. [22] The parties agreed to stay the termination pending the hearing of the injunction application. The injunction application was heard on February 27, 2012. On March 29, 2012, Madam Justice Russell dismissed Cellular Baby’s application for injunctive relief. Following the dismissal of the application, Fido set April 4, 2012 as the new date for termination. This date was later extended to April 26, 2012 to allow Cellular Baby further time to attempt to sell its business. [23] After Cellular Baby rejected Fido’s initial offers, Fido advised Cellular Baby that it was free to contact approved Fido dealers in an effort to sell its locations together with the remaining term of the Agreement. Fido reserved the right to approve any sale and as a condition of a sale, Fido advised Cellular Baby that it would have to provide Fido a full release from any future claims. [24] Cellular Baby contacted other Fido dealers to determine whether they might be interested in acquiring some or all of its business. The most serious suitors were Fido dealers, Yappy and Pepper. Beginning in November 2011, exchanges took place between Mr. Tsang, the principal of Yappy, and Ms. Poon firstly on the topic of bundled locations, but later focused on Yappy purchasing all of Cellular Baby’s business. Mr. Tsang indicated he was prepared to pay 36 times residuals plus incentives on the leases. Ms. Poon valued this offer at $2 million. The trial judge found he was unable to conclude that Yappy had made a firm offer of $2 million. It is clear that Yappy was prepared to pay at least 36 times residuals. [25] When Mr. Tsang sought details from Fido concerning Cellular Baby’s finances, he was advised that Fido would not approve Yappy as a purchaser. This discussion occurred around April 6, 2012. When Fido advised Ms. Poon that it would not support a sale to Yappy, its representative encouraged her to carry on negotiations with Pepper. [26] Pepper was the other dominant Fido dealer in British Columbia and had sales similar to those of Cellular Baby. Fido indicated that it would likely approve a sale to Pepper. [27] Pepper’s original offer was $1.2 million, approximately 30 times residuals. Ultimately it increased its offer to $1.57 million, 36 times residuals and then rounded its offer to $1.6 million. [28] Ms. Poon advised Pepper that she was not prepared to sell for less than $2 million. Evidence at the trial indicated that Pepper was prepared to increase its offer and Ms. Poon likely would have accepted something less than $2 million. Unfortunately, an agreement was never made. [29] On April 26, 2012, after Cellular Baby failed to reach an agreement with Pepper, Fido terminated the Agreement. Cellular Baby stopped sales of all Fido products. All Fido signage was removed. Cellular Baby commenced selling products and wireless plans as a sub-agent for another wireless carrier. THE TRIAL REASONS [30] The trial judge identified the issues as follows: 1.         Did the defendant unlawfully terminate the Agreement? 2.         If so, what damages flow from the wrongful termination? 3.         Did the plaintiff fail to mitigate its losses and, if so, what impact does the failure to mitigate have on the plaintiff’s damage claim? [31] The trial judge first dealt with whether Fido had unlawfully terminated the Agreement. He commenced his analysis by reviewing the terms of the Agreement. Fido’s right to terminate the Agreement is set out in s. 11.2. In terminating the Agreement, Fido relied on s. 11.2(c) which reads: Notwithstanding any other provision herein, Fido may immediately terminate this Agreement by written notice to Dealer: (c)        if Dealer fails to meet the Performance Criteria for two (2) consecutive six (6) month periods or if Dealer fails for three (3) consecutive calendar quarters or any three (3) quarters in a calendar year to meet any Performance Requirement; [32] The trial judge found that there was no question that Cellular Baby had failed to achieve its quotas in three of the four quarters of fiscal 2010 in British Columbia and Alberta. The trial judge then reviewed in some detail Fido’s practices in setting quotas. In that regard, he reviewed the quotas for each quarter in 2010 and compared Fido’s local adjustments for Cellular Baby relative to other major dealers. For example, in Q4, the quota for Cellular Baby was raised locally by 355 activations; the remaining dealers’ quotas were reduced by the same number. The trial judge found no reasonable basis for this adjustment. The trial judge held that since Cellular Baby’s quota was not set reasonably for Q4, a quarter where quota was not achieved, then it could not be said that Cellular Baby breached s. 11.2(c). [33] The trial judge further found that Fido did not act reasonably towards Cellular Baby in exercising its discretion to terminate the Agreement. He found that Fido failed to act in good faith by failing to respond to and deal with certain legitimate complaints that Cellular Baby had raised. He further found that Fido acted unreasonably in failing to issue warnings and failing to offer assistance to Cellular Baby in advance of deciding to exercise its right of termination. [34] He further found that Fido breached its obligations under the Agreement by not terminating the Agreement “immediately” upon learning of the breach. In that regard he reasoned as follows: [150]    Section 11.2 allows Fido to terminate by written notice to a dealer if any of the obligations set out in 11.2(a)-(k) are not fulfilled. It is entirely discretionary and within Fido’s control whether they decide to terminate. However, the word terminate is modified by the word “immediately”. Immediately is not the same as ‘without notice’. According to the Concise Oxford Dictionary,5 th ed., it means: “occurring at once; without delay”. [151]    Nothing in the wording of s. 11.2(c) allows Fido to sit back, assess its position, create strategies to ameliorate the effects of its decision and then, eight months after the fact, terminate the dealer, who, at the time of termination, was in compliance with the achievement of its B.C. quotas. [152]    Fido was aware by mid-to-late January 2011 of the breach on which it relies to invoke the termination clause in the Agreement. [153]    While acknowledging the word “immediately” in s. 11.2 ought not to be construed as meaning instantaneously upon learning of the breach, it cannot mean eight months after the fact. [154]    Such, in my view, has nothing to do with the doctrines of either waiver or estoppel but flows from the wording of the Agreement and the doctrine of contra proferentem . If Fido chose to terminate the Agreement on the basis of s. 11.2(c), it had an obligation to do so “immediately”, which I find to mean “within a reasonable period of time”. Eight months is not, in my view, a reasonable period of time in the circumstances. By failing to act immediately, Fido failed to comply with the provisions of 11.2(c) which would have, from the defendant’s perspective, allowed it to lawfully terminate the Agreement. [35] Having found that Fido unlawfully terminated the Agreement, he turned to the question of damages. He agreed that Cellular Baby was entitled to recover the profits it could reasonably have anticipated earning over the Agreement’s remaining 14 months. Cellular Baby sought an award of $276,000. The trial judge, after noting numerous frailties in the evidentiary foundation of the loss of profits claim, assessed the loss of profits at $200,000. [36] The trial judge next went on to consider Cellular Baby’s post-termination business losses. Cellular Baby claimed losses of almost $950,000 including documented transition expenses of approximately $367,000. The transition expenses flowed from Cellular Baby’s efforts to mitigate its losses by continuing in the cellular business. They included such items as the costs of changing signage, interior design and fixtures, surrendering four leases and lease conversion fees, brokerage and professional fees, together with emergency and extra staff costs. The remainder of the claim represented operating losses over the 14+ months remaining on the Agreement. [37] While acknowledging that some of the transition expenses may have occurred in any event at the expiration of the Agreement, the trial judge held that it was Fido’s wrongful conduct which caused the immediacy of the problem that Cellular Baby had to confront. The trial judge found Fido’s wrongful termination was the cause of most of the transition expenses and assessed those damages at $367,000. He refused to make any award for the operating losses. [38] The final damage issue concerned residual payments. The parties agreed that if Fido wrongfully terminated the Agreement, Cellular Baby was entitled to ongoing residual payments at the expiration of the Agreement. They disagreed on the amount. [39] Paragraph 11.3(2) of the Agreement provided a formula for the payment of residuals. If the dealer’s subscriber base was less than 50,000 at the contract’s conclusion, it provided for post-expiry residuals for one year following the Agreement’s expiration. If the subscriber base was between 50,000 and 99,000, residuals would be paid for 18 months. As at March 31, 2012, Cellular Baby’s subscriber base was 33,700. [40] The parties’ dispute centered on what the cumulative subscriber base might realistically have risen to if the Agreement had run to term. While the trial judge found the subscriber base would have grown in the 14+ months remaining until the Agreement’s expiry, he held that it would not have reached the 50,000 subscriber base necessary to achieve the higher residual payment. In this regard he accepted Fido’s growth calculations and determined the loss for the non-payment of residuals was $655,000. [41] The trial judge rejected Cellular Baby’s submission that damages should be assessed not on the basis of payment of one year’s residuals but on anticipated sale proceeds calculated at 36 times residuals. Based on Fido’s residual projection accepted by the trial judge, the sale of the business at the end of the Agreement’s term, assuming a sales price of 36 times residuals, would have resulted in a price of $2,156,000. He rejected this submission for the following reasons: [196]    What the submission overlooks is that while the Agreement makes provision for the sale of the business at the expiration of the Agreement, such is subject to the provisions of article 12.1 of the Agreement, which precludes assignment or transfer of assets, including goodwill, without the written consent of Fido. Article 12.4 provides that Fido may, in its sole discretion, grant or deny permission based on a number of enumerated criteria. [197]    What is clear is that Fido’s consent is discretionary. Given the duty to act in good faith, Fido’s consent to a transfer could not be unreasonably withheld. Absent a potential purchaser ready, able and willing to purchase the plaintiff’s business for $2,156,000 as at June 30, 2013, it is difficult to assess how Fido might respond. Clearly, Yappy was not such a candidate in 2012. Pepper was. Whether a candidate such as Pepper would have been available at the Agreement’s expiration is a matter of speculation. [198]    Given the absence of any evidence suggesting a ready market for the fair market value sale of wireless distributorships such as the plaintiff’s upon the expiry of the term of the dealership agreement, I am unable to conclude that the sale of the plaintiff’s business at the Agreement’s end was anything more than a possibility; not a probability. [199]    Recalling that the plaintiff was afforded more time than Yappy to affect a sale of its business and my conclusions, which follow, as to the reasonableness of the plaintiff’s strategies in trying to complete a sale in 2012, I conclude the preferred manner to assess the plaintiff’s loss is on the basis of the residuals payable at the Agreement’s end rather discounting the potential sale of the business at $2,156,000 to reflect the possibility of such a sale. Given the variables and uncertainty associated with a future sale to a limited number of potential buyers, the $655,000 for loss of residuals exceeds the discounted value of a potential sale at the Agreement’s expiration. [42] In summary, the trial judge awarded damages of $1,222,000 calculated as follows: 1. Loss of Profits April 26, 2012 to June 30, 2013 $200,000 2. Business Losses $367,000 3. Residual Payments $655,000 Total: $1,222,000 [43] Having assessed Cellular Baby’s damages, the trial judge then turned to the question of mitigation. He found that Cellular Baby did not act reasonably in failing to conclude a sale to Pepper at $1.6 million. As a result, he concluded that Fido had proven on the balance of probabilities that Cellular Baby could have mitigated its entire loss and having failed to do so it was only entitled to nominal damages which he set at $500. THE APPEAL [44] Cellular Baby challenges two aspects of the damage award. It submits the trial judge should have assessed damages, not on the basis of one year’s residuals, but rather on the potential sale of the business at $2,156,000. It further submits that the trial judge erred in finding that it had failed to take reasonable steps to mitigate its loss. [45] In its cross-appeal, Fido challenges the trial judge’s findings that it wrongfully terminated the Agreement. In that regard, it submits the trial judge erred by: 1.  concluding that the local adjustment to Cellular Baby’s Q4 2010 quota was unreasonable as the local adjustment made no difference to the result as Cellular Baby would have failed to meet its Q4 2010 quota even if the local adjustment had not occurred; 2.  finding that Fido did not act reasonably in exercising its discretion to terminate the Agreement when the decision to terminate was not discretionary in nature (rather, Fido submits that its right to terminate was contractual and unqualified); and 3.  finding that Fido was required to terminate the Agreement “immediately” upon learning of Cellular Baby’s breach, despite the permissive language in s. 11.2(c). [46] Although the issues were contested at trial, neither side has appealed the $200,000 award for loss of profits or the $367,000 award for business losses. DISCUSSION A.       Wrongful Termination [47] I will first consider the cross-appeal and in particular the submission that the trial judge erred in holding that Fido wrongfully terminated the Agreement because it did not do so “immediately” on learning of the breach. [48] This ground of appeal requires consideration of the terms of the Agreement. The Agreement is a standard form contract. Its interpretation is of precedential value. There is no meaningful factual matrix that is specific to the parties to assist in the interpretation process. Interpretation of the Agreement is subject to a correctness standard of review: Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co ., 2016 SCC 37 at para. 24. [49] The Agreement, unless terminated in accordance with s. 11, was to remain in effect for five years. Section 11.2 sets out various circumstances pursuant to which Fido could immediately terminate the Agreement. This case turns on s. 11.2(c) which gives Fido the right to immediately terminate the Agreement if the dealer fails for any three quarters in a calendar year to meet performance review requirements. [50] In his reasons, the trial judge noted that the word “terminate” is modified by the word “immediately”. He held that immediately is not the same as “without notice”. He held that if Fido wished to terminate the Agreement on the basis of s. 11.2(c), it had to be do so “immediately” which he took to mean “within a reasonable period of time”. He found eight months was not, in his view, a reasonable period of time and by failing to act immediately, Fido had failed to comply with the provisions of s. 11.2(c) which would have allowed Fido to lawfully terminate the Agreement. [51] Fido submits that the trial judge misconstrued the import of the word “immediately” in s. 11.2(c) of the Agreement. It submits that the provision gives Fido the right to terminate without notice or warning but does not require immediate action. [52] The interpretation of a written contractual provision must be grounded in the text and read in light of the contract as a whole: Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53 at para. 57. [53] The Agreement, unless earlier terminated by Fido pursuant to the provisions of s. 11.2, was for a fixed five-year term. If the Agreement expired and the parties did not enter into a new agreement, and Fido continued to accept sales solicited by the dealer, the Agreement was deemed to continue on a month-to-month basis which either party could terminate upon no less than 30 days written notice (s. 11.1). [54] Section 11.2 sets out an extended list of circumstances that gave Fido the right to “immediately” terminate the Agreement. Unlike s. 11.1, s. 11.2 does not contain a specific length of notice provision. Considering the Agreement as a whole, I find that the word “immediately” in s. 11.2 is a length of notice provision. It gives Fido the right to terminate without notice or warning if Cellular Baby commits any of the defaults set out in the section. I agree with Fido’s interpretation of the term “immediately”. [55] While I agree that the trial judge erred in his interpretation of “immediately” that error is not fatal to his conclusion that if Fido wanted to terminate the Agreement on the basis of s. 11.2(c), it had to do so within a reasonable period of time. That conclusion is consistent with long-established principles governing the termination of contracts when one party has committed a breach that allows the other party to elect to terminate the contract. [56] In Gulston v. Aldred , 2011 BCCA 147, this Court set out the options open to an innocent party when the other party has breached a term of an agreement which gives the innocent party the right to terminate the contract: [50]      Where there is a breach of a fundamental term, the innocent party has two options.  As this Court stated in Morrison-Knudsen Co. Inc. v. British Columbia Hydro and Power Authority , (1978) 85 D.L.R. (3d) 186 at para. 130: ... However, it is not every breach which determines a contract and puts an end to contractual obligations. There are breaches compensable in damages only and breaches called fundamental breaches which can bring the contractual relationship to an end and free the parties from further performance. When faced with a fundamental breach the innocent party is put to an election. He may elect to affirm the contract and to hold the other party to the performance of his obligations and sue for damages as compensation for the breach. He may, on the other hand, elect to treat the breach as a fundamental breach and accept it as such. Thus he would terminate the contract and thereafter be relieved of any further duty to perform and he could sue at once for damages or quantum meruit for performance to that point. It is essential that such election, an election between inconsistent rights, be made promptly and communicated to the guilty party. Once made, the election is binding and cannot be changed . [57] In A & G Investment Inc. v. 0915630 B.C. Ltd. , 2014 BCCA 425, this Court explained why an election between inconsistent rights must be made promptly: [38]      An election between inconsistent rights must, however, be made promptly and communicated to the other side. Parties cannot adopt a “wait-and-see” approach to fundamental breach, as their election simultaneously determines the position of the counterparty to the contract. Either the contract is not repudiated and the rights and obligations under it still exist, or the contract is rescinded because of an accepted repudiation and then very different rights come into being in respect of a cause of action. In either case, parties must have prompt notice of their position. [58] Cellular Baby’s failure to meet its quota obligations in 2010 gave Fido the right to terminate the Agreement. Fido knew of that right by February 2011. Fido however took no steps to terminate the contract until it sent the Termination Letter on September 19, 2011. [59] Fido was entitled to a reasonable period of time in which to decide whether to affirm the Agreement or exercise its right of termination: Dosanjh v. Liang , 2015 BCCA 18 at para. 37. I agree with the trial judge that eight months in these circumstances was not a reasonable period of time. By September 19, 2011, Fido had lost the right to terminate the Agreement for the 2010 breach. Fido’s termination of the Agreement was wrongful. [60] In light of this conclusion, it is not necessary to consider the two other arguments raised on the cross-appeal. [61] I would dismiss the cross-appeal. B.       Residual Payments [62] If the Agreement had been allowed to run to the end of its term, Cellular Baby would have had the right to sell its business to a third party. The evidence at trial indicated the business was of considerable value. In April 2012, both Yappy and Pepper offered to pay 36 times the then residuals in their efforts to purchase the ongoing business. The trial judge, based on his finding of the likely number of contracts on which residuals would have been payable as at June 2013, held that a sale of the business at the end of the Agreement’s term, assuming 36 times residuals, would result in a price of $2,156,000 (rounded). [63] The trial judge found that he was unable to conclude that the sale of Cellular Baby’s business at the Agreement’s end was anything more than a possibility; not a probability. In reaching that conclusion, he referenced the absence of any evidence suggesting a ready market for the fair market value sale of wireless distributorships upon the expiry of the term of the dealership agreement. He noted that Fido’s consent was required for any sale and absent evidence of a potential purchaser ready, willing and able to purchase the business as of June 30, 2013 it was difficult to assess how Fido might respond. He suggested whether a candidate such as Pepper, who was prepared to purchase the business in 2012, would have been available in 2013, was a matter of speculation. [64] The trial judge’s decision regarding the potential sale of the business raises a question of mixed fact and law. It involves applying a legal standard to a set of facts. Matters of mixed fact and law lie along a spectrum. Where an error can be attributed to the application of an incorrect legal standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness: Housen v. Nikolaisen , 2002 SCC 33 at para. 36. [65] With respect, I am of the view that the trial judge did not apply the correct legal standard to this part of the claim. What Cellular Baby lost as a result of Fido’s wrongful termination was the opportunity to sell its business as a going concern. This Court in Pacific Destination Properties Inc. v. Grandville West Capital Corp. , 1999 BCCA 115 set out the approach to be followed in assessing a loss of opportunity claim: [54]      In assessing damages for loss of opportunity the court must reach a conclusion as to what would have taken place had there been no breach.  If it is shown with some degree of certainty that a specific contract was lost as a result of the defendant’s breach, some damages should be awarded.  Even though the plaintiff may not be able to prove with certainty that it would have obtained specific results but for the breach, it may be able to establish that the defendant’s breach deprived it of the opportunity to obtain such business.  See: Houweling Nurseries Ltd. v. Fisons Western Corporation (1988), 37 B.C.L.R. (2d) 2 (C.A.). [55]      In Bradshaw Construction Ltd. v. Bank of Nova Scotia (1992), 73 B.C.L.R. (2d) 212 (C.A.) this Court considered the principles applicable to damages, including a claim of a loss of opportunity.  At pages 228-229, the court referred to the following as a correct statement of the applicable law for loss of opportunity (as set out by the trial judge): When deciding whether the plaintiff suffered any damages as a consequence of the actions of the defendant, Bradshaw must prove the existence of a loss on a balance of probabilities. It has done so. But when it comes to assessing the actual amount of the loss the standard of proof is not so strict. Determining the amount of damages in these circumstances is largely a matter of assessing the strength and weaknesses of various possibilities. It is much like measuring the amount of a past or future loss of income in a personal injury action. The more certain the possibility of the loss the greater the award; the less certain the possibility the smaller the award. When looking at events that may have taken place but for a certain event, it is impossible to say what would have probably happened when that event came about, because one does not know the nature of the circumstances at the relevant time when the event might have occurred. The best that can be estimated are the possibilities, not the probabilities . [Emphasis added.] [66] In this case, there is no doubt that if the Agreement had been allowed to run its course, Cellular Baby would have had the opportunity to sell its business in June 2013 as a going concern. It lost that opportunity when Fido wrongfully terminated the Agreement in April 2012. It is now impossible to say with certainty what would have probably happened in June 2013, because one does not know the nature of all the circumstances at that time. Any uncertainty as to the outcome of a possible sale is properly dealt with by applying a deduction on the basis of contingencies: Pacific Destination at para. 52. [67] The evidence before the trial judge indicates that the deduction for contingencies should be modest. Cellular Baby was one of Fido’s largest dealers in British Columbia and its sale produced more than a quarter of Fido’s British Columbia revenues. Its business was profitable. It had leases in several premium locations. The events of April 2012 clearly demonstrated there were potential buyers for Cellular Baby’s business. Because of the compressed timeframe in which that sale was being negotiated, Fido refused to consider purchasers who were not otherwise Fido dealers. A sale at the end of the Agreement in June 2013 would not have faced similar limitations. While Fido had to consent to any sale, given its duty to act in good faith, Fido’s consent to a transfer could not be unreasonably withheld. Fido was most anxious to maintain Cellular Baby’s revenues. It was clearly in Fido’s interest that Cellular Baby be sold as a going concern and it can be reasonably inferred that Fido would in these circumstances have actively encouraged a sale. [68] While there was no evidence of any wireless sales in June 2013, the lack of such evidence is not fatal to the loss of opportunity claim. As set out in Bradshaw, quoted above, it is impossible to say what would have probably happened in June 2013, because one does not know the nature of the circumstances at the relevant time when the event might have occurred. Furthermore, this uncertainty results from Fido’s wrongful breach of the Agreement. The comments of Satanove J. in REC Holdings Co v. Peat Marwick Thorne [1997] B.C.J. No. 1640, 72 A.C.W.S. (3d) 472 (B.C.S.C.) at para. 120 are apposite: In assessing quantum, the court is trying to determine a past hypothetical, not historical, situation. The situation is hypothetical and fraught with difficulties of proof because the conduct of the defendants have made it so. Therefore, once it has been proven on a balance of probabilities that it was the defendants’ conduct which caused the plaintiffs’ loss, any doubt should result in favour of the plaintiffs. [69] In this case we do know there was strong interest in purchasing the business in April 2012 and we also know that in January 2014, Yappy upon expiry of its dealer agreement was able to sell its business as a going concern. Given this evidence the strong inference is that absent Fido’s wrongful termination of the Agreement, a sale in June 2013 was likely to have occurred. [70] A sale was, of course, not guaranteed. What Cellular Baby lost as a result of Fido’s breach of contract was the opportunity to sell the business. In April 2012 prospective purchasers were prepared to pay 36 times the then residuals. If a sale had been made at 36 times residuals in June 2013, Cellular Baby would have received $2,156,000. As a sale was not guaranteed, that number has to be reduced to take into account contingencies that may have arisen. I would reduce the sale price by 25% for contingencies. [71] I would substitute an award for $1,617,000 for loss of opportunity in place of the trial judge’s award of $655,000 for residual payments. C.       Mitigation [72] In breach of contract cases a wronged plaintiff is entitled to be put in as good a position as he would have been if there had been proper performance by the defendant. That rule is subject to the qualification that the defendant cannot be called upon to pay for avoidable losses which would result in an increase in the quantum of damages payable to the plaintiff: Red Deer College v. Michaels , [1976] 2 S.C.R. 324 at 330 . [73] The duty to mitigate is limited. A claimant need not destroy or sacrifice rights or property of his own in mitigation: Elliott Steam Tug Co. v. Shipping Controller , [1922] 1 K.B. 127 (C.A.) at 140 – 141. [74] Mitigation is a doctrine based on fairness and common sense. The general principles of mitigation were summarized in Southcott Estates Inc. v. Toronto Catholic District School Board , [2012] 2 S.C.R. 51: 23 This Court in Asamera Oil Corp. v. Seal Oil & General Corp. , [1979] 1 S.C.R. 633, cited (at pp. 660-61) with approval the statement of Viscount Haldane L.C. in British Westinghouse Electric and Manufacturing Co. v. Underground Electric Railways Company of London, Ltd., [1912] A.C. 673 , at p. 689: The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by a second, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars him from claiming any part of the damage which is due to his neglect to take such steps. 24 In British Columbia v. Canadian Forest Products Ltd. , 2004 SCC 38, [2004] 2 S.C.R. 74, at para. 176, this Court explained that “[l]osses that could reasonably have been avoided are, in effect, caused by the plaintiff’s inaction, rather than the defendant’s wrong.” As a general rule, a plaintiff will not be able to recover for those losses which he could have avoided by taking reasonable steps. Where it is alleged that the plaintiff has failed to mitigate, the burden of proof is on the defendant, who needs to prove both that the plaintiff has failed to make reasonable efforts to mitigate and that mitigation was possible ( Red Deer College v. Michaels , [1976] 2 S.C.R. 324; Asamera ; Evans v. Teamsters Local Union No. 31 , 2008 SCC 20, [2008] 1 S.C.R. 661, at para. 30). 25 On the other hand, a plaintiff who does take reasonable steps to mitigate loss may recover, as damages, the costs and expenses incurred in taking those reasonable steps, provided that the costs and expenses are reasonable and were truly incurred in mitigation of damages (see P. Bates, “Mitigation of Damages: A Matter of Commercial Common Sense” (1991), 13 Advocates’ Q. 273). The valuation of damages is therefore a balancing process: as the Federal Court of Appeal stated in Redpath Industries Ltd. v. Cisco (The) , [1994] 2 F.C. 279, at p. 302,: “The Court must make sure that the victim is compensated for his loss; but it must at the same time make sure that the wrongdoer is not abused.” Mitigation is a doctrine based on fairness and common sense, which seeks to do justice between the parties in the particular circumstances of the case. [75] Whether Cellular Baby could have mitigated its damages is also a question of mixed fact and law: Southcott Estates at para . 47 . It involves applying a legal standard to a set of facts. Where an error can be attributed to the application of an incorrect legal standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. [76] In this case Fido wrongfully terminated the Agreement in April 2012. As a result of the termination Cellular Baby lost the profits it would have earned through to June 2013 and the ability to sell its business as a going concern in June 2013. Because of the projected increase in its subscriber base, the business would have been worth considerably more in June 2013 than it was in April 2012. [77] Cellular Baby had an obligation to take reasonable steps to attempt to mitigate its damages. In April 2012 there appeared to be two possible ways in which it could mitigate its loss. One was to carry on business as a sub-agent for another wireless carrier. The other was to sell its business to Pepper as a going concern for $1,600,000. A sale to Pepper was however contingent on Cellular Baby providing Fido a general release of all claims. [78] Cellular Baby chose to forgo the sale and continue in business. The fact that the new venture did not prove successful is not determinative of whether Cellular Baby reasonably mitigated its loss. Expenses incurred in a reasonable attempt to mitigate are recoverable even if the attempt to mitigate was unsuccessful: PreMD Inc. v. Ogilvy Renault LLP , 2013 ONCA 412 at para. 63. The trial judge’s award of $367,000 for transition expenses is consistent with this principle. [79] The trial judge found that Cellular Baby should have availed itself of the opportunity to sell its business and reduce its potential loss. In making that finding the trial judge appears to have overlooked that the sale to Pepper required Cellular Baby to provide Fido a general release of all claims. With respect, in doing so he committed an error in principle. The release would have forced Cellular Baby to forgo its claim for loss of profits which was eventually valued at $200,000. It also would have lost its claim arising for the increased selling price that likely would have been available in June 2013. [80] The duty to mitigate does not require a party to release claims it may have against a wrongdoer. If Cellular Baby had sold its business to Pepper it would have lost its right to pursue Fido for its other losses. It would not be in as good a position as if Fido had properly performed. [81] While Cellular Baby had an obligation to take reasonable steps to attempt to mitigate its damages, the duty to mitigate does not require it to release Fido from potential damage claims. To do so would not be fair, just or reasonable. [82] The trial judge made an error of law in finding that Cellular Baby failed to mitigate when it did not agree to sell to Pepper. The requirement of the general release is fatal to the trial judge’s mitigation finding. In the circumstances the trial judge’s mitigation finding cannot stand. If the sale to Pepper had not been conditional on the release of Fido, different considerations might apply. [83] I find in the circumstances Cellular Baby did take reasonable steps to mitigate its damages and no amount should be subtracted from the damage award. [84] In the result therefore I would set aside the award for nominal damages and substitute an award of $2,184,000 being the award for loss of profits ($200,000), business loss ($367,000) and loss of opportunity ($1,617,000). COSTS [85] Cellular Baby is entitled to the costs of the appeal and cross-appeal. In regards to the costs of the trial, the trial judge said this: [274]    Pursuit of the counterclaim by the defendant as against both the plaintiff and the defendant by counterclaim occupied negligible court time. [275]    The principal issues were the allegation of breach and the claim for damages as a result. In keeping with Davidson , it is my preliminary view that the plaintiff should have costs in the action at scale B to reflect its success in proving the breach. However, as the matter of costs was not argued, I grant the parties leave to set the matter down before me if either believes some other result is more appropriate. [86] Subsequent to receipt of the reasons for judgment, the parties agreed that each side should bear their own costs of trial. Unless there are matters of which we do not know, it would appear that Cellular Baby is entitled to the costs of the trial. [87] If the parties are unable to agree as to the costs of trial or the calculation of pre-judgment interest arising from the damage awards, they are at liberty to make arrangements to file further written submissions. They should do so within the next 30 days pursuant to a schedule to be arranged with the Registrar. “The Honourable Mr. Justice Goepel” I AGREE: “The Honourable Mr. Justice Donald” I AGREE: “The Honourable Mr. Justice Fitch”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Nelson v. British Columbia (Provincial Health Services Authority), 2017 BCCA 46 Date: 20170202 Docket: CA43266 Between: Nicole Natalie Nelson Respondent Appellant on Cross Appeal (Plaintiff) And Provincial Health Services Authority dba British Columbia Women’s Hospital and Health Centre Appellant Respondent on Cross Appeal (Defendant) Before: The Honourable Mr. Justice Willcock The Honourable Mr. Justice Goepel The Honourable Mr. Justice Fitch On appeal from:  An order of the Supreme Court of British Columbia, dated October 26, 2015 ( Nelson v. British Columbia (Provincial Health Services Authority) , 2015 BCSC 1941, Victoria Registry 111408). Counsel for the Appellant: C.L. Woods, Q.C. and D.S. Hwang Counsel for the Respondent: W. Pickett and A. Sheane Place and Date of Hearing: Vancouver, British Columbia October 17 & 18, 2016 Place and Date of Judgment: Vancouver, British Columbia February 2, 2017 Written Reasons by: The Honourable Mr. Justice Willcock Concurred in by: The Honourable Mr. Justice Goepel The Honourable Mr. Justice Fitch Summary: Appeal in a medical malpractice action from the trial judge’s finding the defendant Hospital is liable for approximately $1.17 million in damages to the respondent. The judge found a nurse allowed the respondent’s leg to drop from a birthing bar during labour, causing a labral tear in her left hip. Held: appeal allowed. The judgment is set aside and a new trial ordered. The judge misunderstood the evidence of Dr. Gilbart, the plaintiff’s expert in orthopaedic surgery. Dr. Gilbart opined that the leg drop caused the injury, but the respondent presented him with a factual scenario surrounding the leg drop which differed from the one she recounted at trial and was accepted by the trial judge. Since the judge mistakenly adopted Dr. Gilbart’s opinion on the basis it assumed the same version of events told at trial, the judgment is fatally flawed. If the judge had acknowledged the discrepancy between the version of events he accepted and the one told to Dr. Gilbart, and nevertheless inferred causation was made out, this Court may have been compelled to defer to that inference. However, that was not the case. Since this Court is not well suited to drawing inferences from all of the evidence in a case such as this, a new trial is required. Reasons for Judgment of the Honourable Mr. Justice Willcock: Introduction [1] This is an appeal from a judgment finding Nurse Felicia Tucker and the appellant, B.C. Women’s Hospital (the “Hospital”), liable to the respondent in negligence, for reasons indexed at 2015 BCSC 1941. The respondent cross appeals the assessment of damages. [2] The trial judge found Nurse Tucker, a nurse employed by the defendant Hospital, to have breached a duty of care owed to the respondent on May 1, 2009, when, having placed the respondent’s left foot on a birthing bar while she was under the influence of an epidural anaesthetic and unable to control her legs, Nurse Tucker allowed the respondent’s leg to drop. That was found to have torn the labrum of the respondent’s left hip and damaged the surrounding extra-articular soft tissues. The trial judge found that injury to have caused pre‑existing early degenerative changes to Ms. Nelson’s acetabulum, associated with a congenital condition, to become symptomatic. Judgment at Trial Breach of Duty of Care [3] The appellant vigorously contested the respondent’s version of the events surrounding the May 1, 2009 delivery. There was no dispute that during the respondent’s prolonged labour, a birthing bar was attached to her bed. The purpose of the bar was to permit the respondent to adopt a water-ski position, pulling on a towel wrapped around the birthing bar, so as to enable her to push more strongly through contractions. There was a dispute with respect to how the bar was used. At trial, the respondent testified that she was encouraged to place her feet on top of the birthing bar, to rest, between contractions and that on one occasion when she was doing so, her left leg was permitted to fall laterally off the bar. [4] The appellant led evidence to the effect that patients’ legs are never left to rest atop the birthing bar, that did not occur on this occasion and the plaintiff’s evidence that it happened was not worthy of credit because she had given earlier statements inconsistent with that version of events. [5] The trial judge concluded: [90] Having considered all of the evidence, not just that referred to in these reasons, I accept Ms. Nelson’s evidence that Ms. Tucker and Dr. Beaudoin placed her feet on top of the birthing bar between contractions, with Ms. Tucker supporting her left leg and Dr. Beaudoin supporting her right, that Ms. Tucker let go of her left leg momentarily, and that it dropped as far as bed level. Causation [6] Causation was also vigorously contested. The respondent has a congenital malformation of the left hip, femoral acetabular impingement (“FAI”). The edge of the socket of her left hip, the acetabulum, protrudes and overhangs the head of the femur so that it impinges on the femoral head when the hip joint moves in certain ways. She now suffers from symptoms associated with degenerative deterioration of the left hip joint. In her case, the FAI is characterized as “pincer-type FAI” because the impingement is on the front of the joint. That is common; one expert testified that between 10% and 40% of the population have radiological findings of pincer-type FAI. The appellant attempted to establish that patients with FAI are predisposed to labral tears in labour and predisposed to degeneration of the hip joint generally, particularly when they are as physically active as the respondent was. They argued that the degeneration of the respondent’s left hip is unrelated to her leg being dropped in labour, and that degeneration would have caused the symptoms complained of in any event. They argued most strongly that the medical history and the plaintiff’s own reports to her treating doctors were inconsistent with her evidence at trial and irreconcilable with her having suffered a torn labrum in May 2009. [7] Having considered the evidence, that a degenerative tear will cause intermittent symptoms of pain and clicking for months to years, and accepting the respondent’s testimony that she had no symptoms consistent with a torn labrum before childbirth but symptoms thereafter, the judge concluded that Ms. Nelson’s labrum was torn during her labour and delivery at B.C. Women’s Hospital. He then reviewed the evidence of two expert witnesses, orthopaedic surgeons Drs. Gilbart and McGraw, with respect to whether the labral tear might have been a result of normal birthing practices and he weighed competing views on whether the incident described by the respondent could have caused the tear. [8] He noted that there was little evidence of tears occurring in the usual course of labour. In suggesting that might occur, Dr. McGraw had relied on two articles, one of which discussed three cases of labral tear following childbirth. In two of those cases the patients had suffered hip and groin pain during pregnancy. The other study considered ten cases, four of which followed “a specific forceful event” in labour. The judge concluded, at para. 35: “This is a sufficiently weak scientific foundation that I view the possibility that a labrum can tear during normal delivery as theoretically possible, but unlikely in this case”. [9] That conclusion was also founded upon the opinion of Dr. Gilbart: [36] Dr. Gilbart states that labral tears are not commonly suffered during childbirth, and he has not seen it happen in his practice, during which he has seen 1,800 labral tears associated with other pathology. Dr. Sun, Ms. Nelson’s family doctor until 2013, had not seen a labral tear from vaginal delivery since she started her practice in 1989. [10] Addressing the extent of the pre‑existing changes to the hip joint attributable to the FAI, he described Dr. Gilbart as “the only person who actually saw the interior of Ms. Nelson’s left hip” and accepted his evidence that there was no evident wear and tear damage to the respondent’s labrum that might have initiated osteoarthritic changes. [11] When later assessing damages the judge noted: [142] I do not find that Ms. Nelson’s hip would inevitably have become symptomatic, although the possibility exists that her FAI and early degenerative change might have caused symptoms, in which case it is impossible to predict when symptoms might have begun, or how they would have progressed if they did manifest themselves. [12] The judge then addressed the argument, founded upon Dr. McGraw’s evidence, that simply dropping the leg could not cause “a de novo tear of the acetabular labrum” because such an event would not result in the forces of axial-loading, rotation and possible hyperextension that might cause such a tear. He rejected that evidence for a number of reasons: Dr. McGraw had conducted his own investigation and the judge was unable to determine how the event was re‑enacted, making it very difficult to determine what facts or assumptions Dr. McGraw relied on; he found Dr. McGraw to have considered the leg to have dropped from a position different from that described by the respondent at trial; and by expressing an opinion on appropriate nursing practices, Dr. McGraw had introduced “a taint of advocacy” into his evidence. [13] On the issue of causation, the judge preferred the evidence of Dr. Gilbart, summarized as follows: [105]    In Dr. Gilbart’s opinion, set out in his report dated November 7, 2013, “The injuries which she sustained during this mechanism of her leg being dropped were soft tissue in nature” and, “It is probable that the mechanism of this drop injury caused her left hip labral tear.” [106]    But that does not end the inquiry because, during his arthroscopic examination of Ms. Nelson’s left hip, Dr. Gilbart observed, in addition to the torn labrum, cartilage softening indicative of some early degenerative change, or mild focal osteoarthritis, on Ms. Nelson’s acetabulum or hip socket. He also found moderate inflammation throughout her hip. In his opinion, the sources of Ms. Nelson’s pain are as follows: It is possible that once the labrum has been torn, despite it being repaired the hip still is persistently painful. It is probable that some of Ms. Nelson’s pain is also emanating from the small area of articular cartilage damage on the acetabulum that was noted at the time of the hip arthroscopy surgery. It is also probable that some of her pain is coming from some ongoing inflammation, or synovitis within the hip. She probably also has some pain in the extra-articular soft tissues surrounding the left hip[.] [107]    Of the four sources of pain listed by Dr. Gilbart, I find on his evidence that at least the torn labrum and what he describes as “the extra-articular soft tissue injuries surrounding the left hip” were directly caused by the leg drop. Quantum of Damages [14] The trial judge accepted evidence that as a result of the May 2009 injury the respondent had suffered mild degenerative changes to her hip that were not progressing quickly (because her hip had not significantly deteriorated since 2009) and synovitis (inflammation of the joint related to that osteoarthritis), and injury to the soft tissues surrounding the hip. [15] The assessment of damages hinged, to a large extent, upon the prospect of successful treatment of the degenerative hip. The judge understood that Dr. Gilbart and Dr. McGraw both considered hip replacement surgery to be a viable treatment option, although their opinions differed on when and if such an operation ought to be performed. Dr. Gilbart favoured conservative treatment until symptoms mandate surgery. The trial judge preferred the opinion of Dr. McGraw in relation to treatment and accepted his view that given the respondent’s clinical course, she would likely request a hip replacement by the age of 50 years (five years from the date of trial). He also accepted Dr. McGraw’s opinion that “a successful hip arthroplasty carries a 94% chance of patient satisfaction … [and] following a successful arthroplasty, there would be no restrictions in her daily activities”. He noted: [134]    Ms. Nelson testified that she had not discussed hip replacement with anyone, but if she were told by a qualified specialist that she was a suitable candidate, and that hip replacement would make her as good as new, she would have the surgery. [16] He assessed damages on the basis that the respondent was motivated and willing to accept surgery and “the probability that much of Ms. Nelson’s disabling pain can be dealt with surgically”. Bearing in mind that the hip replacement would have to be repeated “at least once, more likely twice”, he awarded $100,000 in non‑pecuniary damages for pain and suffering and loss of the amenities of life. [17] He found the respondent’s injuries to have prevented her from returning to work at her old employer, or achieving any significant income from other employment. In the period of six years and four months from her injury to trial the respondent had earned little income from employment, but had been paid disability benefits and received Employment Insurance maternity benefits. He accepted that the respondent would have returned to work had she not been injured and that her income, had she done so, would have been in the range of $150,000 per year. After accounting for the effect of her maternity leave, the judge awarded the respondent $775,000 (equivalent to five years and two months’ income) for income and opportunity loss from the incident to trial. [18] In relation to the claim for loss of future income or income-earning capacity, he held: [159]    Consideration of future earnings capacity loss is inevitably coloured by my conclusion that much of Ms. Nelson’s function can be restored to her through hip replacement surgery. While she cannot be faulted for not having the surgery before now, as her own medical advisors have not recommended it, it would be unjust in my view to order the defendants to continue to pay substantial damages for a loss that is avoidable through relatively low-risk medical treatment with a very good chance of success. [19] Considering the medical evidence, he held (at para. 160): Ms. Nelson’s positive response to the prospect of hip replacement surgery fortifies my conclusion that the surgical option will be pursued sooner rather than later, and I conclude Ms. Nelson will have the surgery and be through her recovery in two years, making discounting less important for the near future. [20] For future loss of earning capacity, he awarded $275,000, just less than two years’ income. Grounds of Appeal and Cross Appeal [21] The appellant advances eight grounds of appeal. Three relate to the manner in which the trial judge addressed the evidence of negligence, in particular the respondent’s assertion that Nurse Tucker rested her left leg on the birthing bar. Two grounds are procedural; they relate to the trial judge’s admission into evidence of similar fact evidence and evidence in reply. Three grounds relate to the trial judge’s consideration of the evidence of causation of damages. Evidence of Negligence [22] The appellant says the trial judge ought to have given weight to the evidence of a witness, Angela King, that she had never seen a birthing bar used in the manner suggested by the respondent in 21 years of nursing practice. The appellant says the trial judge erred in finding an inconsistency between the evidence of Nurse Tucker on examination for discovery and at trial. Last, the appellant says the judge erroneously considered the honest admission of Dr. Beaudoin, the respondent’s husband, that he did not observe Nurse Tucker drop the respondent’s leg, to make the balance of his testimony more credible. Procedural Grounds [23] The appellant says the trial judge erred in permitting the respondent to lead what the appellant considers to be similar fact evidence: that patients had been encouraged by the obstetrical nursing staff to rest their legs on a birthing bar in other cases. Further, the appellant says the judge erred in allowing expert evidence in reply, the evidence of Nurse Christina Stahl, with respect to the use of birthing bars at Vernon Jubilee Hospital, without notice. Evidence of Causation [24] Most significantly, the appellant says the judge erred in finding the plaintiff to have established causation of damages when there was no evidence that allowing her leg to drop from the position she described at trial could have caused a labral tear. The Hospital argues that the trial judge erred in finding that Dr. Gilbart must have assumed the birthing bar to have been involved in the mechanism of injury when his opinion was clearly based on a different scenario. Further, the appellant challenges the finding that a labral tear occurred during labour on the grounds that the judge erred in failing to address the nursing evidence of a lack of complaint of injury after the respondent’s epidural wore off. The Cross Appeal [25] The respondent cross appeals from the assessment of damages on the grounds that the judge erred in addressing the evidence with respect to the efficacy and timing of hip replacement surgery, by imposing an affirmative duty on the respondent to undergo such surgery within two years, and by failing to account for the contingency of a less-than-optimal result. Applicable Law [26] The appellant challenges the basis upon which findings of fact were made: the finding that birthing bars have been used at the Hospital in the manner suggested by the respondent; the finding that the evidence of Nurse Tucker on examination for discovery was inconsistent with her evidence at trial; the finding that Dr. Beaudoin was a credible witness; and, most strenuously, the finding that allowing the respondent’s leg to drop from the position she described at trial caused the labral tear. The last of these findings was an inference drawn primarily from the opinion evidence of expert witnesses. In order to succeed on such an appeal, the appellant must establish that the judge made a manifest error, ignored conclusive or relevant evidence, misunderstood the evidence, or drew erroneous conclusions from it. [27] In Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital , [1994] 1 S.C.R. 114, McLachlin J . ( as she then was ) for the Supreme Court of Canada said at 121‑122: It is by now well established that a Court of Appeal must not interfere with a trial judge’s conclusions on matters of fact unless there is palpable or overriding error. In principle, a Court of Appeal will only intervene if the judge has made a manifest error, has ignored conclusive or relevant evidence, has misunderstood the evidence, or has drawn erroneous conclusions from it: ... A Court of Appeal is clearly not entitled to interfere merely because it takes a different view of the evidence. The finding of facts and the drawing of evidentiary conclusions from facts is the province of the trial judge, not the Court of Appeal. I agree that the principle of non-intervention of a Court of Appeal in a trial judge’s findings of facts does not apply with the same force to inferences drawn from conflicting testimony of expert witnesses where the credibility of these witnesses is not in issue. This does not however change the fact that the weight to be assigned to the various pieces of evidence is under our trial system essentially the province of the trier of fact, in this case the trial judge. [28] In Housen v. Nikolaisen , 2002 SCC 33, Iacobucci and Major JJ., for the majority, said (at para. 1): A proposition that should be unnecessary to state is that a court of appeal should not interfere with a trial judge’s reasons unless there is a palpable and overriding error. The same proposition is sometimes stated as prohibiting an appellate court from reviewing a trial judge’s decision if there was some evidence upon which he or she could have relied to reach that conclusion. [29] The Court cited with approval the following passage from Underwood v. Ocean City Realty Ltd. (1987), 12 B.C.L.R. (2d) 199 (C.A.), at 204: The appellate court must not retry a case and must not substitute its views for the views of the trial judge according to what the appellate court thinks the evidence establishes on its view of the balance of probabilities. [30] In H.L. v. Canada (Attorney General) , 2005 SCC 25, [2005] 1 S.C.R. 401, Fish J. observed: 53 The standard of review for error has been variously described. In recent years, the phrase “palpable and overriding error” resonates throughout the cases. Its application to all findings of fact — findings as to “what happened” — has been universally recognized; its applicability has not been made to depend on whether the trial judge’s disputed determination relates to credibility, to “primary” facts, to “inferred” facts or to global assessments of the evidence. [31] In summary in that case, Fish J. wrote: 74 I would explain the matter this way. Not infrequently, different inferences may reasonably be drawn from facts found by the trial judge to have been directly proven. Appellate scrutiny determines whether inferences drawn by the judge are “reasonably supported by the evidence”. If they are, the reviewing court cannot reweigh the evidence by substituting, for the reasonable inference preferred by the trial judge, an equally — or even more — persuasive inference of its own.  This fundamental rule is, once again, entirely consistent with both the majority and the minority reasons in Housen. [Emphasis in original.] [32] Findings of fact made by a trial judge in the face of competing expert opinions receive the same deference as other findings of fact: Slocan Forest Products Ltd. v. Trapper Enterprises Ltd. , 2011 BCCA 351; Tangerine Financial Products Limited Partnership v. Sutherland , 2013 BCCA 283. [33] That is true, in particular of inferences of causation: Laurentide Motels Ltd. v. Beauport (City) , [1989] 1 S.C.R. 705 . [34] More recently, in British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority , 2016 SCC 25, in the context of an appeal from an administrative tribunal, the court characterized a finding of causation as a finding of fact attracting deference: [ 30 ] The Tribunal’s conclusion that the workers’ breast cancers were occupational diseases caused by the nature of their employment was a finding on a question of fact ( Ediger v. Johnston , 2013 SCC 18, [2013] 2 S.C.R. 98, at para. 29). That finding is therefore entitled to deference unless Fraser Health demonstrates that it is patently unreasonable — that is, that “the evidence, viewed reasonably, is incapable of supporting a tribunal’s findings of fact” ( Toronto (City) Board of Education , at para. 45). [35] The Court noted that the statutory burden of proof on workers under compensation schemes is not the stringent standard in civil cases, but that was of limited importance: [ 33 ] All that said, the central problem in the handling of causation in the courts below arose not in their failure to have appropriate regard to the less stringent standard of proof required by s. 250(4), but from their fundamental misapprehension of how causation — irrespective of the standard of proof — may be inferred from evidence. [36] That process of inferring causation was elaborated upon as follows: [ 38 ] The presence or absence of opinion evidence from an expert positing (or refuting) a causal link is not, therefore, determinative of causation (e.g. Snell , at pp. 330 and 335). It is open to a trier of fact to consider, as this Tribunal considered, other evidence in determining whether it supported an inference that the workers’ breast cancers were caused by their employment. This goes to the chambers judge’s reliance upon the Court of Appeal’s decisions in Sam and Moore and to Goepel J.A.’s statement that there must be “positive evidence” linking their breast cancers to workplace conditions. Howsoever “positive evidence” was intended to be understood in those decisions, it should not obscure the fact that causation can be inferred — even in the face of inconclusive or contrary expert evidence — from other evidence, including merely circumstantial evidence. This does not mean that evidence of relevant historical exposures followed by a statistically significant cluster of cases will, on its own, always suffice to support a finding that a worker’s breast cancer was caused by an occupational disease. It does mean, however, that it may suffice. Whether or not it does so depends on how the trier of fact, in the exercise of his or her own judgment, chooses to weigh the evidence. And, I reiterate: Subject to the applicable standard of review, that task of weighing evidence rests with the trier of fact — in this case, with the Tribunal. [37] The challenge to the disputed findings must, therefore, be approached with care and the privileged position of the trier of fact must be respected. [38] Finally, in relation to the standard of review, it should be noted that the appellant challenges the trial judge’s exercise of his discretion to permit the respondent to call evidence in reply and to call what they say amounts to expert opinion or similar fact evidence without notice. An appellant challenging the exercise of the trial judge’s discretion must establish that the judge erred in principle: Werian Holdings Ltd. v. Prudential Assurance Co. (1995), 58 B.C.A.C. 283. Analysis Evidence of Causation [39] The ground of appeal most forcefully advanced was that there was no support in the evidence for the trial judge’s conclusion that the respondent’s labrum was probably torn as a result of the error on the part of Nurse Tucker. That argument can only be appreciated in light of both the manner in which the respondent’s case emerged and the expert testimony at trial. [40] The respondent’s causation case was founded on the evidence of Dr. Gilbart, her treating orthopaedic surgeon. In his first report, dated November 7, 2013, Dr. Gilbart described the facts and assumptions upon which his opinion was based. They included: Ms. Nelson was positioned in the supine position with her hips flexed, abducted and externally rotated (frog leg position). Her partner was holding her right leg, and the nurse was holding Mr. Nelson’s left leg. Ms. Nelson was instructed to continue to push during the delivery. When Ms. Nelson was still in the frog-leg position, the nurse who was holding her left leg turned and walked away from Ms. Nelson’s bedside, letting go of her left leg. Ms. Nelson had no motor or sensory function in her left leg, and as a result her left leg dropped from this frog-leg position in an uncontrolled dead weight motion. [41] Based on that scenario, Dr. Gilbart expressed the following opinions: Temporally, the condition of Ms. Nelson’s left hip pain is related to the incident which occurred on May 1, 2009. It is probable that this episode in which her left leg was dropped caused her current left hip symptoms. It is probable that the mechanism of this drop injury caused her left hip labral tear. [42] He did not express an opinion on the precise mechanism of injury or relate it to the height from which the leg was dropped, the angle of the leg or the flexion of the hip or knee. He does not refer to a birthing bar or to the respondent being at rest or stretching her legs when her leg was dropped. He clearly assumed the patient’s legs to have been held in a frog-leg position when the left leg was dropped. He described that position in cross-examination as hips in a flexed and abducted position with legs out to the side in an externally-rotated position. [43] In a subsequent opinion, dated November 14, 2014, Dr. Gilbart addressed the respondent’s progress and her prognosis but he did not revisit the question of causation. [44] Ms. Nelson acknowledged that she did not tell Dr. Gilbart her leg fell from the birthing bar. She did not remember the use of the bar or her adoption of the ski position until after seeing Dr. Gilbart. She also acknowledged in cross-examination that she could not reach the birthing bar with her ankles with her knees drawn up to her chest. [45] The appellant relied upon the expert opinion of Dr. McGraw. In his report dated November 26, 2014, Dr. McGraw describes the history of injury as recounted by the respondent, as follows: “I was positioned on my back for pushing. The nurse put a bar up. I had no feelings in my legs. My husband held my right ankle and the nurse held my left ankle.” The ankles were on top of the bar. She then said, “My husband was holding the right leg and the nurse was holding the left leg”. Ms. Nelson said her head was raised on the bed. That is to say, her legs were up, balanced on the bar with the ankles touching the bar. She said, “I was not comfortable”. She said, “I did not like being there”. Ms. Nelson said, “The nurse stepped away from the bed and let my leg go. I could not feel the leg but saw it fall. The leg fell down either onto the bed or off the bed. I can’t recall which”. She emphasised, “There was no feeling in the left leg.” [46] Dr. McGraw expressed the following opinion on causation: If one assumes that the preoperative condition of the left acetabular labrum was normal, the force required to cause the changes seen in the MRI study [Jan. 15, 2014] and confirmed at surgery, in the writer’s view, would have to have been significant. In the writer’s view, for a de novo tear of the acetabular labrum, there would have to be the usual forces of axial-loading (weight bearing), rotation and possible hyperextension. In the writer’s view, these forces would not be consistent with those that are proposed with the injury. The legs were elevated (hips flexed), knee presumably slightly flexed and leg abducted away from the body. It is suggested that the leg was dropped from this position onto the bed. In the writer’s view this event is inconsistent with the pathology of labral tear described. The engineering report indicates that it would not be possible for the legs to have been on the birthing bar as described by Ms. Nelson. The birthing position, with one leg held by the husband and one leg held by the nurse in the frog-leg position, would be consistent with current obstetrical practice. The writer is of the view that if the leg were allowed to descend from this position to the bed unrestricted, it would not be of sufficient shearing force to result in a de novo tear of the acetabular labrum. [47] In his January 9, 2015 report, Dr. McGraw again expressed the view that the forces involved in the incident would not be associated with sufficient axial loading, rotation and impingement to result in a tear of the labrum. Again, however, he described the “incident” as dropping of the respondent’s leg from a frog-leg position. [48] In cross-examination at trial, Dr. McGraw made it clear that although Ms. Nelson had told him her leg had dropped from the birthing bar, he had addressed only the question whether a labral tear could have occurred as a result of the leg dropping from a frog-leg position, with knees drawn up as far as possible to the sides of the abdomen with legs apart, as illustrated in a photograph in evidence depicting what the nursing staff described as frog-leg position. In that position the legs are not extended and, as Dr. McGraw suggested and the respondent conceded, cannot reach the birthing bar. Dr. McGraw says a drop from that position would not have generated sufficient shearing force. He discounted the report that the patient’s legs had been resting on the birthing bar, considering that to be improbable unless the legs were extended into a different position. [49] Neither expert, therefore, specifically addressed whether letting the leg drop from the birthing bar could cause a labral tear. [50] Having found that the respondent’s leg was dropped from the birthing bar, the judge, as noted above, rejected Dr. McGraw’s opinion on causation, in part because he had not turned his mind to the scenario described by the respondent. The judge wrote: [103]    I place less weight on Dr. McGraw’s opinion because I have very little evidence about the demonstration given by the head nurse, or the conversations Dr. McGraw had during the demonstration, and because his understanding of the frog-leg position, taken from his discussion with the head nurse, is not the position I have found Ms. Nelson’s left leg was in when it dropped. Additionally, by conducting his own investigation, Dr. McGraw has made it very difficult to determine what facts or assumptions he relied on in forming his opinions. [51] He had earlier described Dr. Gilbart’s evidence with respect to whether Ms. Nelson’s labrum was torn as a result of her leg dropping while she was under Nurse Tucker’s care as follows: [38] Dr. Gilbart’s opinion is that it was, based in part on the temporal relationship between the leg drop, as Ms. Nelson described it to him, and the onset of left hip pain. As Ms. Nelson’s description included that her leg had dropped from the top of a birthing bar, Dr. Gilbart’s opinion is also based in part on that assumption . [Emphasis added. ] [52] That is not an accurate description of Dr. Gilbart’s evidence. It is not correct to say Dr. Gilbart’s opinion was based on the assumption that the respondent’s leg dropped from the birthing bar. The respondent’s description of her injury at trial was “that her leg had dropped from the top of a birthing bar” but that was not the description of the injury she provided to Dr. Gilbart. [53] The appellant says the trial judge “failed to appreciate that the position that Dr. Gilbart was assuming for his causation opinion was radically different from the position that the plaintiff was … describing at trial”. [54] The respondent says although Dr. Gilbart described the respondent as being in the frog-leg position when her leg was dropped, that should not be equated with the McRoberts position (which the respondent says has the knees acutely flexed and drawn up toward the chest). The respondent says it was possible for the respondent to have been in what might be described as a frog-leg position with her legs elevated, flexed at the hip, abducted, externally rotated and “legs slightly bent at the knee” while her ankles rested on the birthing bar. So, the respondent says, Dr. Gilbart’s evidence does not address a scenario that differs from the facts as found by the trial judge. [55] The trial judge dealt with the evidence with respect to what was meant by frog-leg position as follows: [53] The evidence revealed a range in what witnesses meant or understood by frog-leg as a position employed during labour and delivery. At one end of the range is the McRoberts position, in which the birth mother’s hips are flexed so that her knees are drawn up close to her chest, or, as described by the witness Ms. Stahl, where the patient is on her back with her legs up on either side of her body or as far back as she can get them. That generally corresponds with Dr. McGraw’s understanding of the frog-leg position, based on an explanation given to him by nurses at B.C. Women’s Hospital while he was investigating for his written opinion. Ms. Nelson was not in this position until after Ms. Tucker went off shift, as described by Dr. Beaudoin and as recorded in the hospital chart. [54] At the other end of the range is Ms. Nelson’s description. In her evidence in chief she referred to it as having her knees out a bit, and she referred to … the position of her legs position shown in some photos taken when she went back to the defendant hospital to inspect birthing beds, and took the opportunity to re-enact having her feet and ankles on a birthing bar. At trial she referred to this as a frog’s legs position. Those photos show Ms. Nelson’s elevated legs slightly bent at the knee and slightly flexed at the hip, but her knees are nowhere near her chest. This is not far off the description given by Dr. Mangat, who has been Ms. Nelson’s family doctor since August 2012. When he was asked what he understood the “frog position” to mean, he answered that the patient was supine on her back with her knees slightly flexed and rotated. [56] After citing from the cross-examination of the respondent, the trial judge observed: [56] It appears from the emphasized interjection that counsel and the plaintiff had somewhat different views on what the phrase “frog-leg” was meant to convey. In argument, defence counsel referred to a patient “whose legs flexed up towards her chest,” a description that coincides with the McRoberts position described by Ms. Stahl, and equated the frog-legs position to the McRoberts position. As indicated, Ms. Nelson was not in the McRoberts position until after Ms. Tucker went off-shift, and before she was taken to the operating room for the forceps-assisted delivery. [57] However, Dr. Gilbart did not make the distinction between the frog-leg and McRoberts positions that counsel urges upon us; nor did he address the distinction described by the trial judge. He did not say whether he was assuming the respondent’s knees were slightly flexed or fully flexed with her legs drawn up toward her abdomen as far back as she could get them. His description of a frog-leg position is similar to Dr. McGraw’s description. Dr. Gilbart described the position, in his examination in chief, as: “[P]atient is lying supine … and the patient’s hip is brought up into a flexed, an abducted … — their leg is out to the side and an externally-rotated position ” (emphasis added). Dr. McGraw’s description, taken from his report, is: “The legs were elevated (hips flexed), knee presumably slightly flexed and leg abducted away from the body ” (emphasis added). [58] The judge rejected Dr. McGraw’s evidence, in part because his understanding of the frog-leg position was not the position the judge found Ms. Nelson’s left leg was in when it dropped. The same appears to be true of Dr. Gilbart’s understanding of the frog-leg position. [59] It might have been open to the judge to draw a common sense inference sufficient to resolve the causation issue. But he did not draw that inference. Rather, he appears to have adopted the opinion of Dr. Gilbart in the mistaken belief that Dr. Gilbart based his causation opinion on the assumption that the respondent’s leg had dropped from the top of a birthing bar. In fact, two eminently qualified orthopaedic surgeons had differing opinions on the question whether letting a leg drop from a frog-leg position could have caused a labral tear but neither was asked to specifically consider whether dropping the leg from a birthing bar in the manner described by the respondent (and accepted by the judge) could have caused such an injury. The judge found there was a temporal connection between the labour and delivery and the emergence of symptoms. The key causation issue, however, required him to determine whether dropping the respondent’s leg from the birthing bar would generate sufficient shearing force to result in a de novo tear of the acetabular labrum. I cannot say there was no evidence in support of the respondent’s claim but it is clear there was an error in weighing the causation evidence. [60] In what was largely a contest between two experts, the trial judge rejected one, believing that expert based his opinion on an inaccurate assumption, and accepted the other expert’s views in the mistaken belief the latter had not done the same thing. It cannot be said that the trial judge regarded the difference between the positions as immaterial; it was expressly relied upon as one basis for rejecting the evidence of Dr. McGraw. [61] In the circumstances, in my view, the appellant can fairly say that the case meets the test described by Laycraft J.A. in Whitehouse v. Reimer (1980), 116 D.L.R. (3d) 594 (Alta. C.A.) at 595; and adopted by Doherty J.A. in R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.); and by Bennett J.A. in Tambosso v. Holmes , 2016 BCCA 373: Where a principal issue on a trial is credibility [or I would say, reliability] of witnesses to the extent that the evidence of one party is accepted to the virtual exclusion of the evidence of the other, it is essential that the findings be based on a correct version of the actual evidence. Wrong findings on what the evidence is destroy the basis of findings of credibility [or reliability]. [62] In my view , the conclusion drawn by the trial judge from the testimony of Dr. Gilbart is undermined by a manifest error. That being the case, I am compelled to find that the judgment is fatally flawed. [63] There is some support, for example, in the judgment of this Court in Toneguzzo‑Norvell (Guardian ad litem of) v. Burnaby Hospital (1992), 73 B.C.L.R. (2d) 116, rev’d on other grounds, [1994] 1 S.C.R. 114, for the proposition that we are able to weigh expert opinion evidence when there has been a misapprehension of that evidence and substitute our assessment of the case for that of the trial judge. In that case this Court held, at 121‑122: There is no issue with respect to the veracity of these expert witnesses. As the trier of fact the trial judge was free to reject or adopt in whole or in part the evidence of experts he found qualified but in the absence of findings of credibility this court is in as good a position as the trial judge to review the expert evidence and to draw inferences of fact therefrom: New Brunswick (Workmen’s Compensation Board) v. Greer (1973), [1975] 1 S.C.R. 347, 7 N.B.R. (2d) 171, 42 D.L.R. (3d) 595, 1 N.R. 99. It should undertake this task if the trial judge has failed to take into account some obvious feature of the evidence or has misapprehended its significance: Croke (A Minor) v. Wiseman , [1982] 1 W.L.R. 71, [1981] 3 All E.R. 852 (C.A.), per Griffiths L.J. at p. 859 (All E.R.). [64] In the case at bar, however, the drawing of appropriate inferences from all of the evidence is certainly not, in my view, a task for which this Court is suited. As the Supreme Court of Canada noted in Toneguzzo-Norvell at 122: “[T]he weight to be assigned to the various pieces of evidence is under our trial system essentially the province of the trier of fact, in this case the trial judge.” [65] I would order a new trial. [66] That being the case, it is my view that it would not be helpful and might adversely affect the re‑trial for us to address the appellant’s submissions with respect to the adequacy of the trial judge’s assessment of the evidence. [67] It might be of assistance to the parties, however, to have our considered views on the alleged procedural errors. Similar Fact Evidence in Reply [68] The trial judge held the reply evidence of Nurse Stahl, Ms. Mason and Ms. Hastings to be admissible following a voir dire , for reasons indexed as 2015 BCSC 2489. The appellant says he erred in allowing the respondent to adduce what they submit was similar fact evidence in reply. I would not have acceded to that argument. [69] First, it was appropriate to permit the evidence to be called in reply. It was not incumbent upon the respondent to establish that nurses at the Hospital have occasionally encouraged patients in labour to rest their feet on the birthing bar. Nor was it necessary for the respondent to show that birthing bars are commonly used for that purpose. It mattered not to the respondent whether her case was an anomaly. As the judge noted, at para. 5 of his ruling on the voir dire , when Ms. Stahl testified in chief in the plaintiff’s case the judge ruled that evidence with respect to the common use of the birthing bar was “not yet relevant evidence” because “no evidence had been led at that point by the defendants to suggest that placing feet on a birthing bar was anything other than normal”. [70] I agree with the respondent’s submission that evidence of the use of the birthing bar in other cases became relevant when the appellant attempted to refute the respondent’s claim by leading evidence that placing a patient’s feet or ankles atop a birthing bar would: a) be literally impossible; b) serve no purpose and be harmful to the mother and baby; c) be routinely charted, if it occurred; d) has never been done at the Hospital; and e) has never been seen or heard of by the nursing staff. [71] In my view here, as in Rudd v. Hayward , 2001 BCCA 454, where a similar objection was dismissed at para. 16, the evidence was adduced in “a proper sequential manner”. The trial judge cannot be said to have erred in permitting the respondent to lead rebuttal evidence that apparently met the test described in Sterritt v. McLeod , 2000 BCCA 318 at para. 28: “ evidence responsive to some point made in the oral evidence of the witnesses called by the defendant.” [72] I cannot see how an injustice may be said to have been occasioned by the admission of the evidence; to the contrary, it seems to me appropriate for the judge to have permitted the respondent to answer the appellant’s evidence to the effect that, for many compelling reasons, a birthing bar would never be used as a leg or footrest at the Hospital. I say that, of course, without expressing any opinion on the weight that ought to be afforded to such evidence by the trial judge. [73] The argument that the evidence proffered in reply was objectionable, similar-fact, evidence was dismissed for the following reasons: [12] This is a negligence case. The plaintiff has to show breach of the applicable standard of care. The evidence, as I apprehend it, tends to establish that it is not a breach of any standard of care to rest a woman’s feet on a birthing bar. The evidence, if accepted, as tendered by the plaintiff, is that this is virtually routine, at least in the evidence or experience of Ms. Stahl, and would tend to establish that it is not unreasonable for a woman, with the assistance of nurses or others, to have her feet placed on top of a birthing bar to stretch them or to relax them, relax her legs, or to rest them in between contractions during the delivery process. So it is not at all clear to me that the evidence in question would tend to establish, if admitted, any form of discreditable conduct on the part of Nurse Tucker or anyone else at B.C. Women’s Hospital. [13] It is also a feature of similar fact evidence that it tends to focus on the person in question, in a criminal case the accused, because it is the accused’s prior similar acts that are in question, or in this case a defendant, whether it is Ms. Tucker or B.C. Women’s. The evidence here says nothing about Ms. Tucker’s previous conduct or actions, and so it is difficult to see how it would qualify as similar [fact] evidence with respect to her. I do not understand that the plaintiff complains here that B.C. Women’s Hospital was negligent for allowing its employees to place her feet on top of a birthing bar, so the same reasoning applies. [14] If the evidence tendered is not evidence of previous discreditable conduct, and I do not think it is, if it is not evidence of a bad character, and I do not think it is, or propensity, and I do not think it is, its admissibility would have to be determined on the usual ground, whether or not it is relevant, and my comments with respect to whether or not it is appropriate or proper reply or rebuttal evidence establishes that it is indeed sufficiently relevant to be admissible. [74] I agree with that reasoning. The evidence was responsive to the defence case that the use of a birthing bar for the purpose alleged by the respondent was unheard of. It was not led as similar fact evidence in the sense in which that term is ordinarily used. The judge did not err in principle in permitting this evidence to be adduced. Expert Evidence in Reply [75] The appellant further argues that the evidence of the use of the birthing bar as a footrest in other instances was expert opinion evidence wrongly admitted by the trial judge without notice to the appellant. I would not accede to that argument. While the appellant argues that the trial judge “seemed to be unaware that the Rules now require notice in advance of trial of expert evidence in reply”, there is no reference in the judgment on the voir dire to any objection to admissibility of the reply evidence as expert opinion . The argument apparently made and addressed by the trial judge related to the requirement that a party give notice of an intention to lead similar fact evidence . In response to that argument the judge held: a) The evidence was not proffered as “similar fact evidence”; b) The appellant had sufficient notice of most of the proposed evidence; and c) If they were prejudiced by short notice he would consider an application for an adjournment to respond. [76] In response to the argument on appeal on a different footing, that the reply evidence was expert opinion evidence, the respondent says simply that it was not. It was, rather, evidence of observations made by nurses of conduct without opinion on the propriety of the conduct. The respondent says the evidence adduced in reply, like that adduced in Egli et al v. Egli et al , 2003 BCSC 1716, and Anderson v. Dwyer , 2009 BCSC 1872, was not expert opinion evidence because the witnesses drew no inferences having complex interpretive or diagnostic components. I agree. The Cross Appeal [77] In the circumstances, in my view, it is also unnecessary for us to address the cross appeal and best not to do so, so as to avoid complicating the new trial. Order [78] I would allow the appeal, set aside the judgment and order a new trial. “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: Prophet River First Nation v. British Columbia (Environment), 2017 BCCA 58 Date: 20170202 Docket: CA43187 Between: Prophet River First Nation and West Moberly First Nations Appellants (Petitioners) And Minister of the Environment, Minister of Forests, Lands and Natural Resource Operations, and British Columbia Hydro and Power Authority Respondents (Respondents) And Te’mexw Treaty Association Intervenor Before: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Willcock The Honourable Mr. Justice Savage On appeal from:  An order of the Supreme Court of British Columbia, dated September 18, 2015 ( Prophet River First Nation v. British Columbia (Environment) , 2015 BCSC 1682, Vancouver Docket No. S153242). Counsel for the Appellants: J. W. Gailus, E. Grier, A. T. Rana, and M. Nefstead Counsel for the Respondent Ministers: E. K. Christie and J. J. Oliphant Counsel for the Respondent British Columbia Hydro and Power Authority: M. D. Andrews, Q.C., C. F. Willms and E. A. B. Gilbride Counsel for the Intervenor: J. Langlois Place and Date of Hearing: Vancouver, British Columbia December 5, 6, 7 and 8, 2016 Place and Date of Judgment: Vancouver, British Columbia February 2, 2017 Written Reasons by: The Honourable Mr. Justice Lowry Concurred in by: The Honourable Mr. Justice Willcock The Honourable Mr. Justice Savage Summary: Appeal from the dismissal of an application for judicial review of a decision made by Ministers of the provincial Crown to issue an Environmental Assessment Certificate for a hydroelectric project that will impact the treaty rights of First Nations.  Two questions arise that bear upon the proper discharge of the duty owed by the Crown to First Nations.  The first question is whether the Ministers were required to make a determination that the project will not unjustifiably infringe the subject treaty; the second, which requires a consideration of the standard of review, is whether there was adequate consultation with the two First Nations who made the application.  Held: appeal dismissed.  The first question is answered in the negative, the second in the affirmative. Reasons for Judgment of the Honourable Mr. Justice Lowry: [1] The Site C Clean Energy Project now under construction in northeastern British Columbia has been the subject of wide-ranging controversy, in part because it is encompassed by land that is the subject of Aboriginal treaty.  Two First Nations made application for judicial review of the decision of two Ministers of the provincial government who, following an extended public process of study and evaluation, issued an Environmental Assessment Certificate as required for the project to proceed.  The application was dismissed; the First Nations now appeal.  Two questions arise that bear upon the proper discharge of the duty of the Crown in seeking reconciliation with Aboriginal peoples: the first is whether, before issuing the certificate, the Ministers were required to determine the project would not constitute an unjustifiable infringement of constitutionally protected treaty rights; the second is whether there was adequate consultation with the First Nations and accommodation of their concerns. Site C [2] The project entails building a hydroelectric dam with a power-generating station and creating an upstream reservoir with a surface area of 93 square kilometres on the Peace River.  It will be the third project of its kind on that river.  The project is being undertaken by British Columbia Hydro and Power Authority, a Crown corporation.  It is to be constructed over a period of eight years at a projected cost of about $9.0 billion. [3] The traditional territories of the Prophet River First Nation and the West Moberly First Nations, together with those of two other First Nations, are said to amount to 121,818 square kilometres surrounding the project.  They lie within the lands surrendered to the Crown at the turn of the last century under Treaty 8, the boundary of which encompasses northern Alberta, northwestern Saskatchewan, a southern part of the Northwest Territories, and northeastern British Columbia.  Like Prophet River and West Moberly, many First Nations are either signatories or adherents to the treaty.  Under its terms, their “right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered”, upon which the project will have a significant impact, are preserved, although subject to the land being “taken up from time to time for settlement, mining, lumbering, trading or other purposes”. [4] These two First Nations, like others, have been and remain unalterably opposed to the project.  They are members of an association of First Nations, the Treaty 8 Tribal Association (“T8TA”), which coordinated consultation discussions on their behalf.  In the main, they are opposed because they consider the environmental and ecological impact on what will be 83 kilometres of the Peace River Valley in creating the reservoir for the dam will infringe the exercise of their treaty rights to the point of essentially defeating them completely with sociological implications impairing the way of life for their people now and in the future.  They maintain the infringement cannot be constitutionally justified under what is referred to as the Sparrow test ( R. v. Sparrow , [1990] 1 S.C.R. 1075). [5] The test is two-fold: to establish justification, the Crown must demonstrate that the infringement relates to a valid legislative or governmental objective, and that its actions are consistent with its fiduciary duty toward Aboriginal peoples.  (See also R. v. Gladstone , [1996] 2 S.C.R. 723 at paras. 54–56.) For a legislative or governmental objective to be deemed “valid”, it must be “compelling and substantial” ( Sparrow at 1113). Once a valid objective has been established, the way in which that objective is to be attained must “uphold the honour of the Crown and must be in keeping with the unique contemporary relationship, grounded in history and policy, between the Crown and Canada’s Aboriginal peoples” ( Sparrow at 1110). [6] The project is subject to both federal and provincial environmental assessments and ministerial approval, the first under the Canadian Environmental Assessment Act, 2012 , S.C. 2012, c. 19, s. 52, and the second under the Environmental Assessment Act, S.B.C. 2002, c. 43.  The process to be followed was established by a joint cooperative assessment agreement announced in September 2011 between Canada and British Columbia which provided for the establishment of a three-person panel, the Joint Review Panel, and its Terms of Reference. [7] There were three stages.  Aboriginal groups participated in the process throughout.  The first stage was the Pre-Panel Stage during which, through a working group, the federal Canadian Environmental Assessment Agency and the provincial Environmental Assessment Office oversaw the preparation of Environmental Impact Statement Guidelines, finalized in September 2012, that BC Hydro, as the proponent of the project, was to address in drawing what became the Environmental Impact Statement.  The federal Agency and the provincial Office approved the statement in August 2013 as being ready for the Joint Review Panel’s consideration. [8] The second stage was the Joint Review Panel Stage during which the Joint Review Panel was mandated to inquire into the environmental, economic, social, health and heritage effects of the project, including the consideration of the mitigation of adverse effects with a view to assisting the ministers of the Crown in weighing the benefits of the project against the costs when deciding whether the project should proceed.  In so doing, the Panel assessed BC Hydro’s impact statement together with the extensive volume of information submitted.  It requested and received further information, conducted public hearings over the course of 26 days concluding in January 2014, and ultimately delivered a report to the federal Agency and the provincial Office in May 2014. [9] The third stage was the Post-Panel Stage during which referral packages were prepared by the federal Agency and the provincial Office for submission to the respective federal and provincial ministers.  The process, which occupied three years, resulted in the preparation of extensive studies, assessments, reports, and correspondence running to many thousands of pages. [10] In the main, the Joint Review Panel saw the benefits of the project to be clear: the provision of a large, long-term increase in energy at a price that would benefit future generations.  It recognized the cost will be high and, while the power will in time be needed, there is uncertainty about the timing of such need.  The Panel considered the project would have vastly less greenhouse gas emissions than any comparable available alternatives.  The Panel recognized, however, that the creation of the reservoir would mean significant adverse environmental and ecological consequences, particularly as would impact the treaty rights of Aboriginal peoples with respect to hunting, trapping and fishing, as well as the end of agriculture on the Peace River Valley bottom lands, and the inundating of valuable paleontological, archaeological, and historic sites. [11] The discharge of the now well-established duty of the Crown to engage in consultation with First Nations for the purpose of addressing and accommodating their concerns in circumstances like these was undertaken jointly by the federal Agency and the provincial Office and, in particular, by BC Hydro as the agent of the Crown, in conjunction with the environmental assessment.  The consultation involved 29 Aboriginal groups to differing degrees.  It commenced well before the environmental assessment process and continued through to the conclusion of that process.  Both the Prophet River First Nation and the West Moberly First Nations maintained a high level of engagement throughout.  Their participation, through T8TA, was funded by BC Hydro to the extent of more than $5.8 million in addition to government funding.  Some months before the ministerial decisions were made, they took the opportunity afforded them of writing separately to the federal and provincial ministers directly and, in so doing, stated clearly the basis for their opposition to the project. [12] In September 2014, a Consultation and Accommodation Report, being an extensive assessment of the consultation process, was prepared jointly by the federal Agency and the provincial Office.  Significantly, with respect to the infringement of treaty rights, it was said: The Crown does not view the [environmental assessment] as a process designed to determine specific rights recognized and affirmed under s. 35(1) of the Constitution Act, 1982, but instead, to reasonably understand the nature and extent of treaty rights potentially being impacted by contemplated Crown actions in order to assess the severity of potential impacts to them. [13] Hence, in keeping with the provisions of the agreement between Canada and British Columbia in establishing the Joint Review Panel, no conclusions were made as to whether the project would constitute an infringement of Treaty 8. [14] With respect to the overall process of consultation, it was said: as part of the [environmental assessment] for the proposed Project, the Agency and the [Office] conclude that consultation has been carried out in good faith and that the process was appropriate and reasonable in the circumstances. [15] The report was included in the referral packages assembled for the Ministers’ consideration. [16] In October 2014, based on ministerial recommendation, a federal Order in Council was issued to the effect that the likely adverse environmental effects of the project are justified.  On the same day, the provincial Minister of Environment and the Minister of Forests, Lands and Natural Resource Operations issued Environmental Assessment Certificate # E14-02 for the project, subject to 77 conditions aimed at addressing the concerns of First Nations and others with which BC Hydro must comply. [17] Prophet River and West Moberly promptly made application in both the Federal Court of Canada and the Supreme Court of British Columbia for the judicial review of the decisions taken to issue the Order in Council and the certificate that facilitate the project proceeding.  They named as respondents, in the Federal Court, the federal ministers involved and, in the Supreme Court, the provincial ministers involved, as well as BC Hydro in both proceedings.  They advanced various grounds of review but, for present purposes, two are particularly germane.  They contended the Ministers (the Governor in Council in the federal application) were bound to determine whether the project would constitute an unjustified infringement of their treaty rights which the Ministers had not done and that the Crown’s duty of consultation and accommodation had not been properly discharged such that the Order in Council and the certificate were to be set aside.  Their applications were dismissed: 2015 FC 1030 and 2015 BCSC 1682. [18] Prophet River and West Moberly appealed to the Federal Court of Appeal as well as to this Court.  In the Federal Court of Appeal, they appealed the dismissal of their application insofar as it relates to the Ministers having made no determination of whether the project would unjustifiably infringe their treaty rights.  They did not appeal the determination the Federal Court had made that the Crown had not breached its duty of consultation and accommodation.  In this Court, however, they appeal both with respect to the infringement of their treaty rights and the determination there has been no breach of the Crown’s duty to consult and accommodate.  Thus, because of our court system, which requires the two First Nations to proceed in two venues as they have, this Court is now in the unusual, if not awkward, position on this appeal of having to consider the discharge of the Crown’s duty to consult and accommodate in the face of what is a final order of another Canadian court establishing there was no breach of that duty, with the order having been made when that court was considering the same issue on essentially the same evidence that bears on the joint involvement of the federal and provincial administrations and in particular BC Hydro. [19] The appeal to the Federal Court of Appeal has just now been dismissed: 2017 FCA 15.  The appellants’ case with respect to their contention that the Ministers (the Governor in Council) were bound to make a determination of whether the project constitutes an unjustifiable infringement of their treaty rights appears to have been advanced on a somewhat different basis than the case argued on this appeal. [20] Here, the appellants now seek declaratory relief and then to have the order dismissing their application set aside, the decision of the Ministers to issue the certificate quashed, and the matter remitted to the Ministers with directions. [21] Against this outline I turn to address each of the two questions stated at the outset that are raised on this appeal. Unjustifiable Infringement of Treaty Rights [22] Before the Supreme Court of British Columbia, the appellants contended that, in exercising their statutory discretion to issue the certificate, the Ministers were constitutionally obliged to first determine whether the project constituted an infringement of the appellants’ treaty rights that could not be justified on the analysis prescribed in R. v. Sparrow .  On the argument advanced in this regard, the issues arising were seen to be three: first, whether the Ministers had jurisdiction to decide if the project would infringe treaty rights; second, if they had such jurisdiction, whether it had to be exercised; and third, whether the court should decide if the project would amount to an unjustified infringement.  On the first issue, the judge concluded the Ministers were without jurisdiction to make the determination for which the appellants contend, in that it was not part of their statutory mandate, which he contrasted with that of a statutory commission as discussed in Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55.  The second issue did not then need to be addressed.  On the third issue, the judge found there was an insufficient evidentiary record to permit the proper determination of whether there would be an infringement that could not be justified if a Sparrow analysis were to be undertaken. [23] The judge reasoned that, while the Ministers’ decision to issue the certificate was political and polycentric in nature, the determination of the infringement of treaty rights and the justification for such was a rights-based decision ministers of the Crown acting under the Environmental Assessment Act could not be expected to make.  He said: [130]    The responsibility of the Ministers under the [ Environmental Assessment Act ] is to determine whether a project should be permitted to proceed in light of the considerations set out in s. 10. The [ Act ] does not provide the Ministers with the powers necessary to determine the rights of the parties interested in the project under consideration. The Ministers have no power to compel testimony, hear legal submissions from the parties or require production of documents. The procedures set out in the [ Act ] are simply inadequate to permit determination of the issues framed by the petitioners in this proceeding. In addition, it is obvious that the Ministers have no particular expertise with respect to those issues. [131]    The infringement issue as raised by the petitioners requires the resolution of the proper construction of Treaty 8, a determination of the nature and extent of each petitioner’s traditional territory and a decision as to the effect of the jurisprudence to date on these issues. It is in every respect a rights-based issue and requires a rights-based resolution. [132]    Based on the nature of the decision being made by the Ministers, the way in which information was provided to them, the broad discretion they were granted to take any matter into account in reaching their decision, the lack of any effective fact-finding machinery and the Minister’s lack of expertise with regard to matters of Aboriginal law, I conclude that the legislature did not intend to vest the Ministers with the jurisdiction to decide the complex question of whether the Project was an infringement of the petitioners’ Treaty 8 rights. [133]    My conclusion in this regard is reinforced by the comments in Mikisew [ Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) , 2005 SCC 69] and Grassy Narrows [ Grassy Narrows First Nation v. Ontario (Natural Resources) , 2014 SCC 48] that suggest questions of infringement should be determined in an action. At a minimum, these cases make it clear that deciding whether an infringement has occurred requires a consideration of matters beyond the impact of the Project as set out in s. 10 of the [ Act ]. Section 10 is clearly focused on the impact of the project under consideration. However, infringement requires a consideration of the residual position of the aboriginal group as a result of the loss of all land taken up. It seems to me that the legislature could not have intended to give the Ministers the jurisdiction to decide that question as part of an environmental assessment of a specific project. [140]    In my view, an action commenced by notice of civil claim and conducted in accordance with the Supreme Court Civil Rules is the proper forum for determination of the infringement issue. It is apparent that there is a considerable degree of conflict in the evidence which can only be resolved at trial. The Judicial Review Procedure Act , R.S.B.C. 1996, c. 241 contemplates a summary hearing to review an administrative decision. The hearing of this petition occupied seven days. Even in that time there was not an adequate opportunity to fully consider the issues of infringement. In addition, the record before me was inadequate to permit me to make the necessary findings of fact to determine whether there has been an infringement, and, if so, whether it can be justified. [143]    … The petitioners’ claims of infringement would involve the petitioners establishing the boundaries of their traditional territory, the extent to which specific species were exploited within their traditional territory and the relative impact of the Project on the traditional rights of the petitioners. These matters would have to be proven by admissible evidence accepted by the court. They cannot appropriately be resolved on a summary hearing pursuant to the Judicial Review Procedure Act . [24] The judge considered that, rather than remitting the application for judicial review to the trial list, the better course would be for the appellants to commence an action for the breach of the treaty seeking such remedy to which they considered themselves entitled.  The Federal Court judge came to essentially the same conclusion in all respects on hearing the application made in that court, as has now the Federal Court of Appeal. [25] The appellants contend the Supreme Court judge was wrong in concluding the Ministers were without jurisdiction such that no question of their constitutional obligation arose, but the appellants do not now make any concerted effort to advance a case of unjustified infringement on the record that was before the judge.  Rather, they seek only a declaration that the Ministers were obliged to determine whether the project would constitute an unjustifiable infringement of treaty rights before deciding to issue the certificate. [26] To this end, the appellants say administrative decisions authorized by statute must be constitutionally sound, citing Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038.  Thus, they say, the Ministers were obliged to exercise their discretion in issuing the certificate within the bounds of the Constitution, in particular s. 35(1) of the Constitution Act, 1982, which preserves Aboriginal treaty rights: they could not issue the certificate without first determining that it was constitutionally compliant, citing R. v. Conway , 2010 SCC 22 at para. 42.  They then say that to do so, in the circumstances, required the Ministers to determine whether the project was an infringement of the treaty to which Sparrow justification was applicable and, if so, whether the infringement was justified.  The appellants contend that, because the Ministers issued the certificate without determining whether they were effectively authorizing an infringement of the appellants’ treaty rights, the Ministers were “indifferent” to the possibility that the appellants’ treaty rights might be unjustifiably infringed.  This, they maintain, amounts to the kind of persistent indifference recognized in Manitoba Métis Federation Inc. v. Canada (Attorney General) , 2013 SCC 14 at para. 82, that is inconsistent with upholding the honour of the Crown. [27] It is significant that, as the judge recognized, an environmental assessment certificate is not a licence to proceed with a project but rather is only one necessary, albeit important, step in the overall approval process for a project.  The Ministers’ decision to issue the certificate did not serve to adjudicate the rights of those having an interest in the project. [28] It must be accepted that administrative statutory discretion is to be exercised in accordance with the jurisdiction the governing statute affords.  It can be taken from what the Supreme Court of Canada has said in its recent consideration of administrative jurisdiction, with reference to both Slaight Communications and Conway, that an administrative decision can in some circumstances include determination of constitutional issues providing the decision maker is authorized to determine questions of law and the matter falls within the scope of the decision maker’s jurisdiction: Doré v. Barreau du Québec, 2012 SCC 12.  That cannot be said to have been the case here; the Ministers were not exercising a quasi-judicial statutory authority. [29] While there can be little question that the exercise of ministerial discretion cannot stand if constitutionally impaired, to say the Crown, or ministers of the Crown, as opposed to the court, must make a binding determination – something that would itself amount to a reviewable decision – at first instance of whether the Crown is unjustifiably infringing Aboriginal treaty rights would appear to be a somewhat novel proposition.  Issues of treaty infringement, like issues of Aboriginal territorial claims, are not determined by ministers of the Crown. [30] That said, the appellants do not suggest the Ministers were required to publish any determination made in this regard.  Rather, they maintain that, like the assessment of the consultation with Aboriginal peoples and the accommodation afforded them, made jointly by the federal Agency and the provincial Office and referred to the Ministers, it was necessary that there be a parallel assessment of the infringement of the treaty rights the project would constitute, and the extent to which such could be justified under the Sparrow test , for the Ministers to consider in satisfying themselves and effectively determining that their issuing the certificate would not unjustifiably infringe the appellants’ treaty rights. [31] However, in the first place, the two are not parallel considerations – the first being the adequacy of a process, the second a determination of rights – and, in the second place, neither is in any event mandated by the governing authorities.  It may be essential in any given case that ministers of the Crown, charged with making the kind of administrative decision made here, recognize Aboriginal claims and the necessity of deep consultation as well as measures of meaningful accommodation to which they give rise.  But, while such will be among the considerations to be taken into account in the course of making their decision, they are not required to make a determination of the adequacy of the consultation undertaken and accommodation afforded before exercising their statutory discretion.  What is important is that the consultation and accommodation be adequate, not that the Crown determine that to be the case.  Whether it is in fact the case is a matter for the court, not the Crown, to decide.  As was said in Cold Lake First Nations v. Alberta (Tourism, Parks and Recreation ), 2013 ABCA 443, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 62, otherwise in dissent: [61]      Although characterized as a judicial review, for the purposes of deciding this case, it might have been better to characterize it as a dispute over whether a legal duty had been discharged by the party which undeniably owed it. The legal duty, of course, was the duty to adequately consult. And the party owing it was the Crown. [62]      As the majority quite properly points out, adequacy of consultation is ordinarily determined having regard to the importance of the First Nations’ right or privilege potentially being impacted and to the magnitude of the potentially adverse impacts of what is being proposed on the First Nation right or privilege: Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) , 2004 SCC 74, [2004] 3 SCR 550 and Haida Nation v. British Columbia (Minister of Forests) , 2004 SCC 73, [2004] 3 SCR 511. [63]      And the body which makes that determination, when there is a dispute, is the Court, not the Crown which owes the duty. And because the Crown cannot be the judge of its own cause, as its ministers, agencies and quasi-judicial tribunals often are in administrative law cases, its view of the adequacy of its consultation is not what is being reviewed. What is being reviewed is the adequacy of its consultation and that review is conducted by the Court. [32] If the Ministers, or others engaged in making comparable administrative decisions as agents of the Crown, could not exercise the discretion afforded them by statute without first making a determination that constitutional requirements had been fulfilled, their failure to make the determination would render the discretion exercised invalid even if the constitutional requirements had in fact been fulfilled.  That cannot be right. [33] It follows that, not only were the Ministers not required to make a determination of whether the consultation and accommodation were adequate, they were also not required to determine whether the project constituted an unjustifiable treaty infringement before issuing the certificate.  It was not within their statutory mandate and, as the judge recognized, they did not have the means to make a proper determination. [34] In Mikisew Cree First Nation v. Canada , 2005 SCC 69, the Court discussed the duty of the Crown when faced with exercising ministerial discretion with respect to a project where treaty rights would be affected.  Consistent with the duty recognized in Haida Nation v. British Columbia (Minister of Forests) , 2004 SCC 73, where not a treaty but a claim to Aboriginal title was concerned, the Court described the Crown’s duty to be one of consultation and accommodation, the extent of which was to be driven by the context with regard for the measure of the impact the project would be expected to have on the apparent treaty rights involved.  The governing question is always what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples affected.  In all the Court said, there is no suggestion that, before exercising ministerial discretion in granting an approval for a project, a determination must be made as to whether the project will constitute an unjustifiable infringement of treaty rights, nor is such a suggestion to be found in any of the governing authorities. [35] The appellants maintain that support for their contention is to be found in West Moberly First Nations v. British Columbia (Chief Inspector of Mines) , 2011 BCCA 247, where it was said government administrators were, in the circumstances, bound to take cognizance of the interpretation of Treaty 8, employing such assistance as necessary, in exercising their discretion with respect to permits affecting a mining proposal to which West Moberly was opposed on the basis it would infringe their treaty rights.  But the issue there was whether the consultation was adequate when consideration had been given only to mitigating the impact of what was proposed and not to whether the proposal should be undertaken at all.  In effect, a proper appreciation of treaty rights was seen to facilitate recognition of the scope of consultation, but nothing that was said suggests those exercising administrative discretion are bound to make a determination of a constitutional nature as to whether a project will infringe the treaty to an extent that cannot be justified. [36] Consistent with what the Federal Court of Appeal has now held, I consider it was not incumbent on the Ministers to make a determination as to whether the project would constitute an unjustifiable infringement of the appellants’ treaty rights before issuing the certificate.  It was not a determination they had the means or the constitutional duty to make.  Determining whether creating the reservoir for the dam will infringe the exercise of the appellants’ treaty rights to the point of essentially defeating them completely would entail a decidedly different exercise than that contemplated by the environmental assessment process.  However, far from there being indifference to the appellants’ contention that the project would constitute an unjustifiable infringement, their contention informed the recognition of the need for consultation that drove the extent to which it was undertaken in discharging the duty owed by the Crown. [37] I would add only that, while it is contended to the contrary, particularly by the intervenor, I consider the judge chose the proper course in declining to remit the application to the trial list in preference for the appellants commencing an action should they see fit to do so.  His disposition in this regard is well supported by the authorities: Lax Kw’alaams Indian Band v. Canada (Attorney General) , 2011 SCC 56 at para. 11 as quoted by the judge at para. 142. Adequacy of Consultation and Accommodation [38] Consistent with the purpose stated in the assessment of the process in the Consultation and Accommodation Report prepared jointly by the federal Agency and the provincial Office, the consultation with Aboriginal peoples was undertaken to develop an understanding of the nature and the extent of their treaty rights that would potentially be impacted by the project so as to appreciate the severity of such and give meaningful consideration to measures of accommodation.  The duty borne by the Crown drawn from the governing authorities, in particular Mikisew and more recently Grassy Narrows First Nation v. Ontario (Natural Resources) , 2014 SCC 48, with respect to projects that impact treaty rights is correctly stated in the Consultation and Accommodation Report, as quoted by the judge at para. 151: When intending to take up lands, the Crown must exercise its powers in accordance with the Crown obligations owed to the Treaty 8 First Nations, which includes being informed of the impact of the project on the exercise of the rights to hunt, trap and fish, communicate such findings to the First Nations, deal with the First Nations in good faith, and with the intention of substantially addressing their concerns. The extent or scope of the duty to consult and accommodate required with a Treaty 8 First Nation depends on the seriousness of potential impacts to that First Nation, as discussed in the following sections of this report. [39] Before the judge, the appellants maintained that both the extent of the consultation and the efforts to afford accommodation were inadequate to discharge the duty owed by the Crown in the circumstances.  The judge reviewed the history of the consultation process in detail, identifying a large number of accommodative measures proposed, as well as changes to the project BC Hydro made in response to concerns raised and, after determining the duty to be discharged was properly understood as one of what the authorities recognize as “deep consultation”, he concluded that, considered on a reasonableness standard, the consultation with and the accommodation afforded the appellants was indeed adequate: [157]    Based on the record reviewed in these reasons, I conclude that the government made reasonable and good faith efforts to consult and accommodate the petitioners with respect to the Project. [158]    I have set out the history of the consultation process in perhaps excessive detail earlier in these reasons. I did so in part to make clear the factual foundation for my conclusion that there was adequate consultation and efforts to accommodate in this case. I am satisfied that the government made reasonable efforts and acted in good faith with respect to consultation with the petitioners. [159]    In the end the parties were unable to reconcile their differences over the Project. However, I conclude that they failed to achieve reconciliation because of an honest but fundamental disagreement over whether the Project should be permitted to proceed at all. I am satisfied that the government made a good faith effort to understand the petitioners’ position on this issue and made reasonable efforts to understand and address the petitioners’ concerns. [160]    The object of consultation and accommodation is reconciliation between governments and First Nations. In this case, that reconciliation was not achieved because the government has concluded that it is in the best interests of the province for the Project to proceed and the petitioners have concluded that there is no adequate accommodation for the effects of the Project. [161]    The petitioners’ position is that the only government action that would adequately accommodate their right would be for the government to meet the electricity needs of the province from alternative sources [40] The judge addressed directly the appellants’ contention that the project should not proceed and that insufficient consideration had been given to alternatives.  He said: [167]    In this case the Panel was specifically tasked with considering alternatives to the Project. While the Panel did conclude that BC Hydro had not fully demonstrated a need for the power from the Project on the timetable proposed by BC Hydro, it also concluded that British Columbia would need new energy and capacity in the future. The Panel determined that Site C was the least expensive of the alternative sources of energy and that its cost advantages would increase in the future. The Panel also acknowledged that the objectives of the [ Clean Energy Act , S.B.C. 2010, c. 22] were a legitimate objective of BC Hydro. [168]    I am satisfied that the petitioners were provided a meaningful opportunity to participate in the environmental assessment process. They were on the Working Group that reviewed the Terms of Reference and the [Environmental Impact Statement]. They participated in the Panel review process. Government and BC Hydro provided the petitioners with funding to assist them in participating in the assessment process. Finally, their position was clearly and succinctly put before the Ministers in their final letters. [169]    I am also satisfied that the environmental assessment process as a whole did provide the petitioners with a reasoned explanation as to why their position, that the Project should not proceed at all, was not accepted. Because the Ministers were not required to give reasons for issuing the Certificate, that explanation must be reasonably ascertainable from the assessment process. I am satisfied that, in this case, the petitioners understood the reasons why the government decided to move forward with the Project. [41] The judge who heard the application for judicial review in the Federal Court came to the same conclusion for much the same reasons.  He attached particular importance to the fact that, although the appellants had expressed their strong opposition to the project, BC Hydro had, over the course of seven years, met with them 177 times and funded their full participation in the environmental assessment and consultation processes throughout in accordance with several agreements made with them over that time.  The judge found the lengthy consultation process had been conducted in good faith and was extensive both qualitatively and quantitatively.  He said it was apparent that, while efforts were made to engage with the appellants to address mitigation measures after the Joint Review Panel report was issued, they refused once they had decided the project being abandoned was the only viable solution for them. [42] The appellants contend the Supreme Court judge was wrong in concluding that the consultation and the accommodation afforded them was adequate.  They seek a declaration that the Ministers’ decision to issue the certificate was in breach of the Crown’s duty in that regard.  The respondents maintain there is no basis on which this Court should interfere with what the judge decided and the parties are at odds over the applicable standard of review.  The standard may best be addressed before the challenge to the judge’s conclusion with respect to the process of consultation and accommodation is considered. (i) The Standard of Review [43] As seems increasingly to be the case, at least in matters of this kind, the applicable standard of review is not straightforward.  The appellants contend it is one of reasonableness while the respondents maintain the judge’s conclusion on the issue, being a question of fact or mixed fact and law, cannot be disturbed in the absence of his having made a palpable and overriding error.  Their core contention is that where, as here, a judge’s conclusion is fact-intensive, based on an extensive record comprising thousands of pages and seven days of submissions, the principles to be applied are those established in Housen v. Nikolaisen, 2002 SCC 33: a n appellate court may set aside the findings of a lower court if, on a question of law, the lower court was incorrect, or if, on a question of fact or mixed fact and law, the lower court made a palpable and overriding error. [44] Questions of mixed fact and law involve applying a legal standard to a set of facts ( Housen at para. 26).  As stated in Canada (Director of Investigation and Research) v. Southam Inc. , [1997] 1 S.C.R. 748 at para. 35, “questions of mixed law and fact are questions about whether the facts satisfy the legal tests”.  The jurisprudence supports the respondents’ contention that the adequacy of consultation and accommodation is a question of mixed fact and law: Neskonlith Indian Band v. Salmon Arm (City) , 2012 BCCA 379 at paras. 60 and 84; and Council of the Innu of Ekuanitshit v. Canada (Attorney General) , 2014 FCA 189 at para. 82, leave to appeal to SCC refused, [2014] S.C.C.A. No. 466.  What constitutes “adequate” consultation is determined through a combined legal and factual analysis of the strength of the prima facie Aboriginal claim and the seriousness of the impact on the underlying Aboriginal or treaty right: Haida Nation at paras. 43–45; and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) , 2004 SCC 74 at paras. 29–32. [45] It does not, however, follow that the standard of review on what is an appeal of a disposition of an application for judicial review is one of palpable and overriding error.  In Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , the Court drew a distinction between the appellate review standards of correctness and palpable and overriding error, and the administrative law standards of correctness and reasonableness: [45]      The first issue in this appeal concerns the standard of review applicable to the Minister’s decision. But, before I discuss the appropriate standard of review, it will be helpful to consider once more the interplay between (1) the appellate standards of correctness and palpable and overriding error and (2) the administrative law standards of correctness and reasonableness. These standards should not be confused with one another in an appeal to a court of appeal from a judgment of a superior court on an application for judicial review of an administrative decision. The proper approach to this issue was set out by the Federal Court of Appeal in Telfer v. Canada Revenue Agency , 2009 FCA 23, 386 N.R. 212, at para. 18: Despite some earlier confusion, there is now ample authority for the proposition that, on an appeal from a decision disposing of an application for judicial review, the question for the appellate court to decide is simply whether the court below identified the appropriate standard of review and applied it correctly.  The appellate court is not restricted to asking whether the first-level court committed a palpable and overriding error in its application of the appropriate standard. [46]      In Merck Frosst Canada Ltd. v. Canada (Health) , 2012 SCC 3, [2012] 1 S.C.R. 23, at para. 247, Deschamps J. aptly described this process as “‘step[ping] into the shoes’ of the lower court” such that the “appellate court’s focus is, in effect, on the administrative decision” (emphasis deleted). [47]      The issue for our consideration can thus be summarized as follows: Did the application judge choose the correct standard of review and apply it properly? [46] Thus, on what was said in Agraira, an appeal from the disposition of an application for judicial review engages a two-step analysis: first, whether the reviewing judge employed the right standard – be it correctness or reasonableness – and second, whether it was properly applied, with the appellate court making an independent assessment in that regard focusing on the administrative decision that was the subject of the review. [47] That said, it must be recognized that, consistent with the discussion above, the review of a decision to issue an environmental assessment certificate where the adequacy of consultation and accommodation is challenged will, as in this case, require focusing on whether the Crown’s constitutional duty in that regard has been properly discharged. As stated in Huu ‑ Ay ‑ Aht First Nation v. British Columbia (Minister of Forests) , 2005 BCSC 697 (cited with approval in Chartrand v. British Columbia (Forests, Lands and Natural Resource Operations) , 2015 BCCA 345 at para. 68): [94]      … The courts may review government conduct to determine whether the Crown has discharged its duty to consult and accommodate pending claims resolution ( Haida at para. 60).  In its review, the court should not give narrow or technical construction to the duty, but must give full effect to the Crown’s honour to promote the reconciliation process ( Taku at para. 24).  It is not a question, therefore, of review of a decision but whether a constitutional duty has been fulfilled ( Gitxsan Houses v. British Columbia (Minister of Forests) (2002), 10 B.C.L.R. (4th) 126 at para. 65, 2002 BCSC 1701). [48] While the notion of an appellate court stepping into the shoes of the reviewing judge has been applied to the extent of suggesting that, in considering the Crown’s duty to consult and accommodate, it is necessary to “re-do” the judge’s reasonableness analysis to see if the same conclusion is reached ( Canada v. Long Plain First Nation , 2015 FCA 177 at para. 93), it appears to have been qualified with respect to what are clear findings of fact in Hupacasath First Nation v. Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4.  There, on an appeal concerning the fulfillment of the Crown’s duty of consultation and accommodation the following was stated: [75] Agraira v. Canada (Public Safety and Emergency Preparedness) , [2013] 2 S.C.R. 559, 2013 SCC 36 at paragraph 46 stands for the proposition that we are to stand in the shoes and consider whether the Federal Court properly applied the standard of review. I do not believe that this allows us to substitute our factual findings for those made by the Federal Court. [76]      In my view, as is the case in all areas of appellate review, absent some extricable legal principle, we are to defer to findings that are heavily suffused by the first instance court’s appreciation of the evidence, not second-guess them. Only palpable and overriding error can vitiate such findings. [49] Further, the authorities are not free of confusion as to whether the adequacy of consultation and accommodation is a matter of reasonableness. Haida Nation (para. 62) appears to have established the consultation process itself is to be examined on a standard of reasonableness, but in Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53 at para. 48, it was said the standard is correctness.  In Neskonlith Indian Band v. Salmon Arm (City) , 2012 BCCA 379 at paras. 60 and 84, this Court definitively applied a standard of reasonableness as stated in Haida over that stated in Beckman .  (See also Ktunaxa Nation v. British Columbia (Forests, Lands, and Natural Resource Operations), 2015 BCCA 352 at para. 79, and Nunatsiavut v. Canada (Attorney General), 2015 FC 492 at paras. 114–115.) [50] Reasonableness is a deferential standard of review concerned with both “the existence of justification, transparency and intelligibility within the decision-making process” and “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v. New Brunswick , 2008 SCC 9 at para. 47.  Reviewing courts must avoid merely paying “lip service to the concept of reasonableness review while in fact imposing their own view”: Dunsmuir at para. 48.  There may be more than one reasonable outcome and “as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome”: Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 at para. 59. [51] What amounts to adequate consultation is perhaps most recently addressed in Gitxaala Nation v. Canada, 2016 FCA 187, leave to appeal to the Supreme Court of Canada sought: [182]    Canada is not to be held to a standard of perfection in fulfilling its duty to consult. In this case, the subjects on which consultation was required were numerous, complex and dynamic, involving many parties. Sometimes in attempting to fulfil the duty there can be omissions, misunderstandings, accidents and mistakes. In attempting to fulfil the duty, there will be difficult judgment calls on which reasonable minds will differ. [183]    In determining whether the duty to consult has been fulfilled, “perfect satisfaction is not required,” just reasonable satisfaction: Ahousaht v. Canada (Minister of Fisheries and Oceans) , 2008 FCA 212, 297 D.L.R. (4th) 722, at paragraph 54; [52] Here, the judge employed the right standard of review in concluding the consultation with and the accommodation afforded the appellants was reasonable and therefore adequate.  He did assume that the Ministers had determined that to be the case by virtue of their apparent acceptance of what was said in the joint Consultation and Accommodation Report of the federal Agency and the provincial Office, quoted above, but his having done so did not impair the analysis of the process he undertook.  Absent any discrete question of law, it is now for this Court to determine whether the standard of reasonableness was properly applied.  This is to be done by assessing whether the process followed in the course of consulting with and accommodating the appellants was, in the circumstances, reasonable having regard for the nature of that standard recognized in law.  The question, one of mixed fact and law, is to be considered as if being addressed initially by the judge save that no clear findings of fact made by him are to be altered in the absence of palpable and overriding error. (ii) The Process [53] The consultation with the appellants was by any account deep and extensive.  It could not be characterized as anything less.  It was directed at gaining an understanding of the impact the project would have on the Aboriginal peoples affected in the context of their treaty rights with a view to the consideration of measures that could be taken to accommodate them.  Given the substantial funding they were given to engage assistance and undertake their own assessments, the studies and reports to which they were given access, and the interaction they were afforded through meetings, public hearings and correspondence, they clearly had the benefit of a full involvement in the process throughout.  Their involvement led to a substantial number of modifications to the project and other accommodative measures that were proposed and to a large extent implemented that the judge considered (paras. 80–87) which need not be specifically addressed here.  It suffices to say that, on its face, the record reflects the extent of consultation and accommodation that appears reasonable in the circumstances. [54] The appellants take no exception with the judge’s factual account of the course the environmental assessment and concurrent consultation took that underlay his conclusion.  Their contention is that, despite the extent of their involvement, the consultation was not adequate primarily because alternatives to the project were not considered.  During the process, they advocated consideration be given to deriving electrical power from alternative sources, which included wind, natural gas, geothermal resources, and smaller hydroelectric projects at other sites, but they say there was never any real consideration by the Crown as to whether an alternative source of power or location for the dam ought to be explored.  This they attribute first to the enactment of the Clean Energy Act and then to BC Hydro having advanced the case for the project before the Joint Review Panel on the basis that it would maximize the hydroelectric potential of the Peace River.  The Clean Energy Act provides for the objective of 93% of electricity in the province being generated from clean or renewable sources and exempts the project from utilities commission approval, which the appellants say rendered the project a “foregone conclusion”.  The Joint Review Panel discounted the maximization of the Peace River as tilting the scales unduly in favour of the project over alternatives, which the appellants maintain is what happened.  The appellants say that, as the authorities establish, consultation that from the outset excludes meaningful accommodation is meaningless. [55] The appellants also contend that outstanding issues identified by the Joint Review Panel were not properly addressed in the Post-Panel Stage, but they focus in the main on what they say is the absence of the Crown’s consideration of alternatives.  The appellants attach importance to the Joint Review Panel finding that BC Hydro had not fully demonstrated the need for the hydroelectric power to be produced by the project on the timetable proposed and the Panel’s recognition that the project would have a number of impacts on their treaty rights, including their current use of land and resources for hunting, trapping and fishing, which in large measure cannot be mitigated.  They say that despite the impact the project will have, there was no consideration of the only accommodation warranted that would be satisfactory to them, namely the project being abandoned or at least deferred indefinitely to permit a proper consideration of the alternatives that might be undertaken. [56] Support for the appellants’ contention is said to be found in principle in Haida Nation (specifically para. 47) where the duty of the Crown to avoid irreparable harm or minimize its effects is discussed and, by analogy, in Gitxaala Nation (see in particular para. 325).  Broadly, the appellants say consultation and accommodation must be meaningful in both procedure and substance.  They say that upholding the honour of the Crown in discharging the duty owed to Aboriginal peoples must demonstrably promote reconciliation, citing Chartrand at paras. 68–69.  The appellants maintain the process of consultation wholly failed in this regard, having been heavy on quantity but lacking in quality.  They say the principle that actions that adversely affect the rights of First Nations people should be taken in a manner that minimally infringes their constitutional rights – the “golden thread” of proportionality that runs through the authorities – was forsaken in the consultation process. [57] For their part, the respondents maintain that the record reflects considerable consultation with Aboriginal peoples, including the appellants, concerning alternatives to the project, emphasizing in particular an assessment prepared by BC Hydro during the Post-Panel Stage headed “Consideration of Site C Alternatives–Related Consultation with First Nations”.  A draft was included in the referral packages for the Ministers.  It identifies three channels through which consultation was carried out with First Nations regarding alternatives: BC Hydro’s own consultation process; the consideration of alternatives during the course of the joint federal and provincial environmental assessment process; and the development of BC Hydro’s Integrated Resource Plan (pursuant to s. 3 of the Clean Energy Act ), a long-term plan for meeting the province’s future electricity needs. [58] The extent to which the proper discharge of the duty of the Crown requires the consideration of alternatives to any given project appears to be largely an open question.  The authorities reflect the need for caution in imposing a duty to exhaustively consult on and consider matters going beyond the scope of a project.  As the Supreme Court of Canada stated in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council , 2010 SCC 43 at para. 53, the duty to consult concerns “the specific Crown proposal at issue”.  The duty to consult on proposed project alternatives may therefore be tempered to the extent that such alternatives go beyond the specific project being considered.  (See also Adams Lake Indian Band v. Lieutenant Governor in Council , 2012 BCCA 333, leave to appeal to S.C.C. refused, [2012] S.C.C.A. No. 425; and Halalt First Nation v. British Columbia (Minister of Environment) , 2012 BCCA 472, leave to appeal to S.C.C. refused, [2013] S.C.C.A. No. 22.)  That said, it does not appear necessary to explore the question further in this instance because it is clear on the record that, contrary to what the appellants contend, alternatives to the project were properly considered. [59] It is of significance that in contending, as they do, there was never any real consideration of alternatives by the Crown, the appellants do not now advance any case with respect to any specific alternatives they maintain should have been but were not considered in the course of the consultation process.  They do not identify any specific sources of electricity that might be sufficiently viable in terms of comparable cost, power production, and availability that ought to have been, but were not, considered as alternatives.  Rather, they argue only in terms of broad generalizations to the effect that the process “fell short” of what was required because alternatives were not considered. [60] Certainly, as the judge found, a consideration of alternatives to the project was undertaken by the Joint Review Panel.  Its analysis led to the conclusion that the project was the least expensive and that its cost advantages would increase in the future.  The consideration of alternatives was mandated by the Panel’s Terms of Reference.  The terms were expanded to address the appellants’ concerns with respect to the consideration of alternatives which then formed part of the Environmental Impact Statement Guidelines, the Environmental Impact Statement, and ultimately the Joint Review Panel Report.  BC Hydro devoted an entire section of its Environmental Impact Statement and a technical appendix to the need for and alternatives to the project.  Three of the 26 days of the Joint Review Panel hearings were devoted to that subject.  Further, the Consultation and Accommodation Report prepared in the Post-Panel Stage specifically addressed the alternatives proposed by First Nations and set out the responses of BC Hydro and the Joint Review Panel to those alternatives. [61] Beyond that, during the course of the process, there was direct consultation between the appellants and BC Hydro that included the subject of alternatives to the project.  T8TA provided BC Hydro with comments on the Environmental Impact Statement on a range of topics, including the need for the project, project alternatives, and cumulative effects. There were 730 comments in total, occupying 470 pages.  BC Hydro responded to each comment received and submitted 29 technical memorandums on common themes that arose including treaty rights, consultation, the need for the project, alternatives, and cumulative effects.  The Joint Review Panel hearings were followed by BC Hydro’s further communications with T8TA, explanations of how T8TA’s comments were considered, and consideration of reports written by T8TA. [62] The consideration given to specific alternatives at one point in the process is found in BC Hydro’s assessment of three alternate locations for a hydroelectric dam, including the First Nations’ requested consideration of Site 7b (a proposed alternative for a dam at another site on the Peace River).  BC Hydro produced a table containing its responses to comments on the Environmental Impact Statement submitted by First Nations.  It prepared a report headed “Review of Alternate Sites on the Peace River”.  With respect to Site 7b in particular, it was considered that it would not meet the need described in the Environmental Impact Statement, as it would produce only about one-fourth of the energy that could be produced by the project.  In short, BC Hydro concluded that situating the project at Site 7b would be uneconomical.  Following the issuance of this report, BC Hydro met with T8TA to review it and seek the First Nations’ input.  BC Hydro also provided funding to T8TA to engage consultants with engineering expertise to support a review of the report.  It is evident that a meaningful dialogue took place with respect to this report and with respect to alternative sites. [63] Ultimately, following the Joint Review Panel report, T8TA advised BC Hydro that it was only interested in discussing alternatives to the project.  BC Hydro agreed to discuss alternatives and to arrange for its experts on this issue to participate.  Between September and December 2014, BC Hydro and T8TA engaged in further consultation on the need for and alternatives to the project.  BC Hydro provided T8TA with $58,250 to participate in this consultation alone.  It appears evident BC Hydro did identify and consult on at least seven potentially viable alternatives referred to as: demand-side management, run-of-river hydro, wind, biomass, geothermal resources, natural gas, and pumped-storage hydroelectricity.  In the end, BC Hydro determined that the project offered the best combination of attributes and was the preferred option. [64] Gitxaala Nation , upon which the appellants rely, is to be distinguished.  There the consultation process was found wanting because key issues were left “undisclosed, undiscussed and unconsidered” (para. 325).  Here the same deficiencies are not apparent.  BC Hydro did consult meaningfully on the issues identified by the appellants; in particular, First Nations were provided a meaningful opportunity to make submissions, have those submissions considered, and engage in discussions concerning alternatives.  On the record, it simply cannot be said the Crown failed to discharge the duty of consultation and accommodation it owed. [65] With respect to the appellants’ claims regarding the duty to accommodate, it must be remembered that the Crown’s consultation and accommodation efforts should not be deemed unreasonable merely because immitigable impacts are identified.  As articulated in Haida Nation , the identification of such impacts is a factor indicating the requirement of deep consultation and accommodation, but this does not necessarily require that a different substantive outcome be reached: “the focus … is not on the outcome, but on the process of consultation and accommodation” (para. 63).  The duty to consult and accommodate does not afford First Nations a “veto” over the proposed activity: Mikisew at para. 66.  Here, the appellants have not been open to any accommodation short of selecting an alternative to the project; such a position amounts to seeking a “veto”.  They rightly contend that a meaningful process of consultation requires working collaboratively to find a compromise that balances the conflicting interests at issue, in a manner that minimally impairs the exercise of treaty rights.  But that becomes unworkable when, as here, the only compromise acceptable to them is to abandon the entire project. [66] In West Moberly First Nations (para. 148), it was said that if the position put forward by a First Nation that a project should not proceed at all is not acceptable, a “satisfactory, reasoned explanation” must be given to them.  It appears clear, as the judge found, that such an explanation was provided in the referral package put before the Ministers, as well as other information that was made available to the appellants in the course of the process. [67] Viewed from the perspective of a reviewing judge at first instance, there is no sound basis on which to conclude the process of consultation in which the appellants were engaged was other than adequate in the sense of being reasonable in all the circumstances.  Reconciliation, as indeed the judge concluded, was not achieved because of an honest disagreement over whether the project should proceed, but that does not mean the process was flawed.  The fact that the appellants’ position was not accepted does not mean the process of consultation in which they were fully engaged was inadequate.  Although the appellants maintain the record is one only of quantity, it is apparent it is very much one of quality as well.  It demonstrates the thorough consultation and efforts to accommodate apart from abandoning the project that were made before, during, and after the environmental assessment, including meaningful consideration of, and consultation on, alternatives. Disposition [68] I would dismiss the appeal. “The Honourable Mr. Justice Lowry” I agree: “The Honourable Mr. Justice Willcock” I agree: “The Honourable Mr. Justice Savage”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. P.E.L. , 2017 BCCA 47 Date: 20170202 Docket: CA43206 Between: Regina Respondent And P.E.L. 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 complainants or witnesses, referred to in this judgment by the initials L.J., C.J., and G.T. This publication ban applies indefinitely unless otherwise ordered. Restriction on Publication: A publication ban has been mandatorily imposed under s. 517 of the Criminal Code restricting the publication, broadcasting or transmission in any way of the evidence taken, the information given, or the representations made and the reasons, if any, given or to be given by the justice until the accused is discharged or, if ordered to stand trial, the trial has ended. Restriction on Publication : A publication ban has been automatically imposed under s. 110(1) of the Youth Criminal Justice Act restricting the publication of information that would identify a young person referred to in this judgment by initials. This publication ban applies indefinitely, unless the information is published by that young person under s. 110(3) or the court has ordered publication. Before: The Honourable Madam Justice Newbury The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Savage On appeal from:  An order of the Provincial Court of British Columbia, dated March 5, 2015 ( R. v. P.E.L. and S.C.L. , 2015 BCPC 42, Lillooet Registry File 8116-C3). Counsel for the Appellant: B.R. Anderson Counsel for the Respondent: M.T. Ainslie, Q.C. Place and Date of Hearing: Vancouver, British Columbia January 6, 2017 Place and Date of Judgment: Vancouver, British Columbia February 2, 2017 Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Savage Summary: This case involved allegations of historical sexual assaults. Appellant and one of his brothers were convicted following re-trial of sexually assaulting (when they were teenagers) several younger children in the 1980s. On appeal from two convictions entered against appellant, it was argued that trial judge erred by failing to reconcile important “discrepancies” or “inconsistencies” in the evidence provided by complainant L.J. and various other witnesses. Appellant also argued that judge failed to properly apply the law regarding evidence given by adults concerning childhood events and that the charges violated the “single transaction rule” by collapsing separate transactions into a single count. Held: appeal dismissed. The evidence of the various other witnesses did not “contradict” L.J.’s testimony or create material inconsistencies therewith. The trial judge considered the evidence and made findings of credibility and reliability that were open to him to make. Those findings are entitled to deference. The judge did not err in his application of the law regarding evidence given by adults concerning childhood events. The “single transaction rule” was not violated, since a “single transaction” may validly encompass a number of occurrences where, as here, the alleged conduct spans a period of time and involves multiple instances of similar conduct. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] In January 1983, five children of the J. family were placed in the foster home of Mr. and Mrs. L. The J. family included two young girls – C.J., then age 8, and L.J., then age 5. Mr. and Mrs. L. had three boys – P.E.L., then age 14; and his brothers D.B.L., age 12, and S.C.L., age 10. Both families were from the Stl’atl’imx Band and the L. family lived on the T’it’q’et Reserve near Lillooet. The J. children were returned to their mother’s home at Bridge River at the end of June, 1983. [2] In 2011, an indictment was brought alleging sixteen counts of assault (15 of them sexual assaults) against the three L. brothers. Since the accused had been juveniles at the time of the alleged offences, the charges were brought under the Youth Criminal Justice Act , S.C. 2002, c. 1. P.E.L., the appellant herein, was charged with the sexual assault of L.J. and C.J. between January 13 and June 30, 1983, and with the indecent assault of G.T. between October 1, 1981 and October 31, 1982. Six charges were brought against S.C.L. and the rest were brought against D.B.L. After a trial in 2011, this court ordered a re-trial of certain of the charges. The re-trial of three charges against P.E.L. and two against S.C.L. took place in the fall of 2014. [3] The trial judge delivered reasons on March 5, 2015 in which he convicted P.E.L. of sexually assaulting L.J. and C.J. but acquitted him of indecently assaulting G.T. The judge also convicted S.C.L. of sexually assaulting his cousin, T.L., between May 1987 and May 1988, but acquitted him of assaulting A.S. between 1985 and the end of 1987. [4] Only P.E.L. appeals his convictions. The Trial Judgment [5] The case was highly fact-based and turned almost entirely on the trial judge’s findings of credibility. On appeal, P.E.L. challenges those findings with respect to L.J., who was in kindergarten in 1983, and to a lesser degree C.J., then in Grade 3. There was no direct evidence of the alleged assaults from any person who was an adult at the time, and no medical evidence of what would have been brutal and traumatic experiences for the complainants. [6] P.E.L. did not testify at trial. It is clear he was 14 in 1983, although C.J. testified that she thought he had been about 18. It is not clear whether he was in school then; but evidently he worked in some capacity in an “office” in the basement of Julianne Hall, located next to an old pre-school building where much of the alleged abuse occurred. [7] In all, L.J. testified that P.E.L. had sexually assaulted her so often that it “pretty much became normal”. When pressed to estimate how many incidents occurred, she said they happened about 65% of the time during her stay at the L. home.  L.J. described in some detail three specific incidents of being “raped” by P.E.L. in the L. residence (see paras. 22 – 26 of the trial judge’s reasons); but also recounted that the appellant, whom she described as “the boss of all of us”, “would” often call her and the other children in from the playground into the pre-school building. There he “would” line them up in the hallway outside the bathroom and call each child separately into a room where they were abused by him and his brothers. [8] On one occasion, L.J. testified, the appellant directed D.B.L. to assault G.T. On another occasion, he told D.B.L. to have sex with L.J.  D.B.L. tried, but was unable to maintain an erection. She recalled that C.J., her brothers G.J. and D.J., S.C., G.T., T.L. and B.L.C. were all present at the time. Five of these persons testified at trial, but as the appellant points out in his factum, none of them corroborated the incident. [9] L.J. also recalled that C.J. had been present once when L.J. was being raped by P.E.L.; and that C.J. had reached out to comfort her as the rape was occurring. Again as noted by the trial judge at para. 46, C.J. did not recall this incident. [10] L.J. was a reluctant witness and was obviously frustrated at being questioned for the second time on issues that, at least in her mind, were of little relevance to the issues before the Court. She was cross-examined at length, for example, on the location and colour of her room in the L. house; whether she and C.J. had shared a bedroom; and the number of times she had been abused by any of the defendants. She testified that she thought she had lived at the L. residence for two to three months, but later said she had “no idea how long I was there for.” She acknowledged that she had previously told the police she had been seven or eight years old when the abuse occurred, but that she had changed her evidence (in fact she had been five years old) based on evidence she heard at the first trial. At one point, she was asked if she had any “difficulties” with her memory generally or had suffered any head injury. Her answer was no. When asked whether in her experience her memory got better over time or got worse, she answered, “I don’t think mine gets worse.” [11] L.J. was also cross-examined at length about any discussions she had had concerning the abuse, especially her ‘disclosure’ in 2007 to Ms. A. (a probation officer to whom she is now related by marriage), and then to police. She had told Ms. A. that D.B.L. and S.C.L. had ‘lined up’ and sexually abused children at the pre-school, but she did not mention any abuse by P.E.L. At trial, she stated she did not remember if she had mentioned P.E.L. “and I do not know and I do not recall.” When pressed about her insistence that she had not discussed the abuse with “anyone”, including C.J., she said she had not spoken in detail about her experiences. She had kept her words “vague” and her conversations with C.J. had been “abrupt”, because “It’s like, ‘I don’t want to talk about it.’” She continued at p. 283 of the transcript: What I -- I never -- what I am saying is, I never ever talked about anything that had happened to me in detail to anybody, about what I endured in the home, in the residence, or the care of Mrs. and Mr. L., and all’s we said was, “We were abused.” I was abused. She [C.J.] knew I was abused. She knew she was abused. We knew things happened. We knew bad things happened to us, and that’s all we ever acknowledge, and that’s it. And when I came forward and did my statements, that’s it. I said, “I finally put my word in, and that's it.” That’s all. There was nothing else said. Nobody ever talked about anything. [12] C.J.’s testimony was considerably shorter. She described one incident in which P.E.L. had called her into his office in Julianne Hall. When she entered, she saw L.J. sitting on a couch, fidgeting. She recalled that P.E.L. told L.J. she could go, and then told her, C.J., to undress. She continued: He took off his shorts and he went to this pole and he – he ejaculated himself on this pole. He came towards me, and he took off his pants and laid on top of me. And he stopped himself, and said he couldn’t do it anymore, so he told me to leave. I quickly got dressed, and I walked out. She testified that she never told anyone about this incident because S.C.L. “told us if we ever told anyone that he would kill our … mother, and I didn’t want her to die.” She had tried to run away a few times, but was returned to the L. residence. She said that later, when she was about 15, she had told the RCMP about what P.E.L. had done, but they told her “nothing could be done.” [13] C.J. agreed with the suggestion that the ‘pole’ incident was the “only incident that had involved [herself] and P.E.L. in sexual abuse” (my emphasis) and that he had never approached her again after that. She said she rarely saw him. She did not say she had seen L.J. or S.C. being assaulted (as L.J. had suggested); but neither did she deny that had taken place. Indeed, as will be explained below, she was not directly asked about these incidents at trial. [14] The sisters’ recollections on matters of detail did differ in some respects: C.J. described P.E.L. as “chubby” and “short”, for example, while L.J. described him as “tall and thin”; L.J. was unsure whether she and C.J. had shared a bedroom in the L. house; C.J. said they had. She was not asked about having helped L.J. move a bed against the door of her (or their) bedroom to keep P.E.L. out, as L.J. recalled. L.J. and C.J. were obviously not always together and had different experiences. They attended different schools and it appears L.J. was exposed to P.E.L. much more frequently than C.J. was. [15] On a more important topic – her disclosure of “what had happened” – C.J. recalled phoning her sister and talking with her about it, although, she added, they did not discuss it in detail . L.J. said she had never approached her sister to talk about “events [they] had been involved in”; in cross, said she did not remember calling C.J. to discuss the abuse. Trial Judge’s Assessment of Credibility [16] The trial judge began his reasons by referring to the law concerning the assessment of the credibility of witnesses generally, and in particular, of adult witnesses who are being asked to recall events alleged to have occurred when they were children. He quoted passages from R. v. W.(R.) [1992] 2 S.C.R. 122, where McLachlin J., now C.J.C., observed for the Court: Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness . Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying . [At p. 134; emphasis added.] [17] The trial judge then reviewed the evidence of L.J. and C.J. and said this about L.J.’s inability to recall various matters about which she had been asked: L.J. noted with respect to her own experience that the sexual abuse she described was a regular and normalized feature of her life at the time and that she could not recall all the abuse she had suffered at the direction or hands of P.E.L. and others. She said that it may be that the events she did recall were those which stood out as being particularly vivid or horrific . In these circumstances, it would not be surprising if adult witnesses remembering events from childhood would recall different events. It is quite a different circumstance than that arising where adult witnesses are unable to recall or corroborate more recent events about which the same or at least similar recollections would be expected to be brought forward. [At paras. 47 – 8; emphasis added.] [18] Generally, the judge found that the “discrepancies” in the evidence of L.J. and others concerning how the complaints had come to light and what had been discussed by whom and with whom, did not “credibly support” any suggestion that L.J. or other witnesses at trial had contrived to concoct allegations against the L. brothers. Nor was he persuaded that any significant discussion had taken place between them such that their recollections were tainted. With respect to L.J.’s credibility, he concluded: In spite of the absence of supporting evidence from the other children, now adults, said to be present at some of the events recalled by L.J., I am bound to say that her evidence in regards to the actions of P.E.L. in these episodes was particularly compelling. I find her evidence is fundamentally credible and reliable in respect to the essential events of her sexual abuse by P.E.L. To the extent that there were some gaps in the details of the evidence provided by L.J., I’m satisfied that those gaps are to be expected from real memories laid down by a child and recalled by the adult . L.J.’s evidence did not strike me as being at all reflective of a lack of candour, truthfulness or reliability. [At paras. 51 – 2; emphasis added.] In the result, he found with respect to L.J. that: The evidence of L.J., which I accept, establishes beyond a reasonable doubt that P.E.L. played roles as both principal offender and party to the various episodes of sexual assault related by L.J. I am satisfied that P.E.L. is guilty of the offence charged in Count 1. [At para. 53.] [19] With respect to C.J., the judge found that : C.J. was a credible witness generally. I am satisfied that her evidence was sufficiently credible and reliable so as to prove the offence charged against P.E.L. on Count 2 beyond a reasonable doubt. The events involving C.J. and P.E.L. in the basement office in the Julianne Hall occurred as she described. On that basis I find P.E.L. guilty on Count 2. [At para. 79.] [20] The judge went on to deal with the remaining charges — the alleged assault by P.E.L. of G.T. (which he found was not proven beyond a reasonable doubt); and S.C.L.’s alleged assaults of A.S. and T.L. Since these are not the subject of appeal, I need not rehearse the evidence on those counts or the judge’s analysis of them here. Grounds of Appeal [21] In this court, P.E.L. advances the following grounds of appeal: 1.         The trial judge erred in law by drawing an impermissible inference from L.J.’s testimony about her own memory to explain why the memories of five other witnesses differed on the crucial issue of whether the pre-school abuse occurred; 2.         The trial judge erred in law by misapplying R. v. W.(R.) to the evidence of adult witnesses recalling childhood memories; 3.         Separate transactions were alleged by the Crown within counts 1 and 2 which led the trial judge to rely upon prejudicial evidence that would have been inadmissible count to count if the different transactions were charged and tried separately; and 4.         The trial judge misapprehended the facts resulting in a miscarriage of justice. Analysis [22] Grounds 1, 2 and 4 all concern the trial judge’s findings of credibility. Central to them all is the appellant’s argument that there were important “discrepancies” or “inconsistencies”, both within L.J.’s testimony, and between her testimony and that of five of the seven persons she said had seen D.B.L. attempting to have sex with her at P.E.L.’s order. It will be convenient to summarize here the relevant aspects of the evidence of the five witnesses: a) C.J. described one incident of sexual assault at the hands of P.E.L. As the trial judge noted at para. 46, she did not “relate any incident in which she saw [L.J.] being sexually assaulted or in which she offered comfort to [L.J.] in those circumstances.” However, she was not asked directly about any sexual abuse of L.J. by the appellant. b) G.T. , age seven at the time, testified that she did not recall “any incident … where [she was] sexually abused by the three brothers along with 12 other people.” She did testify that she had seen C.J. being assaulted by D.B.L., and recalled that P.E.L. had been there watching. (At paras. 71 – 3.) However, there were various contradictions between her evidence at the first and second trials and she was clearly flippant at the second trial, answering “Sure” or “Whatever” to several questions. Ultimately, the trial judge said he could not be satisfied beyond a reasonable doubt that P.E.L. had been a party to the assault by D.B.L. that G.T. said she had witnessed. c) G.J. , then age nine to ten, testified that he had suffered a stroke in recent years. He could not recall whether the L. brothers had played with him and was not asked directly about any allegations of sexual abuse. d) D.J. , then age seven, testified that he had since suffered head trauma. He said he could not remember the names of the children he had played with inside the “abandoned place”. He did remember that “they” would “call us kids in one time” but when asked who “they” were, he could only guess that it would be P.E.L., S.C.L. and D.B.L. He was unable to say what happened when the L. brothers called the children into the abandoned place. e) T.L. , five years old at the time, testified that he had no memory of ever being “involved with a number of other children being lined up to be abused” by the L. brothers at the pre-school. [23] To my mind, the evidence of the four latter witnesses simply cannot be described as “contradicting” L.J.’s evidence on material points, or as inconsistent therewith. These witnesses were either not asked about the incidents recalled by L.J., or were unable to recall them; they did not deny that those things happened. As far as C.J.’s evidence is concerned, she was questioned only about incidents of abuse involving herself and P.E.L. , and not about the incidents to which L.J. had testified. [24] With this clarification in mind, I turn to the first, second and fourth grounds of appeal. Counsel has clarified that the first two are advanced under s. 686(1)(a)(ii) of the Code — i.e., on the basis of a “wrong decision on a question of law”. If such an error is shown, the onus is on the Crown to satisfy the Court that no substantial miscarriage of justice has occurred, such that the curative proviso in s. 686(1)(b)(iii) may be invoked. Impermissible Inference? [25] The first ground of appeal focuses on paras. 47 – 8 of the trial judge’s reasons, quoted at para. 17 above. The appellant submits that the judge erred in law in using L.J.’s evidence about her own memory to “explain” why the five other alleged eyewitnesses to the abuse that took place at the pre-school had memories that (the appellant says) materially conflicted with L.J.’s testimony. It is said the trial judge engaged in “illogical” and “speculative” reasoning to provide such an ‘explanation’. Counsel emphasizes that L.J. was “not an expert on childhood memory.” Counsel did not say what should follow from this point, but presumably he was suggesting that L.J.’s testimony that her memory does not “get worse” with time should not have been believed (if indeed it was believed). [26] I do not agree with the appellant’s characterization of the judge’s reasoning at paras. 47 – 8. As I read that passage, he was accepting that adult witnesses are likely to recall “different events” from their childhood (as L.J. recalled the three specific incidents in the L. house), in contrast to their recall of recent events, which would likely be more complete and detailed. The judge considered L.J.’s evidence “in the context of” her age at the time of the events as W.(R.) directs. L.J. was among the youngest of the children who played in the playground near the L. residence, and one would expect as a matter of common sense that years later, she would recall the most traumatic of her experiences, and not the details of her physical surroundings or other routine matters. [27] Finding no error of law, I would not accede to this ground of appeal. Misapplication of R. v. W.(R.)? [28] The second ground seems to be a variant of the first. The appellant acknowledges that the trial judge correctly set out the applicable law as stated in W.(R.) , and that a “central inconsistency” in the testimony of an adult witness about a childhood event cannot be approached with the “same latitude as a peripheral inconsistency.” However, the appellant submits that because the law no longer requires the corroboration of assertions of sexual misconduct involving children (see An Act to Amend the Criminal Code in Relation to Sexual Offences , etc., S.C. 1980–81 – 82 – 83, c. 125, s. 5), the trial judge was obliged to scrutinize carefully the alleged inconsistencies in this case, and in particular, the fact that L.J.’s evidence about the abuse in the pre-school building was not corroborated by the other five witnesses discussed earlier. Thus the appellant submits in his factum: The inconsistency between L.J.’s evidence and the evidence of the other five witnesses went to the core of her allegations. The trial judge’s analysis on this central inconsistency overemphasized the fact that all of these witnesses were recalling childhood events . The trial judge also failed to examine this central conflict in the context of the relative ages of all the witnesses during the relevant time period as required by W.(R.). L.J. was five years old at that time. Four of the five other witnesses (who either could not recall or denied the pre-school abuse) were older (between 7 and 10 years old respectively). As a matter of common sense those witnesses would presumably have better memories of that time period because they were significantly older than L.J. This central discrepancy, particularly in the context of events that were alleged to have occurred more than thirty years before the trial, required rather than excused scrutiny . [At paras. 52 – 4.] [29] Although I agree the trial judge was obliged to consider the complainants’ evidence carefully, I cannot agree he failed to “scrutinize” it adequately. He heard full argument about the so-called “inconsistencies” complained of in the appellant’s factum and his reasons indicate he was fully aware of their importance in his assessment of credibility. As noted earlier, despite these “inconsistencies”, he found L.J.’s evidence compelling and credible (see paras. 50 – 2.) He also found that C.J. was generally credible. [30] The same was not true of G.T., whom the trial judge did not find sufficiently credible and reliable to satisfy him beyond a reasonable doubt that P.E.L. had been a party to the sexual assault of C.J. by D.B.L. (para. 78). As for the remaining four witnesses, their failure to corroborate the events in question was explained. [31] Of course, it is true that another trial judge might have found L.J.’s testimony to be less “compelling”, might have been more troubled by the absence of corroboration, or might have been left with a reasonable doubt at the end of the day. But as is often said, a trial judge is generally in the best position to assess a witnesses’ credibility – a factual determination – and has “extensive exposure to the entire factual nexus of a case”. ( Housen v. Nikolaisen 2002 SCC 33 at para. 25.) I cannot agree that the judge here misapplied W.(R.) or ‘overapplied’ the Supreme Court’s direction to consider the complainants’ testimony in the context of their young ages. In this regard, I note the comments of Wilson J. in R. v. B.(G.) [1990] 2 S.C.R. 30, which were quoted at p. 133 of W.(R.) : it seems to me that [Wakeling J.A. in the court below] was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child’s testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it . In recent years we have adopted a much more benign attitude to children’s evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the “reasonable adult” is not necessarily appropriate in assessing the credibility of young children. [At 54 – 5; emphasis added.] [32] I would not accede to this ground of appeal. Miscarriage of Justice? [33] The fourth ground of appeal is advanced under s. 686(1)(a)(iii) of the Code ‒ i.e., on the basis that the convictions constituted a miscarriage of justice. Counsel for the appellant acknowledged that to satisfy s. 686(1)(a)(iii), he must show an error in law or misapprehension of the evidence that played an “essential part” in the trial judge’s reasoning process leading to conviction: see R. v. Lohrer 2004 SCC 80 at paras. 1–2, 8, citing R. v. Morrissey (1995) 97 C.C.C. (3d) 193 (Ont. C.A.). Counsel also emphasized that it was not necessary for the appellant to show his convictions could not be reasonably supported by the evidence (in which case s. 686(1)(a)(i) could be invoked): Morrissey at pp. 219–20. [34] As also noted in Morrissey , s. 686(1)(a)(iii) is broad in scope and may include both errors in law and errors in the trial judge’s understanding of the evidence, provided a miscarriage of justice is shown to have resulted. In Doherty J.A.’s analysis: I turn next to s. 686(1)(a)(iii). This subsection is not concerned with the characterization of an error as one of law, fact, mixed fact and law or something else, but rather with the impact of the error on the trial proceedings. It reaches all errors resulting in a miscarriage of justice and vindicates the wide jurisdiction vested in this court by s. 675(1). The long reach of s. 686(1)(a)(iii) was described by McIntyre J., for a unanimous court, in R. v. Fanjoy (1985), 21 C.C.C. (3d) 312 at pp. 317 – 18, 21 D.L.R. (4th) 321, [1985] 2 S.C.R. 233: “A person charged with the commission of a crime is entitled to a fair trial according to law. Any error which occurs at trial that deprives the accused of that entitlement is a miscarriage of justice.” When will a misapprehension of the evidence render a trial unfair and result in a miscarriage of justice? The nature and extent of the misapprehension and its significance to the trial judge’s verdict must be considered in light of the fundamental requirement that a verdict must be based exclusively on the evidence adduced at trial. Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a “true” verdict . Convictions resting on a misapprehension of the substance of the evidence adduced at trial sit on no firmer foundation than those based on information derived from sources extraneous to the trial. If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction. [At pp. 220–1; emphasis added.] [35] In Morrissey itself, a trial judge was found to have misapprehended evidence given by adult witnesses concerning sexual assaults alleged to have occurred when they were children. The Court of Appeal allowed the appeals from convictions on four counts after finding the trial judge had treated the evidence of two complainants as if it had been consistent on all significant points, and had failed to notice various inconsistencies “as a result of his misapprehension of the substance of the evidence.” (At p. 221) The cumulative effect of various mistakes in his analysis was found to be “significant in that it infected the very core of the reasoning process which culminated in a conviction ….” [36] While counsel for the appellant in the case at bar did not say so expressly, he seeks to persuade us that similar errors were made in this instance. In his factum, he returns to the submission that the evidence of four of the five witnesses (see above at para. 22) “materially” conflicted with L.J.’s testimony regarding the assaults at the pre-school – as opposed to their simply being unable to recall or corroborate the events described by L.J. The appellant reviews these so-called conflicts and inconsistencies at paras. 73 – 86 of his factum and I have mentioned most of them in these reasons. Again, most are in my view differences on matters of detail that one could not expect a five-year old to perceive in the way an adult would, or to recall with perfect accuracy. [37] The appellant contends that the trial judge was obliged to “resolve” the inconsistencies asserted by counsel. I cannot agree. Again, these were not direct conflicts on matters of substance. They were differences in degree, in experience, in recollection, in expression. The trial judge was bound to assess the evidence “by reference to criteria appropriate to [the witnesses’] mental development, understanding and ability to communicate.” ( W.(R.) at p. 134) He did just that. He concluded at para. 51 that L.J.’s evidence was “particularly compelling” and both “credible and reliable in respect [of] the essential events of her sexual abuse by P.E.L.” This was not a case like Morrissey, in which the trial judge clearly misapprehended evidence relating to substantive issues in a manner that was essential to his reasoning . Rather, this was a case like W.(R.), in which the discrepancies in the evidence were of the sort to be expected in historical cases. In such cases, W.(R.) instructs that courts should not apply “too critical an approach to the evidence” or place “insufficient weight on the trial judge’s findings of credibility” or apply stereotypes relating to the “normal” behavior of victims of sexual abuse. (At p. 136.) [38] The remaining topic of potential concern relates to L.J.’s insistence at trial that she did not talk to “anyone” about what had happened – when, as she later admitted, she did tell Ms. A. and the police in 2007 about sexual abuse on the part of S.C.L. and D.B.L. (but not P.E.L.). As we have seen, C.J. clearly recalled L.J.’s calling her up one night and saying, “Hey, sis. Do you remember about when we were in foster care?” Further, she said “We talked about what had happened, and we talked about [how] something should be done about it.” C.J. did state that they did not discuss “a lot of detail”. L.J. said she could not remember calling C.J. (L.J. was not asked if C.J. had called her ) in these terms. She then gave the explanation quoted above at para. 11. [39] It will be recalled that in W.(R.), the Supreme Court stated that courts must consider the evidence of adult witnesses about childhood events in the “context of the age of the witness.” In my respectful opinion, “context” may also include ingrained ways of thinking or reacting to events such as those to which the complainants and their communities have been subject as Aboriginal people. It may be that L.J.’s reluctance to have, or admit having, detailed conversations with “anyone” about her experiences stems from the feeling that her suffering was something that simply had to be quietly endured in the same way that many of the adults in her community had endured suffering.  L.J. was asked at trial how she could have been “serially abused regularly, dozens of times by three boys, along with several other children and nobody observed any of this behaviour, except for you?” At p. 303 of the transcript she replied: No, it wasn’t just except for me, because my sister went through it, my brothers went through it, these other people went through. We weren’t the only ones. It was like a -- it’s the historical impact from residential school. My mom was the mother that she was because the things that she went through. She never ever talked about the things that she went through, but obviously she struggled because there were parent -- parenting problems, sibling problems. You are judging me and questioning me, based on my upbringing and the things I went through. I went through all that shit because all the shit that went through residential school and the things that happened to my mom or even to Mr. and Mrs. L. and them, the learned behaviour, and look who’s here. You wonder why so many people don’t come forward? It’s because of all the stuff that we have got to go through. Be victimized -- not by them physically anymore, but now because of this system, I didn’t even want to be here. I didn’t want to come forward to this anymore. This is how L.J. “resolved” her reluctance to speak about the assaults in detail, even to C.J. Looking at the matter through the “lens of judicial experience”, I believe her words ring true. [40] It seems to me that at the end of the day, the appellant’s real objection is not to the trial judge’s assessment of credibility, but with the result he reached – in other words, that in the appellant’s opinion, the convictions are “unsafe” because they rest largely on the evidence of an adult (albeit an articulate and educated one) who was five years old at the time and whose evidence is uncorroborated (in the modern sense of that term). Although appellate courts in the United Kingdom and Australia evidently have the authority to set aside a verdict on the basis that it is “unsafe” or that there is a “lurking doubt” about the verdict, the Supreme Court of Canada has interpreted s. 686 as precluding any such authority in this country: see R. v. Biniaris 2000 SCC 15 at paras. 36 – 8; R. v. Braich 2002 SCC 27 at para. 39; R. v. Gagnon 2006 SCC 17 at para. 14; see also R. v. Irani (1996) 81 B.C.A.C. 203 at paras. 88–90, lve. to app. ref’d . [1996] S.C.C.A. No. 575, and R. v. Guyatt (1997) 97 B.C.A.C. 106, lve. to app. ref’d. [1997] S.C.C.A. No. 601 at paras. 58 –72. In particular, the majority in Guyatt stated that s. 686(1)(a)(iii) is concerned not with the trial itself, but with the “fairness of the process which produced the verdict.” ( Per Ryan J.A. at para. 70, citing Morrissey .) [41] I would dismiss the fourth ground of appeal. The Single Transaction Rule [42] The remaining ground of appeal rests on the “single transaction rule”, as codified by s. 581(1) of the Code : Each count in an indictment shall in general apply to a single transaction and shall contain in substance a statement that the accused or defendant committed an offence therein specified. The appellant contends that separate “transactions” were alleged by the Crown against P.E.L. in each of Counts 1 and 2 of the indictment and that the trial judge was led to rely on prejudicial evidence that would have been inadmissible as between counts if the transactions had been charged and tried separately. Counts 1 and 2 were framed thus: Count 1 P.E.L., from the 13th day of January, 1983 to the 30th day of June, 1983, inclusive at or near Lillooet, Province of British Columbia, did sexually assault L.J. contrary to Section 246.1 of the Criminal Code . Count 2 P.E.L., from the 13th day of January, 1983 to the 30th day of June, 1983, inclusive, at or near Lillooet, Province of British Columbia, did sexually assault C.J., contrary to Section 246.1 of the Criminal Code . [43] No objection was taken at trial by defence counsel on this point; nor was objection taken to the admission of any evidence on the basis that it was prejudicial given the counts as framed against the appellant. Indeed as the Crown points out, the appellant at trial urged the trial judge to admit evidence that was considerably wider than necessary to prove the charges, because this afforded counsel a greater opportunity to challenge L.J.’s credibility and reliability. [44] The law is clear that s. 581(1) states a general rule that may not apply in all cases. Exceptions are often made in cases of historical sexual assault. Thus in R. v. Hulan [1970] 1 C.C.C. 36 (Ont. C.A.), a sexual assault case, the Court stated: In a case such as this, several factors combine to make difficult close adherence to the usual procedure in framing a count in an indictment. The long period over which the incidents occurred, the practical impossibility of a complainant of this age being able to recall the specific dates of the incidents, the position of influence of the prisoner, the undesirable effect on the mind of the complainant of forcing a too-detailed recall of individual incidents, all point to the necessity of a not-too-rigid application of the procedural requirements unless possible prejudice to the prisoner demands otherwise. The framers of the Criminal Code by referring to the general practice to be followed, have left some latitude for exceptional cases : and if there are to be exceptions to the general practice I would be strongly of the opinion that a case such as the one now before us is one of those to which the room for exception contained in this section was directed. As I will discuss later, no prejudice to the appellant is present in this case; if the procedural exactness were to be required the ends of justice would be frustrated not promoted. [At p. 46; emphasis added.] [45] Hulan was adopted by this court in R. v. G.L.M. 1999 BCCA 467, where Ryan J.A. stated for the majority: A “single transaction” may validly encompass a number of occurrences, each in themselves capable of constituting an offence, where the acts relate to a similar activity or involve a similar course of conduct.  Thus, an indictment will not necessarily offend the single transaction rule even where it spans a lengthy period of time and involves a number of separate incidents in a variety of locations. The classic analysis of the rule was made by Kelly J.A. in R. v. Hulan , [1970] 1 C.C.C. 36 (Ont. C.A.). In the case at bar the Crown alleged a number of acts perpetrated by the appellant against his nephew, a young boy over whom he had a position of power and influence.  It could be said the evidence revealed that the appellant had a continuing sexual interest in his nephew upon which he acted when given the opportunity. The acts were successive and cumulative. It was not wrong to treat this series of events as a single transaction. (See also R. v. Selles (1997), 116 C.C.C. (3d) 435 (Ont. C.A.); R. v. D.A.L. (1996), 76 B.C.A.C. 65 (C.A.).) Although it is not improper to charge a continuing offence as one count in an indictment, it is open to the Court to divide the count where the “ends of justice require it”.  Section 590(3) of the Code provides: The court may, where it is satisfied that the ends of justice require it, order that a count be amended or divided into two or more counts, and thereupon a formal commencement may be inserted before each of the counts into which it is divided. The interests of justice would require such an amendment where the count so framed would embarrass the accused in his defence, for example where he has different defences for different incidents (eg. R. v. Lilly , [1983] 1 S.C.R. 794).  In the case at bar the appellant did not allege that he was hampered in his defence by the manner in which the indictment was framed.  He says only that two of the incidents were not proved against him. Nothing has been placed before this Court to demonstrate that the accused suffered any prejudice in defending one charge rather than four. I would dismiss this ground of appeal. [At paras. 11 – 4; emphasis added.] [46] In my opinion, similar considerations apply in this case. For reasons similar to those expressed in G.L.M. , I would reject this ground of appeal. Disposition [47] In the result, I would dismiss the appeal. “The Honourable Madam Justice Newbury” I AGREE: “The Honourable Madam Justice Kirkpatrick” I AGREE: “The Honourable Mr. Justice Savage”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Seipp, 2017 BCCA 54 Date: 20170202 Docket: CA42998 Between: Regina Respondent And Jeffery Thomas Raymond Seipp Appellant Before: The Honourable Madam Justice D. Smith The Honourable Madam Justice Bennett The Honourable Madam Justice MacKenzie On appeal from: An order of the Provincial Court of British Columbia, dated July 7, 2016 ( R. v. Seipp , Surrey Docket 207914-2C). Counsel for the Appellant: N.J. Preovolos Counsel for the Respondent: M.A. Street Place and Date of Hearing: Vancouver, British Columbia September 13, 2016 Place and Date of Judgment: Vancouver, British Columbia February 2, 2017 Written Reasons by: The Honourable Madam Justice Bennett Concurred in by: The Honourable Madam Justice D. Smith The Honourable Madam Justice MacKenzie Summary: The appellant was charged with eight Criminal Code offences related to a home break-in in which a car was stolen. The appellant was convicted at trial of four offences, including fleeing the scene of an accident without leaving his name and address. His counsel conceded his guilt on this count during final submissions. Mr. Seipp appeals this conviction on the basis that the concession amounted to ineffective assistance of counsel that caused him prejudice. He contends that the mens rea of the offence was not proved. Held: Appeal dismissed. A decision by counsel to acknowledge an accused’s guilt after all the evidence has been presented is a legal decision that does not require instructions. And in this case, it caused the appellant no prejudice. Section 252 of the Criminal Code presumes that an accused who fled the scene of an accident did so with an intent to avoid civil or criminal liability unless the accused presents evidence to the contrary. Mr. Seipp’s evidence that he left the scene to avoid being arrested for driving a stolen vehicle does not amount to evidence to the contrary. It is sufficiently connected to the accident to be captured by the legislative intent of the provision. Reasons for Judgment of the Honourable Madam Justice Bennett: [1] In the early morning on December 29, 2013, someone broke into Mr. and Mrs. Davidson’s home. Jeffery Seipp was charged with eight Criminal Code, R.S.C. 1985, c. C-46 [ Code ] offences related to the break-in: fraud under $5,000 for the use of Mrs. Davidson’s debit card (count 1); break and enter and theft at the Davidsons’ home (count 2); theft of Mrs. Davidson’s car (count 3); use of Mrs. Davidson’s stolen debit card (count 4); possession of Mrs. Davidson’s stolen car (count 5); possession of Mrs. Davidson’s stolen cellphone (count 6); possession of the Davidsons’ stolen television and Mrs. Davidson’s stolen wallet (count 7); and failure to stop and provide his name and address at the scene of an accident (count 8). [2] Mr. Seipp was convicted of four of the eight offences: fraud, use of a stolen debit card, possession of stolen property (a motor vehicle), and leaving the scene of an accident. He appeals only the conviction for leaving the scene of an accident. [3] At the conclusion of the evidence, during final submissions, the trial judge asked Mr. Seipp’s trial counsel (who is not counsel on the appeal), if she could narrow the issues by acknowledging Mr. Seipp’s guilt on any of the charges. Counsel acknowledged that the elements of possessing the stolen motor vehicle and leaving the scene of the accident had been proved by the Crown. The trial judge relied on this admission to convict Mr. Seipp. [4] The issues on appeal are whether counsel’s admission was an error that amounted to ineffective assistance of counsel, and if so, whether this error prejudiced Mr. Seipp, entitling him to a new trial on that charge. Fresh Evidence Application [5] Mr. Seipp’s trial counsel filed an affidavit where she deposed the following: 7.   After sentencing, it occurred to me that I should not have admitted that Count 8 had been proven. When I read Count 8 and advised the court that the offence had been proven, I did not realize that an essential element of the offence of failing to stop one’s vehicle contrary to s. 252(1)(b) of the Criminal Code includes proof of “intent to escape criminal or civil liability.” 8.   In retrospect, I believe I conflated the Criminal Code offence of failing to stop contrary to s. 252(1)(b) with the Motor Vehicle Act offence of failing to stop contrary to s. 68(1). The latter does not require proof of intent to escape civil or criminal liability. I think I was also led astray by the wording of Count 8, which does not mention the element of failing to stop with the intent to escape criminal or civil liability. 9.   In any event, it was a mistake to admit Count 8, and the mistake was entirely my own. I did not seek the appellant’s instructions because I thought his guilt on Count 8 was a foregone conclusion. [6] No argument was made on appeal with respect to the wording of the information and the failure to specify an essential ingredient of the offence. I have therefore not addressed that issue. Background [7] Someone broke into Lisa and Timothy Davidson’s home on December 29, 2013. The Davidsons’ television, Mrs. Davidson’s wallet and debit card, her cellphone, and her 2009 Chevrolet Equinox were stolen. Later that morning, Mrs. Davidson’s debit card was used to purchase gasoline and make several withdrawals from her chequing account. Mr. Davidson decided to drive around the neighbourhood in search of the car on the chance it had been abandoned. His daughter, Laura, accompanied him. Mr. Davidson saw Mr. Seipp driving his wife’s car on Old Yale Road. He caught up with the car and tried to overtake it in a roundabout. This manoeuvre resulted in a collision between the vehicles. Mr. Seipp fled without providing either his name or address. The accident disturbed a corrective steel rod implanted in Laura’s back, ultimately necessitating surgery. [8] Surveillance footage showed Mr. Seipp using Mrs. Davidson’s debit card, and Mr. Davidson identified him in a photo pack line-up. The central issue in the two-day trial before Rounthwaite P.C.J. was identification. The Crown’s theory was that Mr. Seipp committed the break-and-enter of, and thefts from, the Davidsons’ home. [9] Mr. Seipp testified in his defence. He admitted driving Mrs. Davidson’s car and using her debit card under suspicion that both were stolen. He claimed that his friend “Alyssa” unexpectedly stopped by his house around four or five in the morning on December 29, 2013, and invited him to drive around in a car she had acquired. He denied breaking into and stealing from the Davidsons’ home. At some point he dropped Alyssa off and continued joyriding until the collision with Mr. Davidson’s car. In his direct examination, Mr. Seipp testified that he fled from the collision because he suspected the car was stolen and therefore did not want to be present when the police arrived. He was not asked in direct or cross-examination if he had another reason for fleeing the scene of the accident. [10] At the end of the defence’s case, the trial judge asked defence counsel if she was in a position to admit that the evidence established guilt on any of the counts charged. Defence counsel submitted that counts 5 (possession of Mrs. Davidson’s stolen car) and 8 (failure to provide a name and address at the scene of an accident) had been proved. Rounthwaite P.C.J. convicted Mr. Seipp of counts 5 and 8 at the conclusion of submissions, and adjourned the trial for a short period to deliberate on the six outstanding counts. Upon her return to the courtroom, she convicted Mr. Seipp of counts 1 (defrauding the credit union where the debit card was used) and 4 (using Mrs. Davidson’s stolen debit card). Having concluded that Mr. Seipp’s explanation for possessing Mrs. Davidson’s car and debit card might reasonably be true, the trial judge did not draw the inference sought by the Crown that Mr. Seipp had committed the break-and-enter of, and theft from, the Davidsons’ home. She thus acquitted Mr. Seipp of the remaining four counts. Issues [11] There are two related issues on appeal. The first is whether trial counsel’s conduct in conceding Mr. Seipp’s guilt on count 8 (failing to provide his name and address at the scene of the accident) amounted to ineffective assistance of counsel. In order to answer this question, the mens rea for that offence must be ascertained, as that will determine whether Mr. Seipp suffered any prejudice as a result of counsel’s concession at trial. Position of the Parties Ineffective Assistance of Counsel [12] Mr. Seipp submits that counsel’s misapprehension of the essential elements of the offence was a serious error. Counsel admitted in her affidavit that she conflated the elements of the offence in the Motor Vehicle Act , R.S.B.C. 1996, c. 318 [ MVA BC ] with the elements in s. 252(1)(b) of the Code . This deprived Mr. Seipp of an opportunity to have the offence tried on the merits. He submits that there was a reasonable probability the trial judge would have acquitted. He has brought a motion to adduce trial counsel’s affidavit as fresh evidence. He also submits that counsel did not seek instructions before conceding the offence had been proved. [13] The Crown submits that while there could be a concern arising from the fact that defence counsel did not address the essential elements of the offence, it says that this failure caused Mr. Seipp no prejudice because he is guilty of the offence. The Crown says that counsel is not obliged to seek specific instructions at the end of the evidence. It is not the same as entering a guilty plea at the outset. In addition, the Crown notes that Mr. Seipp incriminated himself at trial to the point that his guilt on this count was established. Mens Rea Under s. 252(1)(b) [14] Mr. Seipp submits that the authorities suggest that the proper interpretation of “escape civil or criminal liability” under s. 252(1) is that the intent must relate to avoiding liability in connection with the cause of an accident rather than any liability arising from the general operation of a motor vehicle. He argues that there are two distinct lines of authority interpreting this provision, and that the correct interpretation is limited to consequences arising from the accident itself. Alternatively, the meaning of “civil or criminal liability” is ambiguous, and therefore the principle of strict construction in interpreting a penal statute must be applied. Mr. Seipp testified he fled because he did not want to be found with a stolen vehicle. The Crown did not cross-examine on any other liability he may have intended to escape, and the trial judge found that Mr. Seipp’s driving was not the cause of the accident. Mr. Seipp submits that if the more limited interpretation is applied, then his evidence would amount to “evidence to the contrary” sufficient to rebut the presumption of intent. [15] The Crown submits that there are similar interpretations in most of the cases rather than two distinct lines of authority. It submits that the decisions generally find that the intention to escape civil or criminal liability must be related to or substantially connected to the accident. The Crown submits that Mr. Seipp fled to evade liability for driving Mrs. Davidson’s stolen car at the time of the accident. Although his manner of driving did not cause the accident such that he could be held liable for Laura Davidson’s injuries, his use of the stolen car was a factual cause of the accident. The Crown submits that this provides a sufficient link between the liability he sought to avoid and the collision to establish the mens rea . Thus, even absent defence counsel’s concession of the appellant’s guilt, the verdict would have been the same because the appellant’s evidence was insufficient to rebut the presumption of mens rea codified in s. 252(2) of the Code . The bottom line is that even if defence counsel’s confusion as to the mens rea constituted incompetence, it did not prejudice the appellant. Discussion Ineffective Assistance of Counsel [16] The right of an accused person to effective assistance of counsel is a principle of fundamental justice: R. v. G.D.B. , 2000 SCC 22 at para. 24. [17] A Court of Appeal has jurisdiction to set aside a conviction and order a new trial on the basis of ineffective assistance of counsel where there has been a miscarriage of justice. See s. 686(1)(a)(iii) of the Code and G.D.B. at para. 5. The issue has both a “performance component” and a “prejudice component”: G.D.B. at para. 26. [18] The analysis with respect to ineffective assistance of counsel generally commences with the question of whether there is prejudice. Major J. described the process in G.D.B. at para. 29: In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel’s performance or professional conduct. The latter is left to the profession’s self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow ( Strickland , supra , at p. 697). [19] The issue raised in this case is whether counsel’s admission that the elements of the offence had been proved was correct in law. Mr. Seipp says it was not, and therefore he suffered prejudice. The Crown says that it was, and that therefore no prejudice occurred. The Mens Rea Requirement [20] Mr. Seipp was charged pursuant to s. 252(1)(b) of the Code . I set out the entire section, as it is relevant to the interpretation of the individual provisions: 252 (1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with (a) another person, (b) a vehicle, vessel or aircraft, or (c) in the case of a vehicle, cattle in the charge of another person, and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance. (1.1) Every person who commits an offence under subsection (1) in a case not referred to in subsection (1.2) or (1.3) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction. (1.2) Every person who commits an offence under subsection (1) knowing that bodily harm has been caused to another person involved in the accident is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. (1.3) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for life if (a) the person knows that another person involved in the accident is dead; or (b) the person knows that bodily harm has been caused to another person involved in the accident and is reckless as to whether the death of the other person results from that bodily harm, and the death of that other person so results. (2) In proceedings under subsection (1), evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, as the case may be, offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability. [21] The French language provision is slightly different, and I have reproduced the relevant offence section: 252 (1) Commet une infraction quiconque, ayant la garde, la charge ou le contrôle d’un véhicule, d’un bateau ou d’un aéronef, omet dans l’intention d’échapper à toute responsabilité civile ou criminelle d’arrêter son véhicule, son bateau ou, si c’est possible, son aéronef, de donner ses nom et adresse, et lorsqu’une personne a été blessée ou semble avoir besoin d’aide, d’offrir de l’aide, dans le cas où ce véhicule, bateau, ou aéronef est impliqué dans un accident : a) soit avec une autre personne; b) soit avec un véhicule, un bateau ou un aéronef; c) soit avec du bétail sous la responsabilité d’une autre personne, dans le cas d’un véhicule impliqué dans un accident. [Emphasis added.] [22] The French language version of the offence refers to “ à toute ” or “any” liability. If the phrase “ à toute ” broadens the meaning, then the English version is preferred. See Schreiber v. Canada (Attorney General) , 2002 SCC 62 at para. 56. [23] The MVA BC equivalent is s. 68: 68 (1) The driver or operator or any other person in charge of a vehicle that is, directly or indirectly, involved in an accident on a highway must do all of the following: (a) remain at or immediately return to the scene of the accident; (b) render all reasonable assistance; (c) produce in writing to any other driver involved in the accident and to anyone sustaining loss or injury, and, on request, to a witness (i) his or her name and address, (ii) the name and address of the registered owner of the vehicle, (iii) the licence number of the vehicle, and (iv) particulars of the motor vehicle liability insurance card or financial responsibility card for that vehicle, or such of that information as is requested. [24] The main difference between the Code provision and the British Columbia legislation is the intent, specified in the Code provision as “with intent to escape civil or criminal liability”. The British Columbia legislation creates a strict liability offence, which is also typical of other provinces. See, for example, the Traffic Safety Act , R.S.A. 2000, c. T-6, s. 69(1), the Highway Traffic Act , R.S.O. 1990, c. H. 8, s. 200, the Highway Safety Code , C.Q.L.R, c. C-24.2, ss. 168-170 and the Motor Vehicle Act , R.S.N.S. 1989, c. 293, s. 97. [25] A key question on appeal is what is the meaning and breadth of the phrase “with intent to escape civil or criminal liability”? In order to answer this question, I commence with the basic principles of statutory interpretation. It is long accepted that the governing principle was stated by Elmer Driedger and noted in Rizzo v. Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27 at para. 21: Although much has been written about the interpretation of legislation … Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, 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. [26] Iacobucci J. noted in Rizzo at para. 22 that reliance should also be placed on the interpretive principle that all acts are remedial. Section 12 of the Interpretation Act , R.S.C., 1985, c. I-21 provides : Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects. [27] The Code provision was first enacted in 1910 (S.C. 1910, c. 13, s. 2). The Bill was introduced as “Injuries Due to Motor Vehicles”, and was debated as follows: Mr. R.L. BORDEN. As I understand the object of the legislation it is this. When an accident has occurred on the highway owing to the presence of a motor car, whether there has been negligence on the part of the persons driving the motor car or not, absolutely irrespective of that consideration , the motor car must stop and the driver must tender assistance and give his name and address. If he fails to do that, then he is liable, on summary conviction, to a fine not exceeding $50 in costs. Mr. CARVELL. That is correct. Mr. R.L. BORDEN. That would be irrespective of whether he is in fault or not . If the accident occurs, and he drives on without tendering assistance or without giving his name and address, then he is liable. I think, perhaps, the wording of it might be improved a little in the last line, but apart from that it would seem to me to have that meaning. [Emphasis added.] ( House of Commons Debates , 11th Parl., 2nd Sess., Vol. 5 (2 May 1910) at 8730.) [28] Thus, initially, the offence focused on rendering assistance to the injured and providing a name and address, regardless of whether the driver was at fault for the accident. [29] The legislative history of the provision was set out in R. v. McColl , 2008 ABCA 287 at paras. 19-24: [19]      A review of the enactment’s history is useful for this purpose. When first enacted (by S.C. 1910, c. 13, s. 2), subsection 285(2) (section 252’s predecessor) read: Whenever, owing to the presence of a motor vehicle on the highway, an accident has occurred to any person or to any horse or vehicle in charge of any person, any person driving the motor vehicle is guilty of an offence ... if, with intent to escape liability either civil or criminal, he fails to stop his vehicle, tender assistance, and give his name and address. Such failure shall be prima facie evidence of an intent as aforesaid. [20]      The parts of the provision relevant to this appeal remained essentially unchanged until Criminal Code , 1953-54, c. 51 when a general consolidation resulted in subsection 221(2) (later 233(2)), which stated: (2) Every one who, having the care, charge or control of a vehicle that is involved in an accident with a person , vehicle or cattle in the charge of a person, with intent to escape civil or criminal liability fails to stop his vehicle, give his name and address and, where any person has been injured, offer assistance, is guilty of ... [21]      In 1985, the Criminal Law Amendment Act , R.S.C. 1985, c. 27 (1st supp.), s. 36 replaced that provision with what is now essentially subsection (1), excepting some changes that made the provision gender neutral. In 1999 an amendment added subsections 1.1, 1.2 and 1.3, discussed below. [22]      The original enactment makes it plain that Parliament’s intention was to punish drivers leaving an accident scene without tendering assistance to an injured person. Although the common law presumes amendments are intended to change the substance of an enactment, the presumption may be rebutted when the changes result from a general consolidation, in which case the revised statute is said to be a reformulation of the pre-existing law, see generally Pierre - André Côté, The Interpretation of Legislation in Canada 3rd ed., (Scarborough: Thomson Canada Limited, 2000) at 422. That approach arguably applies to subsection 1(a): the provision was initially enacted to create an offence when an accident has occurred and the driver of a vehicle involved leaves without assisting those injured. Such intention has not been altered by reformulations and clarifications of the provision’s meaning. [23]      In contrast, true amendments, including the addition of subsection 1.2, must be considered on a different footing. Recourse to the Hansard may be used to glean Parliamentary intention: Reference re Firearms Act (Can.) , 2000 SCC 31, [2000] 1 S.C.R. 783 at para. 17. In introducing Bill C-82 (which was given its third reading and passed that day), the Parliamentary Secretary to Minister of Justice and Attorney General of Canada explained the amendments adding subsection 1.2 thus: Among its penalty changes Bill C - 82 includes changes for two crimes which are sometimes directly related to impaired driving. The first is the offence of leaving the scene of an accident to escape civil or criminal liability. Bill C-82 would amend this provision to add the elements of bodily harm and death, which would increase the gravity of the offence. That in turn should signal to the courts that more severe sentences are required. [...] The new formulation in Bill C - 82 preserves the intent of the committee. Three levels of leaving the scene are created. Each contains different essential elements. ... Under subsection (1.2), where the person knows that bodily harm has been caused to another person involved in the accident the offence is indictable and punishable by a maximum of 10 years’ imprisonment. [...] The maximum penalty under Bill C - 82 is life imprisonment. To the extent that penalties can discourage those who might leave an accident in order to evade getting caught for impaired driving, the changes to the offence of leaving the scene will send the message that running away from a collision where someone is injured or killed is egregious behaviour that carries a serious penalty. House of Commons Debates , No. 241 (June 9, 1999) at 1835ff (Eleni Bakopanos) [24]      Subsection 1 and 1.2 must be read together. As the Court stated in Roche (referring to the two provisions set out in para. 12 above): “[i]t might be said that s. 233(3) read in isolation is clear. But this is not the type of section that should be treated in that way, as it is ancillary to s. 233(2).” The Court confirmed that the two subsections, when read together, clarified each other. [Emphasis added in McColl .] [30] Section 252(2) requires a driver who is involved in an accident to: (i) stop, (ii) give their name and address, and (iii) offer assistance if a person appears injured or in need of assistance. A driver is required to complete all three steps. Proof of failure to perform any one of these three acts will trigger a rebuttable presumption with respect to the driver’s intent. See R. v. Roche , [1983] 1 S.C.R. 491 at paras. 496-97. The evidence need only raise a reasonable doubt that the driver did not have the requisite intent. See R. v. Proudlock , [1979] 1 S.C.R. 525 at 551. [31] Therefore, failure to perform any of the three requirements is sufficient to form the actus reus of the offence and trigger the presumption of intent to escape criminal or civil liability. The mens rea may be proved by the presumption of intent in the absence of evidence to the contrary. [32] There are two approaches in the jurisprudence for what is meant by “intent to escape civil or criminal liability” and what amounts to “evidence to the contrary”. One approach limits the intent required to the intent to avoid the legal consequences of the accident itself; the other includes the course of conduct leading up to the accident. Neither approach includes the evasion of criminal conduct at large as meeting the intent requirement. [33] In Fournier c. R , (1979), 8 C.R. (3d) 248 (Q.C.C.A), the court considered the intent requirement in s. 233 [now s. 252], and said, at 254 (translated): I would add, that in my opinion, the civil or criminal responsibility that one must intend to escape by leaving the scene of an accident must be related to the accident, and not refer to all civil or criminal responsibility previously or otherwise incurred, e.g. risk of arrest: for armed robbery. [34] The case did not involve an armed robbery. By using this offence as an example, the court appears to exclude the intent to avoid liability for an act quite separate from the accident. The court found that the intent must be to escape responsibility related to the accident. [35] In R. v. Hofer , (1982), 2 C.C.C. (3d) 236 (Sask.C.A.), the court specifically considered the mens rea for the offence. The issue was whether the intent to escape civil or criminal liability only included liability arising from the “accident itself”. The court generally agreed with the above passage in Fournier . It added that an accused can have more than one intent — for example, the intent to avoid liability unconnected to the accident as well as the intent required for the offence (at 239). Furthermore, the court found that the intent was not limited solely to the “accident itself”, but could include, for example, avoiding a charge of impaired driving, which “does not technically arise out of the accident itself but arises out of the course of conduct leading up to the accident” (at 240). [36] In R. v. Benson , (1987), 50 M.V.R. 131 (Ont. Dist. Ct.), Borins D.C.J. (as he then was), considered whether the presumption of intent was rebutted when the driver fled from the accident scene because his license was suspended due to unpaid fines and a bail condition and he did not want to be caught driving under suspension. Borins D.C.J. did not agree that this explanation amounted to evidence to the contrary. In his view, at 135, “civil or criminal liability should be broadly interpreted to include any liability, civil or criminal, which might properly arise from the operation of a motor vehicle by the defendant at the time that an accident takes place”. Borins D.C.J. clarified one of his findings from an earlier decision in R. v. Riopka (1986), [1987] 45 M.V.R. 145 at 149-150, wherein he found that leaving an accident scene to avoid being caught for theft of property from an employer was evidence to the contrary. He clarified in Benson at 136 that the intention to avoid liability for a number of driving offences, including criminal negligence, failing to provide a breath sample, or driving while one’s licence was suspended did not amount to evidence to the contrary. [37] In R. v. MacLean (1982), [1983] 18 M.V.R. 275 (P.E.I. Sup. Ct.), McQuaid J., at 277 defined the liability more narrowly. He concluded that the liability must be incidental to and arising out of the accident in question. In his view, leaving a scene because one’s driver’s licence was suspended did not give rise to the accident nor was consequent upon it (at 277-278). [38] More recently, Hill J. considered the intent requirement in R. v. Sanford , 2014 ONSC 3164. Mr. Sanford struck a cyclist at night. He stopped at the scene, but left, he said, to obtain water and blankets for the injured cyclist. A number of others had stopped to assist, and police, firefighters, and paramedics were on route. The trial judge rejected Mr. Sandford’s explanation that he had left to obtain aid for the victim. Instead, he concluded that he left the scene to avoid detection as a suspended driver. Hill J. at para. 73 noted the correlation between accidents and suspended drivers as well recognized, citing R. v. Ladouceur , [1990] 1 S.C.R. 1257 at 1280-81, where the majority upheld random police road stops. He adopted the reasoning of Borins J., and concluded that a person who left an accident scene because his licence was suspended was attempting to avoid liability as a suspended driver, which fell within the ambit of the section. [39] In R. v. K.J.F. , 2009 BCCA 344 at para. 14, Saunders J.A. in discussing the presumption in s. 252 said: [14]      Section 252(2), as counsel for the appellant submits, does not establish a positive obligation on the part of the driver to fulfill the three behaviours of stopping, providing a name and address and rendering assistance. Those obligations are the subject of a provision in the Motor Vehicle Act , noncompliance with which is an offence under the Offence Act . Rather, s. 252 prohibits a failure to fulfill these three actions with the intent of avoiding civil or criminal liability, and I say parenthetically, in connection with the accident. [40] I note that the issue of whether the liability was in connection with the accident was not an issue before the court in K.J.F. , and thus the parenthetical observation is, in my view, obiter . [41] If the provision is capable of more than one meaning, then the strict construction of penal statutes must be invoked. In Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42 at paras. 28-30, the application of the principle was stated as follows: [28]      Other principles of interpretation — such as the strict construction of penal statutes and the “ Charter values” presumption — only receive application where there is ambiguity as to the meaning of a provision. (On strict construction, see: Marcotte v. Deputy Attorney General for Canada , [1976] 1 S.C.R. 108, at p. 115, per Dickson J. (as he then was); R. v. Goulis, (1981), 33 O.R. (2d) 55 (C.A.), at pp. 59-60; R. v. Hasselwander , [1993] 2 S.C.R. 398, at p. 413; R. v. Russell , [2001] 2 S.C.R. 804, 2001 SCC 53, at para. 46. I shall discuss the “ Charter values” principle later in these reasons.) [29]      What, then, in law is an ambiguity? To answer, an ambiguity must be “real” ( Marcotte , supra , at p. 115). The words of the provision must be “reasonably capable of more than one meaning” ( Westminster Bank Ltd. v. Zang , [1966] A.C. 182 (H.L.), at p. 222, per Lord Reid). By necessity, however, one must consider the “entire context” of a provision before one can determine if it is reasonably capable of multiple interpretations. In this regard, Major J.’s statement in CanadianOxy Chemicals Ltd. v. Canada (Attorney General) , [1999] 1 S.C.R. 743, at para. 14, is apposite: “It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute , that the courts need to resort to external interpretive aids” (emphasis added), to which I would add, “including other principles of interpretation”. [30]      For this reason, ambiguity cannot reside in the mere fact that several courts -- or, for that matter, several doctrinal writers -- have come to differing conclusions on the interpretation of a given provision. Just as it would be improper for one to engage in a preliminary tallying of the number of decisions supporting competing interpretations and then apply that which receives the “higher score”, it is not appropriate to take as one’s starting point the premise that differing interpretations reveal an ambiguity. It is necessary, in every case, for the court charged with interpreting a provision to undertake the contextual and purposive approach set out by Driedger, and thereafter to determine if “the words are ambiguous enough to induce two people to spend good money in backing two opposing views as to their meaning” (Willis, supra , at pp. 4-5). [Emphasis added in Bell ExpressVu .] [42] In my view, there is no true ambiguity when one considers the context and object of the legislation. The Code holds people responsible for intentionally committing prohibited acts or omissions, or for acting in a way that is objectively worthy of criminal censure. The case law generally finds that acts that are connected or related to the driving will be caught by the provision. In my view, there is no need to invoke the strict construction of penal statutes principle. The fact that the section has been interpreted in different ways by different judges does not mean there is a true ambiguity. [43] It is clear from the debate on Bill C-82 (noted above), when the legislation was amended in 1999, that the legislature intended to capture impaired driving in this provision, conduct which may not necessarily be connected to or be causally related to the accident. The 1999 amendments support the broader interpretation given to the legislation in, for example, the decisions in Hofer and Benson . In my view, the course of conduct leading up to the accident must be included in order to capture impaired driving, which is clearly one of the purposes of the legislation. [44] The object of the Code offence is to provide a penal incentive for a driver who is involved in an accident, regardless of whether they are at fault, to remain at the scene, provide their name and address, and offer assistance if another person appears to be injured or in need of assistance. The liability a driver seeks to evade is not narrowly construed as solely arising from the consequences of the accident itself, but must also encompass offences connected to the driving, such as impaired driving, driving while suspended, criminal negligence, and dangerous driving. [45] The next question is where does flight to avoid criminal liability for driving a vehicle knowing it was stolen fit into the scale of liability connected to the accident? [46] The legislation was clearly intended to provide penal consequences for those who avoid an investigation for impaired driving by fleeing the scene. It also intended to provide penal consequences to persons who remain at the scene but do not offer to assist injured persons, and to provide penal consequences for those who attempt to hide their identities by failing to leave a name and address. A driver who commits these acts to escape civil or criminal liability arising from their driving has the requisite mens rea . The liability contemplated in the section cannot be solely in relation to the cause of the accident, as the driver may not be at fault, but the driver is still required to comply with the legislation. I would adopt the test, as stated by Borins J. in Benson at 136 that “civil or criminal liability should be broadly interpreted to include any liability, civil or criminal, which might properly arise from the operation of the motor vehicle by the defendant at the time the accident takes place ” (emphasis added). [47] As noted, the actus reus of the offence can be committed in three ways. The broader mens rea easily applies to the first two: both failing to stop a vehicle and failing to provide a name and address provide penal consequences to those who hide their identity as the driver to escape, for example, investigation for offences relating to driving, including impaired driving. The mens rea does not as easily fit with a failure to offer assistance with the intent to escape civil or criminal liability. However, there are potentially hypothetical situations (although no cases that I have found), where a driver could desire the death of the only witness to the accident, and thereby not offer assistance and have the requisite intent for not doing so. It is an awkward test, and as defence counsel pointed out, it would benefit from an amendment. However, Mr. Seipp is charged with the actus reus of failing to give his name and address, and while the test I propose must work with all three acts underlying the offence, it does not need to be honed to perfection with the act of failing to offer assistance, as that does not arise on these facts. [48] Mr. Seipp did not want to be identified as the driver of the car, as he was knowingly in possession of a stolen automobile, and was driving it at the time he was involved in the accident. His flight from the scene was to avoid criminal liability in connection with a vehicle he was driving at the time of the accident . [49] It seems to me that, applying the Benson test, being involved in an accident and fleeing to evade liability for driving a stolen motor vehicle, like driving while one’s licence is suspended, or driving while impaired, is conduct and intent that is intended to be included in this legislation. Being the driver of a stolen car when involved in an accident, and fleeing to avoid detection as the driver, is, in my view, sufficiently related to the event to be captured by the intent of the legislation. Fleeing to avoid arrest as the driver of a stolen vehicle after an accident is therefore not evidence to the contrary, but falls within the criminal liability contemplated by the section. [50] Thus, the explanation offered by Mr. Seipp, even if accepted by the trial judge, would not have rebutted the presumption of intent. His counsel therefore did not commit an error in admitting that the elements of the s. 252 offence were proved beyond a reasonable doubt, and the trial judge committed no error in convicting him. [51] Finally, Mr. Seipp submits that counsel failed to obtain his instructions before admitting the elements of the offence. In these circumstances, conceding an offence has been proved after hearing the evidence is within the ambit of counsel; it is a legal decision. It is not on the same footing as entering a guilty plea to an offence, which would require instructions. I would not give effect to this argument.Therefore, there is no need to admit the fresh evidence, as it would not affect the outcome of the case. [52] I would dismiss the appeal. “The Honourable Madam Justice Bennett” I AGREE: “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Madam Justice MacKenzie”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Liu v. Zhang, 2018 BCCA 10 Date: 20180103 Docket: CA44332 Between: Jun Liu Appellant (Petitioner) And Wei Zhang Respondent (Respondent) Before: The Honourable Chief Justice Bauman The Honourable Madam Justice Newbury The Honourable Madam Justice Kirkpatrick On appeal from: an order of the Supreme Court of British Columbia, dated February 24, 2017 ( Liu v. Zhang , Vancouver Registry No. S1510327) Oral Reasons for Judgment Counsel for the Appellant: M. Lithwick J. Goosen Counsel for the Respondent: B.T. Martyniuk M. Szepes Place and Date of Hearing: Vancouver, British Columbia January 3, 2018 Place and Date of Judgment: Vancouver, British Columbia January 3, 2018 Summary: The appellant brought an application seeking declarations regarding certain company expenses in the context of an oppression petition pursuant to s. 227 of the Business Corporations Act, S.B.C. 2002, c. 57. The respondent also brought an application seeking declarations which was heard at the same time. Some declarations were made in favour of the respondent. The appellant argued that the chambers judge committed errors in making the declarations in favour of the respondent. The respondent argued on appeal that the chambers judge lacked jurisdiction to make the declarations. Held: Appeal allowed. The chambers judge did not have jurisdiction to make declarations that amounted to a final disposition of certain issues between the parties before the full hearing of the oppression petition. [1] BAUMAN C.J.B.C. : This is an appeal from an order of a chambers judge making declarations that expenses related to a certain vehicle and a management salary were proper company expenses for the benefit of the respondent, Mr. Zhang. [2] The order was made in the context of oppression proceedings brought by each of the parties in respect of the pizza business in which they were the only shareholders (Mr. Liu as to 49% of the shares and Mr. Zhang as to 51% of the shares). [3] The application within which the order was made was in the Liu petition proceeding. This was essentially an interlocutory application as the petition itself, seeking a final declaration that the affairs of the respondent company had been conducted in a manner that is oppressive and unfairly prejudicial to Mr. Liu, has not been heard or set for hearing. [4] The petition seeks an order winding up the respondent company and an accounting to determine amounts owing to Mr. Liu and Mr. Zhang by the company and by Mr. Zhang to the company. The petition seeks sundry other relief. [5] Mr. Zhang, when represented by previous counsel, initially agreed with the appellant that the evidence before the chambers judge was insufficient to support his findings, but the parties then disagreed on the appropriate remedy. The appellant sought (and still seeks) an order from this Court declaring that the respondent is not entitled to be paid either the vehicle expense or a management salary. The respondent, Mr. Zhang, sought an order for a trial of these issues. Mr. Zhang is now represented by new counsel who has filed a fresh factum by consent. Mr. Zhang now takes the position that the chambers judge has effectively granted interlocutory declaratory relief and that he lacked jurisdiction to do so. [6] In the alternative, Mr. Zhang now argues that there was a sufficient evidentiary basis for the order made and seeks to uphold it in this Court. [7] In my view, the respondent is essentially correct in his principal submission, although I would not characterize the order as one making interlocutory declarations. On the contrary, it purports to be a final disposition of these aspects of the oppression proceeding made on the basis of an interlocutory application in that proceeding. Such an application is wholly inappropriate. The application was misconceived. It sought relief under s. 227 of the Business Corporations Act , S.B.C. 2002, c. 57, consequent on a principal finding of oppression before the petition considering that principal relief has been heard. [8] To the extent the issue of jurisdiction was not raised before the chambers judge, I would grant leave for it to be raised now. It is in the interests of the administration of justice that we determine this issue at this time. [9] While certain parts of the order made by the chambers judge might represent appropriate interim relief under the oppression provisions of the Business Corporations Act , those parts are so closely tied to other forms of relief that should only be considered after a finding of oppression that they cannot be disentangled from the jurisdictional error. Accordingly, I would allow the appeal, and vacate the order in its entirety. The substantive issues addressed in the application, particularly the declarations as to apportionment of expenses, should be determined at the hearing of the main oppression petition in the Supreme Court of British Columbia. Whether the petition should go to the trial list is a matter for consideration by that court. For greater clarity, I do not mean to preclude the parties from seeking appropriate interim relief in that court. [10] I would dispose of the matter in this manner. [11] NEWBURY J.A. : I agree. [12] KIRKPATRICK J.A. : I agree. [13] BAUMAN C.J.B.C. : The application is disposed of as indicated in these reasons. [14] I would add, though, a postscript and it is further to the submission we just heard on the viability of portions of the Registrars’ work most valuably done in August 2017. We are sure the parties can salvage and use findings from the work of the learned Registrars that is clearly within jurisdiction and advance the litigation with that work already at hand. [15] We encourage the parties to undertake that analysis and move forward on that basis. [16] Thank you for your submissions. “The Honourable Chief Justice Bauman”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Frederickson, 2018 BCCA 2 Date: 20180103 Docket: CA43494 Between: Regina Respondent And Steven Kenneth James Frederickson Appellant Before: The Honourable Madam Justice MacKenzie The Honourable Mr. Justice Harris The Honourable Madam Justice Fisher On appeal from:  Orders of the Supreme Court of British Columbia, dated April 3, 2013 and October 11, 2013 ( R. v. Frederickson , 2013 BCSC 576 and 2013 BCSC 2034, Chilliwack Docket No. 58655). Counsel for the Appellant: K. Beatch R.P. Thirkell Counsel for the Respondent: M.K. Levitz, Q.C. Place and Date of Hearing: Vancouver, British Columbia November 16, 2017 Place and Date of Judgment: Vancouver, British Columbia January 3, 2018 Written Reasons by: The Honourable Madam Justice Fisher Concurred in by: The Honourable Madam Justice MacKenzie The Honourable Mr. Justice Harris Summary: The appellant appealed his conviction for manslaughter on the basis that (1) the trial judge’s discretion to refuse to hold a voir dire to permit him to challenge a search warrant was not exercised judicially, and (2) the verdict was unreasonable because the trial judge erred in his assessment of circumstantial evidence. At trial, the judge held a Vukelich hearing after which he determined that the appellant had not met the threshold for a voir dire. The verdict of guilty was based on the trial judge’s findings that the appellant had assaulted the deceased and that the assault had caused the injuries that led to his death. The pathologist who conducted the autopsy found three external bruises on the head as well as internal bleeding in the skull but was not able to determine whether any of the external bruises were related to the internal bleeding and was not able to opine as to how the injuries occurred. The appellant argued that the trial judge misapprehended this evidence and the verdict was incompatible with it, contrary to R. v. Beaudry. He also argued that the expert evidence established other plausible theories or other reasonable possibilities which were inconsistent with guilt (in this case, accident), such that the Crown was required to negative them, contrary to R. v. Villaroman. HELD: Appeal dismissed. In his ruling following the Vukelich hearing, the judge made several errors, such that his exercise of discretion was not entitled to deference. However, upon an independent analysis of the defence submissions, the court concluded that the trial judge ultimately reached the correct conclusion on the threshold question and there was no basis to interfere with the refusal to hold a voir dire. The trial judge did not misapprehend the expert evidence and did not fail to consider other reasonable possibilities that were inconsistent with guilt. The judgment, when read as a whole, showed that the trial judge was well aware of the limitations of the expert evidence and made his findings on the basis of the evidence as a whole. He considered the possibility of accident to be speculative despite the fact that the pathologist could not rule it out. Taking into account the totality of the evidence, the trial judge reasonably drew the line that separated plausible theory from speculation. Reasons for Judgment of the Honourable Madam Justice Fisher: [1] Steven Frederickson appeals his conviction for manslaughter on two bases: (1) the trial judge’s discretion to refuse to hold a voir dire to permit the defence to challenge a search warrant was not exercised judicially, and (2) the verdict was unreasonable because the trial judge erred in his assessment of circumstantial evidence. Facts [2] In December 2010, the deceased, Robert Planje, was living in a mobile home in Chilliwack that was primarily owned by his brother and his mother. The previous month, he had taken in the appellant as a tenant. Mr. Planje occupied the master bedroom at the rear of the home, the appellant occupied a bedroom at the front of the home, and the two shared the kitchen, dining and living areas. I will refer to the mobile home as the Residence. [3] Mr. Planje was 64 years old, five foot two and a half inches tall, and weighed 137 pounds. The appellant was 44 years old, approximately six feet tall and weighed 165 pounds. The appellant is deaf but able to lip read and make vocal responses. [4] On the afternoon of December 12, 2010, police attended at the Residence after Mr. Planje had called 9-1-1, complaining about the appellant’s behaviour. Both Mr. Planje and the appellant were upset due to a dispute which resulted in Mr. Planje wanting to evict the appellant. The officers arrested the appellant and took him to the police detachment, but later released him and drove him home at about 5:30 p.m. Later that day, Mr. Planje gave the appellant an eviction notice. [5] Mr. Planje was last seen by a neighbour, Barbara LaMarsh, at approximately 2:30 a.m. on December 13, 2010. Looking from her window into the kitchen of the Residence, she saw a tall man push Mr. Planje, after which both men left toward the rear of the home out of her view. At about 4:00 a.m., another neighbour, Beverly Zowty, saw the appellant outside the front door dragging a heavy object down the stairs. Shortly after, she saw Mr. Planje’s car drive away and return some time later. When it returned, Ms. Zowty saw the appellant, who had been driving, go back inside the Residence and leave again about 10 minutes later. Other neighbours had also noted unusual activity in the Residence and at 5:38 a.m. notified the police. [6] Two police officers arrived at approximately 8:20 a.m. There was no answer when they knocked on the door and they noticed a stain that appeared to be blood on the outside of the front door above the handle. Peering through the window, one of the officers noticed that the interior appeared dishevelled and thought that something was not right. A supervising officer arrived at the scene, and after consulting with another senior officer, decided to enter the Residence to make sure there was no one inside who needed help. Rather than break down the door, the officers contacted Mr. Planje’s brother, who arrived with a key, and shortly after 9:00 a.m. the officers briefly entered the Residence. No one was inside. They observed signs of a struggle. They did not seize anything, but shortly after they left, one of the officers re-entered and took some photographs. [7] Later that day, police located Mr. Planje’s vehicle and the appellant outside the Social Assistance Office in Chilliwack. The appellant had spent much of the morning smoking crack cocaine with Michelle Bakstad, who had observed that the appellant’s knuckles were beaten up and he had blood on his jeans. The appellant was arrested for assault and possession of stolen property and told he was under investigation for murder. [8] The following day, December 14, 2010, police obtained a search warrant and then conducted a thorough search of the Residence. They observed evidence of a physical disturbance and blood stains, mostly in Mr. Planje’s bedroom and ensuite bathroom. DNA evidence revealed the blood of Mr. Planje and the appellant localized in that area, as well as trails of the appellant’s blood in the kitchen and living room. [9] On December 30, 2010, Mr. Planje’s body was discovered on a steep slope below a forestry service road about 12 kilometres north of Hope. A post-mortem examination revealed that he had died from blunt force head injuries a considerable time before the body was found. [10] After his arrest on December 13, 2010, the appellant was unable to satisfy the terms of a bail order made December 20, 2010. He remained in custody until January 17, 2011, when he was re-arrested and charged with the murder of Mr. Planje. He subsequently gave a statement to police that was ruled voluntary and admissible. At trial The Vukelich hearing [11] At trial, the appellant sought a voir dire for the purpose of making a sub-facial challenge to the search warrant obtained on December 14, 2010. The trial judge conducted a Vukelich hearing after which he concluded that the appellant had not met the threshold required for a voir dire : see R. v. Vukelich (1996), 108 C.C.C. (3d) 193 (B.C.C.A.). [12] In his ruling (2013 BCSC 576), the judge considered, in addition to the primary threshold issue, whether the appellant had a reasonable expectation of privacy in the Residence sufficient to require the police to obtain a search warrant. He found that the appellant had a reasonable expectation of privacy only to the areas he exclusively occupied and the search of the remaining areas of the home, conducted before the warrant was obtained, was authorized by the consent of Mr. Planje’s brother. [13] In addressing the primary threshold issue, the trial judge considered the question of whether the accused could show a foundation for cross-examination of the affiant and held that this turned on whether the accused could put into question sufficient portions of the Information to Obtain (ITO) to challenge issuance of the warrant (at para. 19). He noted that there was already “a good factual basis” for considering the appellant’s arguments, referring to evidence given by some of the witnesses in a previous voir dire and during the trial proper, who were also sources in the ITO, and found that nothing was likely to be added through cross-examination of the affiant (at para. 22). The judge then assessed the ITO after considering the paragraphs impugned by the defence and found that the information provided a reasonable basis to conclude the following (at para. 45): (1)        On the initial attendance of the police to the breach of the peace complaint, December 12, 2010, the accused and the deceased were engaged in a dispute, with the deceased alleging the accused had destroyed food he had purchased and suspicions of the accused taking his car keys. Statements made by the deceased indicated he wanted to evict the accused from the premises. The accused was upset by these allegations and was arrested and held in custody for a time to calm down. (2)        The observations of the neighbours in the early hours of December 13, are suggestive of a physical confrontation, followed by the accused removing an object resembling a wrapped body from the scene, and driving away with it in the deceased’s car. (3)        These observations resulted in one of the neighbours, concerned for the deceased’s safety, calling for the police to check on his welfare. The police attendance included entry into the mobile home and observations of apparent blood stains and signs of a struggle. [14] The judge held that this was sufficient to indicate a viable basis for the issuance of the search warrant and dismissed the defence application for a voir dire . The evidence [15] The autopsy determined that Mr. Planje died from internal bleeding in his skull. The pathologist, Dr. Litwin, found subdural hematomas above each ear and bruising in the soft tissues external to the skull also above each ear and by the right eye. He could not say whether the three bruises were related to the internal bleeding and could not opine as to how the injuries occurred. He described the cause of death as by blunt force injuries either by blows to the head or the head coming into contact with a stationary object. [16] The appellant testified at trial. He gave an account of the events leading up to his arrest on December 12, 2010 that included acquiring a ring from Mr. Planje, alleging that he was sexually assaulted by Mr. Planje, and denying that he committed an assault. [17] With respect to subsequent events, the appellant admitted that he had taken Mr. Planje’s unresponsive body into the backseat of his car, intending to drive to a lake north of Hope, dispose of the body and then commit suicide. After he realized he had taken the wrong road, he stopped the car, removed all of Mr. Planje’s clothing except for his underpants, and left the body at the side of the road. He also abandoned his suicide plan. After depositing Mr. Planje’s clothing in a dumpster in Hope, he returned to the Residence to get some money and belongings and left again to find a girl in Chilliwack who would get him some crack cocaine. [18] This evidence was inconsistent with the appellant’s statements to police in January 2011, where he provided different accounts. In one, the appellant was driving Mr. Planje to his sister’s residence and stopped somewhere near Cultus Lake, where Mr. Planje got out of the car and then disappeared. In another, the appellant admitted exchanging slaps with Mr. Planje at the Residence but said that he did not mean to kill him, and he did not know if Mr. Planje was alive when he put him in the car. He admitted driving to the forestry road but said that when he stopped the car, he and Mr. Planje got out, Mr. Planje grabbed him and then turned around and fell backwards down onto the rocks. He said that he climbed down to where Mr. Planje had fallen, freaked out, removed Mr. Planje’s clothing, and returned to Chilliwack. At trial, the appellant said that he lied to police because he was panicked by the situation. [19] The trial judge did not believe the appellant’s evidence, and found that it did not raise a reasonable doubt (2013 BCSC 2034). He found that the appellant’s prior statements were “patent inventions at the time he thought would be exculpatory” and his exculpatory evidence at trial had no credibility. He therefore went on to assess the Crown’s evidence and found that the appellant had assaulted Mr. Planje and caused his death. He rejected a defence argument that the trauma to the head could have occurred accidentally, finding this to be “bare conjecture”. However, he had a reasonable doubt whether the appellant acted with murderous intent within the meaning of s. 229(a)(i) or (ii) of the Criminal Code . Accordingly, he acquitted the appellant of murder and convicted him of the included offence of manslaughter. On appeal [20] The appellant submitted that the trial judge, in declining to hold a s. 8 voir dire , failed to exercise his discretion judicially in several ways: (1) by relying on evidence from the trial and another voir dire and faulting the defence for failing to cross-examine witnesses about issues relevant to the s. 8 challenge; (2) by wrongly concluding that the two prior warrantless searches were authorized by third party consent; and (3) by applying the wrong test in the Vukelich hearing. [21] The respondent conceded that the trial judge may have erred in his reasons for denying the voir dire but submitted that it is evident from the record that he did not err in the result. In considering the challenge to the search warrant, the respondent contends that the judge properly considered whether the defence had met the threshold for holding a voir dire . [22] The appellant also submitted that the verdict was unreasonable because (1) the trial judge’s findings of fact about the cause of death were contradicted by the evidence of the pathologist on which he relied, contrary to R. v. Beaudry , 2007 SCC 5; and (2) the trial judge wrongly imposed an evidentiary burden on the appellant by failing to consider reasonable possibilities inconsistent with guilt and failing to appreciate that such inferences did not have to be based on proven facts, contrary to R. v. Villaroman , 2016 SCC 33. [23] The respondent submitted that the trial judge’s findings were based not only on the evidence of the pathologist but also on the evidence as a whole. While the pathologist could not opine from the autopsy alone as to how the injuries occurred, the respondent says that the judge was not constrained from rejecting accident as a reasonable possibility upon his consideration of all of the evidence. Analysis 1.       Did the trial judge err in declining to hold a voir dire to permit the defence to challenge the search warrant under s. 8 of the Charter ? [24] As the Supreme Court of Canada recently reiterated in R. v. Cody , 2017 SCC 31, trial judges play an important role in curtailing unnecessary delay in criminal proceedings. One of their management tools is the discretion to decline to embark on an evidentiary hearing where the party requesting it is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court: Vukelich ; R. v. Pires , 2005 SCC 66; R. v. Montgomery , 2016 BCCA 379. It is well established, as this Court noted in Montgomery at para. 255, that a trial judge’s discretionary decision whether to embark on a voir dire will not be interfered with on appeal unless the discretion is not exercised judicially: see also R. v. M.B. , 2016 BCCA 476 at paras. 45 ‒ 47. [25] I will begin my analysis by reviewing the nature of a Vukelich hearing in the context of an application to challenge a search warrant. The nature of a Vukelich hearing [26] There is no absolute right to a voir dire . The purpose of a Vukelich hearing is to filter out proposed pre-trial applications where the remedy sought could not reasonably be granted, as shown by submissions of counsel, assuming the allegations could be proven: M.B. at para. 45. Whether an appropriate foundation can be laid in any given case is contextual. Generally, to justify a voir dire alleging a breach of the Charter , the applicant must be able to demonstrate a reasonable basis on which the court could find a breach: R. v. McDonald , 2013 BCSC 314 at para. 18; R. v. Malik , 2002 BCSC 484 at para. 4. [27] The context in an application under s. 8 of the Charter to challenge a search warrant is the test set out in R. v. Garofoli , [1990] 2 S.C.R. 1421 at 1452: If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. [28] The sufficiency of the grounds for the issuance of a search warrant may be attacked in two ways: (1) a challenge to the facial validity of the affidavit; and (2) a sub-facial challenge to the reliability of the content of the affidavit. Whether the attack is facial, sub-facial or both, the role of the reviewing judge remains the same: R. v. Araujo , 2000 SCC 65; R. v. McKinnon , 2013 BCSC 2212 at para. 11. [29] One way to attack the reliability of the content of the affidavit is to cross-examine the affiant. There is no absolute right to do so; leave is required: R. v. Wilson , 2011 BCCA 252 at para. 64 . To obtain leave, it must be shown that the proposed cross-examination will elicit testimony that could discredit the existence of a pre-condition to the issuance of the warrant, such as reasonable and probable grounds: Garofoli at 1465; Pires at para. 10; World Bank Group v. Wallace , 2016 SCC 207 at para. 119. Cross-examination that can show only that some of the information relied on by the affiant is false will not likely be useful unless an inference can be made that the affiant knew or ought to have known that the information was false. A sub-facial challenge can still be made if leave to cross-examine is not granted: Pires at para. 32; R. v. Sadikov , 2014 ONCA 72 at paras. 39 ‒ 41, 44. [30] In this case, the appellant sought a sub-facial challenge of the search warrant and the right to cross-examine the affiant. [31] Garofoli refers to the record “as amplified on review.” The record before the reviewing judge is different than that before the authorizing justice as a result of the submissions of counsel and, where leave has been granted, cross-examination of the affiant. In the amplification process, the reviewing judge is to disregard or exclude erroneous information in an affidavit and, within limits, consider omitted evidence that should have been included. Amplification evidence may correct minor, good faith errors of the police, not deliberate attempts to mislead: Araujo at paras. 58 ‒ 59; Wilson at para. 68; Sadikov at para. 85. A failure to make full and frank disclosure does not, without more, invalidate a warrant. The reviewing judge must still assess whether the warrant could have issued on the basis of information which had not been impugned: Wilson at para. 47; R. v. Bisson , [1994] 3 S.C.R. 1097 at 1098. [32] While the defence does not have to meet the Garofoli test in a Vukelich hearing, a trial judge must consider it in order to determine whether the defence has shown a reasonable basis on which the search warrant can be challenged and the court could find a breach of s. 8 of the Charter . [33] To do so, the defence must state, with reasonable particularity, the grounds upon which the application is made: Vukelich , citing R. v. Hamill (1984), 14 C.C.C. (3d) 338 at 366 ‒ 67 (B.C.C.A.). While the threshold is low, simple assertions that statements in an affidavit are incorrect will not suffice; the defence must provide the court with clear submissions and references to materials that support those submissions. A Vukelich hearing should not involve a protracted examination of the issues but there must be sufficient substance put before the court to enable the trial judge to properly exercise his or her discretion. Alleged errors [34] The appellant says that the trial judge’s decision in this case is not entitled to deference because he failed to act judicially in making the legal errors outlined above. The respondent acknowledges that the trial judge made errors but says that ultimately, he properly considered whether the appellant met the threshold for holding a s. 8 voir dire to challenge the search warrant. [35] I agree that the trial judge erred by considering the evidence of witnesses who testified in another voir dire or at the trial and by commenting on defence counsel’s failure to cross-examine those witnesses on matters related to the accuracy of the information attributed to them as sources in the ITO. [36] First of all, the evidence of these witnesses was not pertinent to what the trial judge had to assess. It tended to show that some of the information in the ITO was inaccurate, but not whether the affiant knew or ought to have known this. To assess the issues raised by the defence, the judge should only have considered the information in the witnesses’ statements in relation to the information in the ITO, as that was the information on which the affiant relied. [37] Secondly, to the extent he did so, it was an error for the trial judge to consider any of this as amplification evidence in the analysis of the sufficiency of the ITO. Amplification cannot be used to circumvent the requirement for the information to satisfy the issuing justice that there is a proper basis on which to issue the warrant: Araujo at para. 59, Wilson at para. 66. I say “to the extent he did so” because it appears that the trial judge considered this evidence primarily in respect of the appellant’s argument regarding cross-examination of the affiant. At para. 22 of his reasons, he stated that the court “already has a good factual basis for consideration of the accused’s arguments and there is no suggestion that anything is likely to be added through cross-examination of the affiant”. [38] Finally, each admissibility voir dire is a separate inquiry, and without express incorporation, the evidence adduced on the voir dire is not available for use at trial or in a later voir dire : Sadikov at paras. 30 ‒ 31. In this case, no agreement had been reached between counsel regarding the treatment of evidence from the earlier voir dire in which these witnesses testified. Thus it was unfair for the trial judge to have expected defence counsel to cross-examine witnesses on issues other than those pertinent to the voir dire then being conducted. [39] Unfortunately, the issues considered by the trial judge were confused by the manner in which the defence brought its application. The focus of the Vukelich hearing should have been on whether the facts set out in the ITO, after excising misstatements and adding omissions as suggested by the defence submissions, disclosed a reasonable basis on which the warrant could have been challenged. While the judge ultimately did consider this, he was diverted by the defence focus on cross-examining the affiant and his own concern about the two prior warrantless searches. [40] I will address this last point first. The earlier searches [41] Although in the Vukelich hearing the defence initially raised some issues about the earlier two searches, it sought only to attack the ITO, and in doing so, argued only that the second of the two searches was unlawful. This is demonstrated by defence counsel’s answers to inquiries by the trial judge at the start of the hearing as to the parameters of the search and the earlier entries by the police, shown in the following exchange: Those are in issue too, but quite frankly it’s the second of the two searches that … the defence is raising as problematic, as opposed to the first. [42] The judge then asked whether defence was saying that the material in the ITO about the earlier searches should be excluded because of the nature of the entry. Defence counsel said, “yes” and after noting that there were two entries, added this: That’s not very much in issue, but there will be questions about that. But the more … problematic entry is when Morris went back and took photographs, and that found its way into the ITO. He did not say what those questions would be. The judge continued to seek clarification and the exchange continued: THE COURT:              … its really not the entry or anything found after the issuance of the warrant, it’s the process before the ITO was – MR. BEATCH:             Yes. THE COURT:              -- submitted. MR. BEATCH:             We’re not – we’re not alleging … There might be some explanation on… the manner in which the warrant was … executed, but that doesn’t go to the ITO, that’s completely different. THE COURT:              Yes. MR. BEATCH:             But it’s not – I mean … I must be clear,  we’re not simply arguing that that’s the only problem with the ITO, the -- the entry by Morris, we’re arguing that there are at least nine other problematic -- problematic paragraphs, which don’t come up to the requirement of accuracy and full and complete disclosure. [43] Defence counsel then proceeded to make submissions on specific paragraphs in the ITO. With respect to the first search, the defence submission focused, not on its legality, but rather on information from the officer’s observations inside the home that ought to have been included. Thus, for the purpose of the Vukelich hearing, any issues related to the legality of that search were not pursued and therefore not relevant. With respect to the second search, the information in the ITO related to it can be excised for the purpose of the analysis here, a point conceded by the respondent. [44] Thus, it is not necessary in this appeal to assess whether the trial judge was correct in his ruling that the earlier warrantless searches were authorized by third party consent. Whether the judge erred in declining to hold a voir dire can be assessed on the basis of the submissions made by the defence before the trial judge and the concessions made by the respondent. Cross-examination of the affiant [45] In responding to the Crown’s submissions that the information in the ITO was sufficient to support the issuance of the warrant despite the issues pointed out by the defence, defence counsel submitted to the trial judge that they were only interested, at that stage of the proceedings, in whether cross-examination of the affiant would elicit testimony of probative value. Defence counsel considered the sufficiency of the information after excising problematic paragraphs to be a matter for final argument, and submitted this to the judge: what the defence has to show, and what I respectfully submit has shown is that there are problematic paragraphs in this, that cross-examination will elucidate them, and that the judge … the trier of this issue may well expunge those paragraphs [46] The trial judge noted that it would be difficult to say that a specific piece of information would be expunged. In response, defence counsel said this: Yes, but that would be what the defence arguing, it would be – whether it is, that’s the ultimate question for Your Lordship. But… at this stage … all the defence has to do is put in front of … Your Lordship an argument that the evidence to be led is going to assist you in determining whether this warrant should have been issued or not. [47] The judge, however, was alive to the threshold issue, as he said this: THE COURT:              Well, I think there’s a threshold still in place, and that’s indicated in Wilson -- and reaches back to Vukelich And that, you know, includes consideration of whether or not, even with the impugned – even if your case at the strongest is taken here, whether there’s enough left in this … ITO to authorize the warrant. [48] On appeal, the appellant submitted that the trial judge’s decision denied him the opportunity to build an evidentiary record to attack the issuance of the search warrant. With respect, this submission ignores the fact that a party advancing a Charter application is not entitled to a voir dire as of right, but must put before the court a factual and legal basis for the relief sought: Montgomery at para. 258, citing R. v. Garrick , 2014 ONCA 757. The appellant’s submission – both before the trial judge and before this Court – assumes that he is entitled to cross-examine an affiant in order to establish the factual and legal basis to justify an evidentiary hearing. It is only after the initial threshold is met and an evidentiary hearing proceeds that the defence may seek leave to cross-examine an affiant. And even then, leave to cross-examine is not granted as of right. As discussed above, the defence must show that the proposed cross-examination will elicit testimony that could discredit the existence of a pre-condition to the issuance of the warrant. [49] I recognize that in a sub-facial challenge, the issues are blended. In this case, the defence had to first present a factual and legal basis to have a voir dire by demonstrating serious inconsistencies between the statements in the ITO and the source witnesses’ statements to the police. If he had done so, he would have met the threshold and could then have sought leave to cross-examine the affiant. [50] Although the trial judge was obviously aware of the threshold issue on a Vukelich hearing, it appears that he nonetheless attempted to address the defence argument on the issue of cross-examining the affiant. He ought not to have considered this issue unless and until he was satisfied that the defence had demonstrated serious inconsistencies such that a challenge to the issuance of the warrant had a reasonable prospect of success. Therefore, his error in considering evidence from the source witnesses led in an earlier voir dire for this purpose is, in my opinion, of no real consequence. The threshold issue [51] Ultimately, the trial judge concluded that the information in the ITO, despite the defence submissions, was a sufficient basis for the issuance of the search warrant. Given the errors discussed above, I agree with the appellant that the trial judge’s exercise of discretion on this issue should not be given deference. However, that is not the end of the matter. [52] Firstly, the trial judge did not err in considering, as a threshold issue, whether there was enough information left in the ITO, after considering the defence submissions at their best, upon which the warrant could have issued. I disagree with the appellant’s submission that by doing so, the judge engaged in a full-blown Garofoli analysis. From my review of the record that was before the trial judge, it is apparent that the defence failed to demonstrate a reasonable basis on which the court could have found a breach of s. 8 of the Charter . [53] Before the trial judge, the defence pointed to information in the ITO that was either incorrect or incomplete, in that the information was not supported by or omitted relevant information contained in the source documents, being witness statements. Before this Court, the appellant contended that all paragraphs in the ITO which contained any impugned information or omitted any relevant information must be excised in order to consider whether there was a reasonable basis for his s. 8 application. [54] In my view, this submission conflates the limitations on amplification for the purpose of correcting minor errors made in good faith with amplification to address defence submissions regarding information that ought to have been included – presumably because such information would tend to weaken the factual basis set out in the ITO. The defence did not assert that there was any deception or bad faith, and as was confirmed in Bisson and Wilson , even where there is a failure to make full and frank disclosure, the reviewing judge must still assess whether the warrant could have issued on the basis of information that had not been impugned . The best case for the defence cannot be assessed on the basis of simply expunging every impugned paragraph in the ITO; it should be assessed on the basis of what is left in the ITO after excising what is contended to be incorrect information and adding what is contended ought to be included. [55] In brief, the defence pointed to some inaccuracies as to what some of the neighbours heard or saw in the early morning hours of December 13, 2010. The information from two of the neighbours was contained in reports by Constable Sandhu. The appellant submitted that the inaccuracies were material, and that those made by Constable Sandhu were serious enough to justify excising all paragraphs in the ITO based on her reports, whether or not each paragraph was specifically challenged. In my view, the inaccuracies pointed out by the defence, considered on their own or cumulatively, were not sufficiently material to undermine the basis for the issuance of the warrant, nor were they sufficient to render unreliable other paragraphs in the ITO based on reports by Constable Sandhu. [56] More particularly, after conducting an independent analysis and excising or correcting the information impugned by the defence, it is my view that the ITO provided the following basis for the issuance of the warrant: a) Mr. Planje lived in the Residence and was the registered owner of a 1991 Toyota Camry. The appellant was a tenant of Mr. Planje. On December 12, 2010, the two were involved in a verbal dispute. Mr. Planje called police requesting assistance. When police arrived to investigate, the appellant was in an agitated state and was arrested for breach of the peace. He was held in custody for three hours and then released at 1730 hours (paras. 17 ‒ 19, 32). b) In an audio recorded statement, Ms. Lamarsh provided the following information: On December 13, 2010 at 0230 hours, she woke up with an earache. She heard thumping and what sounded like people running between the residences . She went into her kitchen and observed lights on in the Residence, which was unusual for that time. She observed Robert with the “tall fellow” who lived with him standing by the kitchen window. She observed the tall fellow push Robert, not a hard push but kind of a push out of my way type thing. She had never spoken to the tall fellow and would not recognize him, and she was not wearing her glasses . [The affiant believed she was referring to Mr. Planje when she spoke of Robert and to the appellant when she spoke of the tall fellow.] Ms. Lamarsh observed the two walk toward the rear of the trailer. She then went back to bed and heard nothing further coming from the Residence (para. 24 – excised is a reference to Ms. Lamarsh hearing what sounded like people running “in the residence next door” and italicized portions added per defence submissions). c) On December 13, 2010 at 0618 hours, police received a request from Yolanda Chambers to check on the welfare of Mr. Planje. Ms. Chambers stated that her husband, John Chambers, had seen someone leave the Residence in Mr. Planje’s vehicle (para. 20 – excised are references to Ms. Chambers hearing loud banging from the Residence and to her husband describing the person leaving the Residence as a male). d) Constable Sandhu made a report based on an audio recorded statement from Ms. Chambers, which provided the following information: Her husband woke her up around 0400 hours as their dog was barking and he could hear thumping noises. Within 30 minutes, she observed Mr. Planje’s vehicle depart and arrive back at the Residence approximately three times but she did not see who was driving it. [The affiant believed she was referring to a Blue Camry.] Mr. Planje’s welcome mat was normally directly in front of the door but that day it was in the stairway outside. The outside lights to the Residence were usually turned on but that day they were not. They had not seen Mr. Planje all day and had not seen his vehicle since approximately 0430 hours. She called the Residence but there was no ring and the line was busy (para. 22 – excised are references to Mr. Chambers hearing the thumping sounds coming from the Residence, to Ms. Chambers hearing thumping that sounded like someone hitting something with their fists, to Ms. Chambers observing Mr. Planje always being home, and being worried about Mr. Planje; corrected is a reference to Mr. Planje’s welcome mat “normally” as opposed to “always” being directly in front of the door, per defence submissions). e) Constable Farlin made a report based on an audio recorded statement of John Chambers, which provided the following information: On December 12, 2010 in the mid-afternoon, two police officers came down to deal with two males having a fight at the Residence; he referred to one of the males as Robert and the other as Steven. He did not know how Steven was related to Robert. He referred to the male named Steven as being brought out in handcuffs. [ This is in reference to the same incident set out in para. 18. ] On December 13, 2010 at approximately 0345 hours, Mr. Chambers heard a noise and commotion coming from the Residence that sounded like thumping. His dog began to bark and growl so he got up and looked out his bedroom window. He observed Mr. Planje’s Blue Camry parked in the carport, running with the lights on. He went to the front window to settle his dog and observed the Blue Camry back out, which seemed strange because Mr. Planje was one of the guys who locks the back gate. He said the Blue Camry then turned around and went towards the main gate. From this he guessed that Mr. Planje was not driving the vehicle. His wife woke up and was concerned about Mr. Planje so she called police at approximately 0530 hours. The Blue Camry arrived back at the Residence two times after his wife called police. He observed someone enter the Residence, turn out the lights and then leave. A while later he noted the Blue Camry back again (para. 23 – italicized words added per defence submissions; excised is a reference to Mr. Chambers hearing a thumping sound “like something banging on the floor outside on the porch area” after the Blue Camry had returned to the Residence). f) Constable Sandhu made a report based on an audio recorded statement from Ms. Zowty, which provided the following information: She was a neighbour of Mr. Planje. On December 13, 2010 at approximately 0400 hours she heard a loud thumping noise from the Residence. She observed Mr. Planje’s vehicle, a blue Camry, parked in the driveway. She saw Mr. Planje’s roommate come out of the Residence, drag something down the stairs and put it into the trunk of the car. Whatever was being dragged was long and big enough to roll a body in it. She saw the roommate drive off in the Blue Camry and return within a few minutes. It was very dark and she was not able to see who was in the vehicle but she believed a male got out and looked around and then got back into the vehicle and drove off. She said that the roommate moved in about a month before and that Mr. Planje never let him drive his vehicle (para. 21 – excised is a reference to Ms. Zowty seeing the roommate dragging a “rolled carpet” down the stairs and putting it into the trunk of the car). g) Constable Morris reported that he and Constable Sandhu arrived at the Residence on December 13, 2010 at 0818 hours and walked up to the front door in the garage area. He observed dog food spread around the front of the door and what appeared to be blood on the outside of the front door just above the dead bolt door lock. He peered through the glass in the door. It appeared to him that there may have been a struggle as items appeared disheveled (para. 25(a) ‒ excised is a reference to what “appeared to be a drag mark in the dirt/dust” at the bottom of the stairs leading up to the door). h) At 0903 hours the officers obtained a key to the Residence from Mr. Planje’s brother. Constable Morris, Constable Sandhu and Corporal Parsons entered the Residence but no one was there. Corporal Parsons observed broken glass in the living room, miscellaneous items on the floor, a large hole in the drywall of the living room area, the microwave blinking with a piece of meat inside and several knives in the kitchen area but none appeared with a blood like substance. The disheveled items were consistent with bad housekeeping and there was no debris near the hole in the drywall (para. 25(b), 26 – italicized items added per defence submissions). i) Constable Sandhu obtained information from Coleen Crook, a friend of Mr. Planje, that Mr. Planje told her the following: His roommate woke up in a really bad mood the day before (December 12, 2010) and was acting “violent”, he had never acted “this bad” before, and he had thrown Mr. Planje’s food all over the place and had flushed his food down the toilet. He feared for his safety, did not know what to do, and was worried that the appellant might do something to him or his property. He did not want the appellant to live with him any longer or to have the key to the Residence. The appellant had hidden his car keys and taken the phone away from him so he could not call anyone for help but he finally managed to find his car keys in the Residence. Ms. Crook also told Constable Sandhu that Mr. Planje attended her residence every day and walked her dogs, would not leave his dogs unattended for more than a couple hours, and it was unusual for him not to answer his phone. She also said that the appellant had a history of using cocaine and was apparently trying to quit (para. 29(b) – nothing excised, as defence submission that information from Constable Sandhu was unreliable due to the manner in which she summarized the evidence of Ms. Chambers and Ms. Zowty is without merit). j) Constable Sandhu also received information from Dawn Shannon, Mr. Planje’s step-daughter: The appellant is her brother and that was how he and Mr. Planje met. They had known each other for years but just moved in together a few weeks before. The appellant was known to be violent and had gone to jail in the past. She spoke to Mr. Planje the night before (December 12, 2010) at 1930 hours. Mr. Planje said that he and the appellant got into a big fight, the appellant hid this car keys and threw his food in the toilet. He also said that the appellant had been trying to stop using cocaine that day but he believed he was still using it. He sounded “shook up”. It was unusual for Mr. Planje to leave his Residence for that long and he never left his dogs alone for long. He did not have to deliver newspapers that day to she did not know where he could have gone (para. 29(c) – nothing excised, as defence submission that information from Constable Sandhu was unreliable due to the manner in which she summarized the evidence of Ms. Chambers and Ms. Zowty is without merit). k) Constable Morris reported that on December 13, 2010 at 1343 hours he observed the appellant exit the Blue Camry from a parking lot at the welfare office, and arrested him. Constable Farlin went inside the office and took Ms. Bakstad into custody, as she had been seen with the appellant. After the Blue Camry was secured, officers observed mud splatter on the passenger side of the vehicle, a lot of mud on the tire, and what appeared to be blood on the passenger side rear door handle (paras. 30 ‒ 31 – italicized words added per defence submissions). l) Constable Parsons made a report based on an audio recorded statement from Ms. Bakstad, which provided the following information: On December 13, 2010 at about 0800 hours a deaf man attended at a residence where she was and later, at approximately 1003 hours, she went for a drive with him out by Ryder Lake. [The affiant believed she was talking about the appellant.] The man had a gold ring with a moose head and some initial on it. She took him to a pawn shop where he got $40 for the ring. The man said he had to be careful because of the cops and he was looking around a lot; he said the car wasn’t his so he had to be careful. She thought he meant that he had borrowed the car and didn’t want to get caught driving stoned. She knew the man did not have a licence and said it was common for people who have smoked crack to be looking around often. The man drove her to a dead end road where she thought she saw a body or something wrapped in a white or cream coloured tarp. She was smoking crack cocaine at the time and she thought she could have been hallucinating (para. 34 – italicized words added per defence submissions). m) Ms. Bakstad took police to the area of the dead end road but nothing was located (para. 35). [57] All of this information supported the investigative conclusions set out in the ITO with some relatively minor changes to reflect the excisions and corrections noted, all of which, in my view, shows that the ITO was sufficient on its face such that the issuing justice could have issued the warrant. This is so, taking into account all defence submissions having any merit. Moreover, even if the information outlined at para. 56(h) above were excised (regarding the results of the first police entry into the Residence), the ITO was sufficient to support the issuance of the warrant. [58] The circumstances here are quite different from those in M.B., where this Court ordered a new trial as a result of the trial judge’s refusal to hold a voir dire to consider a s. 7 Charter challenge. There, after conducting its own analysis as to whether the proposed application had a reasonable prospect of success, the Court concluded that there was a reasonable likelihood that an evidentiary hearing could assist in determining the constitutional issues raised. In this case, after conducting a similar analysis, I have concluded that the appellant’s proposed attack on the issuance of the search warrant had no reasonable prospect of success. Thus there is no reasonable likelihood that an evidentiary hearing could assist in determining whether the appellant’s s. 8 Charter rights were breached. [59] Accordingly, there is no basis for this Court to interfere with the trial judge’s refusal to hold a s. 8 voir dire . 2.       Was the verdict unreasonable? [60] The test for an unreasonable verdict is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered: R. v. Yebes, [1987] 2 S.C.R. 168; R. v. Biniaris , 2000 SCC 15. A verdict will also be unreasonable where a trial judge makes a finding of fact or draws an inference that is plainly contradicted by the evidence relied on for that purpose or that is demonstrably incompatible with evidence that is not otherwise contradicted or rejected: Beaudry ; R. v. Sinclair , 2011 SCC 40; R. v. R.P ., 2012 SCC 22. A verdict of this latter sort is unreasonable because it has been reached illogically or irrationally , not judicially or in accordance with the rule of law : Sinclair at para. 26. [61] As Donald J.A. explained in R. v. Zadeh , 2016 BCCA 474 at para. 27, unreasonable verdicts of this kind are exceedingly rare. An analysis of a Beaudry error requires scrutiny of the logic of the trial judge’s findings of fact or inferences drawn from the evidence, and the appellant must show “the existence of a fundamental flaw in the judge’s reasoning, and establish that the flaw played a central role in the reasoning that led to conviction”: see also R. v. Scuby , 2015 BCCA 430 at para. 31 . [62] The appellant pointed to two flaws in the trial judge’s reasoning: (1) the verdict is incompatible with the expert evidence of the pathologist; and (2) the judge took an incorrect approach to the circumstantial evidence and wrongly imposed an evidentiary burden on him. [63] This latter argument stems from Villaroman , where Cromwell J. discussed the principle of reasonable doubt in circumstantial cases. He explained that inferences consistent with innocence do not have to arise from proven facts, as to do otherwise “wrongly puts an obligation on an 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” (at para. 35). A reasonable doubt is not rendered speculative by the mere fact that it arises from a lack of evidence. Consistent with the well-known case of 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”. And while a gap in the evidence may result in inferences other than guilt, “those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense” ( Villaroman at paras. 35 ‒ 36). [64] Cromwell J. gave the following guidance to triers of fact, recognizing (at para. 38) that the line between a “plausible theory” and “speculation” is not always easy to draw: [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 CanLII 14 (ON CA), [1938] O.R. 200 (C.A.) , at pp. 205 and 211 , per Middleton J.A., aff’d 1938 CanLII 7 (SCC), [1938] S.C.R. 396 ; R. v. Baigent , 2013 BCCA 28 (CanLII), 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 , 1971 CanLII 13 (SCC), [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 the absence of evidence, not on speculation. [65] All of this must be considered in light of this Court’s appellate role. It is up to the trial judge to draw the line between reasonable doubt and speculation, and his assessment can be set aside only where it is unreasonable. In assessing his reasons, they are to be read as a whole, in the context of the evidence, the issues and the arguments at trial ( Villaroman at para. 15). Expert opinion evidence [66] As noted above, the autopsy conducted by Dr. Litwin determined that Mr. Planje died from internal bleeding in his skull. Dr. Litwin found three bruises on the head, which indicated a minimum of three impacts to the head. Two of the bruises were in the soft tissues external to the skull above each ear and one was by the right eye. There was subdural and subarachnoid bleeding above each ear, a bruise to the brain tissue on the left side of the brain, but no injury to the skull under either of the two bruises above the ears. Dr. Litwin could not say whether any of the three bruises was related to the internal bleeding and could not opine as to how the injuries occurred. He explained in his testimony in chief: Often, but not always, the injury -- or the impact which caused the bleeding within the head will also cause damage to the outside of the head. That is bruising to the scalp or a skull fracture, for example. Mr. Planje had three bruises to the outside of his head. I cannot determine which one of these external markers of head trauma led to or caused the internal bleeding. It could’ve been one of them, that is to say one head impact led to all the bleeding within the skull, it could’ve been all of them in concert which … each caused some degree of damage to the brain within the head and led to bleeding. It could also have been neither of them because you can get subdural bleeding, subarachnoid bleeding from an impact to the head which for whatever reason, depending on where it occurs, depending on what surface is contacted, does not leave external head injury. So I can’t state which one of those three bruises on the outside of the head bear any kind of relationship to the internal evidence of impact other than to say externally there’s evidence of head impact from a blunt force, internally there’s evidence of impact to the head from blunt force which ultimately caused his death. [67] He could not comment on a possible mechanism of the injury other than to say that it was either “a moving head impacting a fixed object … or a moving object impacting a fixed head”. He explained: If the bruise to the scalp or the blunt force injury to the external surface of the head occurs at the same location as the blunt force injury to the brain, that is more in keeping with a scenario in which a moving object hits a stationary head. If the external blunt force injury to the scalp is opposite to internal brain injury, so for example the bruise is on the left side of the scalp and there's a bruise to the brain on the right side of the brain, that is more in keeping with a scenario in which a moving head impacts a fixed object. In this case there were bruises to both sides of the head, and I believe I forgot to mention during my earlier testimony regarding injuries to the brain there was a bruise to the brain tissue, to the left side of the brain. But because there are bruises to both sides of the scalp and a bruise to the left side of the brain I can't make any comment about a possible scenario or mechanism with regards to how the head injury occurred. That is to say a moving head impacting a fixed object versus a fixed object -- or a moving object impacting a fixed head. [68] In cross-examination, Dr. Litwin confirmed that there could be an injury that causes subdural bleeding but no bruising to the skin, and a person may not lose consciousness or become immediately disabled after such an impact; unconsciousness could be delayed for more than 36 hours. He agreed that hitting the head by stumbling into a door frame could cause this type of injury if sufficiently forceful. Discussion [69] The appellant submitted that the trial judge misapprehended the pathologist’s evidence, as shown in para. 78 of his reasons: [78]      The autopsy of Mr. Planje’s body determined he died from bleeding inside his skull, likely associated with at least three blows to his head . Subdural hematomas were found above each ear. There was bruising noted in the soft tissues external to the skull at these locations, with the bruising more extensive on the left side [Emphasis added.] [70] The appellant also submitted that the pathologist’s evidence established “other plausible theories” and “other reasonable possibilities” which were inconsistent with guilt, such that the Crown was required to negative them: Villaroman at paras. 37 ‒ 38. This is so, he contends, even considering the trial judge’s finding that the appellant caused the external head injuries, as Dr. Litwin’s evidence on the uncertainty of the cause of death was enough to give rise to a reasonable doubt. [71] The respondent submitted that the appellant’s argument considers the pathologist’s evidence in isolation. While Dr. Litwin could not rule out accident as a possibility from the autopsy alone, the trial judge was not constrained in doing so upon his consideration of the evidence as a whole. Moreover, the respondent says that the judge’s reasons, when read in context, properly considered the circumstantial evidence; he rejected the appellant’s theory of accident as “bare conjecture” or speculation and simply pointed out that there was no evidence to support such an inference. [72] In my view, the trial judge did not misapprehend the evidence, nor did he fail to consider “other reasonable possibilities” that were inconsistent with guilt. His comment at para. 78 cannot be read in isolation. Other passages in the judgment indicate that the judge was well aware of the limitations of Dr. Litwin’s evidence. At para. 79, he noted that the cause of death was described as “blunt force injuries either by blows to Mr. Planje’s head or his head coming in contact with a stationary object”. At paras. 109 and 110, he begins his analysis of whether the appellant caused the death: [109]    Counsel for the accused argues the pathologist’s evidence does not establish that the bruising to Mr. Planje’s head necessarily caused the subdural hematomas that led to his death, and contends that there is insufficient evidence that the bruising was the result of an assault by the accused. [110]    While it is true that the pathologist’s evidence does not, with scientific certainty, rule out the possibility that some trauma to the head, other than the blows that caused the bruising, may have caused the bleeding inside the skull. Trauma sufficient to cause internal bleeding may not always cause external injury. Proof to a scientific certainty is seldom available in a question like this and the Crown is not required to meet this standard. Here, the evidence strongly suggests that the bruising, bilaterally above the ears, coincided with the areas of subdural hematoma below the skull. Further, the fact that there is a possibility blows other than the ones that caused the bruising may have caused the death is not helpful to the accused. The evidence is clear he is responsible for the violence perpetrated on the relatively defenceless victim. Which of the blows might be directly responsible is irrelevant. [73] The appellant says that he did not ask the Crown to meet a standard of scientific certainty but only to put the burden on the Crown to prove that some unlawful act he committed actually caused the death, and that framing the issue this way ignored the true impact of Dr. Litwin’s evidence. He also says that the trial judge’s approach was flawed because it presupposed that the appellant was responsible for any and all external head injuries that might have caused the internal injuries, when Dr. Litwin was unable to link the cause of death to any particular mechanism. [74] I disagree. Dr. Litwin’s evidence was but one piece of circumstantial evidence, albeit an important one. The trial judge’s finding that the internal bleeding was “likely associated with at least three blows to the head” cannot be said to be a fundamental flaw that played a central role in his reasoning, given the totality of the evidence. In my view, the judge’s remarks at para. 110, when considered in the context of the reasons as a whole, show that he considered the possibility of accident to be speculative despite the fact that Dr. Litwin could not rule it out, and that this was based not only on the evidence but also on the lack of evidence. [75] The judge explicitly considered and rejected the appellant’s submission that the trauma to the head may have occurred accidentally: [111]    The defence submission is that the trauma to the head may well have occurred accidentally, perhaps when Mr. Frederickson and Mr. Planje wrestled over the stick and both fell to the floor. The accused’s evidence made no reference to Mr. Planje striking his head during this supposed incident. The accused’s account was that he fell back and pulled Mr. Planje onto him, and that Mr. Planje followed him down as he fell, while they were both holding onto the stick. The accused said that he got control of the stick and put it outside. At a later point, he said he never saw Mr. Planje hit his head during this incident. [112]    The defence submission in this regard is bare conjecture, and I find no evidence to support the contention there is a reasonable inference that can be drawn supporting an accidental cause of death. [76] All of these passages show that the trial judge was satisfied that the appellant assaulted Mr. Planje, at least one or more of the blows he inflicted caused the death, and the possibility that the death was caused by accident was based, not on “logic and experience applied to the evidence or the absence of evidence” but on speculation. In my view, the judge’s reference to the lack of evidence to support an inference of accident did not, when read in context, suggest that he put any burden on the appellant to prove otherwise. [77] These findings were amply supported by the evidence as well as the lack of evidence. The body of circumstantial evidence included the following: · Mr. Planje’s body was found on December 30, 2010, on a steep slope below a forestry service road near Hope, after being missing since December 13, 2010; · Mr. Planje was last seen by a neighbour in the presence of the appellant through a window in the Residence at approximately 2:30 a.m. on December 13, 2010. The appellant was seen to be excited and angry and to have pushed Mr. Planje aside; · About two hours later, the appellant was seen by neighbours dragging a heavy object, determined by the trial judge to be Mr. Planje, outside the front of the Residence to the driveway where Mr. Planje’s car was parked. The car left and returned, and left again, with the appellant seen driving after its first return; · Later that same day, the appellant pawned a ring belonging to Mr. Planje and was arrested shortly thereafter; · The autopsy showed that Mr. Planje died a considerable time before his body was discovered, the cause of death being bleeding inside the skull consistent with his head hitting or being hit by a solid object, and his body had sustained substantial bruising, many that were consistent with defensive injuries; · When police executed the search warrant and entered the Residence, they observed disarray and blood stains throughout, but particularly prevalent in Mr. Planje’s bedroom and ensuite bathroom. Many of the blood stains were later determined to belong to Mr. Planje and to the appellant; and · All of this was preceded by an incident between the appellant and Mr. Planje on December 12, 2010, where police attended at the Residence, arrested the appellant in an effort to calm things down, but released him a few hours later, following which Mr. Planje gave him an eviction notice. [78] The appellant admitted that he dragged Mr. Planje’s body from the Residence and transported it to the forestry road north of Hope, but denied that he assaulted Mr. Planje in the Residence. The trial judge noted that this admission about dragging the body was consistent with the observations of the neighbours in the early morning hours of December 13, 2010, but he rejected the appellant’s evidence generally as having no credibility. More specifically, the judge rejected his evidence denying an assault as being inconsistent with the blood stain pattern analysis and the DNA evidence: [96]      I cannot accept this in light of the state of the inside of the mobile home, the blood stain pattern analysis and the DNA record associated with the blood stains. The accused said stains of his blood were from a cut sustained when Mr. Planje hit him with a stick. The accused demonstrated being hit and indicated a blow to his right hand, as he shielded his left knee. The right hand showed a number of cuts to the fingers and bruises to the knuckles, more injury than would be expected from being hit by one blow from the stick, and more likely injuries resulting from use of his right fist in the altercation with Mr. Planje. The left hand also showed knuckle bruising and a cut, features inconsistent with no physical contact with Mr. Planje. [102]    The trail of Mr. Planje’s blood drop stains between the bed and the en suite, the presence of Mr. Planje’s blood in the en suite, and the evidence suggesting a clean-up are inconsistent with Mr. Frederickson’s evidence that he never saw any blood coming from Mr. Planje [79] By rejecting the appellant’s evidence on this point, the trial judge did not give it evidentiary value, or “make-weight” evidence for the Crown. He was finding facts based on other, more probative circumstantial evidence, and on this issue the evidence of the appellant did not raise a reasonable doubt. [80] Dr. Litwin’s evidence was not all that was needed to establish the possibility of an accidental cause of death. The trial judge did not misapprehend this evidence, nor did he err in concluding that the possibility of an accident did not amount to more than “pure conjecture”. Taking into account the totality of the evidence, the trial judge reasonably drew the line that separated plausible theory from speculation. The verdict cannot be said to be unreasonable. [81] For all of these reasons, I would dismiss the appeal. “The Honourable Madam Justice Fisher” I AGREE: “The Honourable Madam Justice MacKenzie” I AGREE: “The Honourable Mr. Justice Harris”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Chang v. Hua, 2018 BCCA 13 Date: 20180105 Docket: CA44562 Between: Angela An-Chi Chang Respondent (Plaintiff) And Xing Xiu Hua Appellant (Defendant) Before: The Honourable Chief Justice Bauman The Honourable Madam Justice Kirkpatrick The Honourable Madam Justice MacKenzie On appeal from: an order of the Supreme Court of British Columbia, dated June 29, 2017 ( Chang v. Hua , Vancouver Registry No. S1610493) Oral Reasons for Judgment Counsel for the Appellant: J.W. Ryan Counsel for the Respondent: K.G. McKenzie Place and Date of Hearing: Vancouver, British Columbia January 4, 2018 Place and Date of Judgment: Vancouver, British Columbia January 5, 2018 Summary: Appeal from a summary trial order in relation to a failed property purchase. The purchaser alleged the vendor failed to mitigate her damages. Prior to and on the date of the summary trial the purchaser sought an adjournment of the trial in order to obtain allegedly pertinent document discovery and examination for discovery of the vendor. The judge refused, finding there was sufficient evidence to decide the issues and that the claimed discovery was, as the purchasers’ counsel conceded, speculative. Held: appeal dismissed. The judge properly exercised her discretion on the evidence before her. The appellant did not meet the test to overturn a discretionary order and did not establish palpable error needed to overturn the finding of fact that the vendor made bona fide efforts to sell the property in mitigation of her damages. [1] KIRKPATRICK J.A. : This is an appeal from an order following a summary trial which granted judgment against the appellant. The appellant’s argument focuses on errors alleged to have been made by the trial judge, when, under a separate order, she dismissed the appellant’s application to adjourn the summary trial. The appellant contends the judge erred in refusing the adjournment which, she says, would have permitted her to obtain documents and discovery relevant to the issue of mitigation of damages. [2] It is unnecessary to provide an extensive recitation of the dispute between the parties. It centred on a failed property purchase. The respondent was the vendor of a newly-built home in Vancouver. The appellant purchaser acknowledged that she did not complete the transaction but argued that it had been voided by mutual agreement. In the alternative, she argued that the vendor had failed to mitigate her damages. [3] The contract of purchase and sale was entered into on June 12, 2016. The completion date was scheduled for September 28, 2016. It was extended to October 14, 2016 on the condition that the deposit be increased by $500,000. The increased deposit was not paid and the sale did not complete on October 14, 2016. The vendor accepted the purchaser’s repudiation of the contract of purchase and sale. [4] On November 14, 2016, the vendor filed a notice of civil claim. The purchaser filed a response on December 30, 2016. [5] In her response to civil claim, the purchaser pleaded that the vendor failed to mitigate her damages by rejecting the offer made by the purchaser’s son, Hua Wang, following the repudiation on October 14, 2016. [6] The vendor provided the purchaser with her list of documents on January 5, 2017. On February 17, 2017, the purchaser provided her list of documents. [7] The property was sold to another purchaser on April 7, 2017. The vendor provided an amended list of documents to reflect the information related to that sale. [8] The vendor set down her Rule 9-7 summary trial application for May 30, 2017. The purchaser filed an application returnable on May 30 for an order adjourning the summary trial and for an order that the vendor attend an examination for discovery. [9] Mr. Justice Leask adjourned the trial to June 20, 2017. A condition of the adjournment required the purchaser to execute and register a $400,000 mortgage in favour of the Plaintiff “on one or more of the Defendant’s properties satisfactory to the Plaintiff to secure the Plaintiff’s claim.” The order did not specify that examinations for discovery be conducted or for further document production. No further application for those orders was made by the purchaser prior to June 20, 2017. [10] On June 20, 2017, the purchaser applied again for an adjournment on the basis that she needed further document disclosure and an examination for discovery of the vendor. [11] The judge dismissed the application. In reasons indexed at 2017 BCSC 1096, she concluded that an adjournment was not warranted for these reasons: [9] The parties have different perspectives on what led to the repudiation of the contract, whether it was mutual or the result of unilateral action. A number of the documents surrounding the September 28 and October 14 events, as well as communications between the parties, have been brought to my attention. In light of these materials, I am satisfied that the further documents sought by counsel for the defendant and the desire to examine the plaintiff, are not of sufficient grounding to warrant an adjournment of the summary trial application. [10] Indeed, in his submissions before me, counsel for the defendant indicated that he has no substantive foundation on which to show that relevant documents other than what the plaintiff has already produced to him exist, or will shed light on issues that the Court must determine in assessing the merits of the plaintiffs claim. He “speculates” that further documents might exist, but until an order for production is made or the plaintiff is discovered, he will not know. [11] This is not a sufficient basis on which to grant an adjournment of the summary trial, or make the other orders that the defendant seeks in her Notice of Application. I decline to grant her application in its entirety. The defendant has not persuaded me that the additional steps sought will likely result in information and/or evidence of probative value to the main issues in dispute between the parties, including mitigation of the loss alleged to have been sustained by the plaintiff. [12] In making this ruling, I am also alive to the plaintiff’s concerns about decreasing equity in the property against which the $400,000 mortgage has been registered. At present, the assessed value of this property stands at approximately $4,917,000. In addition to the plaintiff’s mortgage, the property has two other mortgages registered against it, in the cumulative value of $6.5 million. Justice Leask made the order in favour of a $400,000 mortgage, presumably satisfied that there was sufficient equity in the property to ensure that the charge had meaning. The evidence before me is that since then, the defendant has continued to borrow against her various properties, including this one. As such, I am satisfied that the summary trial should continue on track, as planned, with a view to a determination on the merits. [12] The judge proceeded to hear the summary trial. She concluded that she was able to find the facts necessary to decide the relevant issues. She stated: [49] There are very few material facts in dispute. The parties agree there was a contract for purchase and sale; they agree that the first closing date came and went without completion; and, they agree that both parties executed an addendum to the contract extending the closing date to October 14, 2016. [51] The Application Record contains all of the documents that were executed by, and exchanged between the parties for both the September 28 and October 14 completion dates. In my view, these documents provide a sufficient evidentiary basis from which to assess and determine any credibility issues that may arise on the parties’ competing versions of events. The documents speak for themselves. [52] The further documents sought by the defendant, either through a production order or examination of the plaintiff, do not speak to the dealings between the parties; rather, they relate to alleged conversations and/or dealings that the plaintiff may have had with third parties during this same time-frame. [53] I dismissed the defendant’s adjournment application because counsel for the defendant was not able to satisfy me that these documents, if they exist, would shed light on the issues to be decided. The defendant argued that if the plaintiff was considering other (and potentially better) offers to purchase her home on September 28 or October 14, this speaks volumes about whether she was, in fact, ready, willing and able to complete. However, he acknowledged that he was only speculating on whether materials to this effect would be found. [56] I did not consider speculation a sufficient basis on which to grant the defendant’s adjournment request; similarly, I do not consider it a sufficient basis on which to refrain from deciding this matter by way of summary trial. [57] Although there is a substantial amount of money at stake, the issues are relatively straightforward; the governing legal principles for resolution of the dispute are settled; and, there is a comprehensive documentary foundation available for the purpose of the Court’s fact-finding. Proceeding with a summary trial in these circumstances is consistent with the object of the Rules. [13] In the result, the judge found that the defendant breached the contract by failing to complete. She awarded the plaintiff $583,671.33 in damages, consisting of the difference between the original purchase price and the ultimate sale price; property taxes; insurance; and mortgage interest. [14] As I have noted, in her factum and at the hearing of the appeal, the purchaser insisted that she had been deprived of her opportunity to establish that the vendor had failed to mitigate her damages. Specifically, the purchaser contends that the vendor failed to provide the documents demanded in a letter, dated May 15, 2017: We require you to provide us with all correspondence including We-chat, emails, faxes, letters, Whats-up and any other communication to and from the Realtor for the Plaintiff, and her Attorney and the Plaintiff, and the Realtor for the Plaintiff and the Realtor for the Defendant and the Realtor for the Plaintiff and the Attorney pursuant to Rule 7-1-10 and 11. We require all offers either by contract of purchase and sale or other written means and whether or accepted or not and including counter offers and all correspondence relating to any offer or counter offer received by the Realtor for the Plaintiff and all communications relating to those offers and counter offers between the Realtor and the Plaintiff, the Realtor and the Attorney and the Attorney and the Plaintiff from June 1, 2016. We require these documents to determine whether there was any acceptance by the Vendor of the addendum dated September 28, 2016 which was relayed to the Defendant or her Realtor. We require the documents to determine what offers were received from June 1, 2016 to the present. We require the documents to determine whether the offer of Wang Hua was forwarded to the Plaintiff by her realtor and the response to determine as why the Plaintiff failed to consider that offer in order to mitigate her damages. [15] The vendor’s position was that all relevant documents had been produced and the requested documents were, if they existed, irrelevant or were third party documents outside the possession or control of the vendor and available to the purchaser on demand to the third party realtor. [16] In my opinion, the purchaser has on appeal attempted to broaden the ambit of her defence of mitigation beyond that pleaded and argued before the trial judge. The trial judge had before her all of the evidence brought to our attention. She gave thorough and considered reasons on the basis of the evidence. She concluded: [96] Furthermore, while a plaintiff must prove damages and their quantum, the “burden of proof moves to the defendant if he alleges that the plaintiff could have and should have mitigated his loss”: Hargreaves, at para. 2, referencing Janiak v. Ippolito, [1985] 1 S.C.R. 146 at 162. [97]      The defendant does not take issue with the plaintiff’s calculation of her alleged damages. Rather, she argues that the plaintiff failed to mitigate. In particular, she says the plaintiff should have accepted the offers to purchase that were put forward by the defendant’s son in October and November 2016. [98]      On the evidence, there is no indication that the plaintiff did anything other than make bona fides efforts to sell the property for a reasonable price after the defendant repudiated the contract. The only thing the defendant points to as evidence to the contrary is the plaintiff’s refusal to accept the two offers put forward by her son in October and November 2016, respectively. [99]      I do not consider the plaintiff’s refusal to accept these offers unreasonable. The proposed new purchaser and the defendant were closely connected. Two completion dates had already come and gone without follow- through on the part of the defendant. Plus, she failed to pay the $500,000 increase in deposit after the September 28 extension. [100]    Within this context, it is not surprising that the plaintiff declined to re­engage with the same family unit. I also note that as a term of his offers, the defendant’s son demanded that the $190,000 deposit paid by his mother be released and applied to the new contract for purchase and sale. This would require that the plaintiff forfeit her right to claim the deposit, which she was entitled to as a result of the defendant’s repudiation and based on the clear wording of the agreement. This was not a precondition that the plaintiff had any obligation to accept. [17] In my opinion, the purchaser has failed to demonstrate that the judge erred in refusing the application to adjourn or to require the vender to produce documents and attend discovery. This was a straightforward case. The judge’s refusal was essentially grounded in her conclusion that the purchaser’s request was based on speculation and, if granted, would amount to a fishing expedition. [18] The judge’s decision to refuse the adjournment involved an exercise of judicial discretion. Bound up in that decision was the judge’s apprehension that the documents said by the purchaser to be vital to the question of mitigation were unnecessary in order to decide the case. Similarly, as a case that rested on documentary evidence, the examination for discovery of the vendor would not aid the purchaser. In my opinion, the purchaser has not satisfied the test she must meet in order to overturn a discretionary order – misdirection, acting on wrong principle or irrelevant considerations, or so clearly wrong as to amount to an injustice. (See Tyson Creek Hydro Corporation v. Kerr Wood Leidal Associates Limited, 2014 BCCA 17 at para. 4). [19] Further, the purchaser asks us to overturn the judge’s finding of fact that, on the evidence, there was no indication that the vendor did anything other than make bona fide efforts to sell the property for a reasonable price after the purchaser’s repudiation. [20] In my opinion, that finding was available on the evidence before the judge. Absent palpable error, of which none has been demonstrated, we cannot overturn such a finding of fact. [21] I would dismiss the appeal with costs to the vendor. [22] BAUMAN C.J.B.C. : I agree. [23] MACKENZIE J.A. : I agree. [24] BAUMAN C.J.B.C. : The appeal is dismissed in accordance with the reasons of Madam Justice Kirkpatrick. “The Honourable Madam Justice Kirkpatrick”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Molberg v. British Columbia (Superintendent of Motor Vehicles), 2018 BCCA 12 Date: 20180105 Docket: CA44499 Between: David Edward Knud Molberg Respondent (Petitioner) And The Superintendent of Motor Vehicles Appellant (Respondent) Before: The Honourable Chief Justice Bauman The Honourable Madam Justice Newbury The Honourable Madam Justice Kirkpatrick On appeal from:  An order of the Supreme Court of British Columbia, dated May 16, 2017 ( Molberg v. British Columbia (Superintendent of Motor Vehicles) , 2017 BCSC 807, Vancouver Registry S156815). Oral Reasons for Judgment Counsel for the Appellant: A.K. Harlingten Counsel for the Respondent: K. Lee Place and Date of Hearing: Vancouver, British Columbia January 5, 2018 Place and Date of Judgment: Vancouver, British Columbia January 5, 2018 Summary: A driver was issued an immediate roadside driving prohibition, which was confirmed in a review hearing before a delegate of the Superintendent of Motor Vehicles. Subsequent to the hearing, the driver discovered fresh evidence undermining the reliability of the approved screening device used to issue the prohibition. On judicial review the chambers judge ordered that the Superintendent reopen the review hearing to consider the fresh evidence. The Superintendent appealed. Held: Appeal allowed. The chambers judge had no jurisdiction to grant an order in the nature of mandamus when the Superintendent was not under a legal duty to reopen the hearing. Overview [1] BAUMAN C.J.B.C. : The Superintendent of Motor Vehicles challenges the order of Justice MacNaughton, pronounced 16 May 2017, requiring the Superintendent to reopen the application of Mr. Molberg to review his driving prohibition, and to consider the fresh evidence Mr. Molberg seeks to adduce in support of his application. The Superintendent alleges that the chambers judge erred by (1) failing to consider evidence tendered by the Superintendent regarding the credibility and likely impact of Mr. Molberg’s fresh evidence, and (2) failing to subject Mr. Molberg’s evidence to the same standard applied to the Superintendent’s evidence thereby placing the burden of proof on the Superintendent to show that the evidence presented by Mr. Molberg did not require reopening his application. Facts [2] On 16 July 2015, Mr. Molberg failed a test for impaired driving on an approved screening device (“ASD”) and was issued an immediate roadside driving prohibition (“IRP”) pursuant to s. 215.41 of the Motor Vehicle Act , R.S.B.C. 1996, c. 318. [3] Mr. Molberg then brought an application to the Superintendent for review of the IRP which was heard orally on 27 July 2015. As part of the review, the peace officer who issued the IRP provided the Superintendent with a calibration certificate for the ASD used on Mr. Molberg. The certificate indicated that the dry gas alcohol standard canister used to calibrate the ASD was manufactured by Airgas, and part of lot number AG429301 with an expiry date of 20 October 2016. [4] On 6 August 2015, a delegate of the Superintendent confirmed the IRP. On that same date, Mr. Molberg applied for judicial review of the decision, which was later granted. Decision under appeal [5] Mr. Molberg’s petition set out several grounds for review, however the sole issue put to the chambers judge was for an order that the Superintendent reopen the review of Mr. Molberg’s application on the basis of fresh evidence. [6] Mr. Molberg sought to introduce three calibration certificates that were used in other IRP cases which list three different expiry dates for dry gas alcohol standard canisters from lot AG429301: 12 September 2015, 17 September 2015, and 20 October 2015. None of these dates matched the expiry date of the canister used to calibrate the ASD used on Mr. Molberg. The purpose of the fresh evidence was to call into question the accuracy of the ASD result in Mr. Molberg’s case. [7] After reviewing the factual and legal background of the petition, the chambers judge then discussed the appropriate test to be applied when making an order for the Superintendent to reopen the review of an IRP to consider fresh evidence. The chambers judge held that such an order should be made when “the interests of justice require it” and be informed by the criteria set out in Palmer v. The Queen , [1980] 1 S.C.R. 759. Moreover, given the proximity of the IRP regime to criminal law, the Palmer criteria should not be applied strictly in the context of the Mr. Molberg’s petition. [8] The chambers judge then addressed the four criteria from Palmer . She found that the fresh evidence was not available at the time of the review through due diligence given that an access to information request for the three other certificates could not have been processed in time. The chambers judge also found that the evidence was relevant since it spoke to the accuracy of the ASD result, which is a decisive issue in Mr. Molberg’s challenge to the imposition of the IRP. The fresh evidence was also credible in that the certificates were intended to be relied on by peace officers and the Superintendent. [9] The central point of disagreement between the parties was on whether the fresh evidence could reasonably be expected to affect the result. [10] In response to Mr. Molberg’s petition, the Superintendent filed two affidavits which sought to show that the expiry date of 20 October 2016 for the dry gas alcohol standard used in Mr. Molberg’s case was the correct expiry date for the canisters from lot AG429301. [11] The affidavit of Ms. Fritz, a Ministry of Justice paralegal, detailed steps taken by her to inquire into the correct expiry date of the canisters from lot AG429301. Her affidavit included a photo of a canister with that lot number listing the expiry date as 20 October 2016. Her affidavit also attached a certificate of analysis produced by the manufacturer and available through a website which lists the same expiry date for canisters from that lot number. [12] The affidavit of Mr. Roberts, the Deputy Superintendent of Motor Vehicles, discussed how a partial review of IRP files involving canisters from lot AG429301 all indicated the correct expiry date was 20 October 2016. [13] The Superintendent took the position that this evidence impacted the credibility of Mr. Molberg’s fresh evidence to address the issue of ASD reliability, or demonstrated that the fresh evidence would be unlikely to impact the outcome of a subsequent review. [14] The chambers judge held that she should not consider the Superintendent’s evidence when weighing the credibility or likely impact of Mr. Molberg’s fresh evidence, as the statutory scheme strictly limits the evidence that may be considered by the Superintendent on a review, and the Superintendent’s evidence would not actually be admissible in that context. To consider the Superintendent’s evidence would improperly shift the adjudication of the credibility and weight of Mr. Molberg’s evidence from the Superintendent to the courts. [15] As well, the chambers judge found specific problems with the affidavits tendered by the Superintendent. The attachments from a website included with Ms. Fritz’s affidavit were hearsay and her affidavit does not indicate that she conducted the actual search for them. The chambers judge also wrote that she could not assess whether the partial review discussed by Mr. Roberts was truly a random sample or affected by a result-oriented bias given that he appeared to form an opinion as to the likely outcome of the search in advance. [16] As a result, the chambers judge ordered the Superintendent to reopen the review of Mr. Molberg’s IRP to consider the fresh evidence. Submissions [17] The Superintendent initially raised two issues on appeal: 1.   Did the chambers judge err by relaxing the Palmer test and not considering the evidence tendered by the Superintendent that addressed the credibility and likely impact of Mr. Molberg’s fresh evidence? 2. Did the chambers judge err by failing to subject Mr. Molberg’s fresh evidence to the same standard as she applied to the Superintendent’s evidence thereby placing the burden of proof on the Superintendent to show why Mr. Molberg’s evidence should not justify reopening the hearing? [18] Before the hearing of the appeal, the division asked counsel by memorandum through the scheduling administrator to consider whether the relief sought by Mr. Molberg was essentially in the nature of an order for mandamus directing the Superintendent to reopen the hearing before him, and whether the chambers judge had the authority to grant such an order. [19] The division said this: Please provide counsel with a copy of this memorandum. The division of the Court that is to hear this appeal would like the parties to consider whether the relief sought by the respondent was for an order in the nature of mandamus , and whether the chambers judge had the authority to grant such an order. In particular, the division would like the parties to consider whether the order sought by the respondent requires the Superintendent to act ultra vires , and how the decision in Stenner v. British Columbia (Superintendent of Motor Vehicles) , 2016 BCSC 1690, and the Superintendent’s decision that the Motor Vehicle Act , R.S.B.C. 1996, c. 318, does not authorize the Superintendent to re-open a hearing, limit the availability of a mandamus order. In Berg v. British Columbia , 2006 BCCA 146 at para. 15, this Court held that mandamus was not available where a decision-maker was not under a public legal duty to take the action ordered, citing Apotex Inc. v. Canada (Attorney General) (1993), [1994] 1 F.C. 742 (Fed. C.A.). [20] We have received further submissions from counsel on this point. The Superintendent adopts the position, based on the issues raised in our memorandum, that the chambers judge had no authority to order the Superintendent to reopen the hearing. The relief granted was an order in the nature of mandamus which could not be issued in the circumstances as the Superintendent was under no legal duty to reopen the hearing. Mr. Molberg demurs. [21] I am of the view that the Superintendent is correct. As the law now stands (on the basis of Stenner v. British Columbia (Superintendent of Motor Vehicles) , 2016 BCSC 1690), the Superintendent has reasonably concluded that he does not have the jurisdiction to reopen a concluded hearing. We take that to be the law as Stenner was not appealed and its correctness is not now before us. [22] Mr. Molberg in his application asked the court for “an order reopening the Petitioner’s hearing…”. The order granted was in these terms: 1.         the Superintendent of Motor Vehilces [ sic ] must reopen the application of the petitioner to review the driving prohibition issued pursuant to Section 215.41 of the Motor Vehicle Act on July 16, 2015, to consider the fresh evidence the petitioner seeks to adduce. [23] This is clearly an order in the nature of mandamus purporting to compel the performance of a public legal duty (the very essence of mandamus ). [24] Mr. Molberg had also sought in his petition an order setting aside the decision of the delegate of the Superintendent and remitting the matter back for a rehearing, but that relief was abandoned and the chambers judge expressly did not deal with it. So all that was before the chambers judge was the request for relief in the nature of mandamus to the effect I have described. In oral submissions Ms. Lee suggested that what was implicitly before the chambers judge was an application to quash the Superintendent’s decision on its merits with a direction that he rehear the matter. I cannot accede to that characterization of the proceedings or the order of the chambers judge. [25] To grant the orders actually sought would be to purport to direct the Superintendent to act outside his jurisdiction at law. That cannot be directed; the Superintendent is not under a public duty to take the action ordered; mandamus cannot lie: Berg v. British Columbia , 2006 BCCA 146 at para. 15. Ms. Lee submits that there is indeed a legal duty on the Superintendent that could found an order in the nature of mandamus and that is a duty of fairness. It is more accurate to say that “fairness” is in the context of the statutory process. It is not the basis for orders in the nature of mandamus . It is the basis for potential orders in the nature of certiorari quashing administrative action. [26] For these reasons, I would allow the appeal. In the circumstances, it is not necessary to deal with the other submissions of the parties. [27] NEWBURY J.A. : I agree. [28] KIRKPATRICK J.A. : I agree. [29] BAUMAN C.J.B.C. : The appeal is allowed for the reasons indicated. [30] We thank counsel for their very excellent submissions as we have come to expect as usual from them. “The Honourable Chief Justice Bauman”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Shen v. Chan, 2018 BCCA 4 Date: 20180105 Docket: CA43862 Between: Shang Chen Shen Appellant (Plaintiff) And Edith Chan Respondent (Defendant) And Youti Wan (Defendant) And J ohn A. Gunson also known as John Gunson Euro Canadian Construction Corp. (Third Party) Before: The Honourable Mr. Justice Tysoe The Honourable Mr. Justice Willcock The Honourable Mr. Justice Hunter On appeal from:  An order of the Supreme Court of British Columbia dated July 22, 2016 ( Shen v. Chan , 2016 BCSC 1370, Vancouver Docket S117400) Appellant appearing on her own behalf: S.C. Shen Counsel for the Respondent Edith Chan: K.A. Murray Place and Date of Hearing: Vancouver, British Columbia November 29, 2017 Place and Date of Judgment: Vancouver, British Columbia January 5, 2018 Written Reasons by: The Honourable Mr. Justice Tysoe Concurred in by: The Honourable Mr. Justice Willcock The Honourable Mr. Justice Hunter Summary: Appeal from an order of a summary trial judge allowing Ms. Chan’s application to dismiss Ms. Shen’s claim against her pursuant to Rule 9-7 of the Supreme Court Civil Rules. Ms. Shen’s claim related to water leakage into her strata unit which she alleged was caused by Ms. Chan’s negligence. Held: Appeal dismissed. Ms. Shen failed to demonstrate that the summary trial judge made any error of fact or law when he held Ms. Shen failed to prove the causes of the alleged leaks or that the damage was caused by a breach of a duty on the part of Ms. Chan. Reasons for Judgment of the Honourable Mr. Justice Tysoe: [1] Ms. Shen appeals the order dated July 22, 2016 of a summary trial judge allowing Ms. Chan’s application to dismiss Ms. Shen’s claim against her. [2] Ms. Shen’s claim relates to water leakage into her strata unit located at 700 – 1919 Beach Avenue in Vancouver.  She sued Youti Wan, the owner of Unit 800 above her, and Ms. Chan, a real estate agent who deposed that she was a friend of Ms. Wan and assisted her with matters relating to Unit 800.  The amended notice of civil claim detailed eight leaks alleged to have occurred between May 2009 and December 2011, and claimed against both Ms. Wan and Ms. Chan in negligence. [3] Ms. Wan passed away on April 6, 2014.  On the following day, Unit 800 was transferred to Allister David Chan, presumably by way of a transfer signed by Ms. Wan before she died.  Ms. Shen alleges that Allister David Chan is the son of Ms. Chan, and this is not denied by Ms. Chan. [4] In June 2016, Ms. Chan filed an application seeking the dismissal of the claim against her on three bases.  The first basis was Rule 9-7 of the Supreme Court Civil Rules , the summary trial rule.  The second basis was want of prosecution.  The third basis was failure of Ms. Shen to comply with orders made at two case planning conferences. [5] In her affidavit in support of the application, Ms. Chan deposed as follows with respect to the alleged leaks: (a)   she was not aware of the precise cause or extent of each leak; (b)   she believed the first leak came from Unit 900 but Ms. Wan paid for the repair at the request of the strata corporation; (c)    she was unaware of the second leak; (d)   she was told by the tenants in Unit 800 that they had flushed cat litter down the toilet causing it to overflow, and the insurer of the strata corporation paid for the remediation, with Ms. Wan paying the deductible; (e)   she learned the fourth leak had occurred while the tenants in Unit 800 were cleaning a bathtub, and Ms. Wan’s insurer paid for the repair work; (f)    she was told by a representative of the strata corporation the fifth leak occurred when the strata corporation retained a plumber to investigate the fourth leak; (g)   the tenants moved out of Unit 800 shortly after the fifth leak, and she arranged for the water supply to Unit 800 to be turned off; and (h)   she was advised by a representative of the strata corporation that the seventh or eighth alleged leak occurred at a time a contractor was renovating Unit 800 and testing a new shower. [6] In her affidavit in response to the application, Ms. Shen deposed as follows about the alleged leaks: (a)    the first leak came from Unit 800, and the damage was repaired by the strata corporation; (b)    the second and third leaks affected parts of Unit 700 (but she did not assert a cause for them); (c)    the fourth leak (which had been described in the amended notice of civil claim as the fifth leak) was caused when an investigation was carried out into the causes of the previous leaks – Ms. Shen quoted from a plumber’s report that he had “found water leaking from [the] tub in 800 when the shower [was] used [and that] water [was] leaking from [a] crack between [the] titles and [the] tub”, but the report was not appended as an exhibit; (d)    the fifth and sixth leaks (which had been described in the amended notice of civil claim as the sixth and seventh leaks) affected parts of Unit 700 (but she did not assert a cause of the leaks); (e)    the eighth leak occurred after she heard jackhammer noises from Unit 800, and she was told by the resident manager that a contractor had been hired to replace a bathtub with a shower; and (f)    the strata corporation shut off the water circuit for the bathroom of Unit 800 after the eighth leak, and Ms. Chan’s statement that the water was turned off after the fifth leak was false. [7] Ms. Chan’s application was heard on July 11, 2016 and, in written reasons issued on July 22, 2016 and indexed as 2016 BCSC 1370, the summary trial judge dismissed the claim against Ms. Chan pursuant to Rule 9-7.  The judge said he would not have dismissed the claim for want of prosecution if he had not dismissed it under Rule 9-7, and he declined to rule on the third basis relied upon by Ms. Chan. [8] Despite Ms. Chan’s contention that she was simply acting as a friend of Ms. Wan, the summary trial judge found that Ms. Chan held herself out as Ms. Wan’s property manager and agent and, as such, owed a duty of care to Ms. Shen to facilitate communications between Ms. Shen and Ms. Wan and had an obligation to take reasonable care to avoid conduct that entailed an unreasonable risk of harm to Ms. Shen.  These findings are not disputed by Ms. Chan on this appeal. [9] The judge held there was no evidence that anything Ms. Chan did, or failed to do, caused any of the leaks alleged by Ms. Shen.  He said the real evidentiary issue was whether Ms. Chan took reasonably quick steps to investigate the source of the leaks when they occurred, arrange for repairs and facilitate communication between Ms. Shen and Ms. Wan.  The judge found that although Ms. Chan’s failure to provide Ms. Shen with Ms. Wan’s contact information left Ms. Chan as the conduit between Ms. Shen and Ms. Wan, there was no evidence that Ms. Chan failed to communicate Ms. Shen’s concerns to Ms. Wan or that any failure of communication resulted in the alleged damage to Unit 700. [10] The judge then turned to the issue of causation in more detail.  He discussed each of the eight alleged leaks individually.  He held there was no evidence of the causes of seven of the leaks.  He ruled that, while there was some evidence as to the cause of the fifth leak (which Ms. Shen had referred to as the fourth leak in her affidavit), it was hearsay evidence which was not admissible because it was not shown to have been necessary for her to have relied upon it. [11] Although it was not necessary to do so in light of his conclusion on the issue of causation, the judge also addressed the issue of whether the alleged damage was caused by a breach of the standard of care owed by Ms. Chan. He held that, while there was some evidence of property damage to Unit 700, Ms. Shen had failed to prove any breach of duty on the part of Ms. Chan or that any breach of duty caused the damage. [12] In her factum, Ms. Shen says the summary trial judge erred in nine respects.  In my opinion, Ms. Shen has not established the judge erred, in fact or in law, when he held she had not proved the causes of the alleged leaks or when he held she failed to prove the damage was caused by a breach of duty on the part of Ms. Chan.  Several of the grounds of appeal relate to issues which are not relevant to the bases upon which the judge dismissed the claim against Ms. Chan.  I will deal with each of the grounds briefly. [13] Firstly, Ms. Shen says the judge erred by completely agreeing with Ms. Chan’s affidavit.  At the hearing of the appeal, Ms. Shen spent considerable time endeavouring to persuade us that all the documents provided by Ms. Chan were fraudulent or otherwise questionable, and that none of her affidavit evidence should have been accepted by the judge.  However, it was not what Ms. Chan said in her affidavit that led the judge to dismiss Ms. Shen’s claim against her.  Rather, the claim was dismissed because there was a lack of admissible evidence regarding the causation of the leaks and a breach of duty by Ms. Chan. [14] Secondly, she says the judge erred by failing to accept correspondence from the strata council that supported her submission that Ms. Chan breached her duty of care by failing to repair the leakage.  This evidence is similar to the hearsay evidence properly excluded by the judge when considering the plumber’s report.  Although this correspondence was admissible as part of the narrative of the events which occurred during the relevant period of time, it was inadmissible hearsay evidence on the issue of whether Ms. Chan breached her duty of care.  In addition, the evidence does not overcome the obstacle Ms. Shen faced of having to prove the causes of the leaks. [15] Thirdly, Ms. Shen asserts the judge erred in finding Ms. Chan to be “the only conduit between Wan, the Appellant and the strata council. In the absence of any evidence that Chan communicated to Wan the Appellant’s concerns respecting the water leakage.” [ sic ]  All the judge found was that Ms. Chan’s failure to provide Ms. Shen with Ms. Wan’s contact information left Ms. Chan as the only conduit between Ms. Shen and Ms. Wan.  The onus was on Ms. Shen to prove that a failure by Ms. Chan to communicate with Ms. Wan caused any damage to Unit 700, and the judge concluded that Ms. Shen did not discharge this onus.  It has not been shown that he erred in that regard. [16] Fourthly, it is said the judge erred by concluding that Ms. Chan took quick steps to investigate the leakage source and arranged for repairs.  On my reading of his reasons for judgment, the judge did not make that finding.  He stated it to be an issue arising on the evidence but it was not necessary for him to decide the issue because he found there was no admissible evidence as to the cause of any of the leaks.  He also found Ms. Shen failed to prove any breach of duty on the part of Ms. Chan was the cause of the damage. [17] Fifthly, Ms. Shen says the judge erred in finding no breach of duty when she provided strata council documents demonstrating the strata council made efforts to inform, or insist, that Ms. Chan should repair the source of the water leakage.  This is a duplication of the second ground of appeal raised by Ms. Shen.  These documents were not admissible on the issue of whether Ms. Chan breached her duty of care, and the judge also dismissed the claim on the basis that causation of the leaks had not been proven. [18] Sixthly, she maintains the judge erred in permitting the question of the executor of Ms. Wan’s estate to remain unresolved.  Ms. Shen is referring here to the uncertainty as to the identity of the proper executor of the estate.  This issue relates to the prosecution of Ms. Shen’s claim against Ms. Wan’s estate, and it is not relevant to the claim against Ms. Chan.  The judge did not err in failing to deal with this question. [19] Seventhly, Ms. Shen says the judge erred in ignoring the delay in her prosecution of the claim was caused by the failure to resolve the executor issue, and in failing to answer the question of whether Ms. Wan left a will.  The first part of this ground relates to the aspect of Ms. Chan’s application to have the claim against her dismissed for want of prosecution, but the judge did not dismiss the claim on this basis.  The second part of this ground, like the sixth ground, relates to the prosecution of Ms. Shen’s claim against Ms. Wan’s estate and is not relevant to the claim against Ms. Chan. [20] Eighthly, she contends the judge erred in dismissing her claim against Ms. Chan “by judging the Appellant did not comply with the case planning orders”.  This relates to the aspect of Ms. Chan’s application to have the claim against her dismissed for failure to comply with the case planning orders, but the judge declined to rule on that aspect of the application.  The claim was not dismissed for failure to comply with the case planning orders. [21] Ninthly, Ms. Shen submits the judge erred by failing to take into account that she and her family are still living in a damaged suite, which has had a negative health impact and has led to financial loss.  The judge did not fail to take this into account.  He found that there was some evidence supporting Ms. Shen’s claim that she sustained damage from water leaks into Unit 700.  The claim against Ms. Chan was not dismissed for failure to prove damage. [22] Subsequent to the filing of her factum, Ms. Shen filed an application to introduce fresh evidence, and the application was heard concurrently with the hearing of the appeal.  The fresh evidence consists of an affidavit sworn by Ms. Shen detailing failures to comply with the two case planning orders and water leaks in Unit 700 in 2017.  I would not admit this evidence because it does not meet the criteria set out in Palmer v. The Queen , [1980] 1 S.C.R 759.  The evidence relating to the case planning orders could have been adduced at the summary trial, and water leaks in 2017 go beyond the scope of Ms. Shen’s claim because her amended notice of civil claim deals with eight leaks alleged to have occurred between 2009 and 2011.  None of the matters addressed in the affidavit would have affected the outcome of the summary trial. [23] As Ms. Shen has not demonstrated an error on the part of the summary trial judge in dismissing her claim against Ms. Chan, I would dismiss the appeal. “The Honourable Mr. Justice Tysoe” I agree: “The Honourable Mr. Justice Willcock” I agree: “The Honourable Mr. Justice Hunter”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Shuswap Lake Estates Ltd. v. British Columbia (Transportation and Infrastructure), 2018 BCCA 6 Date: 20180105 Docket: CA44008 Between: Shuswap Lake Estates Ltd., Shuswap Lake Utilities Ltd. and Shuswap Sanitation Inc. Appellants (Plaintiffs) And Her Majesty the Queen in right of the Province of British Columbia as represented by the Minister of Transportation and Infrastructure Respondent (Defendant) Before: The Honourable Chief Justice Bauman The Honourable Mr. Justice Hunter The Honourable Madam Justice Fisher On appeal from:  An order of the Supreme Court of British Columbia, dated September 28, 2016 ( Shuswap Lake Estates Ltd. v. British Columbia (Transportation and Infrastructure) , 2016 BCSC 1779, Kamloops Registry S47374). Counsel for the Appellants: R. Burke Counsel for the Respondent: P. Phan T. Quirk Place and Date of Hearing: Vancouver, British Columbia October 2, 2017 Place and Date of Judgment: Vancouver, British Columbia January 5, 2018 Written Reasons by: The Honourable Chief Justice Bauman Concurred in by: The Honourable Mr. Justice Hunter The Honourable Madam Justice Fisher Summary: The appellants challenge an order dismissing their claims for business losses as a result of a highway improvement project. The appellants argue that the project affected lot sales in a nearby housing development, and that they are entitled to costs to relocate water and sewer utilities located on the highway right-of-way. Held: Appeal dismissed. The trial judge made no palpable and overriding error in finding that the appellants had not proven the underlying assumptions of the expert evidence they relied upon to establish that the project caused the decline in lot sales. Nor did the trial judge commit an error in holding that the permits under which the appellants used the right-of-way barred the appellants’ claim for utility relocation costs. Reasons for Judgment of the Honourable Chief Justice Bauman: Overview [1] This appeal concerns an issue of compensation for certain alleged “business losses” arising out of highway improvement works in and about the Shuswap Lake area in the province’s interior. [2] While the appellants complain of the trial judge’s treatment of the expert evidence led below, they overlook what essentially derailed their claims for compensation: their failure to prove causation and the terms of the permits under which they installed certain utilities within the highway right-of-way. [3] I would dismiss the appeal for the reasons that follow. Facts [4] The appellants – Shuswap Lake Estates Ltd. (“SLEL”), Shuswap Lake Utilities Ltd. (“SLUL”), and Shuswap Sanitation Inc. (“SSI”) – are related companies (“the Shuswap Lake Companies”) that own and operate a real estate development called Shuswap Lake Estates. SLEL is a land development company. SLUL supplies water to the various lots in the development. SSI operates a sewer and treatment system for the development. [5] In 2006, the real estate market in the Shuswap Lake area was booming and the Shuswap Lake Companies developed a new residential subdivision called “the Highlands”. The first phase of the Highlands sold quickly. However, towards the end of 2008, a global financial slowdown occurred. Only three sales contracts were entered into in all of 2008. [6] On 29 September 2009, the Shuswap Lake Companies entered into a written agreement (“the Agreement”) with the Province of British Columbia (“the Province”) that provided for the acquisition of land owned by SLEL, as part of a project to expand and improve the TransCanada Highway (“the Project”). The purchased land included some water and sewer lines and so SLUL and SSI were parties to the Agreement. The Agreement set out the compensation to be received by the Shuswap Lake Companies and provided that the three companies would retain the right to pursue a claim for business losses pursuant to the Expropriation Act , R.S.B.C. 1996, c. 125 [ Act ]. The terms of the Agreement included: a)  The Province acquired certain lands (“the Lands”) from the Shuswap Lake Companies for the sum of $999,087 (“the Purchase Price”). b)  The Shuswap Lake Companies agreed to relocate utilities on the Lands (“the Land Utilities”) and on the existing highway right-of-way (“the Road Utilities”). The Shuswap Lake Companies were paid $84,180 for the cost of relocating the Land Utilities. The estimated cost of relocating the Road Utilities was $253,432. The Shuswap Lake Companies retained the right to claim damages in respect of costs to relocate the Road Utilities pursuant to the Act . c)  The sum of $317,412 was held back by the Province from the Purchase Price pending completion of the Land Utilities and Road Utilities work to the Province’s satisfaction. The full amount of the holdback was released by the Province to the Shuswap Lake Companies on 17 November 2010. d)  The Shuswap Lake Companies were paid $38,000 in respect of the cost of removing and relocating signage. e)  The Shuswap Lake Companies retained the right to pursue a claim of “business loss” pursuant to the Act . [7] Construction of the Project commenced April 2010 and was completed August 2011. [8] From 1994 to 2012, SLEL’s real estate sales staff consisted of a sales manager, Lois Barker, and part-time sales staff. Mrs. Barker was away from the sales office approximately 30% to 40% of the time in 2009 while dealing with an illness in her family. Terry Barker, Mrs. Barker’s husband and the Vice President of SLEL who is currently in charge of its operations, admitted her absence “definitely had an influence on sales”. From 2012 to early 2016 SLEL hired a number of other sales managers who did not apparently have much impact in improving SLEL’s sales. The sales manager SLEL hired in April of 2016 has apparently made some changes that have assisted SLEL in increasing its sales. [9] In June 2012, the Shuswap Lake Companies filed a notice of civil claim. They sought compensation for (1) business losses, (2) the costs of moving the Road Utilities and (3) the costs of a water bypass that ensured SLUL’s customers’ water supply was not interrupted during installation of the utilities. During trial, the Shuswap Lake Companies abandoned their claim for future business losses and their business loss in respect of the loss of multi-family lot sales. Accordingly, at the conclusion of trial, the Shuswap Lake Companies’ claim for business loss was limited to the loss of sales of lots in the Highlands prior to 2016. [10] On 10 June 2014, the parties agreed that the Shuswap Lake Companies’ claims were all settled by the Agreement, other than the claim for business losses (which was to be decided as though the lands had been expropriated) (“the Partial Settlement Agreement”). Expert Witnesses Who Testified at Trial [11] The Shuswap Lake Companies called two expert witnesses in support of their business loss claim. The first was Danny Grant, a real estate appraiser. The trial judge admitted Mr. Grant’s evidence concerning the decline in value of SLEL’s lot inventory as a result of the Project, but found that Mr. Grant was not qualified to opine on the question of how many lots SLEL would have sold but for the Project. The trial judge further found that Mr. Grant’s opinion on this point usurped the function of the court. [12] The Shuswap Lake Companies’ second expert was Don Spence, a chartered accountant and business valuator who was qualified as an expert in the field of business valuation to opine on the business losses suffered by the appellants. Mr. Spence valued the delay in SLEL’s cash flow by assuming, among other facts, that there were 38 lot sales that would have occurred but for the Project. Mr. Spence estimated the resulting loss was $3,960,832. [13] The Province called three expert witnesses. Brett Garnett, a real estate appraiser, was qualified to provide opinion evidence regarding the reasonableness of models used by the Shuswap Lake Companies’ experts to value unsold lots. Mr. Garnett opined that the use of Shuswap-wide statistics by the Shuswap Lake Companies’ experts potentially distorted their analyses and concluded that the available market data did not support the assertion that the decline in sales of the Highlands lots was caused by the Project. Instead, Mr. Garnett opined that the reduced sales activity and pricing was more consistent with the broader market slowdown following the worldwide credit crisis, the stronger Canadian dollar, the reduction in global oil prices and the weak Alberta economy than it was with the timing and effect of the Project. Mr. Garnett also opined that the sale of the Highlands lots was impacted by SLEL’s marketing program and pricing. Accordingly, he questioned whether the assumed number of “but for” lot sales relied upon by Messrs. Spence and Grant would have occurred. [14] Richard Wozny, a real estate development economist, was qualified as an expert in pricing and timing of real estate development projects and the financial impact of transportation and infrastructure projects on adjacent business. Mr. Wozny assessed whether the change in access to SLEL’s sales office during and after construction of the Project had an impact on SLEL’s business. Mr. Wozny did not consider changes to signage or the visibility of the sales office from the highway. Mr. Wozny noted the diminished importance of sales offices as a result of the rise of information available on the Internet and explained that direct access to a sales center is not a significant driver of real estate sales. Ultimately, Mr. Wozny opined that the Project had no detrimental effect on SLEL’s market share or lot sales. [15] Paul McEwen, an accountant and business valuator, was qualified to give opinion evidence regarding the methodologies used and business losses calculated by the Shuswap Lake Companies’ experts Messrs. Grant and Spence. Mr. McEwen assumed (as did Mr. Spence) that 38 more lots would have sold from 2010-2015, but for the Project. Using a different discount rate than Mr. Spence, he calculated the resulting loss was $903,000. Decision under appeal [16] After outlining the background to the claim and the evidence provided by each of the experts, the trial judge began his analysis by noting that the Shuswap Lake Companies’ claims were limited to “business losses” to be adjudicated as though the lands purchased by the Province under the Agreement had been expropriated. The trial judge reproduced s. 40(1) of the Act and noted that no Canadian court had previously interpreted the phrase “business losses” in the context of expropriation legislation. The trial judge set out the principles governing compensation for business losses before setting out the three heads of “business loss” claims at issue: a)       loss of sales of the Highlands lots; b)       the costs of relocating the Road Utilities; and c)       the costs of installing water bypasses. [17] The trial judge allowed the water bypass claim, which is not subject to this appeal. Loss of sales of the Highlands lots [18] On the loss of lot sales head, the trial judge set out that the burden fell on the Shuswap Lake Companies to prove that any loss of sales was causally connected to the Project. The trial judge found that the Shuswap Lake Companies failed to establish the effect of any disruption in signage on SLEL’s real estate sales, describing the evidence on this point as “ill-prepared, confused, uncertain and generally incomprehensible”: para. 76. While access to the sales office may have been reconfigured, access was not lost. There was also no evidence that the public’s perception of the Project had any detrimental effect on SLEL’s ability to sell lots. The trial judge concluded that the Shuswap Lake Companies had failed to put forward any direct evidence that the Project’s construction affected SLEL’s business and highlighted the absence of any evidence that more visible signage and convenient access to SLEL’s sales office were relevant considerations for potential purchasers. The trial judge agreed with the Province that the timing of lot sales is a good indication of causation and that the evidence established that the beginning of the decline in sales began well before the Project commenced. [19] The trial judge placed no reliance on the opinions of Messrs. Grant and Spence, as the opinions were based on factual assumptions that the Shuswap Lake Companies had failed to prove, including that lot sales would have continued consistent with SLEL’s historical market share but for the Project, as well as certain assumptions related to lot pricing: paras. 93-95. In contrast, the trial judge found the opinions of each of the Province’s experts to be “objective, sensible and…of great assistance”: para. 97. In particular, he accepted Mr. Wozny’s opinion regarding the lack of importance of a real estate sales office and the fact that the Project actually improved the infrastructure in the vicinity of SLEL’s sales office. [20] Ultimately, the trial judge concluded that the evidence fell “woefully short” of establishing the requisite causal link between the decline in the Highlands lot sales and construction of the Project: para. 98. This was a case where loss had not been proven rather than one where loss was difficult to quantify. The trial judge found that three factors contributed to the decline in sales: (1) SLEL’s slow reaction to the decline in the real estate market caused by the 2008 credit collapse; (2) Lois Barker’s departure from the sales team during 2009; and (3) the ineffectiveness of SLEL’s other sales staff: paras. 99-100. The costs of relocating the Road Utilities [21] Turning to the Road Utilities claim, the trial judge held that there was no contractual basis on which the Shuswap Lake Companies could recover relocation costs. The trial judge examined Schedule C of the Agreement, and found that the plain language of the Schedule as well as the surrounding circumstances of the Agreement demonstrated that it was the intention of the parties that the holdback amount of $317,412 was an estimate of the cost of relocating both the Land Utilities and the Road Utilities. Therefore, the Agreement did not create a collateral obligation for the Province to pay relocation costs over and above the holdback amount. The discrepancy between the holdback amount and the sum of the estimates for relocation costs within the Agreement was a result of inadvertence after the parties failed to update the holdback amount when new estimates for relocation costs were handwritten into the Agreement. The trial judge concluded that, in any event, the Shuswap Lake Companies bargained away their right to pursue a contractual claim as a result of signing the Partial Settlement Agreement, which limited the Province’s liability to claims for “business losses” to be adjudicated “as though the lands purchased by the defendant had been expropriated.” [22] However, the trial judge held that Shuswap Lake Companies’ claim also failed under the Act . The trial judge found that the Road Utilities costs were not “business losses”, but disturbance damages within the meaning of s. 34(1) and therefore barred by the Partial Settlement Agreement. [23] The trial judge also held that the Act only applies where a taking occurs without the consent of an “owner” and the Shuswap Lake Companies did not fall under the definition of “owner” in the Act , a prerequisite for compensation. “Owner” is defined as “a person who has an estate, interest, right or title in or to the land” and counsel for the Shuswap Lake Companies conceded that the permits granted by the Province under which the Road Utilities were placed did not grant the Shuswap Lake Companies “an estate, interest, right or title in or to” the Highway right-of-way. [24] Finally, the trial judge held that the permits under which the plaintiffs were granted the right to construct, use and maintain the Road Utilities expressly stipulated that any move or alteration of the utilities would be at their own expense. Submissions [25] The Shuswap Lake Companies seek to have this Court set aside that portion of the trial judge’s order dismissing their claim for costs associated with relocating the Road Utilities and their claim for lost lot sales. They seek to have this Court award them $244,168.87 for relocating the Road Utilities and order a new trial to hear the claim for lost lot sales. [26] They raise the following issues on appeal: a)  Did the trial judge err in dismissing the Shuswap Lake Companies’ claim to compensation for the Road Utilities costs? b)  Did the trial judge err in refusing to admit Mr. Grant’s opinion evidence regarding the number of lots that would have sold but for the Project? c)  Did the trial judge err in admitting and relying upon the Province’s expert evidence? Alleged Errors Regarding Compensation for the Road Utilities Costs [27] The Shuswap Lake Companies do not appeal the trial judge’s decision that there was no basis for the Road Utilities costs under the Agreement. Instead, the Shuswap Lake Companies offer three bases on which they say the judge erred in determining their claim is not compensable under the Act . [28] First, the Shuswap Lake Companies submit that their claim to Road Utilities costs was a “business loss” pursuant to s. 40(1)(b)(ii) of the Act and that the trial judge erred in characterizing them as disturbance damages under s. 34(1) in a way that disqualified the losses from also falling under s. 40(1)(b)(ii). [29] Second, the Shuswap Lake Companies submit that they had sufficient interest in the land to be considered an “owner” within the meaning of the statute, relying, as they did in the court below, on R. v. Imperial Oil Ltd ., [1974] S.C.R. 623. They also rely on the recent decision of Caven v. British Columbia Hydro and Power Authority , 2016 BCSC 122. [30] Finally, the Shuswap Lake Companies argue that the permits did not provide a defence to their claim because the need to relocate was directly attributable to the Project. [31] The Province responds, firstly, by saying it does not take issue with the proposition that business losses are a subset of disturbance damages. However, not all disturbance damages are business losses. The trial judge properly relied on the “plain” nature of these costs – they were not business relocation costs – and the intent of the parties in determining that they were not business losses. [32] Second, the Province submits that the Shuswap Lake Companies had no interest in the highway pursuant to which they could claim damages under the Act . The permits expressly said the permissions enjoyed by the Shuswap Lake Companies could be extinguished unilaterally by the Province. Imperial Oil is distinguishable as the appellant there had a sufficient ownership interest in the land by virtue of its 21-year easement. Further, in Caven the handshake deal allowing Mr. Caven to use his neighbour’s lands created a right tantamount to an interest in land. In the alternative, the Province submits that Caven was wrongly decided and failed to make reference to Re Frankel Steel Construction Ltd. and Metropolitan Toronto (1966), 58 D.L.R. (2d) 578 (Ont. C.A.) at paras. 5-7, aff’d [1970] S.C.R. 726, on the nature of ownership and its relationship to entitlement to compensation. The Shuswap Lake Companies have no tenure so they would receive no indemnity for relocation costs. [33] Finally, the Province argues that the judge correctly relied on clause ten of the permits to find that the Shuswap Lake Companies are obliged to remove the Road Utilities at their own expense. Error in Refusing to Admit Mr. Grant’s Opinion on Lot Sales [34] The Shuswap Lake Companies do not take issue with the trial judge’s findings concerning contributing causes to the decline in sales, but say these factors related to the decline in 2008 and 2009, not the time period at issue in their claim. The Shuswap Lake Companies argue that Mr. Grant’s opinion should be relied on in this respect and say he was qualified to give the opinion that he did. They note that Mr. Garnett was also an appraiser who opined on the number of lots that would likely have sold but for the Project, yet the trial judge did not exclude his evidence. The Shuswap Lake Companies argue that probable lot sales must be the subject of an opinion and cannot be a fact proven by other witnesses. They further submit that Mr. Grant’s evidence did not usurp the role of the court and, even if it did, it was not inadmissible simply because it addressed the ultimate issue. [35] The Province submits that, by his own admission, Mr. Grant was not qualified to opine on the alleged business loss and was uncomfortable with portions of his assignment. When Mr. Grant nevertheless went on to render opinions that exceeded the scope of his qualifications it properly caused the trial judge to question his reliability. By contrast, Mr. Garnett’s professional qualifications were superior to those of Mr. Grant and, in any event, the trial judge did not rely on Mr. Garnett’s evidence to limit the quantum of the business loss claim. The Province submits that the argument made by the Shuswap Lake Companies either misunderstands the causation requirement or the trial judge’s finding on causation. The trial judge found that the factual assumption concerning causation on which Mr. Grant’s reports were premised was not proven by direct evidence. In any event, it submits that this ground of appeal is moot because the Shuswap Lake Companies themselves did not rely on Mr. Grant’s opinions in advancing their claim for lost lot sales. They opted to rely on Mr. Spence’s evidence, but failed to prove the assumptions underlying his business loss estimate. Error in Assessing the Province’s Expert Evidence [36] The Shuswap Lake Companies submit that the trial judge failed to apply the legal principles governing the admissibility of expert evidence to the Province’s expert opinions. They argue that the evidence of Messrs. Garnett and Wozny offend these principles by, inter alia , expressing opinions they were not qualified to give and expressing opinions on the legal and general merits of the appellants’ claim. Further, they say they were prejudiced by late delivery of these reports, which went beyond merely responding to their own expert reports. Finally, they argue that the trial judge erred in concluding that their opinions were objective, sensible and of great assistance. [37] The Province submits that the reports were not late because they were responsive to the Shuswap Lake Companies’ expert reports, the second set of which were themselves served late. In the alternative, if this Court determines that the reports went beyond responding to the Shuswap Lake Companies’ reports, the Province argues that the trial judge properly exercised his discretion to admit them because the Shuswap Lake Companies were unlikely to suffer any prejudice. The Province notes the high degree of deference to be accorded to the trial judge’s exercise of his gatekeeping function. [38] More broadly, the Province submits that all of the above errors are immaterial to the outcome of the case. The Province takes the view that the trial judge dismissed the business loss claim because (1) the Shuswap Lake Companies failed to prove the factual underpinnings of the claim (in particular, that the Project caused a decline in lot sales); (2) that the Shuswap Lake Companies did not rely on Mr. Grant’s evidence in their final submissions; and (3) that the trial judge’s decision did not turn on his acceptance of the Province’s experts. The Province also argues that the Shuswap Lake Companies have not raised an error of law such that the standard of review is one of palpable and overriding error. Analysis [39] I will deal in turn with the two heads of business loss still extant. (i) Loss of Sales of the Highlands Lots [40] Under this head, the Shuswap Lake Companies advanced two alleged errors in the judgment below: 1.       The trial judge erred in refusing to admit Mr. Grant’s opinion evidence regarding the number of lots that would have sold but for the Project cap piece; and 2.       He erred in admitting and relying upon the province’s expert evidence. [41] In my view, this search for error is misguided. As the province submits, the appellants’ challenge in making out its case under this head is not limited to successfully arguing the admissibility of all of Mr. Grant’s reports and impugning the reliability of the experts called by the Province. [42] Fundamentally, the appellants failed to meet their burden in proving that the Project caused the decline in the Highlands lot sales. Despite his ruling, the judge did consider Mr. Grant’s opinion in this regard: para. 33. And he noted Mr. Spence’s evidence, based as it was upon assumptions that were given to him regarding the numbers of lots that would have sold, and at what price, had the Project not occurred. But the judge made critical findings of fact that fatally contradicted these assumptions. [43] The trial judge found that there was no direct evidence that the Project’s construction affected the business in any way: para. 86. The judge referred to the lack of anecdotal evidence suggesting an effect of the Project on lot sales (at para. 87): Without any of this evidence, it is pure conjecture and speculation to claim that lots would have been sold but for the change in eastbound access to the Project. If lot sales were lost as a result of the Project’s construction or its aftermath, even a modicum of evidence would likely have been available from any one of the number of prospective purchasers that visited [SLEL’s] sales office after the Project was announced. [44] The judge concluded that the appellants’ evidence regarding business losses was at best speculative; that Messrs. Grant and Spence relied on assumptions founded on an “educated guess” by Mr. Barker: para. 91. [45] The judge noted the obvious: opinions of experts are only as good as the facts upon which they are based; those facts must be proven: para. 93. [46] The judge concluded (at paras. 94, 95 and 98): [94]      The following is a list of some of the more fundamental facts that were relied upon by Messrs. Grant and Spence and which were not proven in evidence: a)         lot sales would have continued at a level consistent with SLE’s historical OMREB market share had the Project not been constructed; b)         but for the Project, the average single family lot selling price would have ranged from $160,000 to $183,000; and c)         the discount from listing price to final selling price would have been 25%. [95]      The opinions of Messrs. Grant and Spence were undermined by the plaintiffs’ failure to prove the truth of these assumptions on the balance of probabilities. Moreover, their opinions were a somewhat convoluted attempt to deal with assumptions they were directed to make that were, in my view, both unreasonable and unsupportable. In the circumstances, Mr. Grant’s comment that he was uncomfortable with portions of his assignment is not surprising. [98]      In my view, the evidence falls woefully short of establishing on the balance of probabilities that the decline in Highlands lot sales was attributable to or resulted from the change in signage and access to the Shuswap Lake Estates development during or as a result of construction of the Project. This is not a case where a proven loss is difficult to quantify. Rather, this is a case where a loss has not been proven. [47] The judge found the following factors contributed to the decline in the Highlands lot sales (at paras. 99 and 100): · The company was slow to react to the general decline in the real estate market commencing in 2008; · The company did not match price reductions implemented in the broader Salmon Arm market; and · The absence of Lois Barker during 2009, and the ineffectiveness of their other sales staff, combined with the economic downturn. [48] These are findings of fact. It has not been shown that the judge made any palpable and overriding error in arriving at these conclusions. [49] The appellants argue the trial judge confused the causes of the decline in lot sales during 2008-2009 with the causes of the decline during the claim period of 2010-2015. However, the failure of the Shuswap Lake Companies to react to the market decline, to reduce prices, or to hire effective sales staff, all continued during the claim period. [50] It was open on the record before the trial judge to find that these were the real causes of the decline in lot sales during the claim period, not the Project. These findings are the basis for the dismissal of this aspect of the claim for business losses by the judge. The evidentiary ruling affecting a portion of Mr. Grant’s report was the least of the appellants’ problems at trial. [51] In any event, that ruling was, in my view, inevitable when one appreciates that Mr. Grant frankly admitted to a complete lack of qualifications as an expert in estimating general business losses (as distinct from agricultural business losses) and that he was “uncomfortable with the assignment.” (ii) Road Utilities Costs [52] In my view, this claim was properly dismissed by the judge on the basis of the terms of the permits under which the appellants initially constructed, used and maintained the Road Utilities within the highway right-of-way. [53] The permits authorized the works subject to clause 10 thereof: 10.       That after receiving notice in writing of the intention on the part of the [defendant] to construct, extend, alter, or improve any public work, the person or persons responsible for the maintenance of the works for which permission is hereby granted shall within six weeks move or alter such work at his or their own expense to such new position or in such manner as may be necessitated by the construction, extension, alteration, or improvement proposed to be carried out by the [defendant]. The required notice was given. [54] The appellants’ response to this formidable provision is the submission that it does not provide a defence to their claim because the need to relocate the works was directly attributable to the Project. [55] The need to relocate was directly attributable to the Project and clause 10 expressly contemplates the relocation of the works if the authority has the intention “to construct, extend, alter, or improve any public work”. The appellants rely on the Supreme Court of Canada’s decision in Imperial Oil to still ground their claim. But there the permitted works were removed at the direction of the minister under the Navigable Waters Protection Act . There was no unambiguous language in that legislation or the federal Expropriation Act of the day empowering the minister to do so without the payment of compensation. [56] At bar, there is. Clause 10 of the permits under which the very works were installed expressly contemplates their movement or alteration at the appellants’ “own expense”. The appellants are simply bound by the terms of the permits they agreed to and under which they accessed the right-of-way in the first place. [57] I do not read the current Act as allowing compensation for business losses despite the clear language limiting liability under the permits. Nor do I read the Partial Settlement Agreement as a waiver by the Province of its right to invoke clause 10 of the permits to deny a claim for compensation. [58] In my view, the permits are a complete answer to this particular claim and it is not therefore necessary to consider the remaining submissions under this head. [59] In the result, I would dismiss the appeal. “The Honourable Chief Justice Bauman” I agree: “The Honourable Mr. Justice Hunter” I agree: “The Honourable Madam Justice Fisher”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Brown, 2018 BCCA 17 Date: 20180108 Docket: CA43822 Between Regina Respondent And Viola Helen Brown Appellant Before: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Willcock The Honourable Mr. Justice Savage On appeal from: An order of the Provincial Court of British Columbia, dated January 19, 2016 ( R. v. Brown , Vancouver Registry 236359). Oral Reasons for Judgment Counsel for the Appellant: V.L. Hartney Counsel for the Respondent: M.A. Street Place and Date of Hearing: Vancouver, British Columbia January 8, 2018 Place and Date of Judgment: Vancouver, British Columbia January 8, 2018 Summary: The appellant challenges her conviction for breaking and entering a dwelling house and committing theft therein. She argues the trial judge misapprehended the evidence and failed to properly assess the evidence in accordance with R. v. W.(D.). Held: Appeal dismissed. The judge did not err in apprehending the substance of the evidence; evidence existed which reasonably supported her findings. Further, the alleged error with respect to the evidence surrounding the identification of the owner of the stolen items is immaterial. While the reasons may be brief, the judge clearly considered the relevant evidence surrounding the appellant’s mens rea. R. v. W.(D.) does not mandate a specific form of analysis. Importantly, the trial judge did not compromise the Crown’s burden of proof and the conviction was not based solely on a rejection of the appellant’s evidence. [1] WILLCOCK J.A. : Viola Brown was convicted of breaking and entering a dwelling house and commission of an indictable offence, theft, therein, contrary to s. 348(1)(d) of the Criminal Code , R.S.C. 1985, c. C‑46, by Judge Bagnall on 11 December 2015. She appeals her conviction and seeks an acquittal on the grounds that the trial judge erred in misapprehending the evidence and by failing to properly assess the evidence in accordance with the principles of R. v. W.(D.) , [1991] 1 S.C.R. 742. [2] On 16 August 2014, Caitlyn Pantherbone and her friend returned to Ms. Pantherbone’s apartment to find the appellant and her two dogs there. They confronted the appellant, who insisted the apartment was hers. Ms. Pantherbone’s friend called the police, at which point the appellant began to leave. As she did so, a male friend of Ms. Pantherbone’s arrived. The appellant then asserted the apartment was his. It was not. [3] Two police officers arrived a few minutes later. After locating the appellant on the street nearby, one police officer questioned, arrested, and searched her. She was wearing sunglasses on her head and had some make‑up in her pocket. At the same time, the other officer spoke with Ms. Pantherbone. He testified that she noted these items were missing from her apartment and described them accurately. When they were taken from the appellant and presented to the complainant she identified them as hers. The police also found many items in Ms. Pantherbone’s apartment had been moved and put into bags and small suitcases. [4] At trial, the appellant testified in her own defence. She did not recall being arrested, being in Ms. Pantherbone’s apartment, or where she had been before the events described above. She also said she had mental health issues in the past, following her son’s murder. [5] On that basis, defence counsel argued that the judge should have reasonable doubt as to Ms. Brown’s mens rea . [6] The trial judge found “no basis for an inference that Ms. Brown didn’t know what she was doing as the events unfolded”. She found her behaviour purposeful and responsive to her surroundings. She did not accept the appellant’s assertion that the appellant did not recall the events. The appellant’s ongoing distress over her son’s death, in the view of the trial judge, did not provide an explanation for her distraction and inability to recall the night in question. [7] In the judge’s view, the only rational inference that could be drawn from the evidence was that the appellant committed both offences charged. [8] The appellant says the trial judge erred: a) In misapprehending the evidence, resulting in a verdict that is unreasonable, unsupported by the evidence, and a miscarriage of justice; and b) In failing to properly assess the evidence in accordance with the principles of R. v. W.(D.). [9] The misapprehensions alleged and the evidence said to have been overlooked are set out in paras. 72‑73 of the factum: 72.       It is respectfully submitted that the trial judge misapprehended the following material evidence; i.          finding that the Appellant left the apartment in response to being told that the police were being called. The evidence was that even after the police were called, the Appellant refused to leave, and it took some time for Ms. Pantherbone to get her to leave. It was not until sometime after Ms. Pantherbone was screaming profanities at her that she left; ii.          finding that the sunglasses and make-up belonged to Ms. Pantherbone. The method of “identification” was problematic, and the officers may well have influenced that identification by showing Ms. Pantherbone the items prior to her determining whether anything was actually missing. Ms. Pantherbone had other sunglasses and make-up and the evidence was not sufficient to prove beyond a reasonable doubt that the items actually belonged to her. iii.         the trial judge overlooked other problems with Ms. Pantherbone’s testimony, including that: a.   that she could “not recall” and indeed denied, screaming obscenities at the Appellant; (TS, p. 34, ll. 26-32) b.   she did not “remember” a tape recording of the incident; (TS, p. 35, ll. 6-8) c.   she could “not recall” where the sunglasses had been in the apartment; (TS, p. 23, ll. 46‑47) d.   she did not remember the make of the sunglasses (TS, p. 39, ll. 13 and ll. 39) e.   her “very clear memory” of locking the patio door, was contradicted by what was told to the police officers at the time about being “unsure”. vi.        the trial judge did not address the Admission of Fact regarding the cost and availability of the Marcelle make-up. This Admission supported the Appellant’s evidence, and was contrary to Ms. Pantherbone’s testimony; vii.        the trial judge misapprehended the evidence as to the Appellant’s behaviour and confused mental state. There was extensive evidence about the Appellant behaviour being non-sensical and unrational, which was not considered by the trial judge. 73.       The trial judge also overlooked and did not address other evidence including: i.          that it would make no sense to commit a break and enter and theft with two little off-leash barking dogs in tow; ii.          the Appellant did not attempt to flee or evade police; iii.         she was opening wearing the allegedly stolen sunglasses; iv.        when being questioned by the officer, her responses were non-responsive and focused on her dogs. [10] T his Court, in R. v. Mann , 2014 BCCA 231, described the legal standard for determining when a conviction will be set aside based on a misapprehension of evidence: [ 138 ]    The legal standard for determining when a conviction will be set aside based on a misapprehension of evidence was articulated by Justice Doherty in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (O.C.A.) . He described a misapprehension of evidence as “a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence” (at 218), and concluded that an appellate court has statutory authority under s. 686(1) of the Code to quash a conviction where a misapprehension of evidence results in a miscarriage of justice (at 219). [11] The appellant alleges both: a failure to consider evidence relevant to a material issue; and a mistake as to the substance of the evidence . [12] I will deal first with the alleged mistakes as to the substance of the evidence. [13] The appellant says the trial judge found that the she left the apartment in response to being told the police were being called but that the evidence was that even after the police were called, she refused to leave. The Crown, correctly in my opinion, points to evidence, particularly the evidence of the complainant, that the appellant started to leave when she was advised the police were being called. There does not appear to have been a misapprehension. There was evidence upon which the judge could reasonably have concluded the appellant was acting purposively in this regard. [14] Second, the appellant alleges the judge erred in finding the appellant was arrested in possession of the complainant’s sunglasses and make‑up. She argues the method of “identification” was problematic, and the officers may well have influenced that identification by showing Ms. Pantherbone the items before she knew what was missing. In my view, it is not clear that there was a misapprehension in the trial judge’s appreciation of the evidence as to identification of these items. There was evidence (the testimony of Cst. Kim) consistent with the judge’s description of events. In any event, there was other reliable evidence as to the identity of the owner of these items. The alleged error is not, in my view, material. [15] The alleged failures to consider evidence relate to inconsistencies or shortcomings in the complainant’s evidence and the appellant’s irrational and inexplicable behaviour. [16] In part, these are complaints with respect to the adequacy of the reasons for judgment. In substance, both complaints are founded upon the assertion that the trial judge did not adequately come to grips with the defence that the appellant did not have the requisite mens rea . [17] In my opinion, the inconsistencies or shortcomings in the complainant’s evidence were not such as to require explicit reference in the reasons because the essential facts were not in dispute,. [18] Despite the brevity of the reasons, it is apparent that the trial judge considered the defence submissions with respect to mental health issues (para. 10), the appellant’s limited recollection of events (paras. 11‑12), and her emotional state (para. 13). Having considered those, she held: [20]      Ms. Hartney submitted on behalf of the accused that I ought to have a reasonable doubt as to her mens rea. There is, on the evidence, no basis for an inference that Ms. Brown didn't know what she was doing while the events unfolded. She was found in another person’s dwelling, without permission to be there, and items owned by the resident and her friend had been packed into bags. Her behaviour at the time, according to the complainant and her friend and the investigating officers, was purposeful and responsive to her surroundings. The only rational inferences that arise on the evidence are that Ms. Brown committed both of the offences with which she was charged. [19] The appellant has not established that the trial judge failed to appreciate the effect of the evidence or failed to consider relevant evidence. [20] Turning to the argument that the judge failed to engage in the analysis prescribed by R. v. W.(D.) : the appellant argues that the trial judge made an error of the type described in R. v. T.(S.) , 2015 MBCA 36. In that case, the Manitoba Court of Appeal dealt with an appeal from a judgment described by Mainella J.A. as follows: [ 3 ]        While making reference to the decision in R. v. W.(D.) , [1991] 1 S.C.R. 742 , the judge then immediately stated his task in assessing the credibility of the two witnesses in this way: “The question is, whose evidence does the Court prefer?” [ 4 ]        The judge then gave a page and a half of reasons. He did not undertake a meaningful analysis of the evidence and the contradictions regarding both witnesses. He simply made the conclusory statement that he found the accused’s evidence to be “unreliable, untrustworthy, and thus not credible.” He then described the complainant to be “compelling, reliable and credible.” He briefly addressed deficiencies in her evidence as to the timing of the incidents and found that they were not material to her credibility. [21] The case at bar, unlike R. v. T.(S.) and R. v. W.(D.) , does not involve diametrically competing versions of events. There was, in fact, little conflicting evidence. The trial judge’s conclusion, at para. 20, that “the only rational inferences that can arise on the evidence are that Ms. Brown committed both of the offences with which she was charged” is clearly not founded solely upon rejection of the appellant’s evidence but upon acceptance of the compelling evidence with respect to the actus reus and weighing of the evidence of mens rea . [22] As both the appellant and the Crown have observed, R. v. W.(D.) does not mandate a specific form or sequence of analysis. As the Supreme Court of Canada noted in R. v. J.H.S., 2008 SCC 30, and this Court noted in R. v. Mann , 2010 BCCA 569 at para. 31, not proceeding with the analysis in the sequence followed in R. v. W.(D.) “may increase the risk of error, [but] it is not appropriate for [appellate courts] to instruct trial judges on how to undertake W.(D.) analyses. At the end of the day, this Court must be satisfied that the analysis was done and that there was no compromise of the burden of proof that remains throughout on the Crown”. [23] I cannot say the burden of proof on the Crown was compromised in this case, accordingly, I would not accede to the second ground of appeal. [24] I would dismiss the appeal. [25] LOWRY J.A. : I agree. [26] SAVAGE J.A. : I agree. [27] LOWRY J.A. : The appeal is dismissed. “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Duncan v. Lessing, 2018 BCCA 9 Date: 20180109 Docket: CA43883 Between: Wayne Duncan Appellant (Plaintiff) And Aaron Lessing and Lessing Brandon Company LLP Respondents (Defendants) Before: The Honourable Chief Justice Bauman The Honourable Mr. Justice Hunter The Honourable Madam Justice Fisher On appeal from:  An order of the Supreme Court of British Columbia, dated July 26, 2016 ( Duncan v. Lessing , 2016 BCSC 1386, Vancouver Docket S134041). Counsel for the Appellant: D. Burnett, Q.C. Counsel for the Respondents: G. Ritchey Place and Date of Hearing: Vancouver, British Columbia October 5, 2017 Place and Date of Judgment: Vancouver, British Columbia January 9, 2018 Written Reasons by: The Honourable Mr. Justice Hunter Concurred in by: The Honourable Chief Justice Bauman The Honourable Madam Justice Fisher Summary: The appellant appeals the dismissal of his claim for damages under the Privacy Act on the basis that the defendant lawyer violated his privacy when in the course of bringing a pre-trial application he caused documents with the appellant’s private information to be served on companies not party to the litigation. The appellant also appeals the dismissal of a separate claim under the Privacy Act relating to comments of the lawyer that inadvertently revealed information the appellant regarded as private. Held: Appeal dismissed. The Privacy Act does not apply to disclosure of private information during judicial proceedings. The second claim was dismissed primarily on a finding of fact by the trial judge that the disclosed information had not been shown to be private. Reasons for Judgment of the Honourable Mr. Justice Hunter: [1] Parties engaged in civil litigation will inevitably encounter intrusions into their personal privacy. They will be required to disclose information that they may regard as confidential, including documents not otherwise available to the adverse party. They will be required to submit to an oral discovery process that may lead to disclosure of otherwise private information. The law provides a measure of protection for privacy interests caught up in the litigation process, but the public interest in arriving at the truth generally outweighs a party’s privacy interest. [2] In British Columbia, privacy interests have received statutory protection through the enactment of the Privacy Act , R.S.B.C. 1996, c. 373. The Privacy Act provides a statutory cause of action for breach of privacy in certain defined circumstances. [3] The principal issue in this appeal is whether disclosure by counsel of a party’s private information in application materials prepared in the course of judicial proceedings gives rise to a cause of action under the Privacy Act . The trial judge held that it did not, relying on the absolute privilege that protects participants in the trial process from suit in respect of statements made during that process. [4] This appeal requires a consideration of the scope of the Privacy Act in relation to the limited common law privacy protection available during civil litigation. The operative principle is that the public interest in getting at the truth outweighs the parties’ privacy interests, but that these interests are entitled to such protection as can be afforded them without interfering with the efficient conduct of civil litigation. This principle has led to two common law rules. [5] The first is that parties to litigation and their counsel are under an implied undertaking not to use private information obtained through pre-trial procedures in a lawsuit for any purpose other than in relation to that lawsuit. This rule provides a measure of protection for parties’ privacy interests. Parties are free to use information obtained in the lawsuit for the purposes of the lawsuit and the implied undertaking of confidentiality is extinguished when the evidence is used in open court. [6] The second rule is that an absolute privilege attaches to any statements made in the course of civil litigation. This rule is located in the law of defamation and is intended to ensure that the participants in a lawsuit, including counsel, are not impeded in making such statements or other communications as they consider appropriate given their role in the proceedings. [7] These rules complement one another in ensuring that the public interest in securing justice is maintained while providing such protection for privacy interests as is consistent with this objective. [8] The trial judge held that the absolute privilege derived from the law of defamation applied to bar the appellant’s first claim for damages under the Privacy Act . I agree with the trial judge that the first claim must be dismissed, but I do so for different reasons. My reservation about relying solely on the absolute privilege doctrine is that in my view it requires an extension of the doctrine beyond the law of defamation. I am reluctant to extend what is an extraordinary immunity unless it is necessary in order to protect the public interest considerations that underlie the immunity. [9] In this case, I do not consider it necessary to extend the common law immunity because on a proper interpretation of the Privacy Act , the statutory tort created by the Privacy Act does not apply to privacy breaches that occur during judicial proceedings. This is so, both because the text of the Privacy Act incorporates the absolute privilege arising in the law of defamation and because the statute preserves the operation of the common law implied undertaking that applies during litigation proceedings. [10] The second claim arises outside the litigation context. The trial judge dismissed it as not meeting the statutory requirements of the Privacy Act . I can see no error in her consideration of this issue. [11] Accordingly, for the reasons that follow, I would dismiss this appeal. Background [12] This case arose from a family law dispute in which claims for property division, child support and spousal support were at issue. The respondent Mr. Lessing was counsel for Ms. Duncan. [13] Prior to entering into the marriage, Mr. and Ms. Duncan signed what was described as a “Prenuptial Agreement and Matrimonial Property Agreement” (the “Prenup Agreement”). The Prenup Agreement carved out as Mr. Duncan’s separate property a number of assets including Mr. Duncan’s interests in his personal holding company, Connor Industries Ltd., and interests held by Connor Industries Ltd. in three other companies. The validity of the Prenup Agreement was at issue in the family litigation. [14] In the fall of 2012, Ms. Duncan’s then counsel (not the respondents) wrote to counsel for Mr. Duncan asking for production of financial statements and other documents related to Mr. Duncan’s interest in various companies. Some time after November 2012, Ms. Duncan changed counsel to Mr. Lessing and his firm. [15] In early 2013, Mr. Lessing instructed an associate in his firm to prepare a notice of application and supporting affidavit for orders requiring Mr. Duncan to disclose information on his personal and corporate interests, as well as to pay interim child and spousal support. [16] A single application was prepared. It sought production of records from Mr. Duncan regarding four companies identified in the Prenup Agreement, as well as three additional companies in which Mr. Duncan had an interest. Attached to Ms. Duncan’s affidavit were copies of corporate searches of companies with which Mr. Duncan had some association, some financial information from some of the companies, and Mr. Duncan’s personal tax returns from 2009 to 2011. The application was directed to Mr. Duncan and to the companies referred to in the notice of application. [17] Once completed the application materials were filed and sent out for service on Mr. Duncan’s counsel and the companies named in the application. Five of the companies were properly served, but in two cases, the service agent left the materials with another company unconnected with the litigation. The trial judge held that this occurred as a result of a mistake by the service agent. [18] A few days after the service of the documents, Mr. Duncan’s counsel wrote to Mr. Lessing’s associate suggesting that the corporations be served as they might wish to take a position on the application. There appears not to have been an issue at the time about the appropriateness of serving the application materials on the seven corporations. [19] In a later affidavit, Mr. Duncan objected to the disclosure of the application materials to these companies and on a subsequent application, sought an order from the Court restricting the use that could be made of documents produced by Mr. Duncan. The order made by Saunders J. in response to this request directed the parties to “continue to be guided by the implied undertaking of confidentiality and the Rules of Court”. [20] The delivery of this financial information to persons not party to the litigation is alleged to constitute the first breach of privacy by Mr. Lessing. Mr. Duncan says that the two applications should have been prepared separately instead of having one compendious affidavit that dealt with all issues. He also says that Mr. Lessing should have ensured that the affidavit material was placed in a sealed envelope marked confidential. He argues that the breach of privacy is actionable pursuant to the statutory tort created by the Privacy Act . [21] The second alleged breach occurred during unrelated litigation. Mr. Lessing was discussing some of the circumstances in the Duncan case with another lawyer. He did not mention Mr. Duncan’s name, but told the other lawyer that he had an interesting case concerning what law applied when a couple had lived in Alberta but had a prenuptial agreement the wife wanted to challenge. He spoke about the fact that the couple had three children and that the husband had recently sold his business in Alberta for about $15 million. [22] For anyone unconnected with Mr. Duncan, the information provided would not have been sufficiently detailed to identify him, but unfortunately, the second lawyer’s client knew Mr. Duncan’s sister, had met Mr. Duncan in the past, and deduced that the person Mr. Lessing was talking about was Mr. Duncan. This led to some embarrassment for Mr. Duncan, who characterizes this loose talk as a breach of his privacy interests protected by the Privacy Act . Trial Judgment [23] The trial judge held that the first Privacy Act claim was barred by the doctrine of absolute privilege. She began her analysis with this statement of the law: [78]      There is an absolute privilege that protects lawyers involved in litigation from being sued in separate proceedings for the statements made in court proceedings, even if the conduct was defamatory or malicious or otherwise wrongful. [24] The trial judge explained the public interest rationale for the rule, citing what is frequently regarded as the source of the rule, Munster v. Lamb (1883), 11 Q.B.D. 588 (Eng. C.A.) , as well as this Court’s judgment in Hamouth v. Edwards & Angell , 2005 BCCA 172. [25] She summarized the evidence relating to both the service of the application materials on the companies intended to be served and on the companies unconnected with the litigation that were served in error: [105]    I conclude that the defendants’ purpose for serving the companies named in the Notice of Application and Affidavit was because the defendants considered that the companies needed to have notice of the Notice of Application and Affidavit. Whether or not they were wrong about their interpretation of the Rules and the need for notice, or could have drafted the material differently, does not matter. The defendants were acting as counsel for their client in furtherance of her position in an ongoing judicial proceeding and as such they are protected by absolute privilege from any liability arising from these steps. [106]    The evidence of Mr. Groves and Ms. Brown and the evidence revealed by the documents filed at trial leads to only one inference: the two companies not named in the Notice of Application that were served by the process server, were served in an attempt to serve one of the named companies, CSI Coating. [113]    The only capable inference is that a mistake was made by the process server in leaving the Application at the 5 th street and 10 th street addresses where two unnamed companies had offices. [114]    The contents of the Affidavit and Notice of Application were covered by absolute privilege. [115]    The absolute privilege that applies to lawyers working for a client in the context of an ongoing judicial proceeding provides a defence to intentional misconduct such as defamation. It clearly also must apply to an error in service of court documents, for all the same policy reasons. Here the lawyers’ only purpose for service was in furtherance of the Family Action. [26] The trial judge went on “for the sake of completeness” to address the appellant’s argument that the defendants had only a qualified privilege. The theory behind the qualified privilege submission was that the two applications, one of which required disclosure of certain confidential information, one of which did not, should never have been combined in one omnibus application. The result was said to create unnecessarily the possibility that persons entitled to see the application materials for one application would see private information relevant only to the other application. [27] The trial judge did not give effect to this argument, holding as follows: [162]    As a matter of ethics, professionalism and good practice generally, I do agree that lawyers should consider the privacy of litigants and not unnecessarily reveal the private information of the opposite party nor should they seek to embarrass the opposite party. The internal corporate guideline mentioned in Sovani is a good guideline. But that does not mean that an action lies for a lawyer ’ s steps in the conduct of litigation if the opposite party does not like how the lawyer exercised his or her judgment in bringing and serving applications which disclose private information. [163]    The tools available to penalize a lawyer for misconduct in a civil proceeding are companions to the principle of absolute privilege. While no civil action can lie for the lawyer ’ s conduct of the proceeding, the lawyer could face serious penalties within the proceeding itself, including sanctions for breach of the implied undertaking of confidentiality, or costs awards for steps taken that were an abuse of the process. The lawyer could also face professional disciplinary sanctions by the Law Society, and a loss of reputation. [28] The trial judge summarized her conclusions in this way: [176]    I find no evidence that the Application documents were served for any reason other than the lawyers’ pursuit of their client’s interests in the extant Family Action. The documents were filed in the court proceedings and the service and delivery of them to other persons was in furtherance of the lawyers ’ duty to act on behalf of their client. [177]    I have analyzed closely the arguments of the plaintiff that are premised on the assertion that the defendants did not properly follow the Rules or take necessary steps to protect Mr. Duncan ’ s privacy when they served the Notice of Application and Affidavit on the various companies, and I find no merit to those assertions. [178]    Regardless, even if the lawyers were careless, mistaken about the Rules , malicious, or insensitive (and I make no such findings), I find that their conduct is covered by absolute privilege. As such the first claim for breach of privacy or breach of confidence must be dismissed. [29] The second claim did not arise from conduct in furtherance of litigation, but the trial judge concluded that the information disclosed was not such as to constitute a violation of Mr. Duncan’s privacy, and in any event had not been wilfully disclosed within the meaning of the Privacy Act . Grounds of Appeal [30] On appeal, Mr. Duncan does not take issue with the statement of law that absolute privilege provides lawyers with immunity from suit for what they say in the course of conducting civil litigation, but says that whether privilege applies in respect of a breach of privacy claim is not so straightforward. Mr. Duncan’s position is that the trial judge oversimplified the test for absolute privilege by failing to examine the scope of the privilege and whether the claim for breach of privacy fell within it. [31] On the second issue, Mr. Duncan submits that the trial judge erred in holding that the conversation in which Mr. Lessing revealed the sale price of Mr. Duncan’s company was not an actionable breach of privacy. Issues on Appeal [32] On the first claim, the central question is whether the Privacy Act applies to disclosure of private information in the course of conducting civil litigation. I propose to analyze this issue by addressing three questions: (i)      How are privacy interests in the conduct of civil litigation addressed in the common law? (ii)      What is the scope of the common law doctrine of absolute privilege? (iii)      How does the common law doctrine of absolute privilege apply to claims under the Privacy Act ? [33] On the second claim, the question is whether the trial judge erred in concluding that the requirements of the Privacy Act had not been met. The First Claim (i)       How are privacy interests in the conduct of civil litigation addressed in the common law? [34] Traditionally, privacy interests during the course of civil proceedings have been addressed through a combination of rules of court and the implied undertaking. The implied undertaking permits the use of private information obtained through pre-trial discovery procedures as an essential part of the litigation process, but prohibits the use of such information for purposes outside the litigation process. [35] The trial judge did not find it necessary to consider the implied undertaking in detail in dealing with the appellant’s Privacy Act claim, but in my view it provides important context in determining whether the Privacy Act was intended to apply to the use or misuse of private information in judicial proceedings. [36] The leading case on the principles governing the implied undertaking rule is Juman v. Doucette , 2008 SCC 8. In Chellappa v. Kumar , 2016 BCCA 2, this Court recently summarized those principles: [35]      … 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. [37] As explained by Justice Binnie, the “root of the implied undertaking is the statutory compulsion to participate fully in pre-trial oral and documentary discovery” (at para. 20). Pre-trial discovery is an invasion of the private right to be left alone and the implied undertaking offers some protection to a party’s privacy interests. Justice Binnie explained the relationship between privacy interests and the litigation process at common law: [25]      The public interest in getting at the truth in a civil action outweighs the examinee’s privacy interest, but the latter is nevertheless entitled to a measure of protection. The answers and documents are compelled by statute solely for the purpose of the civil action and the law thus requires that the invasion of privacy should generally be limited to the level of disclosure necessary to satisfy that pur­pose and that purpose alone. [38] The limited privacy protection the law affords individuals who are caught up in civil litigation is the implied undertaking. Justice Binnie describes the rule in this way: [27] the law imposes on the parties to civil litigation an undertaking to the court not to use the documents or answers for any purpose other than securing justice in the civil proceedings in which the answers were compelled . [Emphasis in original.] [39] This limited protection was examined in Sovani v. Gray et al.; Jampolsky v. Shattler et al. , 2007 BCSC 403, leave to appeal to the C.A. refused, 2007 BCCA 439, a decision relied on by the trial judge. The issue in Sovani was defined by the Court in these terms (at para. 2): whether disclosure to non parties to the litigation, without the plaintiffs’ consent, of information obtained during the discovery process by defendants’ counsel for the purpose of obtaining further discovery information from those non parties, constitutes a breach of the implied undertaking of confidentiality which attaches to information obtained through discovery. [40] This is essentially the issue at bar, except that the breach alleged by the plaintiff is of the Privacy Act rather than the implied undertaking. [41] Justice Edwards described the purpose and effect of the implied undertaking by reference to the role of discovery in the litigation process: [44]      It is a matter of judgment to be exercised by counsel what information obtained by parties through the litigation discovery process needs to be disclosed to non parties in furtherance of the litigation in which that information has been obtained. [45]      Any court-imposed constraint on that judgment is antithetical to the underlying rationale of court compelled disclosure, with its necessary intrusion on a litigant’s general right to privacy . That rationale is the need to do justice between the parties. [46]      Implicit in the law and Rules governing disclosure is the proposition that justice between the parties is best assured when disclosure of all relevant evidence from whatever source may be compelled by the court , subject to claims of privilege. [47]      Imposition of constraints on the parties’ use of information obtained through the discovery process in the litigation in which it is obtained, by expanding the scope of the implied undertaking, could inhibit counsel in their investigation of the case and undermine the rationale for court compelled disclosure. [49] The law delineating the scope of the implied undertaking of confidentiality respecting use of information obtained through the litigation discovery process draws a bright line. Use of that information within the litigation is permitted use. Use outside the litigation for an “alien” or “collateral” purpose is not permitted without the consent of the affected party or an order of the court. [50]      That bright line tends to expedite litigation, which is the goal of all recent reforms of civil litigation procedure in various jurisdictions. An obscure line would tend to promote procedural controversy, which is antithetical to that goal. The current bright line sacrifices litigants’ privacy for more procedural certainty. Its ultimate goal is to achieve a just result in the litigation. [Emphasis added.] [42] The bright line described by Edwards J. delineates the degree of privacy protection available to a litigant. Information obtained through the discovery process in a lawsuit may be used for any purpose related to that lawsuit, but may not be used for any other purpose without consent of the party concerned or order of the court. [43] This limited protection does not prevent a litigant from seeking from the court a more restrictive order, including limitations on distribution of the information beyond the parties’ counsel, requiring litigation advisors to execute express undertakings of confidentiality or even sealing the file if necessary. The appellant in this case sought such an order after the events giving rise to this litigation were made known and eventually obtained a consent order providing a degree of protection for his personal information. Absent such special order, a litigant’s privacy is protected by the implied undertaking. (ii)      What is the scope of the common law doctrine of absolute privilege? [44] The trial judge held that the first claim failed because the respondents’ conduct was covered by absolute privilege. This immunity was developed in the law of defamation but is sometimes said to extend beyond defamatory statements. [45] The appellant acknowledges the rule but says that the trial judge has oversimplified it by applying it to a claim under the Privacy Act . It is the position of the appellant that the scope of the common law immunity does not extend to breaches of privacy under the Privacy Act . [46] To assess this argument, it is necessary to consider the common law immunity rule in light of its origins in the law of defamation. Absolute Privilege in the Law of Defamation [47] The law of defamation has long recognized that an absolute privilege attaches to any statements made by lawyers, judges and witnesses in the course of judicial proceedings. [48] The origin of the rule can be found in the judgment of Munster v. Lamb , and particularly this statement by Brett M.R. (at 604): The rule of law is that what is said in the course of the administration of the law, is privileged; and the reason of that rule covers a counsel even more than a judge or a witness. To my mind it is illogical to argue that the protection of privilege ought not to exist for a counsel, who deliberately and maliciously slanders another person. The reason of the rule is, that a counsel, who is not malicious and who is acting bona fide, may not be in danger of having actions brought against him. If the rule of law were otherwise, the most innocent of counsel might be unrighteously harassed with suits, and therefore it is better to make the rule of law so large that an innocent counsel shall never be troubled, although by making it so large counsel are included who have been guilty of malice and misconduct. [49] This passage was adopted by this Court in Hamouth at para. 37, where Justice Levine explained the underlying purpose of this privilege as it applies to counsel: Granting absolute privilege to lawyers when they act in the course of their duties to their clients is for the public benefit. It frees lawyers from fear that in advocating their client’s cause they will be sued if what they say on behalf of a client is found not to be true. [50] The scope of the privilege extends beyond the courtroom. In Hamouth , Levine J.A. provided this general description at para. 2: There is no dispute that a lawyer is protected by absolute privilege regarding statements made in a court proceeding, and that the privilege extends to communications made in the course of inquiry with respect to or in preparation for judicial proceedings [51] Similarly, this Court has held that “the scope of the immunity extends to communications between a lawyer and a witness in preparation for giving evidence in judicial proceedings”: McDaniel v. McDaniel , 2009 BCCA 53 at para. 29. [52] The privilege was said by Levine J.A. also to extend to occasions when counsel “were acting in the course of their duties to their client in the course of a quasi-judicial proceeding”: Hamouth at para. 39. It extends to all preparatory steps taken with a view to judicial proceedings: Hamburger v. Fung , 2015 BCCA 444. [53] It is not the nature of the conduct which gives rise to the immunity, but the occasion on which the conduct is performed. A judicial proceeding is a protected occasion within the meaning of the rule: Elliott v. Insurance Crime Prevention Bureau , 2005 NSCA 115 at para. 114. [54] Much of the appellant’s argument is focused on the conduct of the lawyer that he regards as unnecessarily combining two applications into one and serving the application materials on companies not party to the litigation. This misses the point of the privilege, which states that a judicial proceeding is a protected occasion and attaches absolute privilege to any statements made on such an occasion. The Relationship between the Implied Undertaking and Absolute Privilege [55] There is a relationship between the implied undertaking concerning documents obtained at discovery and the absolute immunity from suits for statements made in judicial proceedings. Though the interests which the implied undertaking and absolute immunity principles are intended to protect are different, both are concerned with the public policy objective of securing the proper administration of justice. The purpose of the implied undertaking is to limit the invasion of privacy interests in civil proceedings without impairing the efficiency of the proceedings. Absolute immunity on the other hand is designed to protect freedom of speech and communication in judicial proceedings. [56] Lord Hoffman discussed this relationship in Taylor v. Director of the Serious Fraud Office , [1999] A.C. 177 (H.L.) at 207-208: 3.         The Two Principles The two principles in debate are each well established and the question before your Lordships is the extent of their reach. The concept of an implied undertaking originated in the law of discovery in civil proceedings. A solicitor or litigant who receives documents by way of discovery is treated as if he had given an undertaking not to use them for any purpose other than the conduct of the litigation. Likewise, the core of the principle of immunity from suit is not in doubt. By the end of the 19th century it was settled that persons taking part in a trial - the judge, the advocates, the witnesses - could not be sued for anything written or spoken in the course of the proceedings. The immunity was absolute and could not be defeated even by proof of malice. It will be noticed that although both principles are concerned with public policy in securing the proper administration of justice , the interests which they are intended to protect are somewhat different and this is reflected in differences in their scope. The implied undertaking in civil proceedings is designed to limit the invasion of privacy and confidentiality caused by compulsory disclosure of documents in litigation. It is generated by the circumstances in which the documents have been disclosed, irrespective of their contents. It excludes all collateral use, whether in other litigation or by way of publication to others. On the other hand, the undertaking may be varied or released by the courts if the interests of justice so require and, unless the court otherwise orders, ceases to apply when the documents have been read to or by the court, or referred to, in proceedings in open court [citation omitted]. The immunity from suit, on the other hand is designed to encourage freedom of speech and communication in judicial proceedings by relieving persons who take part in the judicial process from the fear of being sued for something they say. It is generated by the circumstances in which the statement was made and it is not concerned with its use for any purpose other than as a cause of action. In this respect, however, the immunity is absolute and cannot be removed by the court or affected by subsequent publication of the statement. [Emphasis added.] [57] The two common law rules together provide a coherent structure to ensure that privacy interests are protected in civil litigation to a limited extent, but not to the extent of interfering with the broad public interest in securing justice. (iii)     How does the common law doctrine of absolute privilege apply to claims under the Privacy Act ? The Statutory Exception [58] The relevant portions of the Privacy Act are the following: Exceptions 2  (1) In this section: "court" includes a person authorized by law to administer an oath for taking evidence when acting for the purpose for which the person is authorized to take evidence; (2) An act or conduct is not a violation of privacy if any of the following applies: (c) the act or conduct was authorized or required under a law in force in British Columbia, by a court or by any process of a court; (3) A publication of a matter is not a violation of privacy if (b) the publication was privileged in accordance with the rules of law relating to defamation. [59] The effect of s. 2(3)(b) of the Privacy Act is to incorporate the absolute privilege that applies in the law of defamation to breach of privacy claims by creating a statutory exception to the tort. [60] Whether the exception applies in this case depends on the answer to the following question: would the publication at issue be protected by absolute privilege if the claim were in defamation? [61] In this case, there is no dispute the respondents were acting in the course of their duties to their client as part of a judicial proceeding when the alleged violation of privacy occurred. The alleged violation was serving the materials that contained Mr. Duncan’s private information on the companies. [62] In my opinion, absolute privilege would have protected the respondents from suit had the materials contained defamatory statements because the occasion was protected. Since, according to the rules of law relating to defamation, the occasion was one to which absolute privilege attaches, the statutory exception in the Privacy Act applies. As such, there was no violation of privacy. [63] Because in my view s. 2(3)(b) of the Privacy Act is dispositive of the appeal, I do not propose to deal in detail with the other provisions of the Privacy Act that also support the conclusion that the statutory tort created by the Privacy Act was not intended to apply to disclosure of private information during the litigation process. I note, however, that s. 2(2)(c) states that an act or conduct is not a violation of privacy if “the act or conduct was authorized or required under a law in force in British Columbia, by a court or by any process of a court”. [64] The effect of this provision is to exclude from the operation of the Privacy Act any act taken in a judicial proceeding that was authorized by a law in force in British Columbia or any process of a court. This exclusion is consistent with the conclusion that the common law rule described in Juman is the method by which a litigant’s privacy is conditionally protected during litigation. [65] For these reasons, I would dismiss the appeal in relation to the first claim. Does the Common Law Doctrine of Absolute Privilege apply to Breaches of Privacy generally? [66] I have stated why, in my view, the application of the doctrine of absolute privilege applies to this appeal through incorporation into the Privacy Act by s. 2(3)(b). The trial judge took a slightly different approach, basing her decision on a broader foundation: [115]    The absolute privilege that applies to lawyers working for a client in the context of an ongoing judicial proceeding provides a defence to intentional misconduct such as defamation. It clearly also must apply to an error in service of court documents, for all the same policy reasons. [67] This Court has held that absolute immunity for witnesses applies to all causes of action arising from communications made by them ( Hung v. Gardiner , 2003 BCCA 257 at para. 34), but I would prefer to leave for another day the question of the extent to which the immunity applies to counsel for claims other than in defamation. [68] I agree that the immunity developed in the law of defamation can in principle apply to other causes of action when the public interest considerations that underlie the privilege apply to those actions. However, it cannot be the case that it applies to shelter counsel from all causes of action arising out of the conduct of judicial proceedings. [69] The most obvious example of a cause of action that can be brought against counsel for their conduct in judicial proceedings is an action by a client against a lawyer for professional negligence. The relationship between professional negligence actions and the absolute privilege is succinctly summarized in Remedies in Tort , ed. by Linda D. Rainaldi, loose-leaf, (Toronto, Ont.: Thomson Reuters Canada Ltd., 2016), ch. 16.III at 61-62: § 46      Canadian courts have consistently held that the public interest in the administration of justice does not require that lawyers be immune from action at the suit of a client for negligence in the conduct of the client’s civil or criminal case in court. … immunity from liability for negligence in court does not follow from the existence of an absolute privilege with respect to anything said in court. [70] Malicious prosecution is another cause of action that can be brought against counsel in relation to their conduct of litigation: Nelles v. Ontario , [1989] 2 S.C.R. 170. [71] The challenge of reconciling the absolute privilege doctrine with non-defamation claims was addressed by the Ontario Court of Appeal in Amato v. Welsh , 2013 ONCA 258. In that case, absolute privilege was set up by litigation counsel as a defence to a claim by the lawyers’ client for alleged breach of fiduciary duty and the duty of loyalty based on statements made or omitted by the lawyers while representing different clients in a quasi-judicial proceeding. The lawyers accepted that the absolute immunity did not bar claims in professional negligence, but argued that a claim could not be based on statements made or omitted to be made during the hearing. [72] The Court of Appeal refused to strike the claims. Cronk J.A. pointed out that “the boundaries of the absolute privilege doctrine are not firmly set” and that “its scope and application continue to evolve” (at para. 68). [73] I agree with Cronk J.A. that the scope and application of the absolute privilege doctrine are not settled. The doctrine clearly applies to claims in defamation brought against counsel for anything said during the course of judicial proceedings, inside or outside court, in order to protect the integrity of the justice system. The doctrine applies to statements by all participants in the litigation process, but is particularly important in its application to litigation counsel because of the need to ensure that counsel are not impeded from the vital role of zealously advocating on behalf of their clients without fear of liability for doing so. [74] It seems equally clear that the doctrine does not apply to claims of professional negligence for counsel’s conduct of litigation, and may not apply to other claims of clients based on their lawyer’s conduct in court. Whether it applies to other causes of action (what was referred to as “disputed ground” in Taylor at 215), will depend on whether the public interest in protecting the integrity of the judicial process will be impaired by permitting such claims to proceed. [75] It is for these reasons that I prefer to base my conclusion in this appeal on the statutory exclusion under s. 2(3)(b) of the Privacy Act . The Second Claim [76] The second alleged breach occurred during unrelated litigation where Mr. Lessing was discussing some of the circumstances in the Duncan case with another lawyer and mentioned that the husband of his client had recently sold his business in Alberta for about $15 million. Mr. Duncan complained this disclosure of the sale price of his business violated his privacy. [77] The relevant portion of the Privacy Act states: Violation of privacy actionable (1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another. (2) The nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others. (3) In determining whether the act or conduct of a person is a violation of another's privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties. [78] Whether an act or conduct is a violation of privacy will depend on the context and must be decided on the particular facts of each case: Davis v. McArthur (1970) , 17 D.L.R. 760 at 763 (B.C.C.A.). [79] The second claim for breach of privacy is largely resolved by the findings of fact made by the trial judge. The appellant complained that the disclosure of the sale price of his business was a violation of his privacy rights, but the trial judge was not satisfied that the information disclosed and the circumstances at hand were such that he was reasonably entitled to privacy. [80] This is a finding of fact or at most, mixed fact and law. There was evidence to support it and I would not interfere with this determination. [81] The trial judge went on to consider whether, even if disclosure could be characterized as a violation of the appellant’s privacy rights, it met the test of “wilfulness” in the statute. [82] Under the Privacy Act , for a violation of privacy to be actionable it must be done “wilfully and without a claim of right”. No issue arises as to claim of right. The trial judge was not satisfied that the disclosure had been done wilfully. [83] The meaning of the term “wilfully” in the Privacy Act has not received detailed consideration. The parties relied on, and the trial judge accepted as authoritative, a brief comment by Justice Lambert in Hollinsworth v. BCTV (1998), 59 B.C.L.R. (3d) 121 (C.A.) at para. 29, where the statutory tort was one of three claims that had been dismissed: I turn first to the word “wilfully”. In my opinion the word “wilfully” does not apply broadly to any intentional act that has the effect of violating privacy but more narrowly to an intention to do an act which the person doing the act knew or should have known would violate the privacy of another person. That was not established in this case. [84] No citation was given for this definition. Justice Lambert appears to have intended to narrow the meaning of “wilfully” with this comment, but the inclusion of the objective standard “should have known” may not capture the deliberateness that is implicit in the word “wilfully”. [85] Saskatchewan’s equivalent legislation, The Privacy Act , R.S.S. 1978, c. P-24, also contains the term “wilfully” in the same context as s. 1(1) of British Columbia’s Privacy Act . As the trial judge points out, this term was interpreted in Peters-Brown v. Regina District Health Board (1995), 136 Sask. R. 126, aff’d (1996), 148 Sask. R. 248 (C.A.): [32] Willfully” is defined in Black’s Law Dictionary, 5th ed. (St. Paul, Minn.: West Publishing Co., 1990): In civil actions, the word [willfully] often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. [86] The term “wilfully” appears in many statutes and is usually defined as meaning deliberately, intentionally or purposefully. It is not necessary for the purposes of this appeal to define with precision the definition of the term, but it can be said with some confidence that “wilfully” does not mean accidentally. In the case at bar, Mr. Lessing cannot be said to have deliberately or purposefully violated Mr. Duncan’s privacy, assuming for purposes of this argument that the sale price was private information. At most it was an accidental disclosure. [87] I agree with the trial judge that, however characterized, the disclosure was not made wilfully. [88] I also agree with the trial judge that Mr. Lessing exercised poor judgment in discussing the details of this case in the manner that he did. The trial judge commented that: [205]    … it was not good practice for Mr. Lessing to be talking so loosely, and to have provided the few details he did provide, that: the person he was talking about was the husband of a client of his; they had three children; they had moved from Alberta to British Columbia; and the husband had sold his business for $15 million. This information allowed Mr. Pasacreta to guess that the person being talked about was Mr. Duncan. As a matter of good practice, Mr. Lessing should not have disclosed this information, even if he was careful to not disclose names. [89] While it may not have been actionable, this case is a good illustration of the wisdom of lawyers not gossiping about any aspect of their cases that is not part of the public record. Adverse Inference [90] Finally, the appellant argues that the trial judge erred in not drawing an adverse inference from the failure of Mr. Lessing to testify. Whether to draw an adverse inference is a “highly discretionary fact-based assessment which must be accorded deference”: The Cambie Malone’s Corporation v. British Columbia (Liquor Control and Licensing Branch), 2016 BCCA 165 at para. 40. I would not accede to this ground of the appeal. Disposition [91] For these reasons, I would dismiss the appeal. “The Honourable Mr. Justice Hunter” I AGREE: “The Honourable Chief Justice Bauman” I AGREE: “The Honourable Madam Justice Fisher”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Bagry v. Sandhu, 2018 BCCA 14 Date: 20180111 Docket: CA43615 Between: Ravinder Bagry, Gursharn Bhullar, and Dalbir Thandi Respondents (Plaintiffs) And Gurjinder Sandhu also known as Gary Sandhu Appellant (Defendant) Before: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Groberman The Honourable Mr. Justice Fitch On appeal from:  An order of the Supreme Court of British Columbia, dated March 29, 2016 ( Bagry v. Sandhu , 2016 BCSC 536, New Westminster Docket S144448). Counsel for the Appellant: M. S. Oulton and B. T. Duong Respondent appearing on his own behalf: R. Bagry Place and Date of Hearing: Vancouver, British Columbia December 13 and 14, 2017 Place and Date of Judgment: Vancouver, British Columbia January 11, 2018 Written Reasons by: The Honourable Mr. Justice Lowry Concurred in by: The Honourable Mr. Justice Groberman The Honourable Mr. Justice Fitch Summary: Appeal of an order purporting to have been made under s. 8 of the Partition of Property Act, R.S.B.C. 1996, c. 347, entitling three of four owners of a farm property to purchase the interest of the fourth, although the order was not based on any undertaking to purchase being given.  Held: appeal allowed.  The order could not be made in the absence of the required undertaking such that it was to be set aside and the matter remitted to the trial judge. Reasons for Judgment of the Honourable Mr. Justice Lowry: [1] This appeal arises out of an order for judgment rendered after a nine-day trial entitling three of four parties who hold equal interests in a farm property, as tenants in common, to purchase the interest of the fourth.  It is contended it was not open to the judge to make the order he did such that it must be set aside. The Judgment [2] In brief terms, Ravinder Bagry, Gursharn Bhullar, Dalbir Thandi, and Gurjinder Sandhu purchased the farm.  It appears to be common ground they were to make equal contributions to the down payment, mortgage payments, and maintenance expenses.  The plaintiffs in the action, being Mr. Bagry, Mr. Bhullar, and Mr. Thandi, allege the defendant, Mr. Sandhu, had not paid his share and, by virtue of a term in what is said to have been an oral agreement, they are entitled to have the defendant’s interest transferred to them.  While, as the judge noted, that is the pleaded entitlement alleged, at trial it was advanced as an entitlement to buy out the defendant for what he had paid.  The plaintiffs claim, in the alternative, damages presumably amounting to what it is said the defendant has not paid. [3] The defendant denies he had failed to pay any of his one-quarter share, and counterclaims advancing a claim against Mr. Bagry alone that is unrelated to any obligations concerning the farm and which the judge found the defendant had no standing to make.  The defendant seeks an order under the Partition of Property Act , R.S.B.C. 1996, c. 347, that the farm be sold for its fair market value and the proceeds divided equally amongst the plaintiffs and himself. [4] The judge found there to have been no agreement that the defendant’s interest in the farm was to be transferred to the plaintiffs in the event he failed to make his contributions.  He concluded his reasons by dismissing both the plaintiffs’ action and the defendant’s counterclaim.  He did, however, consider “What should be done with the Farm?” [5] He recognized that the defendant wants the farm sold on the open market with the proceeds being divided equally but said that (despite the agreement they allege) the plaintiffs were seeking to purchase the defendant’s interest in the property as provided by s. 8 of the Act on the basis of the appraised value of the farm contained in a report they tendered.  The judge said the plaintiffs would be entitled to purchase the defendant’s interest based on that value with any amount the defendant owed being deducted from the sale price.  By way of explaining his reasoning, the judge said only that he considered this the appropriate outcome. [6] Consistent with what the judge said, an order was entered in the following terms: 1.      The Plaintiff[s’] claims are dismissed; 2.      The Defendant’s counterclaim is dismissed; 3.      The Plaintiffs are entitled to purchase the Defendant’s one-quarter interest in the Farm based on the expert report less any monies owing; 4.      There shall be a reference to the registrar for an accounting with respect to monies paid towards the mortgage and expenses of the Farm.  The cost of the accounting is a matter to be brought back before the [judge] upon completion of the accounting as well as the questions of costs generally; 5.      The matters of costs are to be addressed following the findings of the registrar and determination of the court. [7] It is not clear on what basis the judge dismissed the plaintiffs’ claims and at the same time granted them relief in the form of an order that entitles them to purchase the defendant’s interest in the farm at a price (yet to be determined) that will be discounted by the amount the defendant owes them and for which they claimed.  The apparent inconsistency might well have justified the parties seeking reconsideration of the judge’s reasons before the order was entered. The Appeal [8] The defendant appeals, advancing two grounds: 1)     It was not open to the judge to order that the plaintiffs are entitled to purchase his interest.  This is said to be so because they did not give an undertaking to purchase his interest as s. 8 of the Act requires, such that the farm should have been ordered sold on the open market as he claimed. 2)     It was, in any event, an error to order the plaintiffs were entitled to purchase his one-quarter interest based on the appraisal report they had tendered in that it was made five months before the judgment when a current appraisal was required. Discussion [9] Under s. 1 of the Act , a proceeding for partition includes a proceeding for sale and the distribution of proceeds.  Section 2 provides that all tenants in common may be compelled to partition and sell land as provided in the Act .  Section 3 provides that in a proceeding for partition, it is sufficient to claim a sale and it is not necessary to claim a partition.  Section 8 then provides: (1)        In a proceeding for partition where, if this Act had not been passed, an order for partition might have been made, then if any party interested in the property involved requests the court to order a sale of the property and a distribution of the proceeds instead of a division of the property, the court may order a sale of the property and give directions. (2)        The court may not make an order under subsection (1) if the other parties interested in the property, or some of them, undertake to purchase the share of a party requesting a sale. (3)        If an undertaking is given, the court may order a valuation of the share of the party requesting a sale in the manner the court thinks fit, and may give directions. [10] Thus where, as here, a party having an interest in a property seeks an order that the property be sold, the order may be granted unless other parties, having an interest in the property, undertake to purchase the share of the party seeking the sale. [11] The defendant maintains no undertaking, and nothing that could be said to amount to an undertaking, to purchase his interest in the farm was at any time given by the plaintiffs.  The plaintiffs do not accept that no undertaking was given, although their factum is silent in this regard. [12] We are somewhat disadvantaged because the appeal is advanced without any transcript of what was said at trial concerning the basis for the positions taken that led the judge to make the order he did in this regard.  The parties were represented at trial by counsel who do not appear on the appeal.  But that said, the judge made no mention of any undertaking to purchase having been given by the plaintiffs, as would have been expected.  Further, he did not order that the plaintiffs were required to purchase the defendant’s interest in the farm but rather that they were “entitled” to do so, which of course is quite different.  An undertaking would have meant they were required to purchase the defendant’s interest based on the appraised value; an order that they are entitled to do so means no more than that they can purchase the defendant’s interest if they wish. [13] Given that the order does not appear to have been based on any undertaking given by the plaintiffs to purchase the defendant’s interest in the farm, it follows that it cannot stand. [14] The defendant then maintains that, under s. 8(1) of the Act , the farm should now be ordered sold at market value.  But it does not necessarily follow that the judge would have exercised his discretion in favour of requiring that it be sold.  He dismissed the defendant’s counterclaim in which that relief was sought and it does not follow that, absent an undertaking to purchase the defendant’s interest, engaging s. 8(2) and (3), the farm had to be ordered sold.  It is a matter of discretion.  The judge engaged in no discussion in that regard; there is no evidentiary record before us; and it is not in the circumstances a consideration this Court can undertake at first instance.  Indeed, the defendant does not advance any submission in support of the farm being sold other than the absence of the plaintiffs’ undertaking to purchase his interest. [15] This addresses the defendant’s first ground of appeal.  The second ground would have been significant only if the defendant’s interest in the farm were properly ordered sold to the plaintiffs.  The judge’s reasons do not reflect any issue having been taken by the defendant with the appraised value of the farm tendered by the plaintiffs and it is not now suggested that any issue was raised.  However, the defendant contends that, absent a determination that a five-month-old appraisal was satisfactory to establish the value of the farm, he should at least have been afforded the opportunity to obtain an appraisal of the value as of the date of judgment, even if subjected to adverse cost consequences upon its proving to be unnecessary, citing in particular Haigh v. Kent , 2016 BCSC 333.  That would appear to have been an appropriate approach the judge might have taken had any issue about the appraisal been raised.  No more need now be said. [16] It would, then, appear to follow that the order for judgment must be set aside and the action remitted to the judge to entertain submissions and grant a new order based on the findings of fact he has made and any further findings he may have to make. Disposition [17] I would allow the appeal and remit the matter to the judge before whom the action was tried. “The Honourable Mr. Justice Lowry” I agree: “The Honourable Mr. Justice Groberman” I agree: “The Honourable Mr. Justice Fitch”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Bisaillon v. British Columbia (Superintendent of Motor Vehicles), 2018 BCCA 19 Date: 20180112 Docket: CA43722 Between: Bruno Bisaillon Appellant (Petitioner) And The Superintendent of Motor Vehicles Respondent (Respondent) Before: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Groberman The Honourable Madam Justice Garson On appeal from: An order of the Supreme Court of British Columbia, dated May 19, 2016 ( Bisaillon v British Columbia (Superintendent of Motor Vehicles) , 2016 BCSC 892, Vancouver Docket No. S144178). Oral Reasons for Judgment Counsel for the Appellant: K.M. Lee Counsel for the Respondent: K. Chewka Place and Date of Hearing: Vancouver, British Columbia January 12, 2018 Place and Date of Judgment: Vancouver, British Columbia January 12, 2018 Summary: The appellant was stopped by police, who had reason to believe he was driving while impaired. A police officer administered a breath test, which the appellant failed. The officer administered a second test, on a different approved screening device, which the appellant also failed. The appellant sought a review hearing, at which he argued that he had not been properly advised of his right to a second breath test, and that, because his English skills were limited, he had a right to be provided with information about the second test in French. The adjudicator confirmed the suspension, finding that the officer had fully explained the right to a second test, and that the appellant’s skills in English were sufficient to understand that right. The appellant’s application for judicial review was dismissed. Held: Appeal dismissed. The requirement to notify a driver of the right to request a second test is a functional one, to ensure that a driver dissatisfied with the first test has a second opportunity to provide a breath sample. Where, as here, the driver has had the advantage of a second test, and failed both tests, the statutory goals have been satisfied. In any event, the adjudicator made no error in finding that the appellant had been provided with notification. [1] GROBERMAN J.A. : The appellant appeals the dismissal of a judicial review petition in which he challenged an administrative driving suspension under s. 215.41 of the Motor Vehicle Act , R.S.B.C. 1996, c. 318. He argues that, although he was administered and failed breath tests on two different approved screening devices, his prohibition ought to have been cancelled because it was not proven that he was properly advised of his right to undergo the second test. He argues that the information provided to him by the police officer led him to conclude that the second test was mandatory. He also says that he should have been advised of his rights in French, which is his first language, rather than in English. Factual Background [2] On January 11, 2014, the appellant attended at a liquor store in North Vancouver and attempted to purchase a bottle of wine. The employee of the store detected signs of impairment and refused to sell him alcohol. She also went to his car as he left the store, asked if he was sure he was OK to drive, and then suggested that he not drive. Finally, she threatened to call the police if he drove away. The appellant did drive away. The employee called the North Vancouver RCMP to report her suspicion that the appellant was driving while impaired, and provided his vehicle registration number. [3] A police officer attended at the appellant’s home, and waited there until he drove into the parking lot. The officer stopped the appellant, and observed him to smell strongly of alcohol and to show other signs of impairment. The officer’s initial communications with the appellant were in English, but as the conversation progressed, the appellant began to switch back and forth between English and French. The appellant asked to speak to a French-speaking officer. Although it appears that the officer did attempt to have a French-speaking officer attend, the evidence does not indicate that any officer subsequently engaged with the appellant in French. [4] The officer made a demand, in English, that the appellant provide a breath sample. The appellant initially refused, stating that he did not have to provide one because he was on private property. The officer explained that the demand was a lawful one, and that the appellant would be deemed to have failed the breath test, and would be issued a 90-day driving suspension, if he refused to provide a sample. The appellant ultimately provided a breath sample, which registered as a “Fail”, indicating that the alcohol level in his blood was over 80 mg. per 100 ml. [5] The evidence of the officer and of the appellant diverge at this point. The officer says that, reading from a card, he provided the appellant with a notification of his right to a second breath test. The appellant stated that he wished to consult a lawyer. The officer stated that he could call a lawyer if he wished, but he had very little time, as the second test would have to be requested without delay. He said the appellant could think about it while he completed paperwork. He provided the appellant with some encouragement to take the second test, telling him that having given a breath sample that registered a failure, things could not get worse. On the other hand, if his second breath test registered “Warn”, the length of the suspension would be only 3 days rather than 90, and if he passed the test, he would receive no suspension at all. [6] The appellant relates a somewhat different version of events. He says that he asked to speak to a lawyer, but the officer told him that there was no time to do so. He says that the officer conveyed to him that he was required to provide a second breath sample, and told him “if you pass the second test, you can go home”. He says he understood that he was required to take the second breath test. [7] The appellant did take the second test, and registered a “Fail” once again, Review Before the Adjudicator [8] The appellant sought a review of the suspension. Among other arguments, he claimed that he had not been notified of his right to have a second test, and that he had been denied the right to communications in French. The adjudicator rejected the arguments, stating as follows: I acknowledge your assertion that you were not given accurate information about your right to request a second ASD test, and that you were “told" to take the second test. You said that if you had been allowed to speak with a French-speaking officer this would have been clarified for you. However, I note the following from your evidence: • You had a conversation with the employee of the liquor store, both inside and outside of the store. • You said you are bi-lingual. • When you believed you had done nothing wrong, you did not mind speaking in English. • You had a conversation with the Officer when he first approached your vehicle. The conversation was about your belief that you were on private property and that you did not have to answer his questions. • You had a conversation with the Officer about how much alcohol you consumed. • When you felt you were being investigated, you asked to be spoken to in French. • You had a conversation with the Officer about the contents of your water bottle. In my view, I find it reasonable to conclude from the above examples of conversations between you and the store employee and you and the Officer that you have a demonstrated ability to speak and understand English. As such, I do not find your claim that your right to request a second ASD test would have been clarified for you if you had a French-speaking police officer present to be very credible. As well, I note that you said the Officer never explained anything about the second test, other than to say "if you pass the second test, you can go home". However, I note from the Officer's evidence that there is an eleven minute delay between the first and second test. On page 8 of the Officer's Narrative, he explains this delay. He said that you were not sure you wished to “provide a second test” and that he explained your options. I find it reasonable to infer that if the Officer simply held the ASD in front of you and said "if you pass the second test, you can go home", it would not have taken eleven minutes. This eleven minute delay is consistent with the time the Officer said he took to explain your right to request a second test, as I outlined on the previous page of this letter. I note that the Officer said he read you the ASD demand from the issued Charter of Rights card, and then read you the right to request a second test from the “provided IRP information card (purple in color).” I would point out that the second ASD test is for the benefit of the driver because the lower of the two test results prevails. In your case, because you had already blown a "fail" result, any subsequent test results could-not have resulted in any greater jeopardy to you. Based on a consideration of the evidence in its totality, I find that the Officer provided you with detailed, accurate information and that you were properly advised about the second ASD test. Judicial Review Proceedings [9] On judicial review, the appellant argued that the adjudicator erred in finding that there was an 11 minute delay. He noted that the 11 minutes was the total time between the two tests, while the officer’s notes state that he advised the appellant of his right to take a second test at 7:52 p.m., that the appellant made the request at 7:55 p.m. and the test was administered at 7:58 p.m. The appellant characterized the delay as being a three - or six-minute delay. [10] The judicial review judge began her analysis by questioning whether it mattered which version of events was correct: [11]      The petitioner's position was that he was told he was required to take the second test, not that he had a right to take the second test. In any event, it is unclear to me why this matters. If he refused the second test on an understanding it was optional, he would still have met the criterion to get the prohibition. Thus, no beneficial consequence flows to the petitioner even if his position is accepted. [11] She did not, however, return to this issue. Instead, she found that the adjudicator’s weighing of credibility and reliability stood up to examination, even if the delay was as short as three minutes. She also rejected the idea that the appellant had a right to be spoken to in French by an officer administering a provincial statute. Issues on Appeal [12] On appeal, counsel for the appellant makes three arguments. First, she says that the chambers judge erred in embarking on an interpretation of the statute, when that issue was not properly before her. Second, she says that the chambers judge erred in finding the adjudicator’s assessment of credibility to have been reasonable. Third, she contends that the judge erred in finding that “there is no place for language rights in an administrative regime”. Interpretation of the Statute [13] The idea that a court is not entitled to interpret the statute on which a case before it depends is an entirely novel proposition, and I have some difficulty understanding how it can be advanced. While courts are required, in many instances, to give deference to a tribunal’s interpretation of a statute, that requirement cannot mean that if the tribunal has not engaged in an interpretation exercise, the court is precluded from considering the statutory provisions. The statutory provisions are the very essence of the administrative scheme, and it would be impossible for a court to deal with a judicial review petition if it were unable to interpret the statute. It is absurd to suggest that a court is prohibited from examining the statutory provision. [14] In this case the key statutory provisions to be interpreted are in ss. 215.42(1), and 215.5 of the Motor Vehicle Act as they read in 2014: 215.42(1) If an analysis of the breath of a person by means of an approved screening device under section 215.41(3.1) registers a warn or a fail, (a) the person has a right to forthwith request and be provided with a second analysis (b) a peace officer must inform the person of that right before the peace officer serves on the person a notice of driving prohibition. 215.5 (1) If, after considering [a review] application, the superintendent is satisfied … that, (b) in respect of a 90-day driving prohibition resulting from a sample of breath for analysis by means of an approved screening device and the approved screening device registered a fail, (i) the person was advised of his or her right to forthwith request and be provided with a second analysis under section 215.42(1), (ii) the second analysis, if the person requested a second analysis, was provided by the peace officer and was performed with a different approved screening device than was used in the first analysis and the notice of driving prohibition was served on the person on the basis of the lower analysis result, (iii) the approved screening device registered a fail and registered the fail as a result of the concentration of alcohol in the person's blood being not less than 80 milligrams of alcohol in 100 millilitres of blood, and (iv) the result of the analysis on the basis of which the notice of driving prohibition was served was reliable, the superintendent must confirm the driving prohibition …. (4) If, after considering [a review application], the superintendent is satisfied … that, (b) in respect of a 90-day prohibition resulting from a sample of breath for analysis by means of an approved screening device and the approved screening device registering a fail, (i) the person was not advised of his or her right to forthwith request and be provided with a second analysis under section 215.42(1) (ii) the second analysis, if the person requested a second analysis, was not provided or not performed with a different approved screening device than was used in the first analysis and the notice of driving prohibition was not served on the person on the basis of the lower analysis result, (iii) the approved screening device did not register a fail or the approved screening device did not register the fail as a result of the concentration of alcohol in the person's blood being not less than 80 milligrams of alcohol in 100 millilitres of blood, or (iv) the result of the analysis on the basis of which the notice of driving prohibition was served was not reliable, the superintendent must (d) revoke the driving prohibition …. [15] The appellant contends for a literal interpretation of the statute, holding that a failure to notify a person of the right to be provided with a second analysis is fatal to the driving prohibition. I accept that such an interpretation – which would turn the notification into a mandatory, mechanical requirement – is possible on the language of the statute. The modern rule of statutory interpretation, however, must be considered, as discussed in Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27: [21]      Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone . At p. 87 he states: Today there is only one principle or approach, namely, 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. [Emphasis added.] [16] A purposive approach cannot be ignored, then, when interpreting a statute. The intention of this statute, quite clearly, is to give a driver the option of providing a second breath sample. On the face of it, the driver cannot be disadvantaged by providing a second sample, since the statute provides that the one showing the lower concentration of alcohol in the blood is to be taken as accurate. [17] It would be absurd to suggest that, if a driver requests a second sample be taken, a police officer would still have a duty to then advise the driver of the right to request one, failing which, there could be no driving prohibition. The legislature cannot have intended that such a bizarre formality be mandatory. Clearly, what is intended is that the driver be provided with enough information to appreciate that giving a second sample may be to the driver’s advantage, and given to understand that there is a right to demand that a second sample be taken. [18] In this case, even taking the appellant’s statement at its highest, and ignoring the contrary police evidence, the appellant was given appropriate notice. He was told that if he provided a second sample and it passed, he would be released with no suspension. He was also given the opportunity to give a second sample, and did so. He was not, at any time, told that failure to provide a second sample was punishable. [19] Given that the appellant contended that he was not inebriated, and that he found the first failure to be “shocking”, the obvious option for him was to provide a second sample, which he did. While, on the appellant’s evidence, the notification he received was not a model of perfection, essential information was conveyed, and the ultimate result was that the appellant was afforded the ability to take advantage of the only option that made any sense in his situation. [20] In my view, the statutory requirements must be interpreted in a purposive and functional manner. Where a person asks to give a second sample, the requirement to advise that person of the right to do so becomes superfluous. Similarly, where a person has given a second sample, there is no need to inquire as to whether notification was given or a request was made. In such a situation, those requirements are superfluous and must be taken to be subsumed in the actual furnishing of the sample. [21] The appellant argues, based on this Court’s judgments in McConachie v. British Columbia (Superintendent of Motor Vehicles) , 2016 BCCA 205 and Ucrainet v. British Columbia (Superintendent of Motor Vehicles) , 2016 BCCA 206, that circumstances can arise where a driver is disadvantaged by having taken a second test. Such circumstances do not arise in this case, as the appellant has not cast any doubt on the validity of the first test. It may be that if a driver is able to show that the first test was invalid, and the police could not establish that a second test was taken voluntarily, a driver could seek to have the second test result ruled inadmissible as unfairly obtained evidence. That question need not be answered in the current appeal. [22] It follows that, the appellant having taken and failed both breath tests, and no challenge having been brought to their validity, it was incumbent on the adjudicator to confirm the driving prohibition. Reasonableness of the Adjudicator’s Factual Findings [23] I will deal only briefly with the other arguments presented. I am not persuaded that the adjudicator’s reasons for preferring the evidence of the officer to that of the appellant were faulty. She noted the length of time that elapsed between the two tests – 11 minutes – and accepted that that time was more consistent with the officer’s version of events than with the appellant’s. [24] On the officer’s evidence, it is, of course, possible to further parse the 11-minute period. The officer took five minutes after the first test before advising the appellant of a right to a second test. The appellant then took a further 3 minutes before deciding to take the second test – a period of time completely consistent with the officer’s version of the discussions. Following the appellant’s request to take the second test, it took a further three minutes before it was administered. [25] The appellant’s evidence, on the other hand, does not adequately explain the lapse of 11 minutes between the tests. He contends that the officer simply told him that he had to take a second test, then forced him to do so. The adjudicator, evidently, considered the 11-minute period between tests to be largely unaccounted for on that version of events. The appellant, in attempting to deal with the finding, suggests that the real period unaccounted for is only 3 or 6 minutes – but that suggestion depends on accepting the officer’s evidence that he notified the appellant of his right to request a second test at 7:52 pm, and that the appellant made the request at 7:55 pm. The appellant, of course, says that neither of those events took place. [26] Before this Court, the appellant makes a further argument. He says that it was inappropriate to rely on the officer’s evidence of time in finding that the driver’s version of events was less credible than the officer’s. He says that the adjudicator should have inferred that the driver disagreed with the officer’s timeline. [27] In the absence of any challenge to the officer’s timeline, it does not seem to me that the adjudicator erred in accepting it. Nor do I accept that the appellant’s affidavit evidence implicitly challenged the officer’s timeline. I would not give effect to that argument. French Language Communication [28] I deal, finally, with the issue of communication in the French language. The appellant does not advance any constitutional argument on this point, and the appellant does not provide any basis for the suggestion that there is a statutory or common law right to communication in French that is applicable within a British Columbia administrative law regime. [29] The appellant does say that the statute, in order to meet its purposes, must require that drivers understand what is being asked of them, and understand information imparted to them. In this case, however, the adjudicator, on the basis of all of the evidence, was satisfied that the appellant was capable of understanding the demand for a breath sample, and also understanding the possible benefits of providing a second sample. There does not appear to be any essential information that was not successfully conveyed to him. I note, as well, that the appellant did swear a detailed affidavit in English, and that he deposed, in that affidavit, that he is bilingual. [30] In the circumstances, there is no basis for a finding that the officers had a duty to provide the appellant with information in French. Conclusion [31] In the result, I am not persuaded that the adjudicator made any error in her assessment of the materials before her, nor am I satisfied that any statutory requirements were breached in this case. [32] I would dismiss the appeal. [33] FRANKEL J.A. : I agree. [34] GARSON J.A. : I agree. [35] FRANKEL J.A. : The appeal is dismissed. “The Honourable Mr. Justice Groberman”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Gregory v. British Columbia (Superintendent of Motor Vehicles) , 2018 BCCA 7 Date: 20180112 Docket: CA43801 Between: Bradley Kai Gregory Appellant (Petitioner) And The Superintendent of Motor Vehicles and the Attorney General of British Columbia Respondents (Defendants) Docket: CA43902 Between: Edward George Wilcock Appellant (Petitioner) And Superintendent of Motor Vehicles and the Attorney General of British Columbia Respondents (Defendants) Before: The Honourable Chief Justice Bauman The Honourable Mr. Justice Lowry The Honourable Madam Justice Garson On appeal from:  Orders of the Supreme Court of British Columbia, dated June 29, 2016 ( Gregory v. British Columbia (Superintendent of Motor Vehicles), 2016 BCSC 1192, Victoria Docket 12-4227) and August 24, 2016 ( Wilcock v. British Columbia (Superintendent of Motor Vehicles) , Victoria Docket 12-4071). Counsel for the Appellants: J. Green, Q.C. T. Higinbotham Counsel for the Respondents: N. Carnegie V. Ryan Place and Date of Hearing: Victoria, British Columbia June 7 and 8, 2017 Place and Date of Judgment: Vancouver, British Columbia January 12, 2018 Written Reasons by: The Honourable Chief Justice Bauman Concurred in by: The Honourable Mr. Justice Lowry The Honourable Madam Justice Garson Summary: Two motorists received 90-day immediate roadside driving prohibitions after registering a “fail” on an ASD pursuant to the Motor Vehicle Act . They sought reviews of their prohibitions, but were prevented from cross-examining the police officers that issued the prohibitions, or challenging whether the police officers had a valid basis for making the ASD demand pursuant to s. 254 of the Criminal Code. On judicial review, the motorists challenged the constitutional validity of the IRP scheme under the Motor Vehicle Act which prevented cross-examination or questioning the basis for the ASD demand. The chambers judge dismissed the petition for judicial review on the basis that he was bound to follow previous decisions upholding the scheme as constitutional. Held: Appeals dismissed. The Supreme Court of Canada found a previous version of the scheme unconstitutional solely on the basis that it did not provide sufficient opportunity to challenge the reliability of ASDs. The amended scheme addresses that concern by expanding opportunities for motorists to challenge reliability, and is therefore constitutionally valid. The decision by the adjudicators not to consider whether the ASD demand was valid was reasonable. Reasons for Judgment of the Honourable Chief Justice Bauman: I. Introduction [1] Two motorists who received 90-day immediate roadside driving prohibitions (“IRPs” or, when used in the singular, “IRP”) under ss. 215.41 to 215.51 of the Motor Vehicle Act , R.S.B.C. 1996, c. 318 [ MVA ] challenged the constitutional validity of that legislation by way of petitions to the Supreme Court of British Columbia. These provisions were amended in 2012 to remedy the constitutional defect identified in Sivia v. British Columbia (Superintendent of Motor Vehicles) , 2011 BCSC 1639 (“ Sivia , BCSC”), aff’d 2014 BCCA 79 (“ Sivia , BCCA”), aff’d Goodwin v. British Columbia (Superintendent of Motor Vehicles) , 2015 SCC 46. On appeal, the petitioners seek to have this Court declare that the amended provisions still unjustifiably infringe s. 8 of the Charter and that they also unjustifiably infringe s. 10(b) of the Charter such that they are of no force or effect pursuant to s. 52 of the Constitution Act, 1982 . They also ask that this Court declare that “fail” in s. 215.5 of the MVA means “fail pursuant to a valid breath demand under the Criminal Code ”. This issue calls into question the reasonableness of the adjudicators’ decisions not to consider the proper interpretation of the word “fail” in s. 215.41(3.1) for the purposes of s. 215.5(4)(b). [2] If this Court agrees with their constitutional arguments, the petitioners ask that their IRPs and the accompanying consequences be revoked. [3] For reasons that follow, I would dismiss the appeals. II. Legislative and Judicial History [4] There is now a somewhat lengthy legislative and judicial history associated with the driving prohibition scheme set out in the MVA . Sections 94.1 to 94.6 of the MVA (which are still in force) were the subject of an appeal to this Court in Buhlers v. British Columbia (Superintendent of Motor Vehicles) , 1999 BCCA 114. Those sections provide for a 90-day driving prohibition when a driver provides a sample in compliance with a demand for breath or a sample of blood under the Criminal Code and obtains a result of “over .08”, or refuses without reasonable excuse to provide a breath or blood sample. This prohibition does not come into effect until 21 days after the issuance of a notice of driving prohibition which is provided after someone fails a demand or refuses to comply. The motorist has the right to file a challenge to the prohibition with the office of the Superintendent of Motor Vehicles (the “Superintendent”). In Buhlers , this Court upheld the constitutionality of those provisions. [5] On 20 September 2010, the Legislature enacted an additional regime that made prohibitions take effect immediately for those who registered “over .08” on an approved screening device (“ASD”), or a “fail” result, and added consequences for drivers who registered “over .05” or a “warn” result. When I refer to the “IRP scheme” in these reasons, it is this statutory regime to which I refer. [6] Subsequently, six motorists challenged the constitutional validity of the new IRP scheme. Four of those motorists had their petitions heard together by Justice Sigurdson. In reasons for judgment released 30 November 2011, he rejected the petitioners’ division of powers and s. 11(d) Charter arguments, but found the challenged legislation violated s. 8 of the Charter and was not saved by s. 1. He also found that the challenged legislation violated s. 10(b) of the Charter , but was saved by s. 1: Sivia , BCSC. Two of the six motorists who would eventually appeal to this Court then had their petitions heard separately by Justice Dley. He dismissed their petitions on 25 May 2012, relying on the reasons given by Sigurdson J. in Sivia , BCSC. The six petitioners then appealed to this Court on various grounds while the Superintendent cross-appealed on the s. 8 finding: Sivia , BCCA. [7] Before this Court, Mr. Sivia abandoned his appeal and the division had to grapple with a number of procedural difficulties as a result of the way in which the appeals were brought. Ultimately, the petitioners relied on the legal arguments in Mr. Sivia’s factums and the adjudicative facts from all the appeals. For unknown reasons, the petitioners did not pursue the s. 10(b) ground of appeal. The division dismissed both the appeals and cross-appeal. It therefore approved of Sigurdson J.’s holding on s. 8, but did not consider the compliance of the original IRP scheme with s. 10(b) of the Charter . [8] The parties appealed to the Supreme Court of Canada on the division of powers and ss. 8 and 11(d) Charter arguments: Goodwin . The style of cause was changed to reflect the fact that Mr. Sivia had abandoned his appeal. The Court also approved of the chambers judge’s s. 8 holding, but made no reference to s. 10(b) other than to note that it was argued before Sigurdson J. and was not appealed: Goodwin at paras. 6-7, footnote 3. [9] Accordingly, the original IRP scheme was found to infringe s. 8 of the Charter by the Supreme Court of Canada in a manner not justified under s. 1. The Supreme Court of British Columbia has pronounced on the original scheme’s compliance with s. 10(b) of the Charter , but neither this Court nor the Supreme Court of Canada have considered that issue. III. The Legislation [10] On 15 June 2012, Bill 46, the Motor Vehicle Amendment Act , S.B.C. 2012, c. 26, came into force. The amendments were intended to correct the constitutional defect identified in Sivia, BCSC. The amended provisions set out in ss. 215.41 to 215.51 of the MVA are at issue in the present case. The petitioners challenge the validity of those provisions under both ss. 8 and 10(b) of the Charter . [11] This appeal begins where Goodwin ended with respect to considering the evolution of the IRP regime. In Goodwin , Justice Karakatsanis explained the changes between the IRP scheme, as it was constituted from September 2010 to June 2012, and the amended scheme in force thereafter as follows (at para. 13): The scheme was amended in 2012 subsequent to the chamber[s] judge’s decision, and now requires that a police officer inform a driver of her right to request and be provided a second ASD test, and, where two samples are provided, the lower of the two results is the basis for a driving prohibition: MVA , s. 215.42. It also expands the grounds on which a driver may challenge a prohibition: MVA , s. 215.5. Under the amended [IRP] scheme, the police officer’s report to the Superintendent must be sworn, and police must now provide the Superintendent with information relating to the calibration of the ASD: MVA , s. 215.47. These amendments are not challenged in these appeals. [12] Below is a more exhaustive list of the changes between the 2010 and 2012 versions of the IRP scheme: · there is a right to a second ASD test and to be advised of that right by the peace officer (ss. 215.41(3.1)(d), 215.42) while under the 2010 scheme a person had to request a second test on their own initiative; · if a second test is performed, the lower of the two results governs (s. 215.42(3)); · the report by a peace officer must be sworn or solemnly affirmed (s. 215.47(d)); · the peace officer must submit information relating to the calibration of the ASD on which the driving prohibition was based (s. 215.47(e)); · the superintendent must consider any peace officers’ reports, including those not sworn or solemnly affirmed (s. 215.49(1)), and may determine the weight to give to that information (s. 215.49(4)); and · there are more expansive grounds on which the Superintendent is required to revoke the prohibition and attendant consequences, including where the person is not advised of their right to a second ASD test, the prohibition is not based on the lower of the two results, or the Superintendent is satisfied that the result is not reliable (s. 215.5(4)). [13] There are a number of elements of the IRP scheme that have remained the same. In both the previous and amended IRP schemes there is a prohibition on cross-examination and the burden of proof is on the person requesting a review. The 2012 scheme did not change the precondition that a peace officer make a demand to a driver “under the Criminal Code ” to provide a breath sample (s. 215.41(3.1) in the 2012 scheme and s. 215.41(3) in the 2010 scheme). The consequences of being served with a notice of prohibition also remain the same. There is a prohibition on driving for the periods of time listed in s. 215.43 depending on whether the ASD registers a “fail” or “warn” and the person’s history of previous prohibitions. The person is required to pay a monetary penalty determined in accordance with s. 215.44 up to a maximum of $500. The peace officer has the discretion to impound the person’s vehicle in the event of a “warn” on a first or second prohibition, and must impound the vehicle in the event of a “warn” result on a third or subsequent prohibition or a “fail” result (s. 215.46). Finally, there was a mandatory remedial program if a person received a 30- or 90-day prohibition, which has since been repealed. Presumably, the Superintendent could still exercise his discretion to require that a driver attend such a remedial program under s. 25.1(1), which also permits him to require that the driver comply with an ignition interlock program. [14] On 8 September 2014, Justice Macaulay ruled on the constitutional validity of the amended provisions, holding that they did not violate s. 8 of the Charter and any violations would have been saved by s. 1: Bro v. British Columbia (Superintendent of Motor Vehicles) , 2014 BCSC 1682. In that case, the petitioners did not rely on s. 10(b) of the Charter , and the decision was not appealed. IV. Factual Background [15] On 7 November 2012, Mr. Wilcock received a 90-day IRP. On 18 November 2012, Mr. Gregory received a 90-day IRP. Both Messrs. Wilcock and Gregory unsuccessfully applied to an adjudicator for a review on the basis that their “fail” readings did not result from valid Criminal Code ASD demands. The adjudicators dismissed the review applications. The petitioners then separately applied for judicial review on constitutional issues. V. Petition Proceedings [16] In the court below, Justice Bracken heard Mr. Gregory’s petition on 11 December 2015. Subsequently, counsel for Mr. Wilcock appeared before Justice Johnston and agreed to have his petition governed by the outcome of Mr. Gregory’s petition. On 29 June 2016, Bracken J. issued reasons dismissing Mr. Gregory’s petition. These reasons are effectively the lower court reasons for both appeals. As a result, Mr. Gregory’s petition was dismissed by an order of Bracken J. pronounced on 29 June 2016. Mr. Wilcock’s petition was dismissed by an order of Johnston J. pronounced on 24 August 2016. [17] Before the chambers judge, Mr. Gregory argued that the amended IRP provisions contravened s. 8 of the Charter because they did not provide a means to challenge both the basis of the ASD demand and the reliability of the test. [18] In his reasons the chambers judge was alive to the doctrine of stare decisis. He began his analysis by determining whether Goodwin affected the validity of the amended legislation, as it was considered in Bro . In Goodwin , the critical reason the sections breached the Charter was the driver’s inability to challenge the validity of the test given concerns about the reliability of ASDs. The chambers judge cited from the companion decision to Goodwin – Wilson v. British Columbia (Superintendent of Motor Vehicles) , 2015 SCC 47 – and noted the different contexts in which the IRP scheme in the MVA and the Criminal Code exist. He explained that Goodwin did not suggest that the inability to challenge the basis of the ASD demand in and of itself renders the amended scheme invalid. It was on this basis that he found Goodwin did not affect the validity of Bro . He therefore found himself bound by Bro because none of the exceptions in Re Hansard Spruce Mills Ltd. , [1954] B.C.J. No. 136 (S.C.), applied. [19] The judge then turned to Mr. Gregory’s argument on s. 10(b), which was premised on impaired driving prosecutions under criminal law. He highlighted the “not truly penal” consequences of an IRP, again citing Goodwin . Ultimately, the judge held that the reasons on the s. 10(b) issue in Sivia , BCSC were determinative: the scheme infringed a driver’s s. 10(b) right at the roadside screening stage, but was saved under s. 1. He again found Mr. Gregory had not established that any of the exceptions from Re Hansard Spruce Mills Ltd. would justify deviating from the reasoning in Sivia , BCSC. [20] Finally, the judge also dismissed Mr. Gregory’s arguments concerning his particular circumstances. Mr. Gregory challenged the validity of the IRP because the officer told him not to worry because he was “not going to treat the matter as a Criminal Code investigation”, which rendered it a demand not made for the statutory purpose of s. 254(2) of the Criminal Code , and therefore an invalid demand under s. 215.41(3.1). The judge rejected this argument, holding that it was reasonable for the adjudicator to conclude that his review was limited to the grounds of review expressly set out in the MVA , which do not include challenging the basis for the request. He also found that the officer’s comments were nothing more than the officer communicating his intention to deal with the result under the MVA rather than the Criminal Code . The judge dismissed the petition, but ordered a stay of the driving prohibition to continue for a period of 45 more days to permit Mr. Gregory to consider any next steps for appellate review. VI. Grounds of Appeal [21] The issues on appeal can be stated as follows: a) Do the amended IRP provisions violate s. 8 of the Charter , and is any such infringement justified under s. 1? b) Did the chambers judge err in relying on the s. 10(b) Charter analysis in Sivia , BCSC? c) Was it reasonable for the adjudicator to determine that the validity of the demand is not a basis to revoke an IRP, and therefore not consider the proper interpretation of the word “fail” in s. 215.41(3.1) for the purposes of s. 215.5(4)(b)? VII. Submissions Section 8 Charter Challenge to the Amended IRP Scheme [22] The petitioners submit that the court in Bro failed to consider that Sivia, BCSC was concerned with defects in the original IRP regime concerning both the breath demand itself and the result of the breath demand. This finding was upheld by both the Court of Appeal and the Supreme Court of Canada in Goodwin . They say the amended IRP scheme continues to deliberately prevent a meaningful review of the ASD demands. The taking of a breath sample is a “search” and is properly characterized as a warrantless discretionary search. The adjudicators here found that the validity of the ASD demand is not a ground of review, and the chambers judge agreed. This demonstrates that the search is unreviewable, which renders the scheme contrary to s. 8: Hunter v. Southam Inc. , [1984] 2 S.C.R. 145. The petitioners also argue that the scheme continues to prevent meaningful challenges to the reliability of a fail result despite introducing the “unreliability defence”. A meaningful ability to challenge the reliability of the ASD test result requires cross-examination of the officer who made the demand. [23] The Superintendent submits that while the courts in Goodwin and Sivia refer to the absence of a challenge to the basis of the demand and the lack of cross-examination as relevant factors, the key infirmity was the inability to challenge the reliability of the ASD result. The court in Bro correctly relied on this reasoning in determining that the amended IRP scheme did not infringe s. 8. It also correctly assessed the changes brought in by the amendments (the expanded grounds of review and the obligation on police officers to advise drivers of their right to a second ASD test on a different ASD) as permitting meaningful review of the validity of ASD test results. The court also correctly held that the invalidity of a demand is still relevant even if it is not a formal ground on which the Superintendent could revoke the IRP, and that it was constitutionally permissible to prohibit cross-examination. Drivers are well-positioned to provide the evidence necessary to establish that their BAC was less than .08 despite a “fail” result without the need for cross-examination. Here, the chambers judge properly determined that Goodwin did not invalidate Bro . [24] With respect to the s. 1 analysis, the Superintendent submits that the amended scheme’s enhanced grounds of review ensure the scheme is minimally impairing. Permitting drivers to challenge the validity of an ASD demand would significantly compromise the legislative objective. Allowing cross-examination would compromise the goal of timely disposition of reviews arising from IRPs. The Superintendent says the benefits to society arising from the operation of the amended scheme greatly outweigh the negative effect of a driver possibly receiving an IRP without being able to challenge the validity of a demand or cross-examine the investigating officer. Error in Relying on the s. 10(b) Charter Analysis in Sivia, BCSC [25] The petitioners highlight that previous cases where s. 10(b) infringements have been justified under s. 1 relied upon an acknowledgement that the test results could only be used for a limited purpose and could not be used in subsequent criminal proceedings. They submit that the chambers judge in Sivia , BCSC failed to address the critical question under s. 10(b): does the use of ASD test results for the purpose of imposing serious administrative penalties exceed the limited purposes for which an infringement of s. 10(b) would be justified? They say the answer to this question is “yes” and that it is no answer to merely label the legal consequences as “regulatory” in conducting the s. 1 analysis. [26] The Superintendent says the same s. 1 considerations discussed under s. 8 apply to this issue. The scope of the roadside screening is limited to those steps necessary to screen for alcohol and is subject to strict temporal limits. It contemplates an expeditious process that must occur at the roadside. The salutary effects outweigh the negative impact to drivers from this limitation on their right to counsel. He notes that the s. 10(b) jurisprudence in roadside screening arises almost entirely in the criminal context where the quid pro quo for not conferring the right to counsel at the roadside is that the results of an ASD demand cannot be used as evidence in a criminal proceeding. There is no rationale for extending the prohibition on use of ASD samples under the Criminal Code to the use of those samples as part of the amended IRP scheme. Reasonableness of the Adjudicator’s Decision [27] The petitioners argue that “fail” under s. 215.41(3.1)(a) of the MVA means a “fail” pursuant to a valid Criminal Code demand. Accordingly, the adjudicators in their cases should have addressed whether or not the ASD registered a “fail” as the result of a sample taken pursuant to a valid Criminal Code breath demand. If not, then the adjudicators were obliged to revoke the IRP under s. 215.5(4)(b). [28] The Superintendent submits that the chambers judge correctly applied the reasonableness standard of review in upholding the Superintendent’s conclusion that he was not entitled to consider the validity of the demand. This interpretation was subject to deference. It was reasonable for the adjudicators to conclude that the issue of whether the ASD demand was invalid because it was made for a purpose outside the ambit of s. 254(2) of the Criminal Code was not relevant because s. 215.5(4)(b) did not provide for revoking an IRP on that basis. In any event, the petitioners’ interpretation is inconsistent with Goodwin and Wilson . VIII. Analysis [29] The thrust of the petitioners’ case on appeal is the essential submission that the court in Bro misread the decisions in Sivia . In particular, they say that the constitutional infirmities with the IRP scheme go further than suggested by Macaulay J. in Bro and the 2012 amendments resulting in the new IRP scheme fail to address the breadth of these infirmities. [30] Accordingly, much of these appeals falls to be resolved by a close reading of Sivia and Goodwin and a determination of just what this Court and the Supreme Court of Canada decided in these cases. [31] I will begin the analysis there, proceed to consider whether the IRP amendments address the critical constitutional issues identified in these cases, and then deal with the s. 10(b) issue. [32] Finally, I will consider what I will call the administrative law issue: was the chambers judge correct in rejecting the submission effectively seeking to review the validity of the breath demand under the Criminal Code . (i) What Sivia and Goodwin Decided [33] The petitioners submit that the courts in these cases concluded that the Charter s. 8 flaws with the then IRP scheme extended beyond a concern that an affected driver could not challenge the reliability or accuracy of the breath sample analysis to a concern that one could not challenge the basis for the demand itself. If a driver cannot challenge the latter, the petitioners submit that we are left with a warrantless, unreviewable discretionary search that the law will not countenance: Hunter, at 166. [34] I disagree with this essential premise. Sivia and Goodwin did not decide the s. 8 issue on the broad basis urged. In Bro , Macaulay J. carefully reviewed Sigurdson J.’s reasoning in Sivia , BCSC. He recognized that Sigurdson J. noted (in paras. 300-302 of his reasons) that the statutory review then in place did not permit a driver to (1) challenge the accuracy of the ASD used in the search; (2) challenge the demand for a breath sample as capricious; (3) cross-examine the administering officer; (4) raise the issue of whether the driver was advised of the possibility of a second sample; or (5) attempt to prove that he or she did not have a blood alcohol reading over 0.08. But according to Sigurdson J., the “most important of these concerns… is that the review process does not allow the driver to challenge the apparent result of the ASD.” [35] Macaulay J. called this concern the “tipping point” (at para. 28 of Bro ) in the s. 8 infringement analysis and he quoted para. 319 of Sigurdson J.’s reasons: [319]    … the fact that while the consequences from the search are substantial and approach criminal law sanctions, there is no way under the impugned law for the driver to challenge the validity of the results. As evidenced by the review process already in place under the [ss. 94.1 to 94.6] regime, it is possible to allow for a more meaningful review to be put in place without in any material way affecting the government’s objective of removing impaired drivers promptly and effectively from the road. In my view, it is not reasonable to preclude a driver a more meaningful review of the grounds for a lengthy suspension, penalty and costs in the “fail” (over 0.08) part of the [IRP] regime. [Emphasis of Macaulay J.] And it was the inability to challenge the validity of the ASD results that led to Sigurdson J.’s conclusion that the scheme did not “minimally impair the right of a driver to be free of unreasonable search and seizure” and thus was not saved by s. 1 (at para. 380 of Sigurdson J.’s reasons): [380] In my view, because of the significant prohibition, penalty and cost implications of a “fail” reading, the Province could easily have provided in the legislation a reasonable and meaningful review process where a driver subject to a lengthy automatic roadside prohibition could challenge the results of the screening device. This is particularly so considering the Province has legislated to base the consequences of a “fail” reading entirely on the results of the screening device. [36] Macaulay J. was correct in Bro (as was the chambers judge in following it below) in concluding that Sivia , BCSC founded the s. 8 infringement and the s. 1 failure on the fact that the IRP scheme did not provide for a meaningful review of the ASD test results. [37] He was also correct in concluding that this Court in Sivia , BCCA was similarly concerned with the scheme then in place. [38] There the Court concluded on this aspect of the appeal (at paras. 183-184): [183]    Thus the Chambers judge concluded that the s. 8 privacy rights of motorists subject to a roadside breath demand taken under the provisions of the Motor Vehicle Act challenged on these appeals are breached and the legislation cannot be saved by s. 1 of the Charter as it does not minimally impair the right. The legislation does not provide a meaningful review of the results of the test on which the sanctions are based. [184]    I agree with the Chambers judge and would add nothing to his analysis. [39] I do not accept the petitioners’ central premise: the other factors identified by Sigurdson J. in paras. 300-302 of Sivia , BCSC were not considered by him, or by this Court, standing alone or together, as infringing s. 8. Nor do I accept the submission that the Supreme Court of Canada in Goodwin has suggested otherwise. [40] The majority judgment in Goodwin was written by Karakatsanis J. She noted that Sigurdson J. concluded that it was the reliability of ASD results (specifically the inability to account for the presence of mouth alcohol) that was directly relevant to the reasonableness of the search: paras. 66 and 67. [41] While the inability of a driver to meaningfully challenge the basis for the breath demand was a concern in Sivia , BCSC, it was the inability to challenge the accuracy of the test that was most important: para. 69. Karakatsanis J. agreed (at para. 72): “ a driver’s ability to challenge the accuracy of the ASD result is thus critical to the reasonableness of the [IRP] scheme” (emphasis added). [42] The same point is repeated by Karakatsanis J. at para. 75 of her reasons and again at para. 77: [75]      While I agree with the Chief Justice that the administrative nature of the scheme justifies the administrative nature of the review, this does not, in my view, resolve the issue of whether the scope of such review is adequate in the circumstances. I agree with the chambers judge’s conclusion that the absence of meaningful review of the accuracy of the result of the seizure, in light of the unreliability of the test, raises concerns about the reasonableness of the ARP scheme. Absent such review, a driver could find herself facing serious administrative sanctions without the precondition for the sanctions being met, and without any mechanism for redress. [77]      The ARP scheme as enacted in 2010 depends entirely on the results from a test conducted using an ASD, a device known to produce false positives where mouth alcohol is present. Despite this defect regarding ASD reliability, the scheme provides no meaningful opportunity to challenge a licence suspension issued under this scheme on the basis that the result is unreliable. In the particular circumstances of these appeals, in which a “fail” result automatically triggers serious consequences for a driver without the possibility of review, the scheme fails to provide adequate safeguards. Thus, despite the pressing objective and minimal intrusiveness of the seizure, the ARP scheme fails to strike a reasonable balance between the interests of the state against those of individual motorists, and infringes drivers’ s. 8  rights. [43] On the s. 1 analysis, Karakatsanis J. again agreed with Sigurdson J. that the ARP scheme did not minimally impair the right of a driver to be free of unreasonable search and seizure and thus was not saved by s. 1: para. 85. [44] I conclude that Bro correctly analyzed the decisions in Sivia , BCSC, and Sivia , BCCA and that as a matter of judicial comity, the chambers judge correctly followed Macaulay J. On the basis of stare decisis , I cannot accede to the petitioners’ submission that the other factors identified by Sigurdson J. can form the basis for a finding of constitutional invalidity as a breach of Charter s. 8 not saved by Charter s. 1: Goodwin . (ii) Do the 2012 Amendments Meet the Sivia / Goodwin Concern? [45] Macaulay J. in Bro considered the efficacy of the 2012 amendments creating what we now term the IRP scheme. I have summarized those amendments above. He concluded (at para. 94 of his reasons): [94]      It follows from the above that I do not accept any of the petitioner’s challenges under s. 8 of the Charter to the 2012 regime. In my view, the constitutional deficiencies in the 2010 regime that Sigurdson J. identified in Sivia #1 are addressed by the amendments. With the addition of a right to a second analysis and the additional grounds of review, the driver now has a sufficiently meaningful review process, when considered in light of the regulatory context. The additional grounds are a significant expansion of the Superintendent’s review powers; the driver may now challenge the validity of the ASD result in a number ways. I note that the additional grounds bring the review powers in line with those available under the ADP regime, which Sigurdson J. specifically referred to as an example of a more meaningful review process. In case I err on that point, I turn next to whether any breach is saved by s. 1. [46] Macaulay J. concluded in the alternative that any violation of s. 8 was in any event saved by s. 1. The chambers judge below accepted this reasoning. Before us, I can discern only one complaint advanced in support of the submission that the IRP scheme still infringes s. 8 in its lack of accommodation of mechanisms to challenge the accuracy of the ASD results and that is in the failure to afford a right to cross-examine the police officer making the report to the Superintendent. [47] In the circumstances of the amendments creating the 2012 IRP scheme, I cannot characterize the absence of a right to cross-examine the police officer as “tipping the balance” to an unreasonable search. As Macaulay J. noted in Bro (at para. 52): [ 52]      In Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 at paras. 19–22, the Supreme Court of Canada made it clear that principles of natural justice are not constitutional restraints and may be ousted by express statutory language or necessary implication. This means that I must accept that it is constitutionally permissible for the legislature to prohibit cross-examination during IRP reviews. As Sigurdson J. considered it, the lack of cross-examination is simply one of the factors to consider in assessing the reasonableness of the 2012 regime. [48] I respectfully agree. I also agree with Bro in concluding that the 2012 amendments meet the s. 8 concerns raised in Sivia / Goodwin . [49] If I am wrong in my analysis of Sivia/Goodwin , and I must consider whether both the inability to cross-examine and the inability to challenge the validity of the demand under the Criminal Code together infringe s. 8, in my view these two factors in conjunction still do not amount to an infringement. For the reasons given above, I find the concerns with the inability to cross-examine are attenuated in the regulatory context, and the amendments provide sufficient means to ensure the reliability of ASD results. I would also note that it may be open to challenge the decision of a peace officer, and the validity of the Criminal Code demand under the Judicial Review Procedure Act , R.S.B.C. 1996, c. 241, if such a challenge is foreclosed by the MVA : Rapton v. British Columbia (Motor Vehicles) , 2011 BCCA 396 at para. 20; see also Atchison v. British Columbia (Superintendent of Motor Vehicles) , 2006 BCSC 549, and Soychuk v. British Columbia (Superintendent of Motor Vehicles) , 2004 BCSC 867. [50] Even if there was no way to challenge the validity of the ASD demand, I would find that the scheme was reasonable. The purpose of the IRP scheme is to remove impaired drivers from the road, a purpose the Supreme Court has described as compelling: Goodwin at para. 58. As Justice Cory wrote in R. v. Bernshaw , [1995] 1 S.C.R. 254 at para. 16: Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country. If a driver is truly impaired, and the concerns for ASD reliability have been addressed as discussed above, then it is reasonable that the Superintendent not revoke a prohibition, even if the ASD demand that justifies the prohibition was improperly made. I would find that this balances the “public’s interest in being left alone by government” and “the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement”: Hunter at 159-160. It would completely undermine the purpose of the scheme if someone who truly drove while impaired could return to the road simply because a peace officer did not have “reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle” as required by s. 254 of the Criminal Code . [51] It must be remembered that this is a regulatory, not a criminal scheme. As Justice Moldaver wrote in Wilson (at paras. 33-34): [33]      In addition, it has long been recognized that regulatory legislation, such as the MVA , differs from criminal legislation in the way it balances individual liberties against the protection of the public. Under regulatory legislation, the public good often takes on greater weight. In R. v. Wholesale Travel Group Inc. , [1991] 3 S.C.R. 154, at p. 219, this Court held that [r]egulatory legislation involves a shift of emphasis from the protection of individual interests and the deterrence and punishment of acts involving moral fault to the protection of public and societal interests. While criminal offences are usually designed to condemn and punish past, inherently wrongful conduct, regulatory measures are generally directed to the prevention of future harm through the enforcement of minimum standards of conduct and care. [34]      These comments are particularly apt in the case of regulatory legislation involving roadside driving prohibitions: R. v. Gordon , 2002 BCCA 224, 100 B.C.L.R. (3d) 35, at paras. 26-27. Roadside driving prohibitions are a tool to promote public safety. As such, the legislation necessarily places greater weight on this goal. Unlike the criminal law regime, persons who register a “Warn” or “Fail” under the regulatory regime do not end up with a criminal record, nor are they exposed to the more onerous sanctions under the criminal law, including the risk of incarceration. In short, regulatory legislation does not share the same purpose as the criminal law, and it would be a mistake to interpret it as though it did. I therefore reject Mr. Wilson’s contention that the [IRP] scheme must incorporate the same protections as those provided under the Criminal Code regime. [52] Even if this issue was not already decided by Sivia/Goodwin , in my view s. 8 is not infringed given the regulatory context, the compelling objectives of the IRP scheme, the minimally intrusive nature of the ASD demand, and the fact that concerns regarding ASD reliability have been addressed by amendments granting drivers the right to a second ASD demand, and expanding the grounds for review by the Superintendent. [53] In any event, I would find that the infringement was justified under s. 1. For reasons discussed below, I would consider the Superintendent’s decision that the MVA does not allow the validity of a demand to be considered at a review hearing to be reasonable, and the MVA clearly does not allow for cross-examination, therefore the limits on s. 8 are prescribed by law. [54] A scheme which allows prohibitions to remain and to be reviewed summarily, despite an invalid demand, still furthers the objectives of removing impaired drivers from the road in a timely manner. [55] It is also minimally impairing because any scheme that allowed for prohibitions to be revoked despite objective evidence that the person failed an ASD demand would allow impaired drivers to remain on the road and undermine the objectives. As well, allowing for cross-examination would make the review process impractical, and this Court has recognized that it is not in keeping with the legislative purpose of the scheme to import such protections: Bahia v. British Columbia (Superintendent of Motor Vehicles) , 2006 BCCA 511 at para. 24; see also R. v. Brandon , [1999] B.C.J. No. 3160 (B.C.S.C.) at para. 8. [56] Finally, the salutary benefits outweigh the deleterious effects of the scheme since an ASD demand is a minimally intrusive search, there are now other safeguards to ensure ASD reliability, and the results can only be used to ground a regulatory penalty. [57] The petitioners introduced fresh evidence on appeal by consent and submitted that the evidence undermined the strength of the Superintendent’s position regarding the salutary benefits of the scheme. In particular, the petitioners sought to call into question the claim that the IRP scheme reduced the number of injuries or deaths from impaired drivers by 50%. They claim that there are other confounding variables that make it impossible to determine whether the IRP scheme is solely responsible for the decline in injuries and fatalities. They presented their own statistics that indicate the total number of IRPs and Criminal Code convictions has actually increased since the introduction of the scheme. [58] However, even taken at its best, the petitioners’ evidence does not fully negate the salutary benefits of the scheme. Even if the scheme has only contributed to half the claimed reduction in injuries or deaths, a 25% reduction is still a serious improvement to public safety. Given Cory J.’s comments in Bernshaw, any reduction facilitated by the scheme to the “terrible trail of death, injury, heartbreak and destruction” caused by impaired driving would be an important salutary benefit. [59] I would also observe that the petitioners’ evidence that more total impaired driving proceedings are brought under the IRP and Criminal Code regimes does not negate the conclusion that the scheme has had a not insignificant impact on the reduction in deaths and injuries from impaired driving. It is entirely possible that enforcement rates have increased, in part due to the more summary nature of the IRP scheme, while actual rates of impaired driving have still decreased. [60] Moreover, the petitioners’ evidence does not convince me that the factual findings by other courts on this point were in error. In Bro , Macaulay J. wrote that “the evidence supports a conclusion that the 2012 regime is contributing significantly to a reduction in alcohol-related accidents and deaths on the roads of British Columbia”: at para. 102. It may be that the petitioners’ evidence shows that the scheme’s contribution to the reduction is not as significant as claimed by the Superintendent, but the evidence does not prove that the contribution to the reduction is insignificant. And in Wilson , the Supreme Court of Canada acknowledged that the scheme serves to deter drunk driving: at para. 40. [61] For these reasons, even if there was an infringement of s. 8, I would find it justified under s. 1. (iii) The Section 10(b) Issue [62] As I have outlined, the parties chose not to appeal Sigurdson J.’s decision in Sivia , BCSC on the s. 10(b) issue and the correctness of his conclusion has not been considered by this Court or by the Supreme Court of Canada. The chambers judge accepted as determinative of the issue the conclusion in Sivia , BCSC that while the scheme violated the driver’s s. 10(b) right to counsel at the roadside screening stage, it was saved by s. 1 of the Charter : para. 71. [63] For his part, Sigurdson J. dealt with the s. 10(b) issue exhaustively at paras. 331-375 of Sivia , BCSC. I agree with his reasoning and would adopt it. I would add only one point to address a submission by the petitioners in the case at bar. [64] The petitioners argue that prior cases involving roadside testing where s. 10(b) has been infringed – including R. v. Orbanski , 2005 SCC 37, which Sigurdson J. relied upon in his decision – have only found the infringement justified because the test results could only be used for a limited purpose, and in particular could not be used as evidence in a subsequent criminal proceeding. By contrast, the petitioners submit that the IRP scheme uses the test results to impose immediate “convictions”. [65] In my view, just because it may be disproportionate to use roadside test results obtained in violation of s. 10(b) in subsequent criminal proceedings, does not mean it would necessarily be disproportionate to use those results to impose administrative penalties that further the pressing and substantial objectives of the MVA . As Moldaver J. wrote in Wilson, “[u]nlike the criminal law regime, persons who register a ‘Warn’ or ‘Fail’ under the regulatory regime do not end up with a criminal record, nor are they exposed to the more onerous sanctions under the criminal law, including the risk of incarceration”: at para. 34. Given this lesser jeopardy facing the individual, I would consider it rationally connected to the purpose of the MVA , minimally impairing, and proportionate to use ASD test results to impose the regulatory penalties under the IRP scheme. (iv) The Administrative Law Issue [66] Section 215.41(3.1) of the MVA provides: If, at any time or place on a highway or industrial road, (a) a peace officer makes a demand to a driver under the Criminal Code to provide a sample of breath for analysis by means of an approved screening device and the approved screening device registers a warn or a fail, and (b) the peace officer has reasonable grounds to believe, as a result of the analysis, that the driver's ability to drive is affected by alcohol, the peace officer, or another peace officer, must, (c) if the driver holds a valid licence or permit issued under this Act, or a document issued in another jurisdiction that allows the driver to operate a motor vehicle, take possession of the driver's licence, permit or document if the driver has it in his or her possession, and (d) subject to section 215.42, serve on the driver a notice of driving prohibition. [67] In turn, s. 215.5(1)(b) provides: (b) in respect of a 90-day driving prohibition resulting from a sample of breath for analysis by means of an approved screening device and the approved screening device registering a fail, (i) the person was advised of his or her right to forthwith request and be provided with a second analysis under section 215.42 (1), (ii) the second analysis, if the person requested a second analysis, was provided by the peace officer and was performed with a different approved screening device than was used in the first analysis and the notice of driving prohibition was served on the person on the basis of the lower analysis result, (iii) the approved screening device registered a fail and registered the fail as a result of the concentration of alcohol in the person's blood being not less than 80 milligrams of alcohol in 100 millilitres of blood, and (iv) the result of the analysis on the basis of which the notice of driving prohibition was served was reliable, or [68] The petitioners pose this question in their factum and submit that the answer is in the affirmative: Does a correct statutory interpretation of the word “fail” in s. 215.41(3.1)(b) of the MVA mean a “fail” pursuant to a valid demand under the Criminal Code and should “fail” in s. 215.5(1)(b) of the MVA be given the same interpretation? [69] I need not outline the facts in each case that purportedly support this submission. In essence, the petitioners are arguing that the police officers in each case made an invalid demand because they made it for purposes outside the ambit of s. 254(2) of the Criminal Code . Each adjudicator decided that the validity of the breath sample demand is not an issue in the review under the MVA . [70] In the words of the Wilcock adjudicator: I disagree with Mr. Green’s analysis and reading of the Act. I find that the validity of the demand is not an issue in this review. Section 215.5(1)(c) of the Motor Vehicle Act requires me to confirm a prohibition if I am satisfied that a driver failed or refused to comply with a demand made under the Criminal Code . Section 215.5(1)(b), which governs this review, does not incorporate that requirement. That section requires me to confirm your prohibition if I am satisfied that you were the driver within the meaning of section 215.41(1), and that the ASD registered a “FAIL”. The decision of the Gregory adjudicator is to the same effect. [71] Here the adjudicators are interpreting their home statute. Their interpretation in the circumstances is entitled to deference and no case calling for a more critical review has been advanced: McLean v. British Columbia (Securities Commission) , 2013 SCC 67. [72] Applying a reasonableness standard of review to the adjudicators’ decisions, as the chambers judge did, was correct. The adjudicators’ decisions on this point certainly fall within the range of reasonable outcomes. The more so when one looks at the statutory definition of the word “fail” in s. 215.41(2): "fail" means an indication on an approved screening device that the concentration of alcohol in a person's blood is not less than 80 milligrams of alcohol in 100 millilitres of blood; [73] The petitioners would, effectively, add words to the definition not included by the Legislature. [74] I also agree with the respondents’ reliance on the Supreme Court of Canada’s decision in Wilson. The purpose of the Criminal Code breath sample demand under s. 254(2) of the Criminal Code is investigatory. It may provide the reasonable and probable grounds for a further analysis under s. 254(3). The respondents submit that the reference in s. 215.41(3.1) to a demand under the Code does not mean that the purpose of the Code provision (determining whether there are grounds for a further analysis) governs. The purpose of an ASD demand is established by the IRP scheme. The respondents cite Wilson to this effect: The MVA and the Code are two independent statutes, with two distinct purposes. They were enacted by two different levels of government, neither of which is subordinate to the other: [ Reference re Securities Act , 2011 SCC 66, [2011] 3 S.C.R. 837, at para. 71]. Under the MVA , the demand for a breath sample triggers a regulatory regime that is wholly independent of the Criminal Code. The fact that the MVA relies on a Criminal Code demand for a breath sample does not render it subsidiary legislation. [75] I agree. [76] I would also observe that a driver may still have recourse to challenge the validity of an ASD demand through judicial review of the peace officer’s decision, even if the issue may not be considered during a review by the Superintendent: Rapton , at para. 20; see also Atchison and Soychuk . [77] In conclusion, I would not give effect to the grounds of appeal advanced; I would dismiss the appeals. “The Honourable Chief Justice Bauman” I agree: “The Honourable Mr. Justice Lowry” I agree: “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: N.E.T. v. British Columbia, 2018 BCCA 22 Date: 20180112 Docket: CA44844 Between: N.E.T. Appellant (Plaintiff) And Government of British Columbia, Interior Health Authority, Royal Inland Hospital, Kamloops Mental Health & Substance Use, Dr. Kurt Buller and Dr. James Mabee Respondents (Defendants) A publication ban was ordered on September 30, 2016, in the Supreme Court of British Columbia - no person may publish, broadcast or otherwise divulge the appellant’s name, or other information tending to reveal his identity as connected with this action. Before: The Honourable Mr. Justice Fitch (In Chambers) On appeal from: an order of the Supreme Court of British Columbia, dated September 29, 2017 ( N.T. v. British Columbia , 2017 BCSC 1742, Kamloops Registry No. 53209) Oral Reasons for Judgment Appellant appearing In Person: N.T. Counsel for the Respondent, Government of British Columbia: F. de Lima Counsel for the Respondent, Interior Health Authority A.C. Fraser Counsel for the Respondents, Dr. Mabee and Dr. Buller: K. Rose Place and Date of Hearing: Vancouver, British Columbia January 12, 2018 Place and Date of Judgment: Vancouver, British Columbia January 12, 2018 Summary: The appellant makes various applications in relation to his appeal from an order dismissing his claim against the defendants as statute-barred. In the underlying action, the appellant alleged the defendant doctors committed negligence in relation to his certifications under the Mental Health Act , R.S.B.C. 1996, c. 288. Held: Leave to appeal: Leave to appeal is not required. The notice of application for leave to appeal will stand as the notice of appeal. Application for no fee status: allowed. The merit threshold for a no-fee application is low. It cannot be said on the basis of the material filed that the appeal is bound to fail. Application for publicly funded transcripts, appeal record and appeal book: dismissed. Even if a judge in chambers has jurisdiction to make the order sought, such an order is only appropriate in civil cases if the appeal is very meritorious. It has not been shown that the appeal meets this test. Application for publication ban: the appellant already has the relief he seeks. The court below made a publication ban with respect to the appellant’s identity in 2016. Nothing suggests the ban was varied or set aside. The ban therefore endures. Application for sealing order: dismissed. Even if a judge in chambers has jurisdiction to make a permanent order for the sealing of the Court’s file, the order is unnecessary in this case. Court records are presumptively open to the public. Orders restricting public access to court records must be justified by a public interest that prevails over the public interest in open courts. The appellant adduced no convincing evidence to demonstrate that a public interest in confidentiality justifies a sealing order in this case. He provided no evidence that the absence of a sealing order will frustrate his ability to access the courts. The existing publication ban is sufficient to protect the appellant’s privacy interests. Application to have the appeal heard in camera : The division hearing the appeal, not a justice in chambers, should decide whether the appeal will be heard in camera . I. Introduction [1] FITCH J.A. : The appellant, N.T., makes application for the following orders: leave to appeal the September 29, 2017, order of Justice Meiklem dismissing the action against all of the defendants as being barred by the Limitation Act , R.S.B.C. 1996, c. 266 (the “former Act”); that no fees be payable by him under Schedule 1 of Appendix C to the Court of Appeal Rules in connection with his appeal; that transcripts of the proceedings below be provided to him at no cost on or before January 31, 2018; and that the Court impose a ban on the publication of his identity or information that could disclose his identity, seal the Court file, and direct that the appeal be heard in camera . [2] The Province takes no position on any of the applications. [3] The other defendants concede that leave to appeal is not required. They oppose the making of a “no fees” order on grounds that the appeal is devoid of merit and bound to fail. They take no position on the appellant’s other applications for relief. II. Background [4] The action, which was commenced on July 12, 2016, concerned N.T.’s certifications under the Mental Health Act , R.S.B.C. 1996, c. 288 [ MHA ] between November 1, 2000, and February 19, 2013. [5] Dr. Mabee was the appellant’s family physician until his retirement from practice on June 30, 2010. He referred the plaintiff to Dr. Buller, a psychiatrist, in October 1999 and signed one of the required medical certificates on the original certification on October 30, 2000. The appellant was certified on multiple occasions between 2002 and 2012, although he was frequently released on extended leave subject, as I understand it, to a condition that required him to ingest his medication under the supervision of a pharmacist. He was eventually discharged from involuntary patient status by Dr. Buller on February 19, 2013. [6] The defendants in the underlying action applied pursuant to R. 9-7 of the Supreme Court Civil Rules for dismissal of the appellant’s action by way of summary trial on the basis that it was statute-barred by the former Act. The summary trial proceeded on the footing that the former Act governed as a result of the transition provisions found in s. 30 of the Limitation Act , S.B.C. 2012, c. 13 (the “current Act”). [7] The reasons for judgment of the court below, indexed as 2017 BCSC 1742, reflect that the parties agreed that the matter was suitable for disposition by way of summary trial. [8] The appellant’s claim against the defendants was summarized by Meiklem J. as follows: [3] The plaintiff claims that Dr. Mabee and Dr. Buller were both negligent in their diagnosis and treatment of him, which consisted principally of prescribing the anti-psychotic medication Olanzapine, and enforcing his consumption of same by maintaining involuntary patient certification under the MHA . The plaintiff has consistently asserted that he does not suffer from any mental illness or infirmity. He faults these defendants for concluding that he was delusional without first investigating the veracity of his reported interventions in his life by various entities. [4]        The Notice of Civil Claim refers to Dr. Buller and Dr. Mabee “holding”, “fiduciary responsibility”, as well as “duty of care responsibility”. The claims against the Government of British Columbia, Interior Health Authority (“IHA”), RIH, and Kamloops Mental Health and Substance Use (“MHSU”) are somewhat obscure. The claim against IHA, MHSU and RIH seems to be based on the proposition that they are vicariously liable for “permitting” injurious conduct on the part of “medical personnel”. The relief sought against the Government of British Columbia is the expunging of records of “Medical Billing Services”, and the plaintiff claims that the Government is jointly liable with the other institutional defendants for damages because it has failed to respond to his ”requests for remedy”, and because it “facilitates and abets faulty process in the form of the BC Mental Health Act’s administration which wrongfully effected the plaintiff’s detention and caused grievous and irremediable injury”. [9] As the plaintiff’s claims were determined to be principally medical negligence claims against the named doctors, the judge below found that, absent postponement, the limitation period is two years from the occurrence of the alleged negligent conduct. [10] The earliest date upon which the plaintiff’s right to bring an action could be said to arise was October 30, 2000, when he was first certified and compelled to take medication. The defendants submitted that the latest date by which the limitation period could have commenced was the appellant’s discharge date of February 19, 2013. [11] Dr. Mabee submitted that, because he retired on June 30, 2010, no cause of action against him in medical negligence could have arisen after that time. Dr. Buller submitted that his last interaction with the plaintiff was February 19, 2013, which was the latest date upon which any cause of action could have arisen against him. [12] The appellant advanced a number of arguments and alternative arguments below supported by voluminous written submissions. [13] First, he argued that the limitation period did not commence until the Interior Health Authority and the Kamloops Mental Health & Substance Use clinic closed their file in relation to him on September 1, 2015. [14] Alternatively, the appellant argued that he did not “discover” his claim until March 2016, when he experienced an epiphany in which he says he “came to the full realization of injuries incurred, throughout the process there was an insidious and continuous erosion of my person, but clear realization of all injuries occurred at this time”. The defendants responded to this alternative position by noting that it is apparent from the appellant’s conduct since 2000 that he was cognizant of the existence of a duty of care and expressed, in consistent and vigorous terms, his belief that the defendant doctors had misdiagnosed him, misapplied the MHA , and caused him injury by requiring him to take a pharmaceutical for the treatment of a diagnosed delusional disorder. [15] In the further alternative, the appellant argued that he was entitled to a postponement of the limitation period pursuant to s. 6(6) of the former Act. Relying on Novak v. Bond , [1999] 1 S.C.R. 808, the appellant argued that his circumstances were so serious, significant and compelling that it could not reasonably be said that he could bring an action within the prescribed limitation period. In this regard, the appellant said that he felt emotionally overwhelmed and unable to bring the action within the two-year limitation period. [16] The defendants responded to this further alternative argument by noting that the appellant pursued his complaints not only to the doctors, but also by engaging in a letter campaign in 2008 directed at MLAs and by advocating changes to the MHA . In addition, the defendants noted that the appellant filed a petition in the Supreme Court of British Columbia in 2012, prepared a 52-page affidavit in support of that petition and argued it on his own behalf. In that petition, the appellant sought an order discharging him from Royal Inland Hospital, along with ancillary orders expunging from his medical records all information associating him with a mental disorder and requiring Dr. Buller to write a letter stating that the appellant did not suffer from a mental disorder. An application for leave to appeal from the dismissal of the petition was initiated by the appellant but apparently abandoned after his discharge from involuntary patient status by Dr. Buller on February 19, 2013. The defendants also noted that, in December 2012, the appellant prepared a 42-page submission on legislative reform for the Attorney General of British Columbia and the Minister of Health. In April and May 2014, the appellant corresponded with and met the then Minister of Health to advocate for legislative reform and to advance his request that his personal health records be purged of any reference to being diagnosed with a delusional disorder. [17] The record before me is unclear as to whether the appellant sought to rely on s. 7 of the former Act, which provided that if, at the time the right to bring an action arises, a person is under a disability, the running of time with respect to the limitation period is postponed so long as that person is under a disability. The appellant argues before me that he did rely on s. 7 of the former Act and there is some support for this in the material that appears to have been before the judge below. The judge did not understand the appellant to be relying on s. 7 of the former Act and held, in any event, that the appellant failed to discharge his burden of bringing himself within the provisions of that section. [18] In the further alternative, the appellant argued that s. 3(1)(k) of the current Act applied to his case. This provision states that the Act does not apply to claims relating to assault or battery, whether or not the claimant’s right to bring the court proceeding was at any time governed by a limitation period, if the assault or battery occurred while the claimant was in a relationship of dependency with a person who performed, contributed to, consented to or acquiesced in the assault or battery. As I understand the appellant’s submission, he says that, when he was forced to ingest medication, he was in a relationship of dependency with the defendant physicians and, in particular, Dr. Buller. The judge did not address this argument in his reasons for judgment. III. The Reasons for Judgment [19] The judge considered that two issues arose for determination on the summary trial: (1) the commencement dates of the applicable two-year limitation periods in respect of each defendant; and (2) whether the plaintiff proved he is entitled to a postponement of the limitation periods so as not to bar his action commenced on July 12, 2016. [20] In dismissing the action as being time-barred, Meiklem J. made these findings: · Dr. Mabee’s last certification of the appellant occurred on March 10, 2004; · The last date upon which Dr. Buller renewed the appellant’s certification was October 4, 2012. That renewal was set to expire on April 9, 2013, but the appellant was discharged by Dr. Buller on February 19, 2013; · The appellant’s cause of action arose, and the basic limitation period commenced, in respect of Dr. Mabee on March 10, 2004, and in respect of Dr. Buller, on October 4, 2012; · The action against Dr. Mabee would be barred even if the basic two-year limitation period had been postponed to a date six years after his alleged actionable negligence. This is because the action was commenced six years after Dr. Mabee’s retirement from medical practice on June 30, 2010; · As the plaintiff’s claims did not rely on the conduct of any actors other than Dr. Mabee and Dr. Buller, the limitation period in respect to the other defendants also commenced on October 4, 2012; · The evidence respecting the extent to which the appellant pursued his grievances refuted his suggestion that he was unaware of the existence of a duty owed to him by the defendant doctors or unaware that he had suffered the alleged damages as a result of a breach of that duty. He was aware of the identity of the defendants and was possessed of the facts referenced in s. 6(5)(b) of the former Act. The appellant’s contention that he only came to discover his injuries in March 2016 was rejected as being inconsistent with his course of conduct. Thus, the first two components of s. 6(4) set out in Ounjian v. St. Paul’s Hospital , 2002 BCSC 104 at para. 21, were met before July 12, 2014. As for the third component (a person knowing those facts, and having taken the appropriate advice a reasonable person would seek on those facts, would regard the facts as showing that an action would have a reasonable prospect of success), Meiklem J. found this was satisfied prior to July 12, 2014 – two years before the action was commenced. With respect to the appellant’s reliance on Novak and the fourth component, Meiklem J. held that the appellant “offered no evidence of serious, significant and compelling personal circumstances in any way comparable to those of Mrs. Novak that could be considered sufficient to explain why he could not reasonably have commenced an action prior to July 12, 2014”; · In the face of these findings, Meiklem J. held that “none of the bases set out in s. 6(4) of the former Act on which I could find postponement of the commencement of the applicable limitation period have been established by the plaintiff”; · Even if the appellant had raised s. 7 of the former Act as a defence to the application of the limitation period, he failed on the evidence to discharge the burden of bringing himself within the terms of this provision. [21] Against this background, I turn to address the appellant’s applications for relief. IV. The Orders Sought Leave to Appeal [22] In my view, the appellant does not require leave to appeal. Accordingly, I would direct that the notice of application for leave to appeal filed October 24, 2017, stand as the notice of appeal. No Fees Application [23] Rule 56 of the Court of Appeal Rules (the “ CA Rules ”) confers jurisdiction on a justice to order that a person need not pay fees: Justice may order that no fees are payable 56 (1) Subject to subsection (2), if a justice, on application made in accordance with Rule 38 before or after the commencement of an appeal or application, finds that a person cannot afford to pay the fees under Schedule 1 of Appendix C without undue hardship, the justice may order that no fees are payable under that Schedule . (2) A justice may not make an order under subsection (1) respecting a person if the justice considers that the position being argued by that person (a) lacks merit, (b) is scandalous, frivolous or vexatious, or (c) is otherwise an abuse of the process of the court. [24] Under R. 56, a chambers judge must consider two criteria: the financial position of the appellant and the likelihood of success on appeal: J.W.M. v. J.L.M. , 2016 BCCA 453 at para. 20 (Chambers). [25] The merits threshold for a no fees application is not high: Hasham v. Reach Centre Association , 2017 BCCA 104 at para. 9 (Chambers); BH v. JH , 2015 BCCA 475 at para. 10 (Chambers). The order will not, however, be granted where the appeal is bound to fail: Hasham at para. 9; Kohlmaier v. Campbell , 2003 BCCA 61 at para. 3 (Chambers). [26] I am satisfied that the appellant cannot afford to pay filing fees without undue hardship. Can it be said that the appeal is doomed to failure? [27] The appellant will advance what I understand to be four grounds of appeal: (1) the judge improperly precluded a review of all the facts on the summary trial, including facts going to the issue of whether his cause of action sounded in assault, such that s. 3(1)(k) of the current Act might apply; (2) the judge incorrectly admitted hearsay evidence; (3) the judge erred by failing to find that the postponement provisions of the former Act applied given the appellant’s serious, significant and compelling circumstances; and (4) the judge erred by failing to find that the appellant’s cause of action continued beyond his February 19, 2013, discharge date. [28] I accept that the appellant will likely face significant challenges in successfully advancing these grounds of appeal. [29] With respect to the second ground of appeal, the appellant appears to be saying that the judge erred by relying on hearsay evidence and, further, that it was incumbent on the respondents to adduce evidence establishing his mental illness. I have not been directed by the appellant to any hearsay evidence improperly relied on by the judge. Further, on my preliminary assessment of the matter, I do not see how evidence concerning the diagnosis of mental illness has any bearing on the resolution of the issues that arose for determination on the summary trial. As I see it, the appellant’s mental health diagnosis was only relevant to whether his circumstances were so serious, significant and compelling as to meet the test for postponement set out in Novak , and whether it could be said that he suffered from a disability pursuant to s. 7 of the former Act. [30] With respect to the third ground of appeal, as the majority of the Court noted in Novak at para. 86, whether individual circumstances would be regarded by a reasonable person as preventing a plaintiff from commencing an action is a case-specific assessment. In this case, the judge found that the appellant offered no evidence of serious, significant and compelling personal circumstances that could reasonably be characterized as sufficient to explain why he could not have commenced an action by July 12, 2014 – the date that was two years prior to the commencement of the action. To succeed on this ground, it seems to me that the appellant will be obliged to establish palpable and overriding error. [31] With respect to the fourth ground of appeal, I have difficulty, on a preliminary assessment of the matter, seeing merit in the appellant’s contention that the delayed closing of his file or any other action taken by any of the defendants after his discharge caused him continuing harm such as to constitute actionable negligence. I note that the judge dealt with this issue at para. 57 of his reasons for judgment. [32] The appellant’s position that s. 3(1)(k) of the current Act ought to have been applied to the circumstances of his case stands, in my mind, on a somewhat different footing. As mentioned earlier, this argument was advanced by the appellant but not addressed by the judge below. I accept that there may well be challenges associated with successfully advancing this argument on appeal. Counsel for the Interior Health Authority, Royal Inland Hospital and Kamloops Mental Health & Substance Use urges upon me the proposition that the legislature could not have intended that the conduct contemplated by this subsection, when committed by a mental health professional in relation to an involuntarily certified patient, should be subject to no limitation period. While this may, as counsel suggest, be a difficult argument for the appellant to meet, I am not prepared to hold on the very limited submissions I have heard on this point that there is no merit in this ground of appeal and that it is bound to fail. [33] As I am unprepared to say on the material before me that the appeal is bound to fail, I grant the appellant “no fee” status in relation to his appeal. The Provision of Transcripts [34] The order that the appellant be excused from paying filing fees in connection with this appeal does not relieve him of the obligation to prepare and file an appeal record, transcripts and appeal books absent further order of this Court or a judge thereof: Jong v. Jong , 2002 BCCA 322 at para. 11. [35] Assuming that I have jurisdiction to make the order sought (see, on this point, Barbeau-Lafacci v. Holmgren , 2002 BCCA 553 at para. 20 (Chambers)), I would not make an order in this case that the appellant be provided with the appeal record, transcripts and appeal books at public expense. In Cutts v. Alterra Property Group Ltd. , 2014 BCCA 264 at paras. 13–17 (Chambers), Stromberg-Stein J.A. canvassed the authorities on this point and concluded that such an order is rarely, if ever, made on civil appeals and would only be considered where the underlying appeal has been shown to be “very meritorious”. While I am not prepared to say that the appellant’s appeal is bound to fail, neither has it been shown to be possessed of the sort of merit that might conceivably justify the making of such an order. The Publication Ban [36] A non-publication order was made in the court below on September 30, 2016. The terms of the order provided that “no person may publish, broadcast or otherwise divulge [the appellant’s] name, or other information tending to reveal his identity as connected with this action.” The order appears to be permanent. [37] A permanent publication ban made in a lower court generally endures until varied by a court with jurisdiction to do so: R. v. V.K. (1992), 68 C.C.C. (3d) 18 at 21 (B.C.C.A); I.J. v. J.A.M. , 2013 BCCA 430 at para. 3. The order has not, to the best of my knowledge, been varied or set aside. Since a publication ban is already in place, the appellant already has the relief he seeks. For clarity, the parties are directed to file further written submissions using only the appellant’s initials. The Sealing Order [38] As neither the appellant nor the defendants have addressed in any detail the law in this area, I will keep my discussion of this issue relatively short. [39] By way of background, it is my understanding that the file in the Supreme Court of British Columbia is not subject to a sealing order. While temporary sealing orders were granted to permit argument and proper notice of an application that the appellant brought for an order sealing the Supreme Court file, those orders have expired. When the publication ban was imposed in the Supreme Court of British Columbia on September 30, 2016, the presiding judge declined to make a further sealing order, evidently being of the view that the appellant’s privacy interests were sufficiently protected by the publication ban order. [40] Applications for a non-statutory publication ban or confidentiality order, such as a sealing order, are guided by the framework developed in Dagenais v. Canadian Broadcasting Corp. , [1994] 3 S.C.R. 835, R. v. Mentuck , 2001 SCC 76, and Sierra Club of Canada v. Canada (Minister of Finance) , 2002 SCC 41. [41] As stated by the Supreme Court of Canada, “every court has a supervisory and protecting power over its own records”: A.G. (Nova Scotia) v. MacIntyre , [1982] 1 S.C.R. 175 at 189. Court records are presumptively open to the public in accordance with the open court principle, which is linked to freedom of expression: Sierra Club at para. 36. The onus is on the party seeking to restrict public access to show that some superordinate public interest prevails over the public interest in open courts: Dagenais at 891. [42] The Dagenais/Mentuck framework involves a two-step test for determining whether a publication ban or confidentiality order is justified (see Sierra Club at para. 53): 1. Is the order necessary to prevent a serious risk to an important interest? This first question involves three elements: (a) whether the risk is real and substantial, well-grounded in the evidence, and poses a serious threat to the interest in question; (b) whether the interest can be expressed in terms of a public interest in confidentiality, as opposed to an interest that is merely specific to the party requesting the order; and (c) whether reasonable alternatives are available to the order sought and, if not, how the court may restrict the order as much as reasonably possible. 2. Do the salutary effects of the confidentiality order outweigh its deleterious effects, including effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings? [43] At the first stage of the analysis, the importance of the open court principle requires an applicant to adduce convincing evidence justifying a restriction on public access: Out-of-Home Marketing Association of Canada v. Toronto (City) , 2012 ONCA 212 at para. 56 per Epstein J.A., leave to appeal ref’d [2012] S.C.C.A. No. 249; M.E.H. v. Williams , 2012 ONCA 35 at para. 34. [44] If restrictions on the open court principle are justified, the Dagenais/Mentuck framework requires courts to craft orders that are minimally restrictive. For example, if initialization will protect adequately an individual’s privacy interests when coupled with a publication ban order, a sealing order is unlikely to be justified: C.L.B. v. J.B. (2009), 97 O.R. (3d) 544 (Sup. Ct. J.). Even if an applicant establishes that a sealing order is justified, the court may make the sealing order applicable only to part of the file, such as certain affidavits: see, e.g., Sahlin v. The Nature Trust of British Columbia , 2010 BCCA 516 (Chambers). [45] The appellant has filed in this Court materials detailing his mental health history. He seeks to prevent any public access to this information, relying on the social stigma he says he has experienced as an individual diagnosed with a mental health problem and involuntarily certified under the MHA . [46] Assuming I have jurisdiction to make what appears to be a permanent sealing order sought by the appellant, I would decline to make the order in this case. In my view, the appellant has failed to satisfy the first branch of the Dagenais/Mentuck framework. He has not adduced convincing evidence to demonstrate that a superordinate public interest in confidentiality justifies infringing the open court principle. Further, the appellant has adduced no evidence demonstrating that the absence of a sealing order will effectively frustrate his ability to access the courts. [47] The Dagenais/Mentuck framework requires courts to impose measures that minimally impair the open court principle. As discussed above, the court below made a publication ban, which continues to govern proceedings in this Court. I agree with the court below that initialization of the style of cause and the publication ban are sufficient to protect the appellant’s privacy interests in this case. The application for a permanent sealing order over the entirety of this Court’s file is, accordingly, dismissed. In Camera Hearing of the Appeal [48] I am doubtful that I have jurisdiction to make an order that the appellant’s appeal be heard in camera. Even if I have jurisdiction under s. 10(2)(a) of the Court of Appeal Act , R.S.B.C 1996, c. 77, to make the order sought, I would not have been inclined to grant the application for two reasons. First, as should be apparent from the foregoing, I am of the view that the appellant’s privacy interests are protected adequately by the existence of an order prohibiting the publication of his identity or information that could disclose his identity. Second, and more to the point, the order the appellant seeks goes in a fundamental way to the management of the appeal itself and, in my view, should be brought to the division of this Court assigned to hear the appeal, not to a judge in chambers. To be clear, I have not resolved this issue. If the appellant is so minded, he may renew this application before the division assigned to hear the appeal. [discussion with counsel re. dispensing of appellant’s signature on the form of order] [49] FITCH J.A. : Mr. [T.], do you understand what they are asking for? [50] MR. N.E.T. : That I needn’t sign the order, I believe, for it to be processed. [51] FITCH J.A. : Correct. In other words, they will prepare the order reflecting the disposition of all of the applications that have been put before me today, that your approval of the order be dispensed with and that it come directly to me for approval. Of course, I will make sure it is correct. [52] I will make that order. “The Honourable Mr. Justice Fitch”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Kwantlen University College Student Association v. Canadian Federation of Students – British Columbia, 2018 BCCA 16 Date: 20180117 Docket: CA44334 Between: Kwantlen University College Student Association, Steven Button and Alex McGowan Respondents (Plaintiffs) And Canadian Federation of Students – British Columbia Appellant (Defendant) Before: The Honourable Mr. Justice Donald The Honourable Madam Justice Saunders The Honourable Mr. Justice Groberman On appeal from:  An order of the Supreme Court of British Columbia, dated February 24, 2017 ( Kwantlen University College Students Association v. Canadian Federation of Students – British Columbia , 2017 BCSC 299, Vancouver Docket No. S146936). Counsel for the Appellant: M.G. Underhill K.R. Phipps Counsel for the Respondent: D.B. Borins J.P. Sullivan Place and Date of Hearing: Vancouver, British Columbia September 18, 2017 Place and Date of Judgment: Vancouver, British Columbia January 17, 2018 Written Reasons by: The Honourable Mr. Justice Groberman Concurred in by: The Honourable Mr. Justice Donald The Honourable Madam Justice Saunders Summary: The respondents served a petition on the appellant seeking a referendum on whether their students’ union would withdraw from the appellant organization. Neither the appellant nor the respondents had access to a list of their members, so the respondents asked the registrar of the institution to verify the signatures on the petition. The registrar confirmed that the petition was properly signed by the requisite number of students. The appellant requested further information, and then conducted its own verification of the petition, finding that the number of valid signatures did not meet the required threshold. It refused to hold the referendum. The respondents sued, seeking various forms of relief, and the appellant sought judgment on a summary trial. The judge determined that the only issue suitable for summary determination was who had authority to verify the petition. He declared that the appellant was bound to accept the registrar’s determination as to the validity of the petition. On appeal held: appeal allowed in part. The declaration granted by the chambers judge is set aside. While each side argued that it had exclusive authority to definitively determine the validity of the petition, there was no basis for finding that either side had such authority. The signature requirement was an objective one, and the question of whether it was met could be determined by the courts if the parties were unable to agree. Reasons for Judgment of the Honourable Mr. Justice Groberman: [1] In September 2013, students at Kwantlen Polytechnic University (“Kwantlen”) circulated a petition asking for the holding of a referendum to decide whether the Kwantlen University College Student Association (the “KSA”) would continue to be a member of the Canadian Federation of Students – British Columbia (the “CFS‑BC”). At that time, the bylaws of the CFS‑BC required the holding of a referendum where 10% of its members at a member institution signed a petition requesting one. The current appeal is concerned only with the question of who was entitled to determine whether the 10% threshold was met. The CFS‑BC Structure and Bylaws [2] The CFS‑BC is an association of university and college students’ unions. Students’ unions that are associated with the CFS‑BC are described in its bylaws as “local unions”. The individual students who are members of local unions are also members of the CFS-BC and described as “individual members” in its bylaws. The directors of the CFS-BC are referred to as its “Executive Committee” and manage the general affairs of the association. [3] The bylaws of the CFS‑BC allow an associated students’ union to withdraw from the organization by way of a referendum. The appellant refers to a withdrawal referendum as a “disaffiliation” referendum, while the bylaws use the words “defederation” and “decertification”. It appears that all of these expressions are interchangeable. In 2013 and 2014, the relevant bylaw provisions included the following provision: 2.1       Full Membership l. The individual members of the Federation collectively belonging to a member local union will have sole authority to initiate, by petition signed by not less than ten per cent (10%) of the individual members and served to the Federation’s Executive Committee, a defederation referendum as described in this Bylaw. [4] Subsequent provisions of the bylaw outlined procedures and rules for a referendum. These other provisions are of limited importance to this appeal, but are annexed to this judgment as an appendix. The Petition and Verification Processes [5] Individual students at Kwantlen collected signatures on a petition calling for a decertification referendum in September 2013. On September 25, 2013, the petition was submitted to the Executive Committee of the CFS-BC. On October 18, 2013, the CFS‑BC wrote to the KSA “requesting the assistance of the [KSA] in verifying the authenticity of the names appearing on the petition, including the enrolment status (or membership status, if different).” [6] The KSA responded, advising that “the KSA does not have a copy of its membership list as [Kwantlen] will not provide us with personal information of students.” The letter advised, however, that a copy of the petition had been sent to the Office of the Registrar of Kwantlen, and that the Registrar had agreed to verify the petition. [7] By letter dated December 10, 2013, the Registrar reported that there were 1,505 signatures on the petition, of which 1,387 were valid. Of the 118 invalid signatures: 37 were found not eligible to vote or not on the student list; 49 were cases where the student name did not match the student ID number; 13 were duplicate signatures; and 19 contained incomplete or illegible ID numbers. [8] The letter stated that the number of eligible student voters was 13,501, and that the number of valid signatures represented 10.27% of the total number of students eligible to vote. [9] The KSA forwarded the letter to the CFC-BC on December 18, 2013. The CFS‑BC executive was not satisfied with the Registrar’s letter, and responded to the KSA in a January 11, 2014 letter: As you are aware, the Executive Committee of the [CFS‑BC] is responsible for determining whether a petition submitted by individual members seeking a referendum on the question of continued membership in the [CFS‑BC] is in order. In order to consider the information that the Office of the Registrar has provided, the Executive Committee requires a copy of the petition that the Office used in its efforts to verity enrolment along with the Office of the Registrar’s notes next to each name indicating its status (ie. valid, invalid etc.) and a description of the criteria applied for the verification. For those signatures deemed invalid, the Executive Committee will require an explanation as to why the individual is not eligible (ie. incorrect student number, not enrolled, etc.). Upon receipt of this basic supporting documentation, the Executive Committee should be in a position to consider the petition and determine whether it is in order. Please advise me … if the [KSA] is able to assist in this matter or if the Executive Committee should contact the Office of the Registrar directly to make these arrangements. [10] The KSA responded on January 16, 2014: You indicate in your letter that the “Executive Committee of the [CFS‑BC] is responsible for determining whether a petition submitted by individual members seeking a referendum on the question of continued membership in the [CFS‑BC] is in order”. The CFS‑BC bylaws contain no such provision [11] The response went on to state that the KSA was not in possession of the information requested and expressed concern that the CFS‑BC was improperly delaying the referendum process. [12] Over the following weeks, the parties exchanged letters, largely reiterating their views and concerns. The CFS‑BC also wrote directly to the Office of the Registrar of Kwantlen, requesting an “up-to-date membership list” so that it could, itself, verify the petition. The CFS‑BC followed up with several letters and voice messages to the Registrar. [13] On March 4, 2014, the Registrar provided a membership list to the CFS‑BC, consisting of 16,262 individual student numbers, but without names. He invited the CFS‑BC to return to him if it had any questions, but it did not do so. On reviewing the list and the petition, the CFS‑BC concluded that there were 1,507 signatures on the petition, but that only 1,342 of them were valid. [14] On March 28, 2014, counsel for the CFS‑BC advised that the referendum would not take place. Among the reasons given was that the petition was signed by only 8.25% of the membership at Kwantlen. [15] In an affidavit sworn in November 2016, the Registrar explains the efforts made by his office to verify the petition in 2013, and to produce a list of voters for the CFS‑BC in 2014. He indicated that in 2013 his office examined each name and student ID number on the petition. In order for a signature to be considered valid, both the printed name on the petition and the student ID number had to be clear, and both had to correspond with an individual on the voters list. [16] With respect to the 2014 voters list, the Registrar states that the list used in the original 2013 verification was not archived or retained. An effort was made to recreate a voters list as of September 24, 2013, in response to the CFS‑BC’s request, but the Registrar’s office experienced some difficulty in that endeavour. He states that the actual number of students registered at Kwantlen in the fall of 2013 was 14,385, though not all would have been members of the KSA. He concludes that the list his office provided to the CFS‑BC with 16,262 entries was “obviously not accurate” as it contained approximately 2,000 more student numbers than there were students enrolled at Kwantlen in the fall of 2013. Proceedings in the Supreme Court [17] In September 2014, the respondents commenced this action, alleging that the CFS‑BC’s actions in refusing to hold the referendum were in breach of contractual and fiduciary obligations, and were oppressive. Among the remedies sought was a declaration that the KSA was entitled to, and did, treat the CFS‑BC’s failure to hold a referendum in April 2014 as a fundamental breach of contract. [18] The CFS‑BC eventually proposed to have the matter disposed of by way of a summary trial under R. 9-7 of the Supreme Court Civil Rules ; the KSA contended that the matter was not suitable for summary trial, and brought an application to dismiss the summary trial application under R. 9-7(11). [19] The matters proceeded on February 6 and 7, 2017, but there was insufficient time for full argument. The CFS-BC presented its full arguments on the merits, but the KSA only presented its argument on suitability of the matter for summary trial. [20] Despite the incomplete hearing, the judge considered it clear that the claim was not, generally, suitable for a summary trial. He did consider, however, that one discrete issue raised by the CFS‑BC was suitable for summary determination: “whether [the] Executive Committee [of the CFS-BC] had implied authority under its bylaws to take such steps as it consider[ed] appropriate to verify that the petition submitted to it had indeed been signed by at least 10% of the members of the local union.” [21] With respect to factual issues, the judge accepted the Registrar’s conclusion that the list provided to the CFS‑BC was inaccurate, and contained almost 2,000 more student numbers than there were students at Kwantlen. He also accepted the Registrar’s explanation as to why the earlier list contained only 13,501 names, even though Kwantlen reported total student enrollment at the time of 14,385. [22] The CFS-BC, however, argued that its own verification of the petition determined that it contained only 1,342 valid signatures so that even if the number of eligible voters was only 13,501, the number of signatures still fell short of the 10% threshold. The CFS-BC contended that its Executive Committee had ultimate authority to determine whether or not a signature was valid. [23] The judge rejected that contention. He noted that there was no express provision in the bylaws giving the Executive Committee such authority. Further, he found that past practice did not support the existence of such authority: [56]      On the evidence before me, there has been no past practice of the executive committee taking steps on its own to verify the signatures on a petition, whereas it accepted several previous petitions (at Kwantlen University College, Simon Fraser University, and the University of Victoria) with verification by the University’s registrar such as Dr. Hensley provided in this case. This makes sense, given that the Office of the Registrar can reliably be assumed to have no interest in the politics of student associations, and alone has access to all of the relevant information. [24] The judge, referring to clause 2.1(l) of the CFS-BC bylaws, considered that the CFS-BC had no authority to verify a petition: [60]      [T]he requests [for documentation from the Office of the Registrar] are not consistent with the bylaw conferring on [individual members] “sole authority to initiate, by petition… a defederation referendum”. Note that the sole authority that the bylaw confers is to initiate a defederation referendum. The only means for doing so is through the initiating petition. That petition must therefore come within and be subject to the sole authority conferred upon the individual members. [61]      Viewed in context, I can see nothing about this grant of authority that requires me to imply the grant of a competing or additional “sole authority” to the executive committee to verify the petition. To imply such a division of “sole authority” would be inconsistent with Bylaw 2.1(l). It cannot be said that business efficacy requires such an implication, given that the parties got along without it quite handily before this petition was presented. Indeed, the chair of the executive committee, when examined for discovery, was unable to refer to any previous instance of this type of verification process being employed, and none was advanced in the affidavits. The past practice where results were typically verified by the registrars of the universities involved at the behest of the individual members (in accordance with their “sole authority”) appeared to be sufficient until this occasion. [63]      CFS-BC maintains that such a power must necessarily be implied because otherwise it would be left unable to determine whether a petition actually met the required threshold. But that is how the bylaws developed. Presumably it was to avoid this difficulty that members submitting these petitions developed the practice of having them verified by the relevant Office of the Registrar, a neutral party with all of the necessary information at hand. What authority it might have been necessary to imply in the absence of such verification need not be decided. Given that verification, it is impossible to say that the parties must have intended that the executive committee have a further and superseding authority to investigate and verify the results. [64]      I conclude that the executive committee had no implied authority to investigate and verify the petition forwarded by Mr. McGowan and confirmed by the [Kwantlen] Registrar’s Office. That came within the sole authority of the individual member (Mr. McGowan) and ought to have been accepted as satisfying the threshold for the holding of a referendum–subject, of course, to other prerequisites such as the payment of fees. [25] The formal order with respect to the verification issue contains the following declaration: [T]his court declares that the Defendant’s Executive Committee had no … implied authority [to investigate and verify the results of the petition] and that the Defendant ought to have accepted the petition as having met the 10% threshold set out in Bylaw 2.1(l) of the Defendant’s Bylaws, as they read in September 2013. [26] The CFS-BC attempted to appeal from both the judge’s determination that the claim was not generally suitable for summary determination and from his declaration that the Executive Committee of the CFS-BC lacked the authority to investigate and verify the petition. It filed both a notice of appeal and an application for leave to appeal and sought directions before a judge in chambers. The judge held that the appeal with respect to suitability required leave, and she denied leave. She held that the appeal with respect to the declaration concerning verification of signatures on a petition did not require leave. Accordingly, that is the only issue before this Court on this appeal. Analysis [27] On appeal, the appellant raises three issues. First, it contends that the judge failed to afford it a right to reply on the issue of verification of the petition, and in so doing, failed to respect the requirements of procedural fairness. Second, it says that the judge made a palpable and overriding error of fact in finding that the CFS-BC had accepted petitions verified by registrars in the past. Finally, it says that the judge erred in law in finding that the Executive Committee of the CFS-BC did not have authority to verify the signatures on the petition. [28] It is unnecessary to address the procedural fairness issue. The issues that would have been raised in reply in the court below are not issues on which the chambers judge would be entitled to deference, and the appellant has had a full opportunity to address the issues on this appeal. As the appellant concedes, if there was any unfairness to the appellant in not having had the ability to present argument in reply, that unfairness can be corrected on appeal. [29] It is also unnecessary, in my view, to analyze the issue of CFS-BC’s past practices in any detail. While the judge remarked on the absence of any evidence of the CFS-BC’s Executive Committee reviewing petitions after a registrar’s review in the past, it does not appear to me that the judge based his decision on that practice. Rather, he found that according to the language of the bylaws, the sole authority to determine the adequacy of a petition rested with the individual members who presented the petition. He found that the practice of petition proponents of referring the petitions to the registrar of the institution was reasonable, and eliminated any need to find an implied right of verification by the CFS-BC. [30] In any event, I am not convinced that the history described by the chambers judge – three referendums in which either the CFS-BC or the Canadian Federation of Students (a separate but related organization) chose to accept the views of an institution’s registrar – could be taken to have established an enforceable rule of the CFS-BC. In Lakeside Colony of Hutterian Brethren v. Hofer , [1992] 3 S.C.R. 165 at 191-192, Gonthier J., writing for the majority, found that a longstanding and well-established custom or tradition can become an implied term of a voluntary association’s rules: A long-standing tradition provides a kind of notice to the member of what rules the association will follow. We also must remember that voluntary associations are meant largely to govern themselves, and to do so flexibly. Therefore, tradition or custom which is sufficiently well established may be considered to have the status of rules of the association, on the basis that they are unexpressed terms of the Articles of Association. In many cases, expert evidence will be of assistance to the court in understanding the relevant tradition and custom. The tradition that a group of ministers appointed by the Senior Elder can finally decide issues referred to them by the Senior Elder is a valid rule on this standard. No one disputes that this tradition exists. The Constitution does not expressly forbid such delegation. It merely gives the conference board a certain power without specifying how it is to be exercised. The undisputed tradition is sufficient to authorize the further delegation of this power. [31] In contrast, the history referred to in this case does not show a practice that is either clear or well-established. At best, the evidence shows that the Executive Committee of the CFS‑BC has, on three occasions in the past, accepted a registrar’s verification of a petition as sufficient evidence that the petition was valid. Nothing in the history suggests that the Executive Committee has, in so doing, surrendered any power that it may have had to review a registrar’s conclusions if it considered it appropriate to do so. [32] I turn, then, to the issue at the heart of this case. What powers does the CFS‑BC have when it comes to verifying the signatures on a petition? The parties’ primary positions on this issue are diametrically opposed. The CFS‑BC asserts that it has final authority to determine the adequacy of a petition. On the other hand, the KSA argues that the judge was correct in finding that the individual members initiating the petition have authority (perhaps with the assistance of the Registrar) to determine when a petition must be accepted. There is, of course, a third possibility: that neither the proponents of a petition nor the CFS‑BC has authority to definitively pronounce on the validity of signatures. [33] The CFS‑BC argues that there are two alternative bases on which it has the ability to determine the validity of signatures on the petition. First, it cites s. 24(2)(a) of the Society Act , R.S.B.C. 1996, c. 433, which was the applicable legislation at material times (it has since been replaced by s. 52 of the Societies Act , S.B.C. 2015, c. 18): 24. (2) Subject to this Act and the constitution and bylaws of the society, the directors (a) must manage, or supervise the management of, the affairs of the society …. [34] The appellant says that it is essential to the management of the CFS‑BC that its directors have the ability to verify signatures on a petition: It is not controversial that if a society acts in a manner that is contrary to its articles, the act is ultra vires and void. Bylaw 2.1(l) provides that a defederation referendum is initiated by a petition signed by not less than 10% of the individual members of a member local union. If a defederation referendum proceeds when a petition has not been signed by 10% of the federation, the [CFS‑BC] will have acted ultra vires its own bylaws. Pursuant to s. 85 of the Society Act [now replaced by s. 105 of the Societies Act ], an interested person, including in this case another member local student union, may apply to court to complain about the default in compliance, and the court has the authority to intervene. [35] I agree that this reasoning demonstrates why the directors of the CFS‑BC must have the ability to examine a petition, and to form a view as to whether or not it meets the requirements of the bylaws. The same reasoning, however, shows why a determination by the directors cannot be definitive. Just as the CFS‑BC would be acting beyond its authority if it held a referendum where a petition did not meet the requirements of the bylaws, it also acts beyond its authority where it refuses to hold a referendum where a petition meets the bylaw requirements. [36] The bylaws expressly set out objective requirements of a petition. The directors, in their management of the affairs of the society, have no authority to depart from those objective requirements. Nothing in the bylaws suggests that the directors have any privileged position to determine whether the objective requirements have been met. [37] For the same reason, I would reject the CFS‑BC’s contention that the directors have an “implicit power” to definitively determine the validity of a petition. In Moulton Contracting Ltd. v. British Columbia , 2015 BCCA 89, this Court summarized the circumstances in which it is appropriate to imply a term in a contract: [53]      In M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd. , [1999] 1 S.C.R. 619 at para. 27 … Justice Iacobucci for the Supreme Court summarized the three circumstances (identified in Canadian Pacific Hotels Ltd. v. Bank of Montreal , [1987] 1 S.C.R. 711 at 774-776) where terms may be implied in a contract: (1) based on custom or usage; (2) as the legal incidents of a particular class or kind of contract; or (3) based on the presumed intention of the parties where the implied term must be necessary “to give business efficacy to a contract or as otherwise meeting the ‘officious bystander’ test as a term which the parties would say, if questioned, that they had obviously assumed” [citation omitted in Moulton ]. [54]      Justice Iacobucci noted that while it was not clear from Canadian Pacific Hotels Ltd. whether the “business efficacy” and “officious bystander” tests were two separate tests, what was “important in both formulations is a focus on the intentions of the actual parties”, and not “the intentions of reasonable parties” (at para. 29 [emphasis in original]): This is why the implication of the term must have a certain degree of obviousness to it, and why, if there is evidence of a contrary intention, on the part of either party, an implied term may not be found on this basis. [55]      The key element is that the implied term is more than just reasonable; it is necessary to make the contract as the parties intended. That is, without the term, the contract, as intended by the parties, would not be effective. [38] In the case before us, the bylaws can be effective without interpreting them as giving the CFS‑BC authority to definitively determine whether a petition is valid. Further, the CFS‑BC has an apparent interest in maintaining its membership; it is impossible to infer any intention on the part of the parties that the power to definitively determine the validity of a petition would be placed in the hands of a body with pecuniary and political interests in the issue. [39] I am not, on the other hand, convinced that there was any basis for the judge’s finding that the bylaws give the proponents of a petition the right to determine whether it conforms with the bylaws. I repeat, for convenience, the provisions of Bylaw 2.1(l): The individual members of the Federation collectively belonging to a member local union will have sole authority to initiate, by petition signed by not less than ten per cent (10%) of the individual members and served to the Federation’s Executive Committee, a defederation referendum as described in this Bylaw. [40] The purpose and effect of this provision are clear. It prevents a “local union” from initiating a referendum by resolution or otherwise, and gives individual members the exclusive right to initiate a petition. Nothing in the provision expressly or implicitly gives the proponents of a petition the right to determine whether it meets the objective criteria of the bylaws for the holding of a referendum. The judge erred in interpreting the provision as giving the proponents the right to determine the validity of their own petition. [41] In my view, the question of whether a petition has been signed by 10% or more of the CFS‑BC members in a local union is an objective one that is to be determined on the available evidence. It is not for one party or another to make a definitive ruling on the question. [42] I agree with the chambers judge’s observation that, because the parties do not have access to lists of their members, they must, of necessity, rely on a third party – the registrar of the institution – to assist in determining whether a petition meets the threshold described in the bylaws. [43] The Office of the Registrar was clearly an impartial body, with no apparent interest in the question of whether the petition met the threshold for a referendum or not. The parties, quite reasonably, referred the petition to the registrar, who graciously devoted resources to determining whether it met the requirements of the bylaws. [44] I do not read the chambers judgment as suggesting that the registrar has the power, under the bylaws, to definitively determine that question. In my view, the registrar is not given such a power. The registrar is not mentioned in the bylaws, and there is no reason to expect that the parties would surrender their abilities to review the registrar’s work to satisfy themselves that no errors had been made. It was, therefore, open to the CFS‑BC to take issue with the registrar’s determination if it could demonstrate that there were errors in it. Equally, it was open to the CFS‑BC to undertake its own investigations into the validity of the petition. [45] From a practical standpoint, it would have been sensible for the parties to discuss and, hopefully, resolve discrepancies among themselves, perhaps with the assistance of the Registrar. Even a brief dialog would have demonstrated that the numbers used by the CFS‑BC were obviously flawed, and that the Registrar’s original assessment of the total number of eligible voters was probably accurate. [46] The parties could then have focussed on the question of how many signatures on the petition were invalid. This would have been a relatively straightforward exercise. The CFS‑BC identified 165 signatures that it alleged were invalid. It should have provided the respondents with a list of the signatures that were disputed, along with its reasons for disputing those signatures. The respondents could then have indicated which, if any, of those signatures they considered valid. It is likely that the parties would have been able to agree on the validity or lack of validity of the majority of those signatures, leaving a relatively small number in dispute. The parties could have gone to court and expeditiously had a judge determine which of those signatures were valid. If 9 or more of the disputed signatures were valid, the petition would have met the 10% threshold. [47] The parties did not avail themselves of such discussions, with each taking the position that its own assessment of the facts should prevail. In my view, the bylaws do not support the primary positions of either party. Neither the CFS‑BC, the petition proponents, nor the registrar had the power to unilaterally come to a definitive conclusion as to the validity of the petition. If the parties could not reach agreement on that matter, it was one that could be resolved by the courts on the available evidence. [48] This Court has, on many occasions, cautioned against the use of the summary trial rule to decide individual issues in isolation from other issues in litigation: See, for example, Bacchus Agents (1981) Ltd. v. Philippe Dandurand Wines Ltd. , 2002 BCCA 138 at paras. 6-7; B.M.P. Global v. Bank of Nova Scotia , 2003 BCCA 534; Kaler v. Kaler , 2013 BCCA 57 at paras. 23-25; Edward Jones v. Mirminachi , 2011 BCCA 493 at paras. 31-32. The current case may well be an example of a situation in which the trial court’s efforts to resolve a single, non-determinative issue has resulted in unfortunate delays to the litigation. As no party has addressed the question of the propriety of the judge determining the single issue in isolation from all others, however, I will not say more about it. Conclusion [49] The declaration granted by the chambers judge was in error, and should be set aside. The question of whether the number of valid signatures on the petition met the 10% threshold set out in the bylaws is one that can be determined by the trial court in the litigation, on the basis of all of the evidence that the parties adduce. [50] The primary positions of both the appellant and the respondents on this appeal have been rejected. I am of the view that neither has enjoyed substantial success on the appeal. Each party should bear its own costs. “The Honourable Mr. Justice Groberman” I AGREE: “The Honourable Mr. Justice Donald” I AGREE: “The Honourable Madam Justice Saunders” Appendix – CFS-BC Bylaw Provisions 2.4       Vote on Decertification The individual members of the Federation belonging to a member local union may vote on whether to decertify, subject to the following rules and procedures: a.     Notice i.      Notice of a vote on [decertification], signed by a notary public, must be delivered by registered mail to the head office of the Federation not less than six (6) months prior to the vote. ii.     Notice of the vote must include the exact dates and times of voting. iii.    No vote on decertifying shall be scheduled between: - January 1 and February 15; and - July 15 and August 31. iv.    Failure to adhere to the notice provisions in Articles a.i. a.ii. and a.iii. shall invalidate the results of the vote. c.     Voting i.      Voting will be conducted at voting stations or, subject to the agreement of the Federation, at a general meeting of the member local union. ii.     There shall be no less than sixteen (16) hours of polling over no less than two (2) days, except in the case of voting being conducted at a general meeting. iii.    In the event that polling is conducted at a general meeting, representatives of the Federation and Federation member local unions shall be extended full speaking rights in the meeting. d.    Quorum Quorum for the vote shall be that of the member local union’s or five per cent (5%) of the individual members of the local union, whichever is higher. e.     Chief Returning Officer For each referendum on decertification, the Executive Committee shall recommend an individual to serve as the Chief Returning Officer. The Chief Returning Officer’s appointment is subject to ratification by a general meeting of the Federation. The Chief Returning Officer shall be responsible for: i.      establishing the notice requirement for the referendum and ensuring that notice is posted; ii.     establishing the campaign period in accordance with Section 2.4.b of this Bylaw; iii.    approving all campaign materials in accordance with Section 2.4 of this Bylaw and removing campaign materials that have not been approved; iv.    deciding the number and location of polling stations; v.     setting the hours of voting in accordance with Section 2.4.C of this Bylaw; vi.    overseeing all aspects of the voting; vii.   counting the ballots following the vote; and viii.  establishing all other rules and regulations of the vote. f.     Campaign Materials Campaign materials shall not be misleading, defamatory or false. The Chief Returning Officer shall be the sole arbiter of whether materials are misleading, defamatory or false. g.    Appeals For each referendum on decertification, an Appeals Committee shall be appointed to adjudicate any appeals of the referendum results or rulings by the Chief Returning Officer. The Appeals Committee shall be composed of: i.      one Executive Committee member or a designate appointed by the Federation’s Executive Committee; and ii.     two individual members elected at a Federation general meeting who are not members of the Federation’s Executive Committee. Members of the Appeals Committee shall not campaign during a vote to decertify. h.    Required Majority In order for a decertification referendum to proceed, a majority of the individual members voting in the referendum vote in favour of decertifying.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: N-Krypt International Corp. v. LeVasseur, 2018 BCCA 20 Date: 20180118 Docket: CA43887 Between: N-Krypt International Corp. Respondent/ Appellant on Cross Appeal (Petitioner) And Thierry LeVasseur Appellant/ Respondent on Cross Appeal (Respondent) Before: The Honourable Madam Justice D. Smith The Honourable Madam Justice Garson The Honourable Madam Justice Fenlon On appeal from:  An order of the Supreme Court of British Columbia, dated August 23, 2016 ( N-Krypt International Corp. v. LeVasseur , 2016 BCSC 1539, Vancouver Docket S153418). Counsel for the Appellant: D.B. Kirkham, Q.C. Counsel for the Respondent: D.C. Cowper Place and Date of Hearing: Vancouver, British Columbia September 22, 2017 Place and Date of Judgment: Vancouver, British Columbia January 18, 2018 Written Reasons by: The Honourable Madam Justice Fenlon Concurred in by: The Honourable Madam Justice D. Smith The Honourable Madam Justice Garson Summary: N-Krypt and Cirius entered into a subscription agreement whereby N-Krypt purchased shares in Cirius on the condition that the shares would be held in a voting trust by Cirius’s CEO and director, LeVasseur. As part of the agreement N-Krypt waived its voting and information rights. The relationship between the parties deteriorated and N-Krypt petitioned for relief as a trust beneficiary, including disclosure of information, return of its shares or removal of LeVasseur as trustee. The hearing judge declined to terminate the trust or appoint a new trustee, but ordered LeVasseur as trustee to provide N-Krypt with extensive information relating to the shares, subject to specific limitations set out in the subscription agreement. Held: LeVasseur’s appeal allowed; N-Krypt’s cross appeal dismissed. The judge erred in ordering LeVasseur to disclose information about the shares which N-Krypt specifically agreed not to receive pursuant to contract, which exceeded the relief sought and which substantially affected a non-party. Reasons for Judgment of the Honourable Madam Justice Fenlon: Introduction [1] The respondent N-Krypt International Corp. (“N-Krypt”) purchased shares in a company controlled by the appellant Thierry LeVasseur. A term of their agreement required N-Krypt to put its shares into a voting trust with Mr. LeVasseur as trustee. When the relationship between the parties broke down, N-Krypt, relying on trust law, petitioned for relief including disclosure of company information, return of its shares or replacement of Mr. LeVasseur as trustee. Mr. LeVasseur opposed the relief sought on the basis that it was contrary to the parties’ agreement. The hearing judge declined to terminate the trust or appoint a new trustee, but ordered Mr. LeVasseur as trustee to provide N-Krypt with extensive information relating to the shares, subject to specific limitations set out in the subscription agreement . The appeal and cross appeal largely turn on whether trust law prevails over the terms of the contract. Background [2] Mr. LeVasseur is the president and majority shareholder of Cirius Messaging Inc. (originally known as 0733660 B.C. Ltd.). Cirius is a B.C. company that produces technology which enables businesses to send secure email. The respondent N-Krypt is an Ontario company. In October 2008 N-Krypt became a distributor of Cirius’s technology by way of a reseller agreement. [3] In December 2009 N-Krypt purchased close to 1.7 million shares in Cirius for $535,000 under a Subscription Agreement which included the following conditions: (i)       N-Krypt would place its shares into a voting trust for ten years with Mr. LeVasseur as trustee; and (ii)      N-Krypt would waive its rights to information normally available to a shareholder. [4] A Voting Trust Agreement was attached to the Subscription Agreement as a schedule and was expressly stated to form part of that agreement. Cirius and N-Krypt were parties to the Subscription Agreement; Cirius, N-Krypt, and Mr. LeVasseur as trustee were parties to the Voting Trust Agreement. The Voting Trust Agreement provided that Mr. LeVasseur was exclusively empowered to exercise the voting rights associated with the shares, and N-Krypt was entitled to any dividends or distribution payments. [5] Soon after N-Krypt purchased the shares, the business relationship between Mr. LeVasseur and N-Krypt’s principal, Asif Choksi, deteriorated. Mr. LeVasseur claims N-Krypt breached the reseller agreement by holding itself out as the owner of Cirius’s technology and giving away trade secrets to a competitor. He also alleges N-Krypt sought and received payments directly from customers without accounting to Cirius, and defamed Mr. LeVasseur. For its part, N-Krypt claims Cirius made misrepresentations, improperly calculated amounts owed to N-Krypt and deprived it of commissions to which it was entitled. In 2011, Cirius terminated its reseller agreement with N-Krypt. N-Krypt demanded information about its shares and how they had been voted. Mr. LeVasseur and Cirius declined to provide that information, relying on N-Krypt’s agreement to waive information rights. [6] N-Krypt then issued the underlying petition naming Mr. LeVasseur as the sole respondent. It sought, among other things, an order requiring him to account for his “management of the shares” and to deliver to N-Krypt information he had received in his capacity as trustee. N-Krypt also sought return of the shares under the rule in Saunders v. Vautier (1841), 41 E.R. 482 (Ch. D.), or in the alternative, appointment of a new trustee. N-Krypt did not dispute the enforceability of the Subscription Agreement, but argued that trust law, rather than the contract, governed the relationship between the parties. Petition Hearing [7] The judge began his analysis by observing that he could not resolve the conflicting claims of wrongdoing on the record before him. He concluded, however, that a referral to the trial list was not necessary because the central issue to be resolved was “the basis on which Mr. LeVasseur [held] N-Krypt’s shares and what (if any) duties flow from it.” He also concluded that N-Krypt’s failure to name Cirius as a respondent to the petition was not a bar to proceeding because “N-Krypt [was] only seeking to compel Mr. LeVasseur to take certain actions in his capacity as trustee.” [8] The judge rejected Mr. LeVasseur’s position that the arrangement between N-Krypt and Cirius did not involve a trust and was more like an escrow agreement: [29]      As a threshold issue, I am unable to accept the submission that Mr. LeVasseur does not hold N-Krypt’s shares on a trust basis. Both the express language used in the agreements and, more importantly, the critical separation of legal and beneficial ownership of the shares that has been created allows no other conclusion . The fact that Mr. LeVasseur and Cirius benefit from his ability to vote the shares and that he does not “manage” them in the usual manner of a trustee are features of this particular arrangement that do not detract from the essential characterization of the manner in which the property is held. [Emphasis added.] [9] Turning next to the rights N-Krypt asserted as the beneficiary of the voting trust, the judge concluded the rule in Saunders v. Vautier did not apply on the facts of this case: [31]      First, I do not think that the rule in Saunders v. Vautier applies here . While, as I have said, this is certainly a trust relationship, the rule deals with situations in which a settlor has placed property in the hands of a trustee for the benefit of a third party beneficiary, who may wish at some point to take legal title to the property. A different analysis is necessary when the settlor and the beneficiary are the same person, and the settlor/trustee has contractually bound themselves to leave the property in the trustee’s hands under certain conditions and for a specific period. [Emphasis added.] [10] The judge also rejected N-Krypt’s contention that a new trustee should be appointed, finding N-Krypt had not established that Mr. LeVasseur had acted improperly (at paras. 34-35). [11] Finally, the judge addressed the more difficult question of what “trust information” N-Krypt was entitled to in light of the restrictions it had agreed to in the Subscription Agreement. He relied on Schmidt v. Rosewood Trust Ltd. , [2003] UKPC 26, D.M.M. v. R.J.M. , 2005 BCSC 207, and Martin Estate (Re) , 2009 BCSC 1407, noting that while a trustee has a fundamental duty to account for trust property, “the extent of the ‘trust information’ that will be ordered depends on the particular circumstances.” The judge found N-Krypt was bound by its agreement not to access information normally available to a shareholder as provided for at article 12 of the Subscription Agreement, which states: 12. Information Rights :  The Subscriber hereby acknowledges and agrees that the Subscriber shall not have the right [to] review the minute book of the Corporation or such records that are required to be kept in the minute book of the Corporation pursuant to the Business Corporations Act (British Columbia) or to review or observe the Corporation’s material contracts, as defined by the Corporation from time to time. The Corporation may from time to time provide such information. However, he concluded there was still room to balance the parties’ interests and to meet Mr. Choksi’s “legitimate concerns” by providing N-Krypt with other information. He then made the following broad order: [49]      Accordingly, I order that Mr. LeVasseur provide to N-Krypt within 14 days of the release [of] these reasons all information within his possession and control that deals with the following matters: •           Any change to the value of N-Krypt’s shares in Cirius from the original subscription price (since Cirius is not publicly traded, this will obviously involve the information on which Mr. LeVasseur relies to determine the shares’ value) and any change to other benefits that N-Krypt would receive based on the shares, such as dividends; •           Any change in the nature of N-Krypt’s shares in Cirius since the original subscription, including any dilution of them; and •           Any actions undertaken by Cirius in relation to N-Krypt’s shares that adversely affected their value or any other benefits that N-Krypt would receive based on them, or had the potential to do so. [50]      N-Krypt must be provided with updated information on these matters immediately whenever any changes occur. Even if no changes have occurred Mr. LeVasseur must confirm at least once per year that the situation remains the same. [51]      By “information” I mean a fully responsive and comprehensible narrative of the relevant facts under each subject heading, together with any documents or relevant portions of documents that support them. It includes changes to the value of the shares or their related benefits in themselves, and also in relation to shares and related held by other shareholders -- for example Mr. LeVasseur himself. [52]      Supporting documents that fall within the definitions in paragraph 12 of the subscription agreement may be omitted, as long as any facts derived from them that are relevant to the subject heading are included in the narrative and the document is referenced in it. This will give the non-disclosure provision continued force without depriving N-Krypt of legitimate trust information. [53]      Given the care with which Cirius has defined in the agreement concerning the kind of information that needs to be protected from disclosure in order to safeguard its interests, I see no risk to those interests to also require Mr. LeVasseur to provide N-Krypt with any information or material since N-Krypt’s subscription that has been provided to other shareholders, solely in their capacity as shareholders, that does not fall within the definitions in paragraph 12 of the subscription agreement. This will continue on an ongoing basis, as any new information or material is provided to other shareholders and, as in the case of the share information, if nothing new is provided then Mr. LeVasseur will confirm that to N-Krypt annually. [12] In supplemental reasons delivered on November 21, 2016, to settle the formal order, the judge clarified that his order required Mr. LeVasseur to disclose not only information which came into his possession as trustee, but also information he obtained in his capacity as CEO and director of Cirius. The judge declined to limit disclosure to material information, or to restrict it to information which could foreseeably affect share value, requiring instead disclosure of any information of any corporate actions “having potentially posed a hazard to the value of N-Krypt’s shares” (at paras. 10-12). [13] Mr. LeVasseur obtained a stay of the order in this Court pending appeal. On Appeal [14] On appeal Mr. LeVasseur seeks to set aside the order in its entirety on the basis that it is inconsistent with the contract N-Krypt entered into with Cirius as recorded in the Subscription Agreement. In the alternative, he seeks to narrow the scope of the order to cover only documents a shareholder would be entitled to see. [15] N-Krypt cross-appeals, seeking three orders: first, disclosure of the information excluded by the Subscription Agreement; second, return of its shares in accordance with the rule in Saunders v. Vautier ; and third, in the alternative, the appointment of a new trustee. [16] The main issues on appeal are thus whether the judge erred in: 1.       ordering Mr. LeVasseur to disclose certain information to N-Krypt; 2.       refusing to apply the rule in Saunders v. Vautier ; and 3.       refusing to replace Mr. LeVasseur as trustee. [17] Both parties also apply to adduce evidence not before the judge when the petition was heard. Mr. LeVasseur wishes us to consider the alleged wrongdoing by N-Krypt and Mr. Choksi which the hearing judge determined he could not resolve. N-Krypt seeks to adduce evidence of its efforts to obtain business records form Cirius and to serve Mr. LeVasseur with the petition. I would not admit the new evidence of either party because it does not bear upon what I consider to be a decisive or potentially decisive issue in these proceedings: Palmer v. The Queen , [1980] 1 S.C.R. 759. [18] I turn now to the first ground of appeal. 1.       Did the judge err in ordering Mr. LeVasseur to disclose information to N-Krypt? [19] In my respectful view, the judge erred in making the disclosure order for three reasons. First, the judge applied trust principles and did not give effect to the contract between the parties. Second, the order grants disclosure N-Krypt did not seek in its petition. Third, the order requires Mr. LeVasseur to disclose information obtained in his capacity as CEO of Cirius even though the company was not named as a respondent to the petition. I will address each point in turn. (a)   The order is inconsistent with the contract [20] The judge ordered broad disclosure based on the general principle that a trustee has an obligation to report to his beneficiary, even though that disclosure was inconsistent with the terms of the contract between N-Krypt and Cirius. In my respectful view the judge was led into error because each party focused on only one aspect of their arrangement: N-Krypt insisted trust law governed; Mr. LeVasseur insisted contract law governed. Neither party attempted to reconcile the apparently conflicting principles of trust and contract, of equity and the common law. Although, as I have noted, the judge found N-Krypt was bound by its agreement not to receive the information described in article 12 of the Subscription Agreement, he ultimately determined N-Krypt was entitled to a vast sweep of other information as a beneficiary of the voting trust, without further consideration of the bargain it had entered into. In my view, it was an error in principle to determine N-Krypt’s entitlement to information without reconciling the competing principles of contract and trust law raised in this case. I turn now to that exercise. [21] I begin by considering the trust aspect of the parties’ arrangement, and in particular the nature of a voting trust. [22] The voting trust originated in the United States and eventually moved across the border into Canada. It is a commercial trust originally used in large venture companies, such as those constructing railroads, to protect investors by ensuring the continuity of management they trusted to get the project completed, and to insulate the company from the control of special interest groups for the security of both shareholders and lenders alike: Harry A. Cushing, Voting Trusts: A Chapter in Modern Corporate History (New York: The MacMillan Company, 1927) at 16 and 22. [23] A voting trust differs from personal trusts established by deed or will in a number of ways. First, it is intended to be a temporary trust, ending on a particular date or event. Second, it is generally terminable at the discretion of the trustee. Third, unlike a personal trust in which the trustee is bound to use the trust property for the exclusive benefit of the beneficiary, the trustee in a voting trust is empowered to vote the shares to the advantage of the company. That object may only indirectly benefit the shareholder and will in some cases work against the shareholder’s immediate and direct interest — for example, a vote to defer payment of a dividend so as to invest in a company project. These characteristics are present in the Voting Trust Agreement entered into by N-Krypt, which provides: 3.1       Until the termination of this Agreement and surrender of the Voting Trust Certificate, the Voting Trustee will, in respect of the Shares deposited with him pursuant to this Agreement, exclusively possess and be entitled to exercise, in his discretion, in person or by attorney, all of the voting rights appertaining to such Shares and all rights in connection with the initiation, taking part in and consenting to any action as shareholder of the Company, including, without limitation, the execution of any shareholders’ agreement, provided that the Voting Trustee (either personally or in his capacity as a director or officer of shareholders of the Company) also executes such shareholders’ agreement at such time. The Shareholder hereby authorizes the Voting Trustee to waive all rights the Shareholder would otherwise have as a shareholder of the Company, provided that the Voting Trustee also waives such rights at such time (other than with respect to shares to be issued to the Voting Trustee under the Company’s stock option plan) and that any transaction resulting in a subscription for shares is in the best interests of the Company as determined by the Voting Trustee, acting reasonably . 3.2 In exercising the voting rights attached to the Shares the Voting Trustee will exercise his best judgment from time to time to secure suitable directors, officers and employees of the Company to the end that the affairs of the Company shall be properly managed but it is hereby declared and agreed that the Voting Trustee assumes no responsibility in respect of such managing or in respect of any action taken by him as shareholder and the Voting Trustee shall not incur any liability or responsibility by reason of any error of law or of any matter or thing done or suffered or omitted to be done under this Agreement, except only for his own individual wilful and wrongful neglect or misconduct. [Emphasis added.] [24] Mr. LeVasseur gave evidence that Cirius entered into voting trusts with all other share purchasers up to 2014 because the company was concerned about its distributors being in a conflict of interest. The judge regarded these concerns in relation to N-Krypt as “vague and speculative” (at para. 46). In contrast, he viewed N-Krypt as having legitimate reasons for wanting information about what had been done with its shares and what they were worth. As I have noted, the judge looked to trust law and determined N-Krypt was entitled to information as a beneficiary, relying on the general principle that “[the] trustee has a fundamental duty to account for the trust property … and to report on how it has been dealt with” (at para. 38). Having concluded N-Krypt was not entitled to the information typically available to a shareholder because it was expressly excluded by article 12 of the Subscription Agreement, he determined that N-Krypt as a beneficial owner was entitled to other information well beyond that scope (at paras. 52-53). [25] In my respectful view, the judge’s focus on a trustee’s duty to account to a beneficiary led him away from the fundamental question of the obligations and rights of N-Krypt and Cirius in the context of the commercial agreement they had entered into . Whether N-Krypt is entitled to information turns on the terms of that agreement. The question before the judge was therefore whether the use of a voting trust as a mechanism to give effect to the agreement gave N-Krypt rights as a beneficiary that overrode its contractual commitments. [26] It is helpful at this point to consider the distinct origins of trust and contract law. Whereas contracts stem from the common law, trusts are a product of equity. The relationship between equity and the common law, as well as the origins of the trust are explained in D.W.M. Waters, M.R. Gillen & L.D. Smith, eds., Waters’ Law of Trusts in Canada , 4th ed. (Toronto: Carswell, 2012) at 5-6: One system of law was interpreted and moulded in the King’s Courts, and another system of law was gradually being established in the Lord Chancellor’s Court, ultimately called the Court of Chancery. The first is the common law in the strict sense, the second is Equity, a gloss upon the first , designed as an act of the King’s residual justice to bring equity to bear in the application of the laws of the realm. Equity is superior in authority because it is the King’s personal ruling concerning the application of “his” justice in the realm. Equity, like the common law, gradually became institutionalized, with each system using its own forms and procedures, but in matters of substance Equity assumed the existence of the common law, assisting, modifying, and supplementing it . It was out of this unique state of affairs , which endured even to the point of separately administered systems until the latter half of the nineteenth century, that the trust was born . In the eyes of the common law courts if [the trustee] held the legal title to land or chattels, he had the rights of disposition, management and enjoyment of that property. But, if [the trustee] had earlier promised the transferor to hold the property for the enjoyment of a person other than [the trustee] himself, the Court of Chancery was asked and finally agreed to enforce the moral obligation. At law, [the trustee] might be owner in the fullest sense that the common law recognized ownership, but in equity – which [the trustee] could not avoid if he were summoned to account – B, the intended beneficiary, could compel [the trustee] to yield up the enjoyment in the property and indeed administer it on B’s behalf . [Emphasis added.] [27] The relationship between equity and the common law is sometimes described by the maxim “equity follows the law”: J. McGhee, ed., Snell’s Equity , 31st ed. (Toronto: Carswell, 2005). The author of Snell’s Equity elaborates on the meaning of the maxim at 95: Where a rule, either of the common or the statute law, is direct, and governs the case with all its circumstances, or the particular point, a court of equity is as much bound by it as a court of law, and can as little justify a departure from it. However, the maxim that equity follows the law does not mean the common law always trumps equitable doctrines. To the contrary, s. 44 of the Law and Equity Act, R.S.B.C. 1996, c. 253, provides that equity prevails where the rules of law and equity conflict. [28] These statements may at first appear contradictory. However, they can be reconciled by appreciating that the relationship between equity and the common law is contextual. In Geffen v. Goodman Estate , [1991] 2 S.C.R. 353, the Court considered the relationship between trust law and contract law in the context of determining whether a trust agreement had been entered into as a result of undue influence. After considering the framework for determining whether a presumption of undue influence applies, Justice Wilson turned to the nature of the particular transaction, saying at 378: Having established the requisite type of relationship to support the presumption, the next phase of the inquiry involves an examination of the nature of the transaction. When dealing with commercial transactions, I believe that the plaintiff should be obliged to show, in addition to the required relationship between the parties, that the contract worked unfairness either in the sense that he or she was unduly disadvantaged by it or that the defendant was unduly benefited by it. From the court’s point of view this added requirement is justified when dealing with commercial transactions because, as already mentioned, a court of equity, even while tempering the harshness of the common law, must accord some degree of deference to the principle of freedom of contract and the inviolability of bargains . Moreover, it can be assumed in the vast majority of commercial transactions that parties act in pursuance of their own self ‑ interest. The mere fact, therefore, that the plaintiff seems to be giving more than he is getting is insufficient to trigger the presumption. [Emphasis added.] [29] To similar effect is Buschau v. Rogers Communications Inc. , 2006 SCC 28, discussed more fully below in the part of this judgment dealing with the rule in Saunders v. Vautier . In Buschau , the employee beneficiaries of a company pension trust fund sought to have trust funds paid out to them. Justice Bastarache, in determining whether trust law should prevail over contract law, said the Court should consider the circumstances in which the trust was made, including the parties’ contractual expectations and the status of the trust as a vehicle to hold and manage funds to give effect to the pension plan. [30] Equity is ultimately concerned with fairness, and equitable relief is discretionary. As Justice La Forest said in Canson Enterprises Ltd. v. Boughton & Co ., [1991] 3 S.C.R. 534 at 585-86: the maxims of equity can be flexibly adapted to serve the ends of justice as perceived in our days. They are not rules that must be rigorously applied but malleable principles intended to serve the ends of fairness and justice. [31] Of significance in the present case is the creation of the voting trust as a condition of the purchase of the shares forming the trust property. Together the Subscription Agreement and the Voting Trust Agreement gave effect to the bargain made by N-Krypt and Cirius, whereby Cirius sold shares to N-Krypt and N-Krypt waived its right to information about the company and granted Mr. LeVasseur the right to vote the shares for ten years. As in Buschau , the trust was the mechanism used to give effect to the contract and the two are indissociable. From N-Krypt’s perspective, the terms of the trust and Subscription Agreement turned out to be imprudent in light of the deterioration of the parties’ business relationship. Cirius’s concerns about the potential for N-Krypt to be in a conflict of interest may have been overblown. But there is in my view nothing unfair about holding N-Krypt to the terms of the agreement it entered into to give up voting rights and access to corporate information in order to acquire a significant number of shares in Cirius. [32] I note parenthetically that this appeal is not concerned with whether a shareholder’s agreement to waive access to information is contrary to the Business Corporations Act , S.B.C. 2002, c. 57. That is so for two reasons. First, the Business Corporations Act applies generally to shareholders, and N-Krypt does not at this point hold legal title to the shares: Brio Industries Inc. v. Clearly Canadian Beverage Corporation , [1995] B.C.J. No. 1441 (S.C.). Second, that issue and the extent of a company’s obligation to provide information to its shareholders were neither pleaded nor argued below and cannot be addressed in the absence of a proper record. (b)   The order exceeds the relief sought and affects the interests of a non-party [33] In any event, I am of the view that the disclosure order cannot be upheld for two additional reasons. First, as N-Krypt acknowledges, the order made goes far beyond what was sought in the petition which covered only what Mr. LeVasseur received in his capacity as trustee: Part 1:             ORDERS SOUGHT The Plaintiffs seek the following relief: a. An order that LeVasseur deliver to the petitioner all correspondence, notes, and records received, executed, or produced by him in his capacity as trustee for the petitioner, including all : i Shareholder’s resolutions or agreements entered into by LeVasseur in connection with the shares held by LeVasseur as trustee for the petitioner; ii Waivers of shareholder rights or equities executed by LeVasseur in connection with the shares held by LeVasseur as trustee for the petitioner; and iii Votes and records of votes cast or not cast by LeVasseur in connection with the shares held by LeVasseur as trustee for the petitioner. b. An order that LeVasseur account to the petitioner for his management of the shares held by LeVasseur as trustee for the petitioner since the formation of the trust; [Emphasis added.] [34] Second, the order cannot be upheld because it effectively compels Mr. LeVasseur to disclose information obtained in his capacity as director and CEO of Cirius even though Cirius is not a respondent. As noted earlier, Mr. LeVasseur objected at the outset of the hearing to N-Krypt’s failure to name Cirius as a party, but the judge did not accede to that objection, saying: [28]      … I do not see the absence of Cirius as a party as a bar in itself to the relief being sought, since N-Krypt is only seeking to compel Mr. LeVasseur to take certain actions in his capacity as trustee . [Emphasis added.] However, the order made affects Cirius directly and significantly. For example, Mr. LeVasseur is ordered to provide N-Krypt with share valuations and updates on a regular basis, a significant expense for a company which is not publicly traded. Disclosure of information about contracts entered into by Cirius could also affect the company given that Cirius views N-Krypt as a competitor. The obligation to provide a running and updated narrative of all of Cirius’s actions since 2009 which could possibly affect the value of shares is also a task which imposes a significant burden on the company. [35] In summary on this ground of appeal, I conclude that the judge erred in ordering Mr. LeVasseur to produce information to N-Krypt that was not sought in the petition, significantly affected a non-party, and was inconsistent with the terms of the agreement N-Krypt had entered into with Cirius. [36] It will be apparent from this conclusion that N-Krypt’s cross appeal seeking additional information cannot succeed. I turn to the two remaining issues on the cross appeal. 2.       Did the judge err in holding that the rule in Saunders v. Vautier does not apply? [37] N-Krypt contends the judge erred in holding the rule in Saunders v. Vautier does not apply to the voting trust. [38] The rule in Saunders v. Vautier allows beneficiaries of a trust to depart from the settlor’s original intentions provided they are of full legal capacity and are together entitled to all the rights of beneficial ownership in the trust property: Buschau at para. 21. If those prerequisites are met, the beneficiaries may extinguish the trust and call for a conveyance of the trust property. [39] N-Krypt submits that since the Voting Trust Agreement states unequivocally that N-Krypt is the sole beneficial owner of the shares and is entitled to their return when the term of the trust expires, the rule in Saunders v. Vautier governs and N-Krypt can demand the return of its shares. This proposition finds support in an article written by Professor Donovan Waters, “Voting Trust Agreements and the Zeidler Case” (1988) 9 Est. & Tr. 51 at 72: The instrument should also be very clear as to the moment at which or the circumstances in which the voting trust is to terminate. However, in Saunders v. Vautier jurisdictions the share transferors or the trust certificate holders for the time being, as the case may be, can always agree to terminate the voting trust ; … [Emphasis added.] However, this passage does not address the present case in which the settlor beneficiary has contracted to create a voting trust for a set term as a condition of obtaining the shares which form the property of the trust . In my view, the rule in Saunders v. Vautier is inapplicable in such circumstances. N-Krypt contractually bound itself to give the trustee the right to vote the shares for ten years as a condition to obtaining the shares. As a result, N-Krypt is not solely entitled to the beneficial enjoyment of the property during the term of the trust — the voting rights which form part of the bundle of property rights attaching to the shares are to be “enjoyed” by Cirius, and voted by its CEO as trustee and in Cirius’s interests. It follows that the judge was correct in concluding that: [33] the rule is not a proper means of escaping the overall contractual terms under which the trust property is held . I should say in this regard that I do not think it is possible to analyze the voting trust and subscriber agreements separately in terms of the restrictions they impose on N-Krypt’s ability to collapse the trust, as its counsel submits. The subscriber agreement provides for the shares to be delivered to Mr. LeVasseur in trust for N‑Krypt and requires N‑Krypt to enter into the voting trust agreement. Together the agreements form the overall trust arrangement and define the rights and obligations agreed to under it . [Emphasis added.] [40] A similar approach was adopted in Buschau . In that case the Court found the rule in Saunders v. Vautier did not apply to trust funds which formed part of an employment pension plan. Justice Bastarache observed at para. 90 that the “real question is whether trust law can in effect prevail over the contract and governing legislation in the present case.” He found at para. 92 that the “application of the rule in Saunders v. Vautier would contradict the reasonable contractual expectations of the parties …” Finally, at para. 94, he concluded: In my view, the unique role of the employer in respect of the pension plan and pension Trust cannot be ignored; and the terms of the contract at the root of the Trust cannot be circumvented ; as well, the legislative framework cannot be made irrelevant by applying the rule in Saunders v. Vautier . [Emphasis added.] 3.       Did the judge err in refusing to replace the trustee? [41] I turn next to whether the judge erred in refusing to replace Mr. LeVasseur as trustee. At the hearing, N-Krypt relied on the Trustee Act , R.S.B.C. 1996, c. 464, which provides for the replacement of a trustee by court order: 31    If it is expedient to appoint a new trustee and it is found inexpedient, difficult or impracticable to do so without the assistance of the court, it is lawful for the court to make an order appointing a new trustee or trustees, whether there is an existing trustee or not at the time of making the order, and either in substitution for or in addition to any existing trustees. [42] N-Krypt submits in the present case that its welfare as a beneficiary is the main factor in determining whether it is expedient to appoint a new trustee. N-Krypt submits further that it is not necessary to show a breach of trust where a conflict of interest exists, and there is a reasonable basis to conclude either that the trustee may not act with impartiality and fidelity, or that it would be difficult for the trustee to do so: Simpson-Alec v. Ziprick , [1998] B.C.J. No. 685 (S.C.). [43] N-Krypt made similar arguments at the petition hearing. The judge concluded that N-Krypt had failed to establish “evidence of a conflict of interest or impropriety”, saying: [35]      Nothing of that nature has been shown. The right to vote N-Krypt’s shares at Mr. LeVasseur’s discretion is the very purpose of the agreements and exercising that right in a way that may not align with N-Krypt’s preferences is not the same thing as devaluing the trust property or otherwise undermining N-Krypt’s property interests . The hostile relationship between the parties, for which no fault can be ascribed on the current contradictory evidence, and Mr. LeVasseur’s restrictive position on disclosure to N-Krypt, which has some support in the agreements, are also insufficient reasons to find that he is acting improperly as the trustee. These conclusions make it unnecessary for me to determine whether N-Krypt gave sufficient notice of its intention to seek this remedy. [Emphasis added.] [44] The judge’s assessment of the evidence and his finding in this regard are entitled to deference. I see no error that would justify appellate interference with his decision. Further, replacing Mr. LeVasseur as trustee is contrary to the contractual obligation N-Krypt entered into to enable Mr. LeVasseur to control the voting rights for ten years. [45] In summary, I would dismiss the applications to admit fresh evidence, allow the appeal, and dismiss the cross appeal. Costs [46] In the usual course it would follow that Mr. LeVasseur as the successful party is entitled to party-party costs below and on the appeal and cross appeal. Mr. LeVasseur submits, however, that special costs should be ordered against N-Krypt on the cross appeal only, based on the “outrageous” allegations made by N-Krypt’s counsel against Mr. LeVasseur in its factum. N-Krypt’s factum contains repeated references to Mr. LeVasseur falsely swearing and making false allegations and accusations. Mr. LeVasseur relies on 689531 B.C. Ltd. v. Anthem Works Ltd. , 2009 BCSC 1005, in which Justice Hinkson, as he then was, ordered special costs against the defendants in light of the deliberate, inappropriate and potentially damaging allegations of fraud made against the plaintiffs without foundation. [47] Anthem is distinguishable because unlike that case, in the present one the judge was unable to make findings about the allegations of wrongdoing levelled by both sides. In these circumstances, I agree that it would have been prudent for N-Krypt’s counsel to frame his submissions in a manner that acknowledged the unproven nature of the allegations, but I do not find the submissions reached the level of reprehensible conduct warranting an award of special costs. In my opinion the appropriate disposition is party-party costs throughout. “The Honourable Madam Justice Fenlon” I AGREE: “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: 1026238 B.C. Ltd. v. Pastula, 2018 BCCA 32 Date: 20180119 Docket: CA44996 Between: 1026238 B.C. Ltd. Respondent (Petitioner) And Catherine Grace Pastula, also known as Catherine Grace Picco Appellant (Respondent) Before: The Honourable Madam Justice Fisher (In Chambers) On appeal from: an order of the Supreme Court of British Columbia, dated December 21, 2017 ( 1026238 B.C. Ltd. v. Pastula , Nanaimo Registry No. H76173) Oral Reasons for Judgment Counsel for the Appellant: J.A.S. Legh Counsel for the Respondent: J.L. Williams Place and Date of Hearing: Vancouver, British Columbia January 19, 2018 Place and Date of Judgment: Vancouver, British Columbia January 19, 2018 Summary: The applicant seeks leave to appeal the order of a Supreme Court judge allowing an appeal from a master’s order to adjourn the hearing of an application for order absolute. The judge overturned the master’s decision and granted the order absolute effective immediately. If leave to appeal is granted, the applicant also seeks a stay of the judge’s order pending the disposition of her appeal. Held: (1) Leave to appeal is granted. Whether a master has discretion to grant an adjournment on equitable grounds, in circumstances where the legal test for an extension of the redemption period is not met, may be a significant question in foreclosure practice. The point is significant to the action, and the appeal has some merit. (2) The order is stayed pending the disposition of the appeal. There is some merit to the appeal, the applicant would suffer irreparable harm if the order absolute is not stayed, and the balance of convenience is in her favour. [1] FISHER J.A.: This application has a long, unfortunate history. It involves foreclosure proceedings in respect of three parcels of farm land near Duncan, British Columbia. [2] The properties were owned by the appellant/applicant Catherine Grace Pastula and her husband Gordon, and had been in Mr. Pastula’s family for over 60 years. The mortgage on all three parcels has been in default since May 2013, a considerable period of time. The original mortgagor, a commercial lender, commenced foreclosure proceedings in April 2014. The respondent, who is not a commercial lender (its director is a neighbour of the appellant), purchased the mortgage after that. However, the original foreclosure proceeding was subsequently declared a nullity. The respondent then commenced these foreclosure proceedings in 2015. An order nisi was granted on September 30, 2015, with a six-month redemption period ending March 16, 2016. At that time the redemption amount was $1,029,987. [3] On November 25, 2016, the respondent brought an application for order absolute but this was not granted and the redemption period was extended to March 31, 2017 to give the Pastulas an opportunity to sell the properties themselves. However, they did little to do so during the extended redemption period. [4] There have been various appeals of many of these orders which I need not outline here, and Ms. Pastula has been representing herself and her husband throughout many of the proceedings. What is important for the purposes of the applications before me is what has occurred since April 6, 2017, when the respondent filed another application for an order absolute. [5] On September 13, 2017, the respondent set the hearing of its application for October 11, 2017. A week later, on September 20, 2017, Gordon Pastula died suddenly of a heart attack. As the properties were held in joint tenancy, Ms. Pastula became the sole owner. [6] Due to the death of her husband, Ms. Pastula sought an adjournment of the hearing set for October 11, 2017. The respondent opposed this but Master Dick in Chambers ordered an adjournment for two weeks, to October 25, 2017, peremptory on Ms. Pastula. She suggested that Ms. Pastula bring with her a current appraisal to provide evidence of the equity in the properties. [7] On October 22, 2017, Ms. Pastula listed the properties for sale. The list prices totaled over $2 million. [8] On October 25, 2017, Master Dick considered the listing of the properties as well as an appraisal provided by the respondent valuing them at $1.76 million. The amount outstanding under the mortgage was then $1.254 million, leaving about $500,000 in equity assuming the appraised value. While she was satisfied that Ms. Pastula had not at that time met the test for a further extension of the redemption period, she recognized that the death of Mr. Pastula was a material change of the matters before the court and that Ms. Pastula had since taken steps to list the properties for sale and to put materials before the court indicating the steps she has taken to pay the amount owing to the respondent. She acknowledged that the effect of granting another adjournment was “basically extending the redemption period” without Ms. Pastula meeting the legal test, but she considered the equities at play, which included the significant amount of equity that may be available, and “reluctantly” adjourned the application to November 29, 2017. [9] The respondent appealed this decision to a judge of the Supreme Court, which was heard on December 21, 2017. In the meantime, Ms. Pastula accepted an offer to sell one of the properties on November 22, 2017, and the matter proceeded again before Master Dick on November 29, 2017 in accordance with her October 25 order. At that time, the master adjourned the application again to February 7, 2018, and extended the redemption period to February 1, 2018. She also ordered Ms. Pastula to authorize the listing realtor to disclose to counsel for the petitioner copies of all offers, counteroffers and evidence of marketing efforts, and, at least 10 days before the expiry of the redemption period, to deliver affidavits with copies of all accepted offers or contracts of purchase and sale as well as all offers, counteroffers and evidence of marketing efforts. [10] Despite this latter order, the petitioner’s appeal of Master Dick’s October 25 decision proceeded before Gaul J. on December 21, 2017. He considered that Master Dick erred by failing to properly apply the test for extending the redemption period to the facts she found and in granting the adjournment. He allowed the appeal and granted the respondent an order absolute to be effective immediately. I am advised by Mr. Williams, counsel for the respondent, that Mr. Justice Gaul was aware of Master Dick’s November 29 order extending the redemption period. While he gave no reasons on this point, he apparently held the view that he had the jurisdiction to abridge the redemption period which had been extended in that order. [11] It is this order of Mr. Justice Gaul which Ms. Pastula now seeks leave to appeal and if granted leave, a stay pending the appeal. The applicable tests [12] The test for leave to appeal is set out in Power Consolidated (China) Pulp Inc. v. British Columbia Resources Investment Corp ., [1988] B.C.J. No. 1403 (C.A.): (1) Is the point of appeal significant to the practice? (2) Is the point raised of significance to the action itself? (3) Is the appeal prima facie meritorious or is it frivolous? (4) Will the appeal unduly hinder the progress of the action? [13] The test for a stay of an order pending appeal is the same test applied for granting an interim injunction as set out in RJR-MacDonald Inc. v. Canada (Attorney General) , [1994] 1 S.C.R. 311 at 334: (1) is there some merit to the appeal in the sense that there is a serious question to be tried? (2) would the applicant suffer irreparable harm if the stay is refused? (3) does the balance of convenience favour the applicant? These principles were outlined by this Court in Bea v. The Owners, Strata Plan LMS 2138 , 2010 BCCA 463 at para. 19, in the context of an application for a stay pending appeal. Decision [14] While I certainly appreciate the frustrations of the respondent, and Mr. Williams has outlined that history in some detail to me, I am satisfied that leave to appeal should be granted. [15] Master Dick’s decision was a decision to adjourn an application for an order absolute in circumstances where the mortgagee did not meet the legal test to extend the redemption period but where there were other equities at play. Whether a master can exercise such a discretion in these circumstances may be significant in foreclosure practice and the points raised are clearly significant in the action. Given the amount of equity in the properties, Ms. Pastula will suffer a substantial loss and the petitioner will likely receive a considerable gain if leave is not granted. I say this without considering the new evidence put forward by the applicant with the new appraisals. I do not need to consider those, as the evidence that was before both Master Dick and Mr. Justice Gaul showed considerable equity in the property. [16] I acknowledge that there have been long delays in these proceedings caused by the Pastulas, but I do not consider this to be a frivolous appeal. Mr. Justice Gaul considered the question as if the Master had granted an extension of the redemption period and he restricted her ability to exercise her discretion to grant an adjournment to the legal test for that. The Master was well aware of the legal test but chose to consider other equities in granting a one-month adjournment. In my view, there is some merit to this appeal. [17] I am also satisfied that the order should be stayed pending the appeal. As I have concluded, there is some merit to the appeal. There is evidence before me to show that Ms. Pastula would suffer irreparable harm if she loses her equity in these properties. They are her main asset, and without them it is unlikely that she would have any ability to exercise her right of redemption. The inconvenience to her will be greater than the inconvenience to the petitioner, who, in the absence of the order absolute, stands to be heard again on February 7, 2018, according to the order of November 29, 2017. I will confirm here that I consider the order of November 29, 2017 to be effective. [18] Accordingly, leave to appeal is granted and the order absolute made December 21, 2017 is stayed pending the appeal. “The Honourable Madam Justice Fisher”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Kumagai v. Campbell Estate, 2018 BCCA 24 Date: 20180119 Docket: CA43580 Between: Chong Ae Kumagai aka Chong Ae Campbell aka Chongae Campbell aka Chongae Ae Kumagai, aka Chong Kumagai aka Chongae Kumagai aka Chong Campbell, aka Chong Ae Shin aka Chongae Shin Appellant/ Respondent on Cross Appeal (Claimant) And Barbara Saganiuk, Executrix of the Estate of Earl Campbell, and Maple Meadows Mobile Home Park Ltd. Respondents/ Appellants on Cross Appeal (Respondents) Before: The Honourable Madam Justice D. Smith The Honourable Mr. Justice Harris The Honourable Mr. Justice Hunter On appeal from:  Orders of the Supreme Court of British Columbia, dated March 15 and June 23, 2016 and ( Kumagai v. Campbell Estate , 2016 BCSC 450 and 2016 BCSC 1161, New Westminster Docket No. E44609). Counsel for the Appellant: D.H. Goodwin Counsel for the Respondents: A.T. Briscoe K. Mundstock Place and Date of Hearing: Vancouver, British Columbia October 11 ‒ 12, 2017 Place and Date of Judgment: Vancouver, British Columbia January 19, 2018 Written Reasons by: The Honourable Madam Justice D. Smith Concurred in by: The Honourable Mr. Justice Harris The Honourable Mr. Justice Hunter Summary: Ms. Kumagai appeals from a final order under the Family Law Act, S.B.C. 2011, c. 25 with respect to the valuation and division of certain reserve lands registered under Certificates of Possession in the name of her now deceased husband, and the quantum of spousal support awarded her from his estate. The Estate cross-appeals alleging errors in the finding of Ms. Kumagai’s entitlement to spousal support, the refusal to retroactively vary a prior interim order for spousal support, and the dismissal of the Estate’s application for an order that Ms. Kumagai pay one-half of its probate fees. Held: appeal allowed; cross appeal dismissed. The evidence did not support the judge’s discount of the appraised value of the deceased husband’s lands based on its highest and best use by the parties’ jointly retained expert. Evidence must be adduced to establish a legal impediment to the use of land that justifies rejecting the highest and best use valuation. Family property must be valued as of the date of trial unless there is a finding of significant unfairness under s. 95 of the FLA. The resulting increase in the compensation award impacted the issue of the appropriate quantum of spousal support, which is remitted to the trial court for reconsideration. The Spousal Support Advisory Guidelines do not strictly apply where the payor is an estate. On the cross appeal, the judge correctly determined ss. 170(g) and 171 of the FLA permit an order for spousal support payable by a deceased spouse’s estate where an interim order for support was made prior to the spouse’s death. The judge’s decision not to retroactively vary the interim order is owed deference and was not made in error. The judge correctly determined that probate fees are not family debt. Reasons for Judgment of the Honourable Madam Justice D. Smith: [1] Chong Ae Campbell (now Kumagai) appeals a final order under the Family Law Act, S.B.C. 2011, c. 25 ( FLA ) with respect to: (1) the valuation and division of certain reserve lands of the Tzeachten First Nation Band located near Chilliwack, B.C. (the “Band”), registered under Certificates of Possession (CPs) in the name of her now deceased husband, Earl Campbell, and found to be family property pursuant to the FLA ; and (2) the quantum of spousal support awarded Ms. Kumagai from Mr. Campbell’s estate (the “Estate”). [2] The Estate cross-appeals: (1) Ms. Kumagai’s entitlement to spousal support from the Estate; (2) the quantum of interim spousal support awarded Ms. Kumagai, which the trial judge declined to change in the final order; and (3) the dismissal of the Estate’s application for an order that Ms. Kumagai pay one-half of the Estate’s probate fees. Background [3] Mr. Campbell was a member of the Band and a successful businessman. At the time of his death, he held six registered CPs on Band lands upon which the family residence was located and he operated several of his businesses, including a mobile home park (cumulatively the “Campbell Lands”). [4] Mr. Campbell’s businesses included a gas bar/convenience store, a coffee shop/restaurant, a management office building, several storage facilities, and billboard rentals, located on 2.098 acres and registered under one CP (cumulatively the “Commercial Lands”). His mobile home park operated as Maple Meadows Mobile Home Park Ltd. (“MHP”), which produces rental income from 149 fully-serviced rental pads and from billboard signs, is located on 19.002 acres and is registered under two CPs (the “MHP Lands”). The family residence was situated on 17.172 acres and registered under three CPs before it was damaged by fire and rendered uninhabitable (the “Residential Lands”). [5] Mr. Campbell enjoyed a disposable annual income from his various businesses of between $300,000 and $700,000. He was the sole principal of MHP, which operates under a lease agreement with Mr. Campbell that expires on June 30, 2023. Mr. Campbell annually withdrew the company’s pre-tax income in the form of wages, salary and dividends, and paid no income tax on that income as it was earned on reserve lands. [6] Ms. Kumagai was born in Korea. She grew up in impoverished circumstances and had only grade 3 education. She speaks both Korean and English but never learned to read or write either language. She moved to Hawaii when she was 19 where she met Mr. Campbell in 2002. He was then 59 and she was 47 with a 15-year-old daughter. She owned and operated a jewellery retail business and described her standard of living as “comfortable”, providing her a net annual business income of between $40,000 and $50,000. [7] Mr. Campbell was “smitten” with Ms. Kumagai. After a three-year courtship, he persuaded her to marry him and move to Canada. In return he promised that he would open a jewellery store for her, buy her a house and support her and her daughter (then age 18). [8] Ms. Kumagai moved to Canada and on December 2, 2005, the couple began living together in a marriage-like relationship in the family residence. They married on May 27, 2006, and remained together for nearly 7 ½ years before their separation on July 25, 2013. [9] Mr. Campbell brought all of the property into the marriage. He was a controlling man with respect to their finances and Ms. Kumagai’s personal time. He would become angry if Ms. Kumagai left the house without him or talked to anyone else, including her brother. However, he, as promised, funded her daughter’s living expenses and education in Hawaii and she, as promised, devoted all of her time to meeting his needs. [10] The couple enjoyed a lavish lifestyle. Mr. Campbell bought Ms. Kumagai expensive gifts and took her on extravagant shopping trips. They also dined out at high-end restaurants and travelled extensively. [11] During their marriage, Mr. Campbell suffered from declining health. He also gained a significant amount of weight. When he was unable to take care of himself, Ms. Kumagai attended to his personal hygiene. [12] In March 2013, the family residence and all of its contents were damaged in a fire. The house was rendered uninhabitable and was never rebuilt. Thereafter, the parties lived in a hotel and then a rental home. [13] In June 2013, Mr. Campbell collapsed and was taken to the hospital. He was placed in an induced coma for about a month and had a tracheotomy performed on him. During this period, Ms. Kumagai remained by his side, caring for him as best she could. When he awoke he asked for Ms. Saganiuk. [14] Ms. Saganiuk and Mr. Campbell had been in an intimate relationship between 1991 and 1999. She began working in his businesses in 1995; they remained close friends. In 2009, he executed a general power of attorney in her favour over his businesses. In February 2013, following a one-week stay in the hospital, he gave her signing authority over the businesses’ bank accounts. [15] Realizing the marriage was over by his rejection of her, Ms. Kumagai filed a Notice of Family Claim on July 26, 2013. On July 29, 2013, she obtained a without notice order freezing all of Mr. Campbell’s assets and accounts. [16] On July 30, 2013, Mr. Campbell executed his Last Will and Testament (the “Will”). In the Will, he designated Ms. Saganiuk as his executrix and directed her: (1) to transfer his properties and businesses to his then 13-year-old grandnephew (his sister’s grandson) upon the grandnephew reaching the age of 30, at which time the grandnephew would also receive 70% of the residue of the Estate; (2) to pay herself $10,000 per month to manage his business assets, a further $3,000 per month as an executor’s fee, and 20% of his Estate upon the grandnephew turning 30; and (3) to pay his wife $5,000 per month until the grandnephew reached 30 years of age, when she would receive 10% of the residue of his Estate. [17] On August 13, 2013, Ms. Kumagai obtained an interim, without prejudice order, for spousal support in the amount of $5,000 per month, commencing August 1, 2013. [18] On August 21, 2013, at age 70, Mr. Campbell died of congestive heart failure, never having left the hospital after his June 2013 hospitalization. [19] Due to a potential challenge to the validity of the Will, the complexity of the Estate’s business assets, and the matters at issue in the family law proceeding, on September 20, 2013, the Minister of Indian Affairs and Northern Development (the “Minister”) made an order pursuant to s. 44(1) of the Indian Act , R.S.C. 1985, c. I-5, transferring jurisdiction “in relation to testamentary matters and causes with respect to the estate of the deceased, to the Supreme Court of British Columbia.” [20] In the underlying Notice of Family Claim, Ms. Kumagai had requested an order for divorce and corollary relief under the Divorce Act, R.S.C. 1985, c. 3 (2 nd Supplement) and the FLA. After Mr. Campbell died, Ms. Kumagai amended the Notice of Family Claim to plead relief against the Estate for a division of the net family property and spousal support. [21] On October 2, 2013, Ms. Kumagai obtained an order increasing her interim support to $15,000 per month against the Estate, and an enforcement order for the arrears of support under the August 13, 2013 interim order in the amount of about $33,500. The valuation of the Commercial, MHP and Residential Lands [22] The Band is an independent First Nation band that is governed by a Chief and four Councillors. Its lands are comprised of approximately 699 acres, of which the Band holds title to about 10%. The remaining 90% has been allocated to various Band members who hold title to the lands under registered CPs. Mr. Campbell was one of those Band members. [23] The Band is one of the entrepreneurial bands in the Lower Mainland. It encourages economic development and is a leader in market housing and market development for its members and the broader community. This is achieved through 99-year leases between CP holders and non-Band individuals or developers. These business arrangements within the surrounding community have led to the development of a number of successful residential communities on CP lands. [24] The 99-year leases to non-Band developers are typically pre-paid at values comparable to what they would pay for fee simple ownership. It makes little difference to non-Band member parties whether the return on their investment is through ownership or long-term leases. For these reasons, the 99-year lease is generally equated with fee-simple ownership for appraisal purposes. [25] The Band is subject to the Indian Act. However, pursuant to the First Nations Land Management Act, S.C. 1999, c. 24, s. 6, it may enter into an agreement with the Minister to establish a land management regime over its reserve lands and establish rules and procedures with respect to the use, occupation and possession of its land and interests in it upon the breakdown of marriage. [26] On April 24, 2008, the Band enacted the Tzeachten First Nation Land Code (the “Land Code”). The Land Code gives the Band exclusive jurisdiction of the lands within the boundaries of its reserve lands and authorizes the Band to create and enforce its own land laws, similar to that of a municipality. To that end, the Band has passed a Zoning and Land Use Law, in conjunction with a Land Use Plan (“LUP”) for both land management and governance purposes. In 2011, the LUP designated the Residential Lands as “Potential Commercial, Existing (or Potential) Residential New or Densified and Potential Greenway Walk/Bike.” [27] The Band has not yet enacted provisions with respect to the transfer or testamentary disposition of an interest in the Band lands to another Band member. However, under the Indian Act the Minister has the discretion to authorize the transfer of those matters to the jurisdiction of the B.C. Supreme Court. [28] On November 20, 2009, the Band enacted the Matrimonial Real Property Law, Law No. 09-03, which applies to Band members and their spouses. It provides that the former Family Relations Act (now the FLA ) and the Divorce Act, apply “as modified by this Law and to the extent possible subject to this Law, the Land Code, and the common law.” It is common ground that the provisions of the former Family Relations Act, R.S.B.C. 1996, c. 128 ( FRA ) (and now the current FLA ) with respect to the right of ownership and possession of land do not apply to an interest in reserve lands. See Derrickson v. Derrickson, [1986] 1 S.C.R. 285 at 43, 84–88. [29] At the date of trial, Deanna Honeyman was the lands manager for the Band. Ms. Honeyman was responsible for the overall management of the Band lands and, with the assistance of an enforcement officer, also responsible for the enforcement of its laws including taxation of the leased lands to non-Band members. She testified that where CP land is leased to a non-Band member, that individual must pay the property taxes associated with the CP land. She identified six residential developments for which CP Band members have granted 99-year leases to non-Band developers, which have resulted in about 768 single family homes. At the time of trial, there was a further residential development under construction, immediately adjacent to the Residential Lands, also subject to a 99-year lease. [30] Ms. Honeyman confirmed that any proposed development of CP lands would have to be reviewed by the Band’s lands advisory committee, which would then make recommendations to the Band Chief and Council about whether the development should move forward. She was not aware of any impediments to the development of Mr. Campbell’s CP lands “beyond the ordinary”. In cross-examination, Ms. Honeyman indicated that Mr. Campbell’s death created an impediment to development of the Campbell Lands in the sense that the CPs in his name would have to be transferred to another member of the Band before any development could proceed. When asked in re-examination if there would be any impediment to a Band member, who was holding the CP registration in trust only for the Estate, being registered as the CP title holder, Ms. Honeyman responded that she did not know. [31] In preparation for the trial of the underlying family law proceeding, the parties jointly retained an expert to conduct a fair market valuation of Mr. Campbell’s interest in the Campbell Lands as if it were equal to fee-simple ownership, but “with consideration given to any unique concerns or features arising from the fact that allowable land uses are subject only to Band Council Resolution and not subject to local or Provincial government regulations.” No other special instructions or extraordinary assumptions were given. [32] Reid Umlah was chosen by the parties to conduct the appraisals. Mr. Umlah was qualified as an “expert in the valuation of First Nations’ lands and related issues” (2016 BCSC 450 at para. 75). He began doing First Nations work in the mid-1990s; today 80% of his business is focused on First Nations’ issues. He was asked to value the Campbell Lands as of (1) December 2, 2005 (the date of cohabitation), (2) August 21, 2013 (the date of Mr. Campbell’s death and closest to the parties’ date of separation), and (3) January 28, 2015 (the closest date to the date of trial). [33] Mr. Umlah determined the market value of the Campbell Lands based on their “highest and best use”. In his March 16, 2015 report, he described “highest and best use” as “the reasonably probable and legal use of vacant land or an improved property, which is physically possible, appropriately supportable, financially feasible, and that results in the highest value.” He relied on the accepted definition of “market value” from the Canadian Uniform Standards of Professional Appraisal Practice of the Appraisal Institute of Canada, which defines “market value” as “the most probable price which a property should bring in a competitive and open market under all conditions requisite to a fair sale, the buyer and seller each acting prudently and knowledgeably, and assuming the price is not affected by undue stimulus.” In Southam Inc. (Pacific Newspaper Group Inc.) v. British Columbia (Assessor of Area No. 14 – Surrey/White Rock), 2004 BCCA 245, this Court accepted the definition of highest and best use as a market-driven concept that “identifies the most profitable, competitive use to which property can be put”: at para. 14, referring to comments in Ford Motor Co. v. Edison, 127 N.J. 290; 1992 N.J. Lexis 32 (New Jersey Sup. Ct.) at p. 6, citing Meyer v. Department of Revenue , Or.Tax, No. 3049, 1991 WL 244494 (Nov. 20, 1991) (underlining added in Southam ). [34] In his report, Mr. Umlah further noted: The Tzeachten have capitalized on the creation and implementation of an effective Land Use Plan for their lands and have shown a willingness to create and develop business partnerships within the surrounding community. [35] Mr. Umlah determined that the existing use of the Commercial Lands, with further commercial development, and the MHP Lands, represented their highest and best use. He estimated the market value of these lands using an “income approach,” which based their value on their income-earning potential. He determined the highest and best use of the Residential Lands would be residential development to urban densities with some commercial development along the property’s frontage, based on the historical patterns of development in the area, the highly trafficked road adjacent to the lands, the LUP, and the evidence of six existing residential developments, including one under construction immediately adjacent to the Residential Lands. He used a “direct comparison approach” to estimate the market value for the Residential Lands, which involved identifying recent sales of ten similar vacant sites and making adjustments in value to take into account any dissimilarities between those sites and the Residential Lands. [36] In the result, he determined the market value of the three categories of lands registered to Mr. Campbell, as of the date of cohabitation, date of separation and date of hearing, as follows: (1) the Commercial Lands at $1,980,000, $3,180,000 and $3,280,000, respectively; (2) the MHP Lands at $5,720,000, $7,770,000 and $7,850,000, respectively; and (3) the Residential Lands at $4,380,000, $6,260,000 and $6,730,000, respectively. [37] Mr. Umlah also conducted a supplementary appraisal of the Commercial Lands based on the assumption that the property had no further redevelopment potential beyond the existing developments that were already present. This assumption reduced the valuations of that property to $1,590,000, $2,520,000 and $2,770,000 respectively. [38] On cross-examination, Mr. Umlah agreed that although the value of the Band lands is essentially equivalent to fee simple values, a 10% reduction might be appropriate for 99-year prepaid leases of CP lands. However, he clarified that this conclusion was based on one study only he had completed that compared leasehold condominium units to fee simple condominium units. [39] At the request of the Estate, Mr. Umlah also appraised the Residential Lands based on an assumption that they had no development potential for the foreseeable future, given that Mr. Campbell’s grandnephew would not realize his interest in the Estate for many years to come. He used a “cost approach” in appraising the property as a single registered CP, which estimates the value of the lands as if they were vacant and adds the estimated cost of reproducing the existing buildings less any accrued depreciation. Based on these assumptions, he determined the Residential Lands would have a market value of $1,630,000, $1,750,000 and $1,780,000 respectively. He also stated that his valuations for the Residential lands would increase if the three CPs were appraised as three individual home sites in accordance with their CP titles. The division of property [40] The judge found Mr. Umlah to be a very credible witness and accepted his opinions in their entirety. In particular, he accepted Mr. Umlah’s valuations of the Commercial Lands as commercial property and his valuations of the MHP Lands as a mobile home park. He did not accept Mr. Umlah’s valuations for the Residential Lands based on their potential high-density residential and possible commercial development along the frontage, finding: (1) there was no evidence that Mr. Campbell intended to develop the Residential Lands; and (2) there was no evidence that the executrix, Ms. Saganiuk, who is not a member of the Band, had any authority to develop the property on behalf of the Estate. He also rejected as “pure speculation” the argument that the Minister might appoint a new Band member as the executor under s. 43 of the Indian Act , to develop the land on behalf of the infant beneficiary. In the result, he accepted the Estate’s submission that the Residential Lands should be valued as a single residential site with no development potential, which reduced the increase in their value from the date of cohabitation to the date of separation to only $120,000. [41] At trial, Ms. Kumagai requested a compensation order for her half interest in the net value of the family property after the deduction of the family debt. The only family property at issue in this appeal is the judge’s finding as to the increase in the value of the Campbell Lands from the date of the couple’s cohabitation to their date of separation, as Mr. Campbell brought all of the property into the relationship. [42] Section 85(1) of the FLA defines excluded property not subject to division as (a) “property acquired by a spouse before the relationship between the spouses began”. Section 84(1)(a) identifies “family property” as, on the date of separation, (i) “property that is owned by at least one spouse”, or (ii) “a beneficial interest of at least one spouse in property”. Pursuant to s. 84(2)(g), family property includes “the amount by which the value of excluded property has increased since the later of the date (i) the relationship between the spouses began, or (ii) the excluded property was acquired.” Section 87(a) of the FLA provides that the net value of the family property (here the increase in value of the excluded property less the family debt) must be based on its fair market value as of the date of an agreement between the parties or the hearing before the court on the division of property. In this case, there was no agreement and therefore the relevant date for the valuation of the net family property was the date of hearing. [43] The judge found no basis to award other than an equal division of the net family property having been satisfied that such a division would not be “significantly unfair” pursuant to s. 95(1) of the FLA . He further noted the comments of Justice Baker in Jaszczewska v. Kostanski, 2015 BCSC 727, rev’d in part on other grounds 2016 BCCA 286, at para. 144, which expressed the view that a mere disparity in wealth at the commencement of a relationship would not generally justify an unequal division of family property at the end of the relationship. However, the judge chose the valuation of the three categories of lands as of Mr. Campbell’s date of death, being the closest date to the date of separation, over their valuations as of the date of trial, stating: [120]    … It would be unfair to allow the claimant [Ms. Kumagai] to participate in any increase in the value of the Campbell Lands after she separated from the relationship. [121]    In my view, it is appropriate in this case to award compensation to the claimant in lieu of a division of property and based upon the increase in value of the Campbell Lands during the period between December 2, 2005 (the date when the parties commenced co-habitation) and July 25, 2013 (the date that the claimant separated from Mr. Campbell), at which time I find that there was no reasonable prospect of reconciliation. [44] The judge also found that the Estate’s probate fees were not a family debt and dismissed the Estate’s application to deduct their amount as a family debt in calculating the value of the net family property for the compensation order. [45] In the result, the judge awarded Ms. Kumagai a compensation order for one-half of the value of the net family property, including the increase in the value of the Campbell Lands, between December 2, 2005, the date when the parties’ marriage-like relationship began, until August 21, 2013, the valuation date closest to the date of the parties’ separation, and assuming a valuation for the Residential Lands as a single residential site with no future development. In sum, he calculated the market value of the Campbell Lands before the deduction of the family debt, as follows: a) Commercial Lands ($3,180,000 − $1,980,000): $1,200,000 b) MHP Lands ($7,770,000 − $5,720,000): $2,050,000 c) Residential Lands ($1,750,000 − $1,630,000): $120,000 Total : $3,370,000 [46] The total value of the Campbell Lands, as found by the judge, was added to the value of other family property not in dispute, for a total value of the family property at $3,934,893, less family debt of $16,292, resulting in a finding of the value of net family property at $3,918,601. The judge awarded Ms. Kumagai a compensation order for one-half of that amount at $1,959,301, less the $100,000 previously advanced to her. [47] The judge also ordered the Estate to pay either the compensation award as a lump sum, or in installments of $20,000 per month, with post-judgment interest on the unpaid balance at the then current interest rate of 2.7%. Spousal support [48] MHP operates on a fiscal year end of August 31. It receives rental income from the mobile home pads. Mr. Campbell, and, after his death, the Estate, also received rental income from leased billboards and lease payments from MHP for use of the CP lands on which the mobile home park operates. [49] Before his death, Mr. Campbell withdrew all of the corporate pre-tax income in MHP to pay himself in the form of wages, salary and dividends. His income was tax-free as it was realized on the Band Lands. After his death, the income received by the Estate attracted a range of income tax rates depending on the type of income that was earned. The rental income from MHP was classified as inactive income and was taxed at the top-end rate of about 45%. The dividend income withdrawn by the Estate from MHP was taxed at about 18%. The overall tax rate paid by the Estate, dividing all the tax paid by the total income, was about 18%. [50] Ms. Kumagai had no independent income during the marriage. The judge found that she had demonstrated “a significant need” for spousal support beyond the monthly $5,000 bequest to which she was entitled under the Will, and that an additional monthly amount of $5,000 was necessary to meet that “significant need.”  He recognized that ss. 170 and 171 of the FLA expressly authorized the making of an award against the payor spouse’s estate where an agreement or order had been made before his or her death, and, as a result, Ms. Kumagai was entitled to pursue a claim for spousal support pursuant to s. 171(3)(a) of the FLA. He concluded, however, that he could not make an award of spousal support against the Estate because at common law the obligation to pay spousal support died with the payor, and he interpreted the language of s. 165 of the FLA (for making a spousal support order) as only authorizing the making of an order against “a spouse” who had to be living. [51] Before the final order was entered, Ms. Kumagai requested the judge to reconsider and, if necessary, clarify his decision on whether spousal support under the FLA could survive the death of the payor on a proper interpretation of the FLA provisions. If Ms. Kumagai was successful, the Estate sought clarification of the quantum of spousal support awarded her in view of the significant payments she was already receiving under the Will and pursuant to the compensation order. [52] In supplementary reasons for judgment (2016 BCSC 1161), the judge concluded that his initial determination had been in error and that ss. 170 and 171 of the FLA did permit the making of an order for spousal support against the Estate. He found that, despite the wording that suggested only living persons could be “spouses” obligated to pay spousal support, the legislative intent of s. 171(3) had clearly been to provide a mechanism for ongoing support after the death of the payor, and that it would be an “absurd result” if the legislative object and intent of the provisions could not be met in the absence of “redundant and needless verbiage” (at para. 20). As the first interim order for support had been made before Mr. Campbell’s death, the judge was satisfied that he could make an award of continuing spousal support against the Estate in the monthly amount of $5,000 until Mr. Campbell’s grandnephew receives his request under the Will. [53] However, after he was advised that the payment of spousal support was not tax deductible by the Estate or taxable in the hands of Ms. Kumagai, the judge then clarified that amount. Relying on the Spousal Support Advisory Guidelines (SSAG), which have a feature to “gross-up” non-taxable income, he found that: the gross amount of Ms. Kumagai’s monthly bequest from the Estate of $5,000 was the equivalent to $75,588 in annual taxable income; and the Estate’s after-tax income was $293,367, which included $39,800 in rental income from billboards. On appeal, the parties agree that the judge should have started his analysis with the Estate’s pre-tax gross income of $383,415, and then added the annual lease payments from MHP of $76,960, and lastly billboard rentals of $39,800, to find a total gross income of $500,175. [54] Based on his findings of Ms. Kumagai’s gross annual income at $75,588, and the Estate’s gross annual income at $293,367, the judge awarded Ms. Kumagai monthly mid-range SSAG support of $2,223 until the grandnephew turns 30, at which time Ms. Kumagai will receive her 10% residue of the Estate under the Will. [55] The Estate also asked the judge to reconsider and clarify his rejection of its request that the October 2, 2013 interim order for increased spousal support, this one against the Estate, in the monthly amount of $15,000, be rescinded because no consideration had been given to the change from the tax-free status of MHP’s income to a tax rate of 45% after Mr. Campbell’s death, leaving it with a reduced after-tax income of $293,367. Ms. Kumagai’s position was that, in the absence of an appeal of that interim order, the Estate could not now advance its submission. The judge agreed with Ms. Kumagai that the second interim order should not be adjusted. He held that while s. 167(2) of the FLA authorized a retroactive variation of an interim order, that decision was subject to the Estate meeting the following conditions: (1) a change in circumstances of either party since the interim order; (2) evidence of a substantial nature now available that was not available when the interim order was made; or (3) evidence of a lack of financial disclosure by either party that was discovered after the interim order was made. The judge found no evidence that established any of these conditions. On appeal A.       The division of family property [56] Ms. Kumagai raises three issues on appeal with respect to the amount of the compensation award for her half-interest in the net family property. First, she submits the judge erred in effectively discounting the “highest and best use” appraisal of the Residential Lands by 100% based on: (1) the assumption that the Residential Lands could not be developed in the foreseeable future because Ms. Saganiuk, as executrix, was not a member of the Band and therefore could not obtain approval for their development; (2) the fact that Mr. Campbell had no intention to develop the Residential Lands; and (3) the lack of evidence that the Band would approve the development of the Residential Lands. [57] Second, and in the alternative, Ms. Kumagai submits that if the judge is found to have been correct in finding that the Residential Lands were not developable, he erred in ignoring or rejecting Mr. Umlah’s opinion that their appraised value should be greater than that of a single residential site as there was the potential to build a residence on each of the three registered CPs. [58] Last, Ms. Kumagai submits the judge erred in choosing the date of Mr. Campbell’s death, being the closest to the date of separation, rather than the date of trial for the appraisal of the Residential Lands. Legal impediment? [59] In my respectful view, the judge erred in finding that Ms. Saganiuk’s inability, as the executrix of the Will and a non-Band member, to facilitate the development of the Residential Lands, which Mr. Umlah found was their highest and best use, effectively constituted a legal impediment that required a 100% discount from Mr. Umlah’s initial valuation, in the absence of any evidence to support that finding. [60] Mr. Umlah, an experienced appraiser of First Nations lands, was chosen by both parties to conduct a joint appraisal of the Residential Lands because of his expertise in that area. He applied no discount to his determination of their fair market value based on their highest and best use. [61] The highest and best use analysis requires the identification of the “most profitable, competitive use to which a property can be put”: see, Appraisal Institute and Appraisal Institute of Canada, The Appraisal of Real Estate, Canadian Edition (Illinois: Appraisal Institute, 1992), at p. 284. It is the reasonable expectation of the market potential for the property taking into account such factors as: whether the neighbourhood is in a state of transition; what can be legally built on the property; what is the supply and demand for various uses; what is the capacity of available services; and what alternatives are financially viable: see BC Real Property Assessment Manual , looseleaf (Vancouver: The Continuing Legal Education Society of British Columbia, 1990), §6.3. [62] The Estate contends that “highest and best use” does not mean property must be valued only on the basis of some potential future best use without reference to its present use. However, in Gemex Developments Corp. v. British Columbia (Assessor of Area #12 – Coquitlam ) (1998), 62 B.C.L.R. (3 d ) 354, Madam Justice Newbury, writing for the Court, rejected that position, stating (at para. 11): This position runs contrary …to most of the definitions of “actual” or “market” value that have been advanced by courts and learned authors in recent years. British Columbia courts on many occasions have held that provided a possible future use is not “speculative”, it may be considered in determining value and that if an owner’s present use is not consonant with a use that would affect the market price, the latter will govern: see, e.g., Lefeaux v. Corporation of the District of West Vancouver (1962) Stated Case 33 (B.C.S.C.); Jericho Tennis Club v. Assessor of Area 09 – Vancouver (1991) Stated Case 307 (B.C.S.C.); Assessor of Area 10 – Burnaby/New Westminster v. Sears Canada Inc. (1992) Stated Case 332 (B.C.S.C.); and Petro Canada Inc. (Gulf Canada Ltd.) v. Assessor of Area 12 – Coquitlam (1991) 61 B.C.L.R. (2d) 86 (B.C.C.A.), a decision of Proudfoot J.A. in Chambers. [63] With respect to First Nations lands, the majority in Musqueam Indian Band v. Glass, 2000 SCC 52, accepting guidance from The Appraisal of Real Estate text noted above, confirmed: [47]      Legal restrictions on land use, as opposed to restrictions found in the lease, may affect the market value of freehold property.…To determine land value, whether as vacant or as improved, the appraiser (unless otherwise instructed by the lease) considers the highest and best use that is “legally permissible, physically possible, financially feasible, and maximally productive”. Legal impediments include “[p]rivate restrictions, zoning, building codes, historic district or other non-zoning land use controls, and environmental regulations” (Appraisal Institute of Canada, The Appraisal of Real Estate (Canadian ed. 1999), at p. 270). [48]      The legal restrictions on land use imposed by a band on its land are analogous to land laws imposed by a municipal government. … The legal environment on a reserve should therefore be taken into account when appraising the land’s value. Of course, like municipal zoning, band restrictions could either increase or decrease land value depending on how the market responds to them. In Devil’s Gap Cottages, supra [(November 18, 1991), Doc. T – 2468-88 (Fed. T.D.)], Strayer J. (as he then was) noted that favourable zoning on that reserve increased its value dramatically over non-reserve land. [64] The Court distinguished legal restrictions on the use of the land, which are relevant to determining highest and best use, from contractual restrictions imposed in a lease, which generally are not. This was also recognized in Victoria University (Board of Regents) v. GE Canada Real Estate Equity, 2016 ONCA 646, where that Court summarized Musqueam as follows: [40]      In conclusion, Musqueam establishes that, absent a contrary intention in the lease: (a) the word “land” refers to the freehold or fee simple interest in the lands at issue; (b) the word “value” means the exchange value of the land, calculated by determining the “highest and best use” possible; and (c) fair market value should reflect legal restrictions on the land but should ignore any particular restrictions imposed by the lease itself. [Emphasis added.] [65] In short, legal impediments are legal restrictions on the use of the land. They do not include an owner’s intentions or desires, which are irrelevant, or in this case an executrix’s inability to facilitate the highest and best use of the land, which may be rectified. As a bare trustee, the executrix could apply to the Supreme Court for an order under the Trustee Act, R.S.B.C. 1996, c. 464, for the appointment of a new executrix, or for an order under s. 43 of the Indian Act and Indian Estates Regulations, C.R.C., c. 954, for the appointment of an administrator that could facilitate the highest and best use of the land and be in compliance with any Band requirements. Under s. 44 of the Indian Act , orders can be made pursuant to provincial laws, like the Trustee Act , as long as they are “in accordance with” (i.e., not inconsistent with) the Indian Act . [66] More significantly, there was no evidence that any of these issues raised by the Estate constituted legal impediments, to what Mr. Umlah determined to be the highest and best use of the Residential Lands. A professional appraisal must include any legal impediments and none were included in Mr. Umlah’s report. There was simply no evidence to establish the existence of any legal impediment that might have impacted the highest and best use valuation of the Residential Lands. Moreover, given the Land Code and LUP enacted by the Band, and the type and scope of development encouraged and approved by the Band, the assumption that this would likely continue provided a sound evidentiary grounding to Mr. Umlah’s highest and best use valuation. Valuation of three residential sites as one [67] Section 87(a) of the FLA provides that “the value of family property must be based on its fair market value”. Mr. Umlah calculated the fair market value of the Residential Lands based on their highest and best use for potential development at $6,730,000 as of the date of trial. [68] The Estate requested Mr. Umlah to provide an appraisal of the Residential Lands collectively as one, non-developable residential parcel. This request was an extraordinary assumption that did not comply with the appraisal standard of highest and best use and resulted in a reduced valuation of the property to a third of its market value at $1,780,000 as of the date of trial. In my respectful view, the judge erred in accepting that valuation for the Residential Lands as it did not reflect the highest and best use of the property. The correct assumption for the valuation of the Residential Lands at their highest and best use was their potential high-density residential and commercial development. Alternatively, it was at least for their potential development as three individual residential sites. Date of valuation [69] The judge valued the three categories of land as of the date of Mr. Campbell’s death, being the closest to the date of separation. With respect, in my view he erred in his selection of that date for their valuation in the absence of a finding that it would be significantly unfair to divide the net family property equally. This requires an understanding of the division of property provisions of the FLA, which have changed in certain respects from the provisions under the FLA’ s predecessor, the FRA . [70] Section 81 of the FLA provides that (a) “regardless of their respective use or contribution” (b) “on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt.” This provides for a presumptive equal division of what is found to be net family property under s. 84 of the FLA. [71] Section 84 of the FLA defines family property as follows: 84 (1) Subject to section 85 [excluded property] , family property is all real property and personal property as follows: a) on the date the spouses separate, i. property that is owned by at least one spouse (2) Without limiting subsection (1), family property includes the following: g) the amount by which the value of excluded property has increased since the later of the date i. the relationship between the spouses began, or ii. the excluded property was acquired. [72] Section 85 defines excluded property as “property acquired by a spouse before the relationship between the spouses began” (s. 85(1)(a)). [73] Section 84 establishes the date of separation as the event when property is determined to be family property or excluded property. This is comparable to the defined “triggering event” under the former FRA. The purpose of s. 84 is to set out the date upon which the property is characterized as family property, not the date upon which it is valued, which is expressly addressed in s. 87. See F.(V.J.) v. W. (S.K.), 2016 BCCA 186 at para. 69. [74] Section 87 of the FLA requires that (a) family property must be valued based on its fair market value, and (b) the value of family property and family debt must be determined as of the date of (i) an agreement dividing the net family property, or (ii) the date of a hearing with respect to the division of family property and family debt. [75] The date of the hearing for the valuation of net family property is the presumptive valuation date. Where family property is the increase in value of excluded property (being property acquired by a spouse before the relationship between the parties began), the value of that property is determined presumptively at the date of an agreement between the parties or the date of hearing. [76] A departure from the presumptive date for valuation of family property is effectively a reapportionment or unequal division of the family property, which can only be done under s. 95 of the FLA. Section 95 expressly provides for the reapportionment of net family property if an equal division would be “significantly unfair.” Under the former FRA, a change in the valuation date from the date of hearing was determined to be an effective reapportionment of the family assets. See Martelli v. Martelli (1981), 33 B.C.L.R. 145 at para. 28 (C.A.); Toth v. Toth (1995), 13 B.C.L.R. (3d) 1 at para. 55 (C.A.); McPhee v. McPhee (1996), 22 R.F.L. (4 th ) 302 at paras. 10–13 (B.C.C.A.); and Fisher v. Fisher, 2009 BCCA 567 at para. 61. The same reasoning, in my opinion, should be applied to the comparable provisions of the FLA. Any departure from the presumptive equal division of net family property under s. 81 of the FLA must therefore be made pursuant to s. 95(1) of the FLA , which imposes a threshold finding that an equal division of the net family property would be “significantly unfair” before any reapportionment of the net family property can be ordered. [77] In this case, the judge’s reasons demonstrate an intention to grant Ms. Kumagai an equal division of the net family property based on his reference to the comments in Jaszczewska that (1) “mere disparity in wealth at the commencement of a relationship would [not] generally justify unequal division of family property at the end of the relationship” (at para. 150); and (2) “[e]xceptions to equal division of family property are not the norm” and “[s]ignificant unfairness must be demonstrated” (at para. 151), relying on the following comments of Mr. Justice Brown in L.G. v. R . G., 2013 BCSC 983 at para. 71, which state: In my view, the term ‘significantly unfair’ in s. 95(1) of the FLA essentially is a caution against a departure from the default of equal division in an attempt to achieve ‘perfect fairness’. Only when an equal division brings consequences sufficiently weighty to render an equal division unjust or unreasonable should a judge[’s] order depart from the default equal division. The judge concluded that “it would not be significantly unfair for the claimant to receive a compensation order equal to one-half of the family property less one-half of the family debt” (at para. 156). [78] However, the judge chose the date of separation as the valuation date for the net family property because “[t]he claimant did not participate in or make any meaningful contribution towards any of the businesses being operated on the Campbell Lands, nor did she do anything to enhance their value other than assist Mr. Campbell in the upkeep and maintenance of the matrimonial home” and therefore “[i]t would be unfair to allow the claimant to participate in any increase in the value of the Campbell Lands after she separated from the relationship” (at para. 120). [79] The Estate submits that the judge was correct in choosing the date of separation to value the family property, as pursuant to s. 85(1)(a) and s. 84(2)(g) of the FLA, it says, only the increase in value of the property acquired by a spouse before the marriage, from when the marriage or marriage-like relationship began until the date of separation, constitutes family property. In support of that position, the Estate relies on the following comments from V.J.F. v. S.K.W., 2016 BCCA 186 at para. 1, where the Court stated: The basic principle intended to be applied to the property of spouses on separation is that they “keep what is theirs”. Most notably, with respect to property acquired by a spouse before the marriage, only the increase in value that accrues during the spouses’ cohabitation is (presumptively) divisible under the Act. The rest is “excluded property” that is presumptively not divisible. [80] With respect, the Estate misconstrues the Court’s comments in V.J.F. At para. 1, Madam Justice Newbury, writing for the Court, is referring to the characterization of property as family property or excluded property on the date of separation, in summarizing the new approach to identifying family property under the FLA. This is confirmed by her later comments (at para. 69), where she reiterates this point in reference to the specific provisions of the FLA : Equally important, s. 84 suggests that the point in time at which family property (and therefore the exclusions therefrom) are determined is the date of the spouses’ separation (subject only to the extension under s. 84(1)(b) in respect of property acquired after separation if it was “derived from” property described in s. 84(1)(a). … [Underlining in original.] [81] There are two further errors in the judge’s reasoning: (1) under s. 81(a) of the FLA , entitlement to an equal share in the net family property is not dependent on use or contribution to the family property; and (2) use or contribution to family property is not a requirement for making an order for an unequal division under s. 95, which only requires a finding of significant unfairness. [82] This interpretation of the interplay between these provisions under the FLA was clearly articulated in Jaszczewska, where Mr. Justice Harris, writing for the Court, stated: [38]      It is safe, therefore, to conclude that the Legislature intended to limit the circumstances in which a departure from equal division of family property could be justified because of unequal contributions to its acquisition, preservation, maintenance or improvement. The FLA starts with the presumption found in s. 81 that family property is to be equally divided. As I read s. 81, each spouse is presumptively entitled to an undivided half interest in all family property, regardless of their respective use or contribution. I do not think the use of the words “regardless of their respective use or contribution” in s. 81(a), rather than in s. 81(b), is inconsistent with that view. Any potential uncertainty on this point would have been removed if s. 81(b) had read “on separation, each spouse has a right to an undivided half interest in all family property, regardless of their respective use or contribution.” But as I read it, the phrase in s. 81(a) refers to the basis of entitlement to family property. Entitlement exists independent of contribution or use, and the extent of that entitlement on separation is defined in s. 81(b). [39]      Also, because family property is generally valued on the date of the hearing, the parties will presumptively share in any post-separation increases in the value of family property. Once again, because of s. 81, this entitlement exists independent of the parties’ respective contribution to the post-separation increase in value. [83] As to s. 95, Harris J.A. agreed (at para. 41) with the description of “significantly unfair” in Remmem v. Remmem, 2014 BCSC 1552, where Mr. Justice Butler described the standard (at para. 44) as “compelling or meaningful having regard to the factors set out in s. 95(2)”. Justice Harris added that “significantly unfair” requires evidence that rises to the level of “something objectively unjust, unreasonable or unfair in some important or substantial sense” (at para. 42). [84] In my respectful view, the judge’s decision in this case to value the property as of the date of separation is an error. His decision was based on his finding that it would be “unfair” for Ms. Kumagai to share in the increase in the market value of the Campbell Lands after separation because she did not contribute to that increase. “Unfair” does not rise to the standard of “significantly unfair” under s. 95, and, more significantly, contribution is not a requirement for an equal division of family property under s. 81 of the FLA. Furthermore, as discussed above, by valuing the family property as of the date of separation, the judge effectively granted Ms. Kumagai an unequal division of the net family property in favour of the Estate, contrary to the judge’s expressed intention to divide the net family property equally. [85] Accordingly, the value of the family property at issue, being the Campbell Lands held under the six CPs, must be valued as of the date of hearing and a compensation order made based on those valuations. Using the date of the hearing and Mr. Umlah’s initial appraisal of the Residential Lands based on their highest and best use, the value of the Campbell Lands would be as follows: a) Commercial Lands ($3,280,000 − $1,980,000): $1,300,000 b) MHP Lands ($7,850,000 − $5,720,000): $2,130,000 c) Residential Lands ($6,730,000 − $4,380,000): $2,350,000 Total : $5,780,000 [86] To that total of $5,780,000, the $564,893 of other, undisputed family property would be added and the family debt of $16,292 would be subtracted, for a total net family property value of $6,328,601. Ms. Kumagai would be entitled to one-half that amount, which is equal to $3,164,301. B.       Spousal support [87] The judge initially determined that Ms. Kumagai would be entitled to monthly spousal support of $5,000 from the Estate, but for his finding that he was precluded from making such an order under s. 171(3) of the FLA . On reconsideration, he determined that he could make a spousal support award but reduced the monthly amount to $2,223. This amount is the mid-point range for spousal support under SSAG based on findings of $293,367 income to the payor Estate and $75,588 income to Ms. Kumagai. [88] Ms. Kumagai submits the judge erred by awarding her a monthly amount of $2,223 after finding that she had demonstrated a significant need beyond the monthly bequest of $5,000 she receives under the Will, and upon finding that she required an additional monthly amount of $5,000 to meet her “significant need”. [89] As noted above, the parties agree the judge’s finding of the Estate’s income at $293,367 should have been its pre-tax or gross annual income of $500,175 as the starting point for determining the income available for spousal support. See Hausmann v. Klukas, 2009 BCCA 32 at paras. 32, 50–52, leave to appeal ref’d [2009] S.C.C.A. No. 135; and McKenzie v. McKenzie, 2014 BCCA 381. [90] Ms. Kumagai also submits that the judge erred in characterizing her monthly bequest of $5,000 under the Will as income, and then grossing it up for the purpose of applying SSAG . She contends SSAG is not applicable in these circumstances where the payor is an estate and therefore the support payments are not deductible by the Estate or taxable to her. On appeal, the Estate agrees that SSAG is not applicable as “it does not include options that fit with the facts of this case.” I agree. [91] SSAG is premised on the principle that payments are deductible by the payor and taxable to the recipient. Any payment from the Estate, whether it is a capital bequest or a support payment is not subject to tax. In addition, the Estate’s pre-tax income exceeds $350,000, the ceiling above which the SSAG formulas do not automatically apply. In my view, assuming entitlement, SSAG is not strictly applicable in these circumstances. [92] I also agree with Ms. Kumagai’s submission that it is speculative to infer that because her bequest under the Will was made, in part, as monthly payments that it should be treated as income in the form of support payments, rather than as capital, and therefore grossed up for the purpose of applying SSAG. Ms. Saganiuk’s bequest under the Will was also in the form of monthly payments with a residual bequest when the infant beneficiary turned 30. In my view, the monthly payments to Ms. Kumagai under the Will, absent evidence to the contrary, can only be characterized as a capital bequest. This is consistent with Mr. Campbell’s other bequest and supported by the nature of the property in the Estate, which is not to be sold but to continue to provide an income stream. It is also consistent with the characterization of income under SSAG . Chapter 6 of SSAG states that “[t]he starting point for the determination of income under the Spousal Support Advisory Guidelines is the definition of ‘income’ under the Federal Child Support Guidelines. ” Section 16 of the FCSG directs that income is generally determined using the income reported under the heading “Total income” in the T1 General tax form issued by Canada Revenue Agency, subject to certain deductions. Bequests under a will are usually not reported as income on tax returns, and therefore would not fall within the definition of income under SSAG . [93] I am unable to agree, however, with Ms. Kumagai’s further submission, relying on Chutter v. Chutter, 2008 BCCA 507 and Bell v. Bell, 2009 BCCA 280, that she should not be required to encroach on her capital in order to maintain the standard of living she enjoyed with Mr. Campbell during the marriage. Those decisions addressed principles for ongoing spousal support for living parties. They do not in my view extend to spousal support after the payor’s death, which is governed by the factors set out in s. 170(g) and s. 171 of the FLA, which provide: 170 In an order respecting…spousal support, the court may provide for one or more of the following: (g)        subject to section 171(1) …. that a duty to pay … spousal support continues after the death of the person having the duty, and is a debt of his or her estate for the period fixed by the court. 171(1) Before making an order under section 170(g) … the court must consider all of the following factors: (a)        that the person receiving …spousal support has a significant need for support that is likely to continue past the death of the person paying … spousal support; (b)        that the estate of the person paying … spousal support is sufficient to meet the need referred to in paragraph (a) after taking into account all claims on the estate, including those of creditors and beneficiaries; (c)        that no other practical means exist to meet the need referred to in paragraph (a). (3) If a person having a duty to pay … spousal support under an agreement or order dies and the agreement or order is silent respecting whether the duty continues after the death of the person and is a debt of his or her estate, (a)        the person receiving support may make an application under … section 165 [orders respecting spousal support] , and (b)        if, on consideration of the factors set out in subsection (1) of this section, an order is made, the duty to pay … spousal support continues despite the death of the person and is a debt of his or her estate for the period fixed by the court. [94] Given my proposed change in the compensation award, proposed change in the findings for each party’s income, and the need to weigh the factors under s. 171 of the FLA, it is necessary to remit this issue to the trial court to determine an appropriate amount of spousal support in all of the circumstances. Pending the determination of the quantum of spousal support, I would maintain the existing order awarding monthly payments of $2,223 to Ms. Kumagai. On cross appeal [95] The Estate raises three issues on the cross appeal: (1) whether the judge erred in finding that Ms. Kumagai was entitled to spousal support from the Estate; (2) whether the judge erred in declining to vary the second interim spousal support award; and (3) whether the judge erred in dismissing the Estate’s application for an order requiring Ms. Kumagai to contribute to the probate fees paid by the Estate. I find no merit to any of these grounds of appeal and I would dismiss the cross appeal for the reasons below. Orders under the FLA that survive death [96] The Estate submits the judge erred in finding that Ms. Kumagai was entitled to spousal support against the Estate pursuant to s. 171 of the FLA. It relies principally on the jurisprudence under the common law that held the payment of support is a personal obligation that does not survive the death of the payor unless an order or agreement was made during the lifetime of the payor that reflected an intention to bind the payor’s estate. (See McLeod v. McLeod, 2013 BCCA 552.) The Estate also submits the judge’s initial interpretation of the provisions correctly found that the FLA did not permit an existing support obligation of a payor before death to survive after his or her death as the language of those provisions do not expressly refer to a deceased spouse. The Estate further submits that the judge erred by finding that the word “order” in s. 170(g) and s. 171 could include an interim order, and, in any event, that none of the factors that must be considered under s. 171(1) were met in this case. [97] On reconsideration of whether the interim spousal support order could survive the death of Mr. Campbell, the judge found that the object and intention of the Legislature was clear and to not give it effect would result in an absurdity (at paras. 9–21). I agree. In my respectful view, the judge correctly applied the well-known principles of statutory interpretation set out in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 and reiterated in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, in determining that the legislative intent of these provisions was to provide a mechanism for the ongoing payment of spousal and child support upon the death of the payor spouse based on the factors listed in s. 171(1). The Legislature has clearly and expressly changed the common law principles with respect to support under the FLA. I find no error in the judge’s reconsideration of this issue. [98] I similarly find no error in the judge’s determination that the reference to an “order” in s. 170(g) and s. 171 includes an interim order. As the judge noted in his initial reasons (at paras. 167–169), the FLA does not define or limit the meaning of the word “order”. In comparison, the Supreme Court Family Rules define a “final order” as an order that finally resolves the family law claim and the Supreme Court Civil Rules define an “order” to include “a judgment and a decree”. [99] Section 216(2) of the FLA requires a court to make an interim order “in accordance with any requirements or conditions of this Act that would apply if the order were not an interim order.” Sections 161 and 162 of the FLA set out the objectives for determining entitlement to spousal support, and the factors to be considered in determining the amount and duration of spousal support, respectively, which a court is required to consider in making a spousal support order. Although the Estate asserts that entitlement is often not determined when making an interim support order, entitlement is an express consideration under s. 161 and therefore for an interim order under s. 216. In short, an order is an order absent language in a provision that limits the nature and scope of an order that can be made after the death of a payor. [100] I also find no error in the judge’s determination, based on all the evidence before him, that the factors he was required to consider under s. 171(1) were met. The judge found that, despite the compensatory award for property division Ms. Kumagai would receive and her monthly bequest of $5,000 under the Will, Ms. Kumagai had demonstrated a significant need for further support. It was open to the judge to make such a finding based on the evidence before him. The evidence of all the claims against the Estate was also before the judge, and he determined that the Estate was sufficient to meet Ms. Kumagai’s need for spousal support in light of those claims. The Estate submits that s. 171(1)(c) is not met as the $5,000 monthly bequest Ms. Kumagai receives represents a practical means of meeting her need; however, the judge clearly stated in his initial reasons that Ms. Kumagai “demonstrated a significant need for support beyond the $5,000 per month that she is entitled to receive under the provisions of the Will ” (at para. 184). As a result, I find no merit to the argument that her bequest under the Will could be a practical means of meeting the need she demonstrated. Variation of the second interim order [101] The second interim order was made against the Estate. It increased the first interim order for monthly spousal support against Mr. Campbell from $5,000, to $15,000 against the Estate, payable in two equal installments of $7,500 commencing on October 1, 2013. In his final order, the judge declined to retroactively vary the second interim order. [102] On appeal, the Estate first submits there was no authority under the FLA to make an interim order against the Estate as the word “order” in s. 170(g) and s. 171 does not include an interim order. As discussed above, I cannot agree. There was authority to make the second interim order just as there was to make the judge’s final spousal support order. [103] Second, the Estate submits that if there was authority to make the second interim order against the Estate, and if the judge determined that a spousal support order should be made at trial, then the judge erred in failing to make his order apply retroactively to the date of the second interim order, effectively retroactively varying that order. Again, I cannot agree. [104] The second interim order was not appealed. The judge noted at para. 33 of his supplementary reasons that if the Estate took issue with the second interim order, its remedy was an appeal. The Estate submits that it was an error for the judge to consider that an appeal would be the only available remedy. However, it is clear that the judge proceeded to consider and apply the factors that must be established under s. 167(2) of the FLA for a variation of an order (at paras. 34 ‒ 35). While the judge had the authority to retroactively change the second interim order in the final order, he declined to do so. That decision involved the exercise of discretion for which this Court must give deference. I find no error in the judge’s decision not to change the second interim order. Probate fees [105] The Estate submits the judge erred in dismissing its application that Ms. Kumagai contribute to the expense of the probate fees in the amount of $170,792. I find no merit in this submission. [106] Section 86 of the FLA defines family debt as follows: 86. Family debt includes all financial obligations incurred by a spouse (a)        during the period beginning when the relationship between the spouses begins and ending when the spouses separate, and (b)        after the date of separation, if incurred for the purpose of maintaining family property. [107] The focus on the nature and purpose of determining if a debt is a family debt was addressed in Mallen v. Mallen (1992), 65 B.C.L.R. (2d) 241 (C.A.) at para. 6 where the Court stated: The proper focus for the examination of a debt should be a focus on the nature and purpose of the borrowing and on the expenditure of the borrowed funds. If the funds were used to acquire a family asset, to maintain a family asset, to discharge a family burden, or to maintain the family members, then it is likely that equality and fairness will require an equal sharing of the debt or liability and its adjustment in the division of the assets in such a way to carry out the principles of equality and fairness. [108] While Mallen was decided under the former FRA, which contained no express provision for allocation of family debts, now provided for in the FLA, the characterization of a debt as a family debt in my view remains the same as articulated in Mallen. Simply put, probate fees do not fall within the definition of family debt under the FLA. They are unrelated fees that are incurred pursuant to the Probate Fee Act, S.B.C. 1999, c. 4. I find no error in the judge’s determination that the probate fees were not a family debt. Disposition [109] In the result, I would make the following orders: a) The appeal is allowed in part by: (1) increasing the amount of the compensation order from $1,959,301 to $3,164,301; and (2) remitting the quantum of spousal support to the trial court for reconsideration; b) The order of June 23, 2016, with respect to the spousal support awarded to Ms. Kumagai in the amount of $2,223 monthly, be maintained until the quantum of spousal support has been reconsidered and finally determined; and c) The cross appeal is dismissed. “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Mr. Justice Harris” I AGREE: “The Honourable Mr. Justice Hunter”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Pakozdi v. B & B Heavy Civil Construction Ltd., 2018 BCCA 23 Date: 20180119 Docket: CA43758 Between: David Pakozdi Respondent/ Appellant on Cross Appeal (Plaintiff) And B & B Heavy Civil Construction Ltd. Appellant/ Respondent on Cross Appeal (Defendant) Before: The Honourable Madam Justice Stromberg-Stein The Honourable Mr. Justice Savage The Honourable Mr. Justice Hunter On appeal from:  An order of the Supreme Court of British Columbia, dated June 3, 2016 ( Pakozdi v. B & B Heavy Civil Construction Ltd. , 2016 BCSC 992, Vancouver Docket S151128). Counsel for the Appellant: M. Pierce Counsel for the Respondent: R.B. Johnson Place and Date of Hearing: Vancouver, British Columbia November 7, 2017 Place and Date of Judgment: Vancouver, British Columbia January 19, 2018 Written Reasons by: The Honourable Mr. Justice Hunter Concurred in by: The Honourable Madam Justice Stromberg-Stein The Honourable Mr. Justice Savage Summary: The employer in a wrongful dismissal suit appeals the damage award on the basis that the employee suffered no loss from the termination because he had earned increased consulting income during the notice period. The employer also appeals the length of the notice period. The employee cross-appeals on the failure to award any damages for the loss of a matching program for RRSP payments. Held: Appeal and cross-appeal allowed in part. The trial judge erred in excluding all post-termination income from the calculation of damages and erred by awarding damages based on an eight month notice period for a 12 month employee. The employee is entitled to an award for the loss of the opportunity to participate in the matching program. Reasons for Judgment of the Honourable Mr. Justice Hunter: [1] An employee of indefinite duration who is discharged with inadequate notice is entitled to damages for breach of contract for losses arising from the breach that were not avoidable through reasonable mitigation and were not actually avoided through the employee’s mitigation efforts. [2] The respondent David Pakozdi was employed by the appellant for about a year, during which he also generated independent consulting income with the knowledge and consent of the appellant. After his termination, Mr. Pakozdi continued to receive consulting income, but increased his earnings considerably during the notice period. [3] The trial judge held that the post-termination earnings should be disregarded when calculating damages arising from the inadequate notice Mr. Pakozdi received. Whether that was an error of law is the central question in this appeal. [4] In addition to the mitigation question, the appellant challenges the notice period assessed by the trial judge, and Mr. Pakozdi cross-appeals on one head of damage denied to him. Background [5] Mr. Pakozdi is an experienced bid estimator and construction professional. As an estimator he prepares competitive tenders and competes for projects on behalf of construction firms. He worked for various firms until July 2013, when he decided to set up his own business as a private consultant. At the time of trial, he was 55 years of age. [6] In November 2013, he contacted the appellant, B & B Heavy Civil Construction Ltd. (“B & B”) to offer his services at a time when B & B was looking for a bid estimator to join the firm. At that time Mr. Pakozdi expressed a preference for working on a contract basis as a consultant and the parties proceeded on that basis for a month or so. [7] In mid-December, B & B again raised the subject of Mr. Pakozdi joining the firm as an employee and this time Mr. Pakozdi expressed interest. This culminated in an employment agreement in early January 2014. [8] The term of the employment contract was an issue at trial, but the trial judge concluded that the employment had no fixed term and was a contract of indefinite duration. That conclusion is not challenged in this appeal. [9] When he commenced employment, Mr. Pakozdi advised B & B that he wished to continue to provide consulting services to some of his clients, particularly a client named Mainroad. B & B acceded to that request. At the time, B & B had a policy that employees could pursue outside employment, including self-employment, provided such employment did not unduly interfere with the employee’s regular duties with B & B or create a conflict of interest. [10] During the latter part of 2014, Mr. Pakozdi provided services to Mainroad without objection by B & B. He also suffered some health setbacks arising from old injuries but the evidence was that B & B accommodated him when he needed time off work as a result of these injuries. [11] In January 2015, B & B terminated Mr. Pakozdi’s employment and provided him with severance of $5,000, which equates to about two weeks’ notice. No cause was alleged. Mr. Pakozdi sued for wrongful dismissal. [12] At the time of his dismissal, Mr. Pakozdi was earning $130,000 per year, or $10,833 per month, from his employment with B & B, and had earned additional revenues from Mainroad in the five months prior to his dismissal. The earnings from Mainroad varied from month to month. The most productive month was October 2014, when Mr. Pakozdi worked 96 hours and generated $9,600 from his consulting work for Mainroad. The Trial Judgment [13] The principal issue for the trial judge was whether the employment contract was a five-year term contract as Mr. Pakozdi alleged or a contract of indefinite duration as asserted by B & B. The trial judge concluded that the evidence did not support a five-year term contract. [14] The trial judge then turned to the proper length of notice for termination. After reviewing the circumstances and authorities, she initially concluded as follows: [72]      In my view, in light of his experience, age and length of employment, the applicable notice period is five months. However, the plaintiff emphasizes that he was vulnerable at the time of his firing, and that should be taken into account to lengthen the reasonable notice [15] The trial judge gave effect to this submission. Citing Ostrow v. Abacus Management Corporation Mergers and Acquisitions , 2014 BCSC 938, the judge increased the period of notice by an additional three months to eight months in total on the basis that Mr. Pakozdi’s physical and medical condition would make it more difficult for him to obtain new employment and accordingly, he was in a position of vulnerability that was known to his employer. [16] The trial judge then turned to the mitigation issue and the argument of B & B that Mr. Pakozdi had mitigated his loss to the extent that he was not entitled to any damages. She summarized the positions of the parties in this way: [77]      The defendant alleges that the plaintiff has mitigated his loss to the extent that he is not entitled to any damages. The defendant submits Mr. Pakozdi earned more after termination in three months than he would have at B & B, and therefore he is not entitled to any compensation, or only a nominal amount: Strauss v. Albrico Services (1982) Ltd. , 2008 BCCA 173; Davidson v. Tahtsa Timber Ltd. , 2010 BCCA 528. [78]      The plaintiff agrees he has a duty to mitigate, but emphasizes the burden of proof is on the defendant to show he has not done so: Szczypiorkowski v. Coast Capital Savings Credit Union , 2011 BCSC 1376. [79]      The plaintiff says his physical and mental condition is a relevant consideration: Systad v. Ray-Mont Logistics Canada Inc ., 2011 BCSC 1202. In that case, even though the plaintiff made only minimal efforts to find employment, it was not found that he failed to mitigate. The plaintiff was recovering from a knee operation and the court said it was reasonable to take that and the possibility of future surgeries into account. [80]      I find this reasoning applies to Mr. Pakozdi and the difficulty he now faces from his physical injuries and his medication, which exacerbates his difficulties in finding other employment. [17] She then cited Redd’s Roadhouse Restaurants Ltd. v. Randall , 2014 BCSC 1464, for the proposition that where the employer was aware that the employee would be working at two jobs it was proper to exclude from the calculation of damages the post-termination income from the second job. Accordingly, she made no deduction for the post-termination consulting earnings of Mr. Pakozdi. [18] The final issue addressed by the trial judge that is relevant to this appeal was whether Mr. Pakozdi was entitled to 5% of his wages through the company’s RRSP matching program. The trial judge concluded that he was not entitled to this head of damage because there was no evidence that Mr. Pakozdi was making RRSP contributions during the notice period. Issues on Appeal [19] There are three issues contested by the parties on this appeal: (i)       B & B says that the trial judge erred in awarding Mr. Pakozdi damages based on an eight month notice period when he was only employed for 12 months; (ii)      B & B says that the trial judge erred in not deducting all or part of Mr. Pakozdi’s post-termination earnings on the basis that they were replacement earnings and constituted at law avoided loss; and (iii)      Mr. Pakozdi says on cross-appeal that the trial judge erred by not awarding any damages for the loss of the opportunity to participate in the RRSP matching program during the notice period. The Notice Period [20] The trial judge determined the proper notice period in two steps. First she considered Mr. Pakozdi’s length of service and the other circumstances of the case and concluded at para. 72 of her judgment that “the applicable notice period is five months.” She then added three months for what was characterized as Mr. Pakozdi’s vulnerability, making a total of eight months for a 12 month employee. [21] In the absence of an error of law or principle, the standard of review of an award of damages is reasonableness: Lau v. Royal Bank of Canada , 2017 BCCA 253 at para. 36. [22] The leading judgment on what constitutes reasonable notice of termination is Chief Justice McRuer’s statement of principles in Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 at 145 (Ont. H.C.): There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant. [23] The trial judge gave consideration to these factors in her initial decision that the applicable notice period was five months, but then added three months to the notice period because of what she characterized as Mr. Pakozdi’s vulnerability. [24] Two issues arise from this approach: whether a notice period of eight months is within the range of reasonableness for an employee of 12 months in the circumstances of this case, and whether the approach of adding on an amount in respect of the respondent’s medical condition is supportable. [25] The appellant’s position is that for a short-term employee of a year or less, a notice period of two to three months is the range of reasonableness that has been established in this jurisdiction. There is support for that position in the jurisprudence. [26] In Saalfeld v. Absolute Software Corporation , 2009 BCCA 18, a nine month employee was awarded damages based on five months’ notice. This court reviewed the recent jurisprudence in this province and made the following comment: [15]      … Absent inducement, evidence of a specialized or otherwise difficult employment market, bad faith conduct or some other reason for extending the notice period, the B.C. precedents suggest a range of two to three months for a nine-month employee in the shoes of the respondent when adjusted for age, length of service and job responsibility [27] Notwithstanding this comment, the five month notice period was upheld, primarily as the employee had required nine months to find employment after her termination. This Court regarded the notice period as “on the very high end of an acceptable range” but not unreasonable (at para. 18). [28] The two or three month range was applied by this Court in Hall v. Quicksilver Resources Canada Inc. , 2015 BCCA 291, in which a seven month notice period for a nine month employee was reduced to three months. [29] More recently, a 14 month employee who had been awarded damages based on a six month notice period had the period reduced to four months in Cabott v. Urban Systems Ltd., 2016 YKCA 4. The Court commented that: [18]      … Accepting the description of the range of notice for specialized employees in short term positions as two to three months as observed in Saalfeld and Hall, the character of this employment would justify an award modestly beyond that range. [30] In my view, the initial assessment by the trial judge that the applicable notice period is five months is within the range of reasonableness having regard to this jurisprudence, though perhaps on the high side. Adding three months for the respondent’s vulnerability takes the notice period outside the range of reasonableness unless there are very special circumstances that could support this assessment. [31] The trial judge explained the basis for the additional three months’ notice period in these terms: [75]      The vulnerability comes from the fact that B & B was aware and accommodating of Mr. Pakozdi’s condition. When he searches for new employment, he needs to be candid with employers about his now worsened medical condition, and I agree with his position that it will make him less attractive as a candidate. In my view, this justifies lengthening his period of notice. [32] I cannot agree that an employee’s “worsened medical condition” provides a basis for increasing the notice period beyond the period assessed by reference to the Bardal factors, particularly in circumstances where the employee was able to and did in fact work full-time during the notice period and beyond. [33] Justice Goepel dealt with a similar argument in Waterman v. IBM Canada Limited , 2010 BCSC 376, aff’d on other grounds 2013 SCC 70: [23]      Mr. Waterman’s health is not a factor to increase the notice period. In that regard, I adopt the comments of McLachlin J. (as she then was) in Nicholls v. Richmond (Township) (1984), 52 B.C.L.R. 302 (S.C.) at 309-10 in which she held that the employee was not entitled to an increased notice period due to ill health. [34] It may be that in an appropriate case an employee’s health could be relevant to the assessment of reasonable notice (as opposed to an independent factor increasing the notice period), but I can see no basis on which it would be a relevant consideration in this case. Mr. Pakozdi was working throughout his notice period and was not required to search for new employment. When Mr. Pakozdi was hired by B & B, he had a consulting business on the side. He continued to work in his consulting business while employed with B & B, and after his dismissal he carried on his consulting business on an accelerated basis. [35] In my opinion, Mr. Pakozdi’s medical condition was not a proper basis on which to extend the five month notice period to eight months, which is outside the range of reasonableness for an employee in Mr. Pakozdi’s circumstances. I would allow the appeal on this ground to the extent of reducing the notice period to five months, as the trial judge initially determined. The Mitigation Issue [36] In the assessment of damages for breach of contract, mitigation can arise in one of two ways. First, it can be argued that the claimant could have reduced the loss by taking reasonable steps to replace the lost income through new employment. This is somewhat awkwardly referred to as the “duty to mitigate” but would be more accurately expressed as the principle that the party not in breach cannot recover for avoidable loss. [37] Avoidable loss is not an issue in this case. [38] The second way in which principles of mitigation can lead to a reduction in damages for breach of contract arises when the party not in breach does in fact reduce the loss by replacing the income with new income that would not have been earned if the employment relationship had continued. This is termed “avoided loss” and is the issue raised by B & B in this appeal. [39] B & B’s argument is that after his dismissal, Mr. Pakozdi ramped up his consulting business and replaced the employment income he would have earned with B & B during the notice period with consulting income. If Mr. Pakozdi has effectively avoided the loss, he cannot recover from B & B. [40] To support this argument, B & B relies on the evidence of the increased consulting work Mr. Pakozdi did after termination of his employment with B & B. [41] The evidence was that prior to his dismissal, Mr. Pakozdi worked the following hours and generated the following income from Mainroad: Month Hours worked for Mainroad Fees billed to Mainroad August 2014 39.0 $3,900 September 2014 68.5 $6,850 October 2014 96.0 $9,600 November 2014 88.0 $8,800 December 2014 17.5 $1,750 [42] Following his dismissal, the evidence was that Mr. Pakozdi worked the following hours and generated the following income from Mainroad: Month Hours worked for Mainroad Fees billed to Mainroad January 2015 46.0 $4,600 February 2015 156.0 $15,600 March 2015 177.0 $17,700 April 2015 153.0 $15,300 May 2015 196.0 $19,600 June 2015 189.0 $18,900 [43] The trial judge did not give effect to this argument. She took the view that the judgment of my colleague Justice Savage in Redd’s Roadhouse Restaurants Ltd. v. Randall , 2014 BCSC 1464 established the principle that when an employee had, to the knowledge of the employer, been working at two jobs prior to the dismissal and continued working at the second job after dismissal, it was proper to exclude the earnings from the second job from the calculation of damages for wrongful dismissal from the first job. [44] Before us, Mr. Pakozdi supported this approach by reference to the following passage from a recent Ontario Court of Appeal judgment, Brake v. PJ-M2R Restaurant Inc. , 2017 ONCA 402: [140]    In a wrongful dismissal action, an employer is generally entitled to a deduction for income earned by the dismissed employee from other sources during the common law notice period. However, as Rand J. explained in Karas v. Rowlett , [1944] S.C.R. 1 , at p. 8 , for income earned by the plaintiff after a breach of contract to be deductible from damages, “the performance in mitigation and that provided or contemplated under the original contract must be mutually exclusive, and the mitigation, in that sense, is a substitute for the other.” Therefore, if an employee has committed herself to full-time employment with one employer, but her employment contract permits for simultaneous employment with another employer, and the first employer terminates her without notice, any income from the second employer that she could have earned while continuing with the first is not deductible from her damages: see S.M. Waddams, The Law of Damages , loose-leaf (Rel. Nov. 2016), 2d ed. (Toronto: Canada Law Book, 1991), at para. 15.780. [Emphasis added.] [45] I have emphasized the qualification in Brake that it is post-termination income from the second employer that could have been earned while continuing with the first employer that is not deductible from her damages, not simply all earnings from the second employer. [46] In my opinion, the principle as stated by the trial judge is too categorical. It is not all income from the second job that is excluded from the damage calculation, but rather income from the second job that could have been earned had the employment from the first job continued. In other words, the question is whether the new income is replacement income regardless of the source of the income or a continuation of supplementary income being earned prior to the dismissal. I do not see the judgment in Redd’s Roadhouse as inconsistent with this principle. [47] The Ontario Court of Appeal in Brake was alive to this distinction, pointing out that: [145] Whether Ms. Brake’s Sobey’s income exceeded an amount that could reasonably be considered as “supplementary” and, therefore, not in substitution for her employment income was not argued. On the facts of this case, the amounts received from Sobey’s do not rise to such a level that her work at Sobey’s can be seen as a substitute for her work at PJ-M2R. I leave for another day the question as to when supplementary employment income rises to a level that it (or a portion of it) should be considered as a substitute for the amounts that would have been earned under the original contract and, accordingly, be treated as deductible mitigation income. [48] B & B argues that the question left for another day in Brake arises squarely in the case at bar. The argument is that because in each of the months following the month of dismissal, Mr. Pakozdi earned more from his consulting job than he would have earned with B & B, he has successfully avoided the loss arising from termination and is not entitled to any damages from B & B. [49] That proposition also is too categorical because it fails to take into account the fact that at least some of the consulting income earned post-termination could have been earned if the respondent’s employment with B & B had continued, and therefore is not properly characterized as replacement income. [50] Mr. Pakozdi was dismissed in mid-January 2015. His earnings from his consulting work over the next five months was approximately $80,000. The task then is to make an assessment of how much of this post-termination income is to be considered replacement or substitute income, and therefore deductible from his damage claim, and how much is to be considered supplementary income that he could have earned if his employment with B & B had continued, and therefore not deductible from his damage claim. [51] I will address this assessment later in my judgment. The RRSP Matching Program [52] The final issue is raised by Mr. Pakozdi’s cross-appeal concerning the company’s RRSP matching program. Under this program, Mr. Pakozdi was entitled to join the B & B Group Registered Retirement Savings Plan after one year of employment, which was approximately the date of his dismissal. The benefit under the matching program is described in the Employee Guidebook: Each pay period your employer will match your contributions by 100% up to a maximum of 5% of your salary. [53] The trial judge declined to make any award for the loss of the opportunity to benefit from this matching program on the following basis: [88]      … The defendants say there was no evidence that Mr. Pakozdi was making RRSP contributions during the notice period and therefore it is not compensable: Matusiak v. IBM Canada Ltd. , 2012 BCSC 1784 at para. 118-119. I agree. [54] The trial judge was applying the principle from Wilks v. Moore Dry Kiln Co. of Canada (1981), 32 B.C.L.R. 149 (S.C.), to the effect that a plaintiff cannot recover for fringe benefits that would have been paid by the employer unless the employee has in fact incurred the expense during the notice period. This principle has been applied to expenses such as dental expenses but does not fit well with benefits such as matching expenses to a group plan, where the employee cannot make the expenditure that would trigger the employer match once he has been dismissed. [55] Justice Prowse made a similar point in Steven Shinn v. TBC Teletheatre B.C. et al. , 2001 BCCA 83 at para. 37: The decision of Madam Justice McLachlin (as she then was) in Wilks v. Moore Dry Kiln Co. of Canada (1981), 32 B.C.L.R. 149 (B.C.S.C.) , applied by this Court in Sorel v. Tomenson Saunders Whitehead Ltd. (1987), 16 C.C.E.L. 223 [B.C.C.A.] , does not stand for the proposition that the amount of an employer’s contributions to an employee’s Canada Pension Plan during the notice period can never be recovered as damages. Rather, damages will be awarded where the employee can show that he or she has suffered a loss by virtue of the employer’s failure to pay the benefits during the notice period. [56] In my opinion, the applicable principle is that damages in a wrongful dismissal action are to be assessed on the basis of the plaintiff’s entitlement to benefits throughout the period of reasonable notice. A plaintiff is entitled to compensation for the loss of the opportunity to share in whatever pecuniary benefits would have flowed from being an employee during the notice period: Hawkes v. Levelton Holdings Ltd. , 2012 BCSC 1219 at para. 309, aff’d 2013 BCCA 306. [57] Chief Justice McEachern explained this principle in John Iacobucci v. WIC Radio Ltd. et al. , 1999 BCCA 753 at para. 24: Applying the foregoing to the facts of this case, it is my view that the plaintiff was entitled to recover damages equivalent to the benefits he would have received if he had remained as an employee until the expiration of a period of reasonable notice. It makes no difference, in my view, that he cannot require WIC Western to accept his attempted exercise of future options. The value of such a right is a part of the measure of the damages he is entitled to recover from WIC Radio. [58] Justice Saunders made a similar observation in Gillies v. Goldman Sachs Canada Inc. , 2001 BCCA 683 at para. 20: On the basis of these authorities and the clear principle that Mr. Gillies is entitled to be treated, for remedial purposes, as if he were an employee throughout the notice period, the issue here is whether Mr. Gillies would have been entitled to participate in the IPO had it been issued during the period of reasonable notice. [59] Mr. Pakozdi is therefore entitled to compensation for the loss of the opportunity to participate in the RRSP matching program during the five month notice period. Assessment of Damages [60] I have concluded that the trial judge erred in principle in three respects. First, the notice period on which damages were based was outside the range of reasonableness for a 12 month employee and should not have been increased from the five months initially assessed on the basis of Mr. Pakozdi’s health issues, which did not prevent him from earning substantial consulting income during the notice period. [61] Second, she erred in failing to deduct any of the post-termination income received by Mr. Pakozdi, although I do not agree that all of the post-termination income should be deducted, as urged by the appellant. A determination must be made as to how much of the post-termination consulting income should be characterized as replacement income and how much is more properly regarded as a continuation of the supplementary income he was earning prior to his dismissal. [62] Finally, I have concluded that the trial judge erred in not providing any award for the loss of opportunity to participate in the RRSP Matching Program of the employer. This head of damage will be modest, but there is a loss that merits some compensation. [63] In the ordinary course, I would remit the matter back to the trial judge for assessment of damages based on these principles. However, under s. 9 of the Court of Appeal Act , R.S.B.C. 1996, c. 77, this Court has the power to make any order that could have been made by the court appealed from, including an order assessing damages. In my view, given the extent of reduction that will accompany this judgment, it would not be in the interests of justice to require the parties to incur the costs of further proceedings in the Supreme Court: see Mainstream Canada v. Staniford , 2013 BCCA 341 at paras. 52-54. Accordingly, I propose to assess the damages that result from the principles set out in this judgment. Damages for Inadequate Notice [64] The reduction in the notice period leads to a reduction in damages for inadequate notice that can be calculated with precision. Five months’ notice at Mr. Pakozdi’s salary would entitle him to $54,165, subject to the issue of mitigation. Reduction for Avoided Loss [65] The reduction for avoided loss cannot be calculated with precision. Drawing the line between that portion of earnings in the notice period that is properly to be regarded as replacement income and that portion that should be regarded as a continuation of his supplementary income cannot be done in an exact way. [66] Justice Pitfield described this task more generally in Wilson v. UBS Securities Canada Inc. , 2005 BCSC 563 at para. 63: The computation of damages in a wrongful dismissal case is not a mathematical calculation but an assessment of that which would likely have been earned had the proper period of working notice been provided to the employee. [67] I propose to make an assessment on that basis, having regard to the evidence that was led concerning Mr. Pakozdi’s consulting income before and after dismissal. [68] The evidence indicates that Mr. Pakozdi was able to engage in consulting work for as much as 96 hours in October 2014 without apparently interfering with his duties at B & B. This work generated $9,600 for that month, in addition to his earnings with B & B. Thus, it seems reasonable to assume that in the five month notice period, Mr. Pakozdi could have earned as much as $50,000 in what can be characterized as supplementary income. The balance of his earnings can reasonably be regarded as replacement income and thus deductible from his damage claim. [69] This analysis suggests that an amount of approximately $30,000 earned by Mr. Pakozdi during the five month notice period is properly characterized as replacement income and must be deducted from the damages otherwise payable. [70] The result of this assessment is that Mr. Pakozdi is entitled to $54,165, representing five months of his employment income, less $30,000 representing the portion of his post-employment income that is designated as replacement income, for a net damage award of $24,165 in respect of his salary. Damages for Loss of the RRSP Matching Program [71] I have concluded that Mr. Pakozdi is entitled to a modest sum in respect of the loss of the opportunity to participate in the RRSP Matching Program. This again is a matter for assessment rather than calculation, as it is not possible to know whether Mr. Pakozdi would in fact have taken advantage of the program. I would assess damages for this head of damages at $2,500. Disposition [72] For these reasons, I would allow the appeal and the cross-appeal in part, and vary the order under appeal in the following respects: (a)      the notice period for the calculation of damages is reduced to five months; (b)      the damage award for the salary component of the compensation is reduced to $24,165; and (c)      the damage award is increased by $2,500 to account for the loss of the opportunity to participate in the group RRSP matching program. [73] The order of the trial judge is varied in accordance with these reasons. In light of the divided success and subject to any arrangements as to costs that have not been brought to our attention, I would order that each party bear their own costs. “The Honourable Mr. Justice Hunter” I AGREE: “The Honourable Madam Justice Stromberg-Stein” I AGREE: “The Honourable Mr. Justice Savage”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. D.N., 2018 BCCA 18 Date: 20180119 Docket: CA42614 Between: Regina Respondent And D.N. Appellant Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting, or transmission in any way of evidence that could identify a complainant or witness under the age of 18, referred to in this judgment by the initials P.S. (also known as P.N.). 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 D. Smith The Honourable Mr. Justice Willcock The Honourable Mr. Justice Goepel On appeal from: An order of the Supreme Court of British Columbia, dated June 6, 2017 ( R. v. D.N. , 2014 BCSC 1144, New Westminster Docket No. X073863-3). Counsel for the Appellant: G. Botting Counsel for the Respondent: J. Caldwell Place and Date of Hearing: Vancouver, British Columbia November 20, 2017 Place and Date of Judgment: Vancouver, British Columbia January 19, 2018 Written Reasons by: The Honourable Madam Justice D. Smith Concurred in by: The Honourable Mr. Justice Willcock The Honourable Mr. Justice Goepel Summary: The appellant challenges his convictions for three historical sexual offences committed against his step-daughter when she was under the age of 14. The appellant was originally charged with the first count in 1986, but that charge was stayed after he absconded the jurisdiction. It was re-laid in 2009, along with the other two counts, after he returned to the jurisdiction. The appellant submits the judge erred by refusing to stay the first count for unreasonable delay, which he had argued based on pre-charge delay, contrary to s. 11(b) of the Charter , and as a result of the new framework for s. 11(b) applications since R. v. Jordan, erred in refusing to stay the other counts for unreasonable delay. The appellant further submits the judge erred in (i) admitting two inculpatory statements that he contends were involuntary and insufficiently recorded, (ii) misapprehending certain evidence, and (iii) admitting what he characterized as highly prejudicial evidence. Held: appeal dismissed. Jordan was released after trial judgment but before the appeal and so the proceeding was still in the system and Jordan applied. The judge did not err in dismissing the appellant’s s. 11(b) application because the transitional circumstances exception, as set out in Jordan, applied. The parties reasonably relied on the state of the law at the time under R. v. Morin. Based on that jurisprudence, the appellant chose not to advance an application for a stay of proceedings based on post-charge delay because he could not establish that he had suffered prejudice by reason of the delay. The trial judge also did not err in admitting the inculpatory statements, did not misapprehend the evidence, and did not err in admitting probative evidence that was relevant and not highly prejudicial given the evidence that had been admitted. Reasons for Judgment of the Honourable Madam Justice D. Smith: A.       Overview [1] D.N. appeals his June 6, 2014 convictions on two counts of sexual assault and one count of sexual interference with his step-daughter, P.S., who was a person under 14 at the time. The convictions followed an eight-day trial before a judge sitting alone. [2] The charges were laid in an August 5, 2009 information; upon his committal for trial they were preferred in an April 15, 2013 indictment. The charges related to historical offences that covered two separate time periods between 1983–1986, and 1990–1993, respectively. [3] At the conclusion of the evidence at trial, D.N. applied for a stay of proceedings based on an alleged violation of his s. 11(b) Charter right to be tried within a reasonable time. The judge dismissed his application and registered the convictions. [4] On appeal, D.N. submits the judge erred in: (1) dismissing his application for a stay of proceedings as a result of unreasonable delay; (2) admitting into evidence two inculpatory statements he gave to the police that he submits were involuntary and unreliable; (3) misapprehending evidence, which he says resulted in a miscarriage of justice pursuant to s. 686(1)(a)(iii) of the Criminal Code , R.S.C. 1985, c. C-46; and (4) admitting highly prejudicial and irrelevant evidence. D.N. asks that the appeal be allowed, the convictions set aside, and a stay of proceedings be granted for unreasonable delay. In the alternative, he requests that an order of acquittal be substituted. B.       Background [5] The indictment charged D.N. with the following offences: 1. Sexual assault of P.S., at or near Surrey, B.C., between May 1, 1983, and March 31, 1986, contrary to s. 246.1 [now s. 271] of the Criminal Code (“Count 1”); 2. Sexual assault of P.S., at or near Surrey, B.C., between January 1, 1990, and October 31, 1993, contrary to s. 271 of the Criminal Code (“Count 2”); and 3. Sexually touching P.S., being a person under the age of 14 years, at or near Surrey. B.C., between January 1, 1990, and September 1, 1991, contrary to s. 151 of the Criminal Code (“Count 3”). [6] Both P.S. and D.N. testified at trial. The verdict turned largely on the judge’s findings of credibility and reliability. The Evidence on Count 1 [7] P.S. was born in 1978. In 1984, her mother, K.J., and D.N. were married. At that time, the family lived in an apartment on Grosvenor Road in Surrey, B.C. [8] P.S. testified that while at the Grosvenor Road apartment, D.N., on many occasions, placed a blanket over her while they watched television alone at night and touched her sexually under the blanket. She said D.N. told her not to tell anyone or she would get in trouble. P.S. said she finally told a friend who lived nearby about these episodes. She did not recall telling her mother. P.S. also stated that someone came to her school in January 1986 to discuss sexual touching with the students and that she told this person that D.N. had touched her in the ways described. [9] The Ministry of Children and Family Development (the “Ministry”) eventually became involved after receiving a report of the alleged abuse. The report alleged that while P.S. was watching a television program on sexual abuse, she disclosed to someone that she had been sexually abused by D.N. in the same manner as depicted and that he had laid on top of her. [10] On January 13, 1986, a social worker with the Ministry interviewed P.S. in the presence of Cst. Cousins. The evidence of this interview, which was introduced in order to rebut allegations of recent fabrication, consisted of a set of contemporaneous handwritten notes and the testimony of Cst. Cousins. The officer recorded that P.S. recounted events that indicated she had been sexually abused by D.N., including an instance in which P.S. said that she had laid naked on top of a naked D.N., and that he had touched her genitals and asked her to touch his penis. [11] On January 14, 1986, D.N. was arrested and given the requisite Charter warning. Thereafter, he gave two statements, one to Cst. Cousins and the other to Cst. (now Inspector) Gosselin. [12] At trial, the two police officers testified that recording devices were not used in their detachment at the time they took D.N.’s statements. Instead, his statements were recorded in the form of written notes made by each of them. The statements included several inculpatory admissions. [13] On January 14, 1986, D.N. was charged in a provincial court information with a single count of sexual assault of P.S., alleged to have occurred between January 1, 1985, and September 30, 1985, at Surrey, B.C. He was released on an undertaking to attend court on February 4, 1986. Among other prohibitions, the undertaking barred D.N. from having any contact with P.S. In parallel proceedings, P.S. was declared “a child in need of protection” under the then Child and Family Service Act, S.B.C. 1980, c. 11, and placed in foster care. These proceedings also resulted in an order that prohibited D.N. from entering any premises where P.S. resided. [14] D.N. violated all of these prohibitions: he neither made the required court appearance, nor did he respect the term prohibiting contact with P.S. In March 1986, he moved the whole family – including K.J., P.S., and P.S.’s brother – to Switzerland, where they stayed for several years. A bench warrant was issued for his arrest when he failed to appear in court. [15] The Crown was unaware of D.N’s or P.S.’s whereabouts until October 17, 1989, when D.N. suddenly reappeared and surrendered himself to the police on the outstanding warrant. At that time, Crown counsel had a conversation with K.J. As a result of that conversation, Crown counsel formed the understanding that P.S. continued to live in Switzerland with her mother and that K.J. had no intention of returning her daughter to Canada. Without P.S.’s evidence, Crown counsel was of the view that the matter could not proceed and on January 26, 1990, she stayed the information. [16] In fact, P.S. testified that she had returned to Canada in 1988 to live with her aunt in Kimberley, B.C. and that in or about 1989 she returned to live with her mother, her brother, and D.N., this time on 125 th Street in Surrey. P.S. further testified that D.N. continued to sexually abuse her at that location. These allegations formed the basis for Counts 2 and 3 of the indictment. The Evidence on Counts 2 and 3 [17] P.S. testified that while living on 125 th Street, D.N. sexually abused her frequently, sometimes multiple times per week, by performing oral sex on her and by putting his hands on or in her vagina, particularly while she was sleeping. She said that she often wore jeans to bed in an attempt to make it more difficult for these assaults to occur. She said that when she was able to stop his advances, D.N. would berate her, call her names, and complain that she was ungrateful. She also testified that D.N. would frequently spy on her by peering up at her from the furnace room through holes drilled in the bathroom floor, looking into her bedroom through a small space created by pulling the door jamb away from the wall, and sneaking into her bedroom closet to watch her undress. [18] D.N. and K.J. separated when P.S. was in Grade 9. P.S. said the sexual assaults and sexual touching ceased at that point in time. [19] Years later, in September 2006, she reported these incidents to the police, which led to D.N. being charged on August 5, 2009. The information sworn at that time effectively resurrected the sexual assault count that was stayed in 1990, and included the later allegations of sexual assault and sexual interference at the 125 th Street residence. After a preliminary inquiry in November 2012, D.N. was ordered to stand trial on all three counts. The committal order was followed by the April 15, 2013 indictment. C.       The Trial Judgment [20] The judge found that while P.S. was not a perfect witness, he accepted her evidence as credible and reliable. He did not make the same findings with respect to D.N. He found that D.N.’s evidence lacked credibility and he rejected his evidence wherever it conflicted with that of P.S. He also rejected D.N.’s submission that P.S.’s allegations were motivated by an animus toward him that arose in part from her and K.J.’s allegations that he had physically assaulted them. The judge explained his credibility findings in part as follows: [61]      D.N. testified that his arrest was a big surprise when it occurred in 1986. That statement is an odd response and in conflict with what he said to the police in the statements which he made noted above. He admitted he had done things that his daughter had forgotten for which he sought and received “help”. He responded to a question about sexual assault by asking for the definition of sexual assault. The logical response of an innocent parent to a question would have been a strong “No” or a similar firm rejection of that suggestion. D.N.’s response was not logical. He testified he only said what “popped into his mind”. [62]      In response to the question: Q.        You know your daughter has no reason to lie, she’s not gaining anything by making up a story. Do you think at her age she even knows what sex is? A.         I know, I know. I don’t think that it’s fair that someone should have to go to jail for sexually assaulting his own child. The police shouldn’t even get involved. The family can work it out on their own. [63]      Curiously, D.N. challenged parts of the statement handwritten by Constable Cousins, particularly where he agreed he was naked when alone with P.S. in the living room lying under the striped blanket watching television. He testified that statement was false and he suggested the police officer created it. It was simply not something he said, according to him. Before that statement, D.N. had repeatedly said he did not remember what he said to police. His response demonstrated internal inconsistency in his evidence. [21] Following a voir dire, the judge ruled that D.N.’s two statements to police were voluntary: R. v. D.N., 2014 BCSC 2588 [ Voir Dire Reasons .] The Crown obtained that ruling for the purposes of cross-examination in the event that D.N. elected to testify. D.N. testified in the trial and the statements were put to him on cross-examination. The judge found they amounted to admissions by D.N. of sexual activity with P.S. when she was a child. [22] The judge also rejected D.N.’s suggestion that his statements, as recorded by Csts. Cousins and Gosselin, had been “tampered with”. The judge found that there was no evidentiary foundation for what he characterized as an extremely serious allegation. Furthermore, the allegation was not even put to either police witness on cross-examination in accordance with the rule in Browne v. Dunn (1893) , 6 R. 67 (H.L.). [23] Ultimately, the judge rejected D.N.’s declaration that he did not sexually assault or sexually touch P.S. [24] Applying the test in R. v. W.(D.), [1991] 1 S.C.R. 742, the judge concluded that based on the evidence as a whole, including the evidence of P.S. which he accepted, the Crown had proved each of the elements of the offences in all three counts beyond a reasonable doubt. [25] Before registering the verdicts, the judge ruled on D.N’s application for a stay of proceedings on Court 1, which was brought after the close of evidence. The judge noted that in general such an application should not be brought at that stage of the proceeding, but he agreed to hear the application at that time because of the “very unusual circumstances” of the case. [26] D.N. submitted that the pre-charge delay between the staying of the original charge on January 26, 1990, and the laying of the current charges in the August 5, 2009 information, violated his right to be tried within a reasonable time with respect to Count 1. He contended that the almost 20-year delay between the staying of the initial charge for the alleged 1983 ‒ 1986 offence and the August 5, 2009 information, and the delay between September 2006, when P.S. filed her complaint, and the laying of charges on August 5, 2009, were unreasonable and solely attributable to the Crown. With respect to Counts 2 and 3, D.N.’s trial counsel advised the judge that he was not applying for a stay of proceedings on those counts. He explained that after reviewing the Crown’s argument, he had concluded that he “wouldn’t be likely to succeed at all” based on the state of the law as it then existed under R. v. Morin, [1992] 1 S.C.R. 771, which required D.N. to establish actual prejudice as a result of the delay. In short, only pre-charge delay was raised as the basis for the stay application and it was argued under the Morin framework. D.N. made no claim of post-charge delay with respect to Count 1. [27] The judge determined the application under the Morin framework by considering the factors of: the overall length of delay, the waiver of individual time periods, the reasons for various periods of delay, and any prejudice to the accused. While recognizing the almost 20-year delay was significant, he noted that it was not the only factor to be considered. He also observed that D.N. “put his own case off the rails” when he left and took the Crown’s key witness to Switzerland, in breach of his undertaking. The judge recognized that there was no evidence of pre-trial custody or strict bail conditions and he was not willing to infer prejudice to D.N. in those circumstances. Lastly, he was of the view that the balance of societal interests favoured a trial on the merits. He concluded that given the seriousness of the charges and the lack of proven prejudice, D.N’s application should be dismissed. D.       Issues on Appeal [28] D.N. raises four grounds of appeal. He submits: 1.       The judge erred in dismissing the stay application based on the new framework for s. 11(b) applications in R. v. Jordan, 2016 SCC 27; 2.       The judge erred in finding D.N.’s two statements to the police were voluntary and sufficiently recorded; 3.       The judge erred in misapprehending the evidence; and 4.       The judge admitted highly prejudicial and irrelevant evidence from D.N. and P.S.’s time in Switzerland. E.       Unreasonable Delay [29] The Crown contends this Court should not hear D.N’s submissions on post-charge delay as D.N. chose not to raise this issue before the trial judge because he could not prove actual prejudice. The Crown asserts that Charter applications should not be argued as a matter of first instance on appeal because of the absence of factual findings relevant to the application: Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42 at para. 59; Guindon v. Canada , 2015 SCC 41 at paras. 20 ‒ 23 and 35; R. v. Winfield , 2009 YKCA 9 at paras. 17 ‒ 18. [30] In the alternative, the Crown submits that if the Court decides to hear this application under the new framework established in Jordan , as requested by D.N., the net delay, after subtracting delay attributable to the defence and discrete events, was in fact only 29 months and 23 days, a period of time below the presumptive ceiling of 30 months for unreasonable delay. If the Court finds that the delay does exceed the presumptive ceiling, the Crown submits the application should still be dismissed pursuant to the transitional circumstances exception in Jordan , given that: (1) the judge found there was no demonstrated actual or inferred prejudice to D.N. as a result of the delay; (2) the alleged offences are serious; and (3) the Crown and the judge were not complacent and acted with a sense of urgency at various stages of the proceedings after the August 5, 2009 information was sworn. The Jordan framework [31] Jordan established a new framework for determining s. 11(b) Charter applications. Delay will be presumptively unreasonable where total delay from the date of the charge to the actual or anticipated date for the end of trial (minus defence delay) exceeds 18 months in a provincial court and 30 months in a superior court. A stay will follow unless the Crown can establish the presence of exceptional circumstances. [32] Exceptional circumstances are those that are beyond the Crown’s ability to control. They include circumstances that are reasonably unforeseen or reasonably unavoidable, and which the Crown cannot remedy once they arise. They generally fall into two categories: discrete events and particularly complex cases. The former will be subtracted from the total period of delay in determining if the presumptive ceiling has been exceeded; delay in the latter, if found to be justified, will not be considered unreasonable. [33] Significantly, Jordan provides that the Crown may no longer rely on the seriousness or gravity of the offence, inherent time requirements and chronic institutional delay, or the absence of prejudice to justify delay that has exceeded the presumptive ceilings. Once the presumptive ceiling is breached, prejudice is inferred and the delay is unreasonable absent exceptional circumstances. [34] If the period of delay falls below the presumptive ceiling, the burden is on the defence to establish that: (1) it took meaningful steps that demonstrated a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. Jordan also notes that a stay application for delay that falls below the presumptive ceiling will only be granted in the clearest of cases. [35] The new s. 11(b) Charter framework applies to cases in which charges were brought before the release of Jordan and which remain currently “in the system”. However, for such cases, the transitional circumstances exception may arise where the Crown can establish that the delay was justified based on the parties’ reasonable reliance on the law as it previously existed. [36] The application of the transitional circumstances exception requires a “contextual assessment”. The Court described the nature of such an analysis as follows: [96]      … This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account. [37] The Court added: [102]    Ultimately, for most cases that are already in the system, the release of this decision should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one. Change takes time. [103]    … The reasonableness of a period of time to prosecute a case takes its colour from the surrounding circumstances. Reliance on the law as it then stood is one such circumstance. [38] Subsequently, the Court confirmed the application of the Jordan framework in R. v. Cody, 2017 SCC 31. In Cody, Jordan had been released while a Crown appeal from the trial judge’s order granting a stay of proceedings was under reserve before the Newfoundland and Labrador Court of Appeal. The net delay of 36.5 months in the case, after deducting defence delay and discrete events, clearly exceeded the presumptive ceiling. The charges for drug trafficking and weapons offences were serious, and the entire trial proceedings pre-dated Jordan. However, the Court held those circumstances were overcome by the trial judge’s findings of “real and substantial actual prejudice” and that the accused’s conduct was not “inconsistent with the desire for a timely trial” (at para. 73). Faced with those findings, the Court held that the presumptively unreasonable delay could not be justified based on the Crown’s reliance on the previous state of the law, observing: [74]      … Where a balancing of the factors under the Morin analysis, such as seriousness of the offence and prejudice, would have weighted in favour of a stay, we expect that the Crown will rarely, if ever, be successful in justifying the delay as a transitional exceptional circumstance under the Jordan framework. [39] In the course of its analysis, the Court clarified the assessment of the transitional exception as being a qualitative exercise, which “presum[es] that the Crown and defence relied on the previous law until Jordan was released” (at para. 69). The Court reiterated that the exception should be considered in those cases that were in the system before Jordan , stating: [69]      … The determination of whether delay in excess of the presumptive ceiling is justified on the basis of reliance on the law as it previously existed must be undertaken contextually and with due “sensitiv[ity] to the manner in which the previous framework was applied” ( Jordan, at paras. 96 and 98). Under the Morin framework, prejudice and seriousness of the offence “often played a decisive role in whether delay was unreasonable” ( Jordan, at para. 96). Application of Jordan [40] Before the trial judge, counsel for D.N. limited his s. 11(b) Charter application to Count 1, accepting that under the Morin framework he was unlikely to be successful on the other counts, given the seriousness of the charges and D.N.’s inability to prove actual prejudice. The focus of his submissions, however, were on the almost 20-year pre-charge delay, which included the three years between P.S. filing her complaint in September 2006, and the swearing of the information on August 5, 2009. Post-charge delay was never raised as an issue. [41] In calculating the length of the delay, the Court in Morin confirmed (at 789) that the relevant period of time is from the date on which charges are laid –– being the date on which an information is sworn or an indictment is preferred –– to the end of the trial; pre-charge delay is not counted in the analysis under s. 11(b). In this case, the judge dismissed the stay application in the absence of evidence of prejudice to D.N. caused by the pre-charge delay and after weighing the societal interests in having these serious charges determined on their merits. [42] Jordan was released before D.N.’s appeal was heard. Therefore, this case was still in the system and this Court should hear this ground of appeal. If the delay is found to fall under the presumptive ceiling, then the burden is on D.N. to establish that the delay is unreasonable by demonstrating that: (1) he took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have ( Jordan at para. 48). If the net delay is found to exceed the 30-month presumptive ceiling, then under the Jordan framework, this Court must consider application of the transitional exceptional circumstance in determining if the Crown has rebutted the presumption of unreasonable delay. [43] Counsel for the Crown made detailed submissions to demonstrate that the actual net delay in this case amounted to only 29 months and 23 days, seven days less than the presumptive ceiling of 30 months . The Crown calculated that period based on excluding: (1) what it described as an illegitimate and unsuccessful Rowbotham application for state-funded counsel, that consumed a period of time from August 5, 2009 to January 25, 2011 (about 18 months), involved D.N. failing to make timely disclosure of his financial circumstances, and resulted in further delay in setting the preliminary inquiry date; (2) the delay from December 13, 2012 to January 31, 2013, occasioned by D.N.’s lack of readiness to fix a trial date in the Supreme Court, when the Court and Crown counsel, were available; and (3) the delay from September 6, 2013 to June 6, 2014, caused by the discrete event of the estimated four-day trial extending to eight days due to the extensive cross-examination of P.S. and D.N. and bringing his s. 11(b) Charter application at the conclusion of the evidence, albeit with the consent of all parties and the judge. [44] In response, D.N. submits that the length of the delay began to run from when the Crown entered a stay of proceedings on January 26, 1990, with respect to the original Count 1 charge. In support of this position, D.N. relies on R. v. D.M., 2012 ONSC 221, and R. v. Milani, 2012 ONSC 6892, which held that the “gap” in time between a Crown stay and a later revived charge should count in calculating the length of the delay. [45] However, Milani was overturned on appeal, which effectively overruled D.M. as well: R. v. Milani, 2014 ONCA 536 [ Milani CA]. In Milani CA, the Ontario Court of Appeal held that an accused’s s. 11(b) Charter right is not engaged during the “gap” between a Crown stay and a new or revived charge, and therefore that period of time should not be counted in calculating the length of the delay. In support of that position, the Court, at paras. 44–47, relied on R. v. Potvin, [1993] 2 S.C.R. 880, where the Supreme Court held that appellate delay does not apply to s. 11(b), which requires that active charges be outstanding against the person. In Milani CA , (at para. 50), the Court concluded that for the purposes of s. 11(b), the delay clock begins to run when the initial charges are laid, stops during the “gap”, and begins to run again when the charges are re-laid. Parenthetically, I would observe that it is unclear whether the Court is saying that the clock completely restarts, or picks up again from where it left off. This issue was not raised in this appeal and therefore I find it unnecessary to decide. [46] Similarly, in R. v. Hunt, 2017 SCC 25, rev’g 2016 NLCA 61, the Court allowed the appeal, substantially for the dissenting reasons of Madam Justice Hoegg, who confirmed that pre-charge delay should be considered under s. 7, not s. 11(b). [47] As discussed further below, it is my view that this issue should be decided on the basis of the transitional exception under Jordan and therefore it is unnecessary to determine here whether the delay occasioned by the Crown stay of proceedings should be included in calculating whether the presumptive ceiling has been exceeded. [48] On appeal, D.N. also takes issue with the Crown’s exclusion of the approximate 18-month delay caused by his unsuccessful Rowbotham application and the approximate one-and-a-half-month delay for the assignment of court-appointed counsel to cross-examine P.S. He also submits the Crown has overstated the delay attributable to the defence by including a number of court appearances going back to August 5, 2009. D.N. argues that under the Morin framework these appearances would have been characterized as inherent time requirements (i.e., intake delay) and would not have been attributable to either party. Under the Jordan framework, this aspect of delay is now part of the 30-month presumptive ceiling. [49] During oral submissions, counsel for the Crown acknowledged that even if the Court accepted that D.N.’s conduct in pursuing the trial process was dilatory, a number of the court appearances following August 5, 2009 could be characterized as part of the former inherent time requirements, which are now counted towards the 30-month ceiling under Jordan . Therefore, as the period at issue in this case is a matter of only seven days, the Crown agreed that it might be better for this Court to conduct its analysis under the transitional exception. I agree. Therefore, for the purposes of this appeal, I am assuming, without deciding, that the delay in this case, from the laying of the charges on August 5, 2009 to the end of trial on June 6, 2014, does exceed the 30-month presumptive ceiling set out in Jordan . As a result, the Crown bears the burden of establishing that the delay is nevertheless reasonable due to the transitional circumstances exception. [50] It is clear that the parties relied on the state of the law as it existed before Jordan to inform their respective positions before the judge. This was evident in D.N.’s decision to make no s. 11(b) Charter application with respect to post-charge delay, and in limiting his submissions on Count 1 to pre-charge delay only. However, as alluded to above, the s. 11(b) Morin framework does not apply to pre-charge delay although the judge, in dismissing D.N.’s application, relied on that framework. In doing so, he expressly found no evidence of prejudice and concluded that the seriousness of the alleged offence weighed in favour of determining its merits at trial, particularly as much of the pre-charge delay was caused by D.N.’s actions in absconding from the jurisdiction. [51] By deciding not to pursue the issue of post-charge delay at trial, D.N. accepted that the post-charge delay was not unreasonable under the Morin framework. Due to the manner in which D.N. raised the s. 11(b) issue at trial, the judge never expressly considered whether D.N. suffered any prejudice with respect to the time period after August 2009. On appeal, D.N. presented no new evidence, nor pointed to any existing evidence in the record, to demonstrate that prejudice should have been found or inferred by the trial judge under the Morin framework. As a result, it cannot be said the judge erred in dismissing D.N.’s application for a stay of proceedings for unreasonable post-charge delay as that claim was never advanced because the appellant admittedly could not establish that he had suffered prejudice, a key aspect of the Morin framework ( Cody at para. 69). [52] The transitional exception has been applied in several pre- Jordan cases that remained in the system on appeal, where the net delay exceeded the presumptive ceiling of 30 months: R. v. Gordon , 2017 ONCA 436 at paras. 20–28 (53-month net delay); R. v. Dieckmann, 2017 ONCA 575 at paras. 17–30 (50-month net delay); and R. v. Baron, 2017 ONCA 772 at paras. 44–81 (35-month net delay). In each instance, an application of the transitional exception resulted in a finding that the delay was not unreasonable. The circumstances in this appeal are similar and accordingly I would dismiss this ground of appeal. [53] The Crown’s submissions also rely on what it describes as its “culture of urgency” surrounding the trial of this case. In my view, this claim does not form a distinct part of any of the s. 11(b) frameworks, whether under Morin , Jordan , or Cody . Rather, the Crown appears to be raising this issue to dispel any notion that it fell into the “culture of complacency” or “culture of delay” that the Court generally admonished in Jordan . [54] A sense of urgency on the part of the Crown may come into play in certain aspects of the Jordan framework. If the delay falls below the presumptive ceiling, the urgency with which the Crown prosecuted the case may demonstrate that the case did not take longer than it reasonably should have. If the delay falls above the presumptive ceiling, it may demonstrate that the Crown has met its burden of establishing “exceptional circumstances” by showing that it could not reasonably remedy any delays that arose and took “reasonable available steps to avoid and address the problem before the delay exceeded the ceiling” ( Jordan at para. 70). The first scenario does not arise on the facts of this case and I have concluded that the Crown has succeeded under the transitional exception. Consequently, I do not find it necessary to address this issue raised by the Crown. F.       The Admissibility and Completeness of D.N.’s Statements [55] The judge found that D.N.’s statements to Csts. Cousins and Gosselin in 1986 were voluntary and recorded as completely as possible by their handwritten notes. The judge accepted their evidence that recording devices were not available in the detachment at the time. [56] D.N. contends that the contents of the handwritten statements are unreliable for a number of reasons, including: the manner in which they were recorded; the current preferable practice of electronic recording; and the inadequacy of handwritten statements in general and in this case in particular. He also seeks to advance new allegations regarding the voluntariness of the statements, which were not raised at trial, and for which no evidence has been elicited in a fresh evidence application. [57] In the voir dire, the police officers testified that, at the time, the Cloverdale Detachment had no capacity for recording any statement by an accused electronically. The handwritten statement recorded by Cst. Cousins included some minor “scratch outs” that she had D.N. initial in each instance, in addition to securing D.N.’s signature or initials at the bottom of each page indicating that he had read the document. The judge found that the statement accurately reflected what D.N. had said to her ( Voir Dire Reasons at para. 5). He also found that the second statement taken by Cst. Gosselin, which contained a detailed handwritten account that was transcribed into typewritten form after which the handwritten notes were destroyed, was also complete. The judge noted that the statement even recorded an interest expressed by D.N. at one point in the interview in calling a lawyer, but when Cst. Cousins took steps to make that arrangement, D.N. had changed his mind ( Voir Dire Reasons at para. 7). [58] D.N. did not testify in the voir dire or tender any evidence to the contrary . [59] The judge concluded that based on the legal test from R. v. Oickle , 2000 SCC 38, and the evidentiary record on the voir dire, the two warned statements were voluntary and therefore admissible. As to their completeness, he held that the contents of the statements would go to their weight in the trial proper ( Voir Dire Reasons at para. 9), while noting: [3]        … At that time in Cloverdale there was no capacity for recording electronically any statements given by an accused person. But it is important to note that the document that was produced contains the following statement made by D.N.: I have been cautioned by Constable Cousins that it is her duty to warn me. I am not obliged to say anything but that anything I say may be given in evidence. I understand the meaning of the foregoing and state as follows [60] Moreover, while the practice of recording an interview by audiotape or videotape is the preferable procedure where that is available, the absence of such a recording does not, by itself, render any statement made by the accused inadmissible. As was noted in Oickle : [46]      … This is not to suggest that non-recorded interrogations are inherently suspect; it is simply to make the obvious point that when a recording is made, it can greatly assist the trier of fact in assessing the confession. [61] Similarly, this Court has stated that while it is recommended, if not highly desirable, for an interview or interrogation of a suspect to be contemporaneously recorded, it is not a legal requirement or a condition precedent to a finding of voluntariness. In short, the failure or inability to record a statement will go to its weight, not its admissibility. See R. v. Quinn, 2009 BCCA 267 at para. 96; R. v. Narwal, 2009 BCCA 410 at para. 37; and R. v. Tan, 2014 BCCA 9 at para. 104. [62] On appeal, D.N. also raises new allegations, including that of police impropriety in the manner in which the police conducted themselves during their interview of him, and police trickery in the manner in which they interviewed him. He alleges that Cst. Gosselin did in fact have a tape recorder in his possession that he chose not to use. There is no evidentiary foundation to support these allegations. D.N . did not testify in the voir dire, he did not cross-examine the police witnesses on these allegations, and the judge accepted their evidence. In short, D.N. simply seeks to re-litigate the submissions he made before the judge while inviting us to make different findings of fact. Absent a material error, which D.N. has not demonstrated, the judge’s findings of fact must be accorded deference on appeal: Oickle at para. 71; R. v. Spencer, 2007 SCC 11 at para. 17. Accordingly, I find no merit in this ground of appeal. [63] In the trial proper, D.N. did testify. He alleged that both Csts. Cousins and Gosselin “tampered with” the statements each had recorded. However, he tendered no evidence in support of these allegations and did not cross-examine either of the officers on them. In accordance with the rule in Browne v. Dunn , the judge gave no weight to his allegations and, in any event, rejected D.N.’s evidence overall as lacking any credibility. I find no merit to this ground of appeal. G.      Misapprehension of Evidence [64] D.N. submits the judge misapprehended the evidence in two critical areas. First, he says the judge erred in finding that P.S., on cross-examination, recalled mutual genital fondling between her and D.N. D.N. contends that the record does not support that finding. He says the judge took that information from Crown materials tendered to explain the 1990 stay decision, which were not admitted for the truth of their content. Second, he submits the judge erred in accepting P.S.’s evidence that D.N. frequently spied on her in various ways. He argues that the judge accepted her evidence “uncritically” while rejecting his evidence. [65] The classic statement of the test for misapprehension of evidence may be found in R. v. Lohrer, 2004 SCC 80 at para. 2: the misapprehension must go to the substance rather than the detail; it must be material rather than peripheral to the judge’s reasoning; and it must play an essential part in the reasoning process for a conviction. See also R. v. Swales, 2014 BCCA 350, where this Court stated: [49]      It is not enough for the appellant to merely suggest a different interpretation of the evidence, or merely point to some evidence which arguable weighs against the trial judge’s finding. Mere differences in interpretation on factual matters are not misapprehensions of evidence but simple disagreements with the judge’s differing view of the evidence. [66] In sum, the test for overturning a verdict based on a misapprehension of the evidence is a stringent one. The scope of appellate review of factual findings and factual inferences is limited to demonstrating that such findings were clearly wrong, unsupported by the evidence, or otherwise unreasonable: R. v. Clark, 2005 SCC 2 at para. 9. I find no merit in this submission. Evidence on P.S.’s cross-examination [67] There was a clear evidentiary basis for the judge’s finding that D.N. had sexually assaulted P.S. through mutual fondling at his demand. P.S. had not recalled this evidence in direct examination. However, a question on cross-examination triggered a strong emotional response with her recollection of this allegation, which she had not previously remembered. This is evident in the following extract from her cross-examination: Q         Okay. Do you recall telling them that he would then have you lie on top of him, fondle his penis as he fondled your genital area. A          That happened. That really did happen, and I totally forgot about that. I don’t remember what I told those people. But I did not lie to them; I was telling the truth. I’m not a liar. I’m not here for my own personal gain. I just want the truth to be out. This is so terrible. Q         Do you need a moment? A          No. MR. SHORE:  My Lord, obviously if she needs a moment, I’m -- A          I don’t want a moment. I just want to get this over with. THE COURT: Let’s press ahead. [68] The judge accepted P.S.’s evidence in its entirety, finding her a credible and reliable witness. He accepted this evidence, which provided a clear evidentiary basis for finding that D.N. had engaged in this activity with P.S. Spying on P.S. [69] The judge further found that D.N. had spied on P.S. when she was in her bedroom and in the bathroom. P.S. testified that she caught D.N. red-handed on several occasions, peering through the crack in her bedroom door jam, lying on the far side of her bed in her bedroom, hiding in her closet, looking through the bathroom window at her from the roof of the house, and inside the bathroom when she got out of the shower. She testified to discovering peepholes in the bathroom floor, since patched up, from which the occupant could be seen from the furnace room below, and of catching him in the act of spying through those holes when a friend of hers was using the bathroom. She also testified about finding holes in her bedroom floor through which she said D.N. spied on her from the garage below. [70] Photographic evidence of the patched-up holes in the furnace room was admitted into evidence. In addition, the current owner of the house testified to patching the holes and to the condition of the bedroom door frame when she moved in. Both pieces of evidence provided some corroboration of P.S.’s evidence. [71] D.N. submits the judge misapprehended the evidence on this issue because: (1) he considered P.S.’s evidence “uncritically”; (2) there was no “expert” evidence to establish that she could have been observed in the bathroom through the holes in the floor; and (3) there was no corroborative evidence of holes in her bedroom floor. [72] Again, D.N. simply re-litigates his submissions before the judge. He takes issue with details in P.S.’s evidence about the size of the holes, their sight lines, where she saw D.N. standing, the content of the excuses he made when she caught him in the act, and other details of this nature. However, these engage challenges to the factual findings of the trial judge, which in accepting P.S.’s evidence, were open to him to make. [73] In sum, D.N. is unable to identify any material error in the judge’s treatment of the evidence that could be said to have played an essential role in his reasoning process for conviction. D.N.’s submissions amount to little more than a disagreement with the judge’s assessment of the evidence and the weight that he gave to it. This was a trial in which the central issue was the credibility of P.S. and D.N. The judge found P.S. was credible and accepted her evidence; he found that D.N. was not credible and rejected his evidence. H.       The Evidence of Sexual Abuse in Switzerland [74] D.N. submits the judge erred in admitting “highly prejudicial” evidence from P.S. that D.N. continued to sexually assault her when they lived in Switzerland. He contends that this evidence was not material to the charges in the indictment, that it “coloured the entirety of the evidence” upon which the judge convicted him, and therefore this Court should order a new trial. I cannot agree. [75] No objection was taken to this evidence at trial, which was admitted to provide context of D.N. and P.S.’s relationship, and to further the Crown’s case regarding D.N. viewing P.S. in a sexual way as a child. The evidence was also relevant to demonstrate D.N.’s ongoing sexual interest in P.S., from before leaving for Switzerland to after their return to Canada. In my opinion, this evidence was admissible on the basis that its probative value, in that it related to the same misconduct, with the same victim, during the same relationship as alleged in all three counts of the indictment, clearly outweighed any prejudicial effect. I find no error in the admission of this evidence. I.        Disposition [76] In the result, I would dismiss the appeal. “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Mr. Justice Willcock” I AGREE: “The Honourable Mr. Justice Goepel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. R.J.Y., 2018 BCCA 30 Date: 20180119 Docket: CA44082 Between: Regina Respondent And R.J.Y. Appellant Restrictions on publication: Pursuant to s. 486.4(2) of the Criminal Code of Canada no information that could identify the complainant may be published, broadcast or transmitted in any way. This publication ban applies indefinitely unless otherwise ordered. Pursuant to s. 16(4) of the Sex Offender Information and Registration Act [ SOIRA ], no person may disclose any information collected pursuant to an order under the SOIRA or the fact that information relating to a person is collected under the SOIRA . Before: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Groberman The Honourable Madam Justice Garson On appeal from: An order of the Supreme Court of British Columbia, dated July 8, 2016 ( R. v. R.J.Y. , 2016 BCSC 2529, New Westminster Docket X077994). Oral Reasons for Judgment Counsel for the Appellant: G. Ng Counsel for the Respondent: C. Lusk Place and Date of Hearing: Vancouver, British Columbia January 12, 2018 Place and Date of Judgment: Vancouver, British Columbia January 19, 2018 Summary: The appellant appeals his conviction for offences related to the sexual abuse of his daughter. He argues the trial judge erred in finding the complainant to be credible. The complainant admitted she had made untruthful statements about whether vaginal intercourse with her father occurred and whether she told a friend about it. The complainant also failed to mention in her initial complaint that her father had recently refused to lend her money. The appellant submits that the trial judge misapprehended this evidence of deceit, which the appellant says was fatal to the complainant’s credibility. Held: appeal dismissed. The appellant failed to establish a misapprehension of evidence. The trial judge addressed inconsistencies in the complainant’s statements. He accepted her explanation for the erroneous statements concerning vaginal intercourse. The trial judge also accepted the complainant’s statement that she was motivated by her children to report the abuse, not by the appellant’s refusal to lend her money. Other witnesses testified that the complainant disclosed the abuse to them before the loan request and before her official complaint, which supported the trial judge’s credibility assessment. Introduction [1] GARSON J.A. : On July 8, 2016, a Supreme Court judge convicted the appellant, RY, of the following offences under the Criminal Code , R.S.C. 1985, c. C-46: i.        one count of sexual interference, contrary to s. 151; ii.        one count of invitation to sexual touching, contrary to s. 152; iii.        one count of sexual exploitation, contrary to s. 153(1)(a); iv.        one count of sexual exploitation, contrary to s. 153(1)(b); and v.        one count of sexual assault, contrary to s. 271. [2] The trial judge stayed the sexual assault count under the Kienapple principle. [3] The convictions relate to offences in relation to RY’s biological daughter AY. The offences occurred over a roughly 12-year period commencing in 1990. RY was sentenced to nine years in jail. This is the appeal of his conviction. [4] On appeal RY contends that the judge erred in accepting AY’s evidence. The judge’s decision on RY’s guilt turned on the credibility and reliability of AY’s evidence. RY says that the judge misapprehended important evidence in two key areas. The first concerns what RY describes as AY’s manipulation or deceit in respect to her varying accounts about whether RY penetrated her with his penis. The second concerns the judge’s assessment of whether she had a motive to fabricate her evidence because she was angry at her father for refusing her request for financial assistance at a time when she was in desperate financial straits. RY says these two instances of deliberate deceit taint AY’s credibility. [5] RY says on account of the trial judge’s misapprehension of this evidence, his appeal should be allowed, his conviction overturned, and a new trial ordered. [6] For the reasons that follow I would dismiss the appeal. The Trial [7] RY was convicted by a judge sitting without a jury after a five-day trial. The Crown called five witnesses – AY, her mother, her two brothers, and a family friend. [8] The central issue at trial was whether AY was a reliable, credible witness. [9] None of the witnesses, apart from AY, could provide direct evidence of the assaults but their testimony was relevant because it confirmed descriptions of the nature of AY’s relationship with her father; details about where they lived at times when the assaults occurred; and opportunity to commit the offences charged. The testimony of AY’s mother and brothers was also inconsistent with the appellant’s theory that AY’s allegations were a recent fabrication. RY did not testify or call any evidence at the trial. Overview of Evidence [10] AY testified that she and her father had from the time she was a small child an unusually close relationship. The judge described AY’s relationship with her father in the following way: [32]      A.Y. testified that throughout her childhood, she truly believed the accused when he told her that the incidents of a sexual nature between them were normal behaviour between a father and a daughter. She testified that she loved and trusted her father and believed everything he told her in this regard. Indeed, she thought he was an “amazing father”. He spoiled her throughout her childhood with gifts, they confided in each other and were very close. She felt as though she was more of his companion than his daughter. He treated her much differently than he did her brothers. He did not discipline her and helped her with homework. He disciplined her brothers and rarely, if ever, helped them with their homework. It seemed to A.Y. that the accused did not want much to do with her brothers. [11] The judge described AY’s poor relationship with her mother: [33]      A.Y. testified that she did not have a good relationship with her mother. She grew up believing the accused’s suggestions to her that her mother hated her. [12] AY’s mother testified that RY treated AY “like she was a god and the boys were nothing”. [13] AY’s first memory of being sexually assaulted by her father was when she was about four years old. She recalls being on the front bench seat of the family station wagon when her father fondled her, digitally penetrated her vagina, and asked her to kiss his exposed penis. AY’s mother confirmed that the family had owned a station wagon with bench seats as described by AY. Similar assaults occurred frequently in her bedroom in their Calgary home. [14] When she was six years old, AY disclosed the sexual touching to a relative and then soon after to her mother. An investigation followed. RY was absent from the house for two weeks, but it seems RY was not charged with any offence. AY’s mother testified about AY’s disclosure at this time: Q.        During the timeframe when you lived in Calgary, did A ever tell you anything about her father that caused you concern? A.         When we – we went for a trip to Newfoundland and then we stopped in Ontario. On the way back and on the plane coming back she told me that she told her cousin that her dad touches her and it wasn’t a good way and that when she went to school on Monday morning she wasn’t coming home because someone was going to come and talk to her and take her. [15] AY and her family moved to the lower mainland when she was about seven. AY’s mother regularly worked several evenings a week. AY testified that on evenings when her mother was at work, RY would first put her brothers to bed after which he would take her to bed with him. RY told her this was their special time. He fondled her, digitally penetrated her, and made her kiss his penis. [16] AY also testified to similar assaults that took place in her own bedroom. [17] AY testified about her father becoming very angry when he saw her sitting on a couch with a male friend. He later forced her to watch pornography on the computer at his office, telling her that the rough sex depicted in the pornography is what would happen to her if she got too close to boys. [18] The family moved to Edmonton when she was 12. The sexual abuse continued there, although rather than it taking place at night, RY abused her when she got home from school when no one else was home. [19] When AY was in Grade 10, her parents separated following an incident during which AY’s mother became very angry at finding AY and RY cuddling together on the couch under a blanket. After her parents separated, and over the objections of her mother, AY went to live with RY. RY said he needed her to take care of him. He told her that her mother and brothers did not want her around. She believed him. AY and RY lived in various places after the separation. RY continued to sexually abuse her until she moved into her boyfriend’s parents’ home. The judge described the event that led to her leaving home: [30]      In the fall of 2003 when she was 16 years old, A.Y. moved into the home of her then-boyfriend’s parents. She testified that the move was precipitated by an incident that occurred after she had asked the accused for a ride to her boyfriend’s house so that she could attend his birthday party. The accused told her that she would have to provide him with a sexual favour in exchange for a ride. Despite her protestations of “please, not today”, he took her arm and pulled her into his bedroom where he told her to remove her clothes. As she did so, he removed his own clothing. He then pushed her onto his bed and after asking A.Y. how she and her boyfriend had sex, he, in A.Y.’s words, “rammed his penis in my vagina”. She testified that she had never before experienced such pain in that area. A.Y. managed to push him away and she ran into the bathroom, locked the door and stayed there despite the accused’s expressions of regret and pleas that they talk about what had just happened. She stayed in the bathroom until the accused left the apartment some three to four hours later. A.Y. testified that this incident was the last time she was sexually abused by the accused. She moved to her boyfriend’s parents’ home that same day. [20] AY’s brother NY testified about disclosures to him by AY about RY’s sexual abuse. These disclosures occurred before she reported the abuse to the police in 2012. [21] NY testified that on several occasions beginning in 2007 and early in 2008 and continuing until 2010, AY described to him their father’s sexual abuse of her. Specifically, she told him about what would take place when she and RY visited his office and about the assault that occurred the last night before she moved out of the home. [22] DY, the other brother, testified that when she was planning her marriage ceremony, AY asked that he, DY, walk her down the aisle rather than her father. She explained that RY had touched her and made her watch pornography. Grounds of Appeal [23] The first ground of appeal concerns what has been termed the “E Evidence”. RY says that AY admitted to lying about how she had described the last assault to her friend E. RY says that the manner in which her untruthfulness emerged ought to have negatively impacted the judge’s overall assessment of her credibility. [24] The second ground of appeal concerns AY’s failure to disclose to the police her request for a loan from her father just over a month before she made her complaint to the police. RY says the judge failed to properly consider this lack of disclosure in assessing AY’s credibility and asserts that it is relevant to prove she had a motive to lie about her father because she was angry with him for refusing the loan. [25] RY says AY’s evidence was shown to be untruthful in respect to both these points, as well as several other instances of inconsistency. He says that the judge’s favourable view of her credibility is a misapprehension of her evidence given that she was shown not to be credible. Discussion [26] The judge summarized his conclusion that AY was a credible witness: [78]      … I have no difficulty accepting [AY’s] evidence in its entirety in this [referring to the reason she reported RY to the police] and all other respects. [79]      In summary, while A.Y. was not a perfect witness, I am satisfied she was credible and reliable and a good historian of the abusive events despite the number of years that passed since the beginning of the assaults alleged against the accused. Having viewed carefully and assessed A.Y.’s demeanour as a witness and having assessed her overall credibility, I am left with no reasonable doubt that she was telling the truth about what the accused did to her on the numerous occasions she described in her evidence. [27] RY says that the judge was not justified in reaching this conclusion as to AY’s credibility given the demonstrated falsehoods in her evidence. [28] I turn first to the “E Evidence”. AY gave a statement to the police in which she said she never had vaginal intercourse with her father. She described the final incident of abuse to the police in the way the judge described it (set out above), except that she did not admit to penile penetration. Instead she said that she was able to push her father away before he entered her. Similarly, in her will-say statement to Crown counsel, she said that RY’s penis had not entered her fully before she was able to push him away. At the preliminary inquiry, however, she testified that RY had in fact penetrated her with his penis in this incident. Then she testified, again at the preliminary inquiry, that she had earlier told her friend E that her father had vaginal intercourse with her. At trial, AY admitted she had been untruthful when she told the police no penetration had taken place. She described how her father did in fact forcefully penetrate her and she admitted to lying at the preliminary inquiry about reporting this to her friend E. [29] RY argues that not only is AY’s testimony about this event inconsistent but the manner in which it came to light illustrates that she was deliberately untruthful. In cross-examination, defence counsel put to AY the circumstances of her interview with Crown counsel on June 29, 2016: Q         And then on June 29th the Crown had an additional interview with you; correct? A          Yes. Q         And at that time during that additional interview the Crown put to you that page of your cross-examination; correct? A          Yes. Q         They showed it to you? A          Yes. Q         They asked you whether or not it was true; correct? A          Yes. Q         And it was at that time on June 29th, 2016, that you agreed that the – that it was not true; correct? A          I told him it was not true, yes. Q.        Okay. You do not have an explanation for why you said that in court; correct? A.         I was terrified when I gave it. I – honest to God you really intimidated me and I was scared to talk to you. I didn’t even know how to look at you last time. In a later part of her cross-examination she testified: Q         It’s fair to say that Mr. Stacey was the one who asked you whether or not it was true that you’d ever told [E] about the penetration; correct? A          I told him. As soon as I read it and saw that, I told him. He didn’t ask me. Q         Right. He was the one who directed your attention to page 47; correct? A          Yes. Q         And it was at that time you confirmed to him that it was not true; correct? A          Yes. And then I also left his office crying because I can’t believe that I made a mistake. Everyone makes mistakes. We’re human. I’m going through 16 years in my life reliving it every single day and now it being picked apart. I made a mistake and I can own up to that and I apologize. I’ve apologized so much for it, but I’m not going to sit here and -- and say that this didn’t happen to me. This is my life. This is my memories every single day, every night I go to bed. I go to bed with his face in my head hoping that I’m not going to have as bad of a dream as I did the night before, as bad as the memory of the night before. This takes a huge toll on a person and for me to be here standing up, having him in the same room as me is huge. It’s huge and I’m very proud of myself that I’m here doing this right now and no one can take that away from me. Not one person in this world can take away the fact that I stood up for myself finally. [30] The judge did not agree that AY’s correction of her earlier statements raised a credibility concern. In response to RY’s contention that AY should not be believed at all, he said: [72]      I disagree. While a deliberate lie under oath is a serious matter and can taint a witness’s entire testimony, this is not a case where the witness was caught in a manipulation or deceit. I accept A.Y.’s explanation that she was terrified at the time of the preliminary inquiry, was intimidated by Ms. Helps’ cross-examination and did not know how to respond. After that evidence was given at the preliminary inquiry and while she was preparing to give her evidence at trial, she voluntarily advised Crown Counsel that her evidence at the preliminary inquiry regarding E. was untrue. She admitted her mistake in circumstances where she could have easily said nothing without consequence. Having carefully watched A.Y. in the witness stand throughout her evidence, I reject the submission that her credibility as a whole is tainted by her earlier evidence regarding E. [31] On appeal RY says that the judge misapprehended the “E Evidence” when he characterized AY’s admission of untruthfulness as a voluntary disclosure. He says that this error alone should result in a new trial. [32] The judge was alive to the submissions made about the “E Evidence” and RY’s characterization of AY’s testimony as a lie – one that was fatal to her credibility. However, he accepted her explanation for the conflict in her accounts. In my view the judge’s characterization of AY’s testimony was open to him on the record. The untruthful testimony was not what she told E but rather what she said at the preliminary inquiry she had told E. This part of the transcript was drawn to her attention by Crown counsel. She told him it was not true. RY says this was not a voluntary disclosure. The disclosure was made to Crown counsel in the course of reviewing the preliminary inquiry transcript in preparation for trial. In that sense it was voluntary. [33] AY explained her erroneous testimony as being attributable to her fear of aggressive questioning by defence counsel. The judge accepted that explanation. He heard several days of her testimony. He was entitled on this evidence to reach the conclusions he did including that it was voluntary. [34] RY’s next argument is that the trial judge erred in finding there was no evidence that AY had a motive to fabricate her evidence. RY says that the judge’s reasons are silent about the important evidence of AY’s request to RY for a $5,000 loan which RY refused. RY says his refusal prompted AY to report him to the police. [35] Under cross-examination AY admitted that on her first complaint to the police, she did not advise the police about the loan request. She did not do so until the police confronted her with information they had received from E about the loan request. RY says this is another instance of how AY was not forthcoming about important evidence until confronted with the truth. RY also says that the trial judge’s failure to address this key piece of evidence favourable to RY is a significant error. [36] In her cross-examination, AY was asked what motivated her to report to the police. She testified as follows: Q         What motivated you here to report this to the police was anger at your father for not giving you the $5,000; correct? A          Very wrong. Very wrong. I am here and I went to the police because I look at my kids and I look at the purity of them and I cannot imagine the fact of having their parents rob them from what I was robbed. I was robbed my innocence, my childhood. I don’t have any of that. I’ve lived 29 years rebuilding that and I look at my daughter and I cannot imagine, it makes me sick to my stomach, at the thought of someone touching her the way my father touched me. That is what brought me into the police. The simple fact that my children -- I can give them a better life than my parents ever gave me. Knowing that I could help get someone off the street that could hurt my kids, damn right I’ll do it for my children. If I didn’t have kids, I would not be here, I can tell you that right now. My kids are my motivation. They are what put my feet on the ground every day and know that I can live further and further away from that abuse that I’ve walked away from. [37] In his reasons for judgment, the trial judge responded to RY’s assertion that the refusal to lend money to AY motivated her complaint to the police: [77]      Ms. Helps submitted that A.Y.’s resentment of her father began to grow after P., the accused’s new wife, entered her life, a woman with whom A.Y. was in open conflict with. It was suggested to A.Y. during cross-examination that it was her father’s refusal to give her any money when she was penniless and had asked for financial assistance at the end of April or early May 2012, coupled with a growing resentment of him because of his relationship with P., that was her motivation for going to the police in June of 2012. [78]      Although A.Y. openly admitted being in conflict with P., she denied any suggestion of her going to the police was motivated by anything other than the determination to have her father answer for his abuse of her and she provided what can only be described as an emotional and earnest outpouring regarding her own daughter’s purity and innocence and her resolve not to allow what happened to her happen to her daughter. She candidly said that she would not have reported the abuse to the police if she had not had children of her own. She admitted that she hates her father, but that her hatred of him did not begin when he refused her money, but rather when he forcibly penetrated her in the Surrey apartment. I have no difficulty accepting her evidence in its entirety in this and all other respects. [38] The judge was supported in this conclusion by the evidence of AY’s mother and two brothers, who all testified that AY had disclosed to them RY’s sexual conduct towards her well before she reported the abuse to the police. [39] RY says the combination of AY’s less than truthful evidence on these two key points ought to have led the judge to question her credibility about her account of the entirety of RY’s sexual abuse of her. [40] The test for a misapprehension of evidence was described by Justice Stromberg-Stein in R. v. Swales, 2014 BCCA 350: [46] The trial judge’s findings of fact, especially as based on assessments of credibility, are entitled to deference on appeal. The standard of review is palpable and overriding error. [47] A misapprehension of evidence may undermine the validity of the verdict and give rise to a miscarriage of justice under s. 686(1)(a)(iii) of the Criminal Code . As Doherty J.A. stated in Morrissey , at p. 221: [w]here a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential role in the reasoning process resulting in a conviction then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a ‘true verdict’. [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 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. 3 at para. 53, “[t]he plain language or the thrust of the reasons must disclose an actual mistake". [49] I t 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. [41] In my view RY has failed to establish on appeal that the judge misapprehended the evidence on either of these points. The judge was entitled to decline to draw the inference urged on him by RY. The arguments made to us on appeal are “mere differences in interpretation on factual matters”, as described in Swales . They are not in any way misapprehensions of evidence. In my view RY is essentially asking this court to reweigh the evidence that was carefully considered by the trial judge and to reach a different conclusion about AY’s credibility than the one reached by the trial judge. In my view the trial judge’s findings are amply supported by the evidence in relation to both grounds of appeal. [42] I would not accede to either of the arguments made on appeal. I would dismiss the appeal. [43] FRANKEL J.A. : I agree. [44] GROBERMAN J.A. : I agree. [45] FRANKEL J.A. : The appeal is dismissed. “The Honourable Madam Justice Garson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Vidal, 2018 BCCA 21 Date: 20180119 Dockets: CA43503; CA43735 Docket: CA43503 Between: Regina Respondent And Curtis Wayne Vidal Appellant and Docket: CA43735 Between: Regina Respondent And Travis Carl Richard Soderstrom Appellant Before: The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Harris The Honourable Madam Justice Fenlon On appeal from:  An order of the Supreme Court of British Columbia, dated May 26, 2015 ( R. v. Soderstrom , 2015 BCSC 2574, Chilliwack Docket 62249-2). Counsel for the Appellant Curtis Wayne Vidal: W. Jessop Counsel for the Appellant Travis Carl Richard Soderstrom: C. Muldoon Counsel for the Respondent: J. Dickie Place and Date of Hearing: Vancouver, British Columbia November 10, 2017 Place and Date of Judgment: Vancouver, British Columbia January 19, 2018 Written Reasons by: The Honourable Madam Justice Fenlon Concurred in by: The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Harris Summary: The appellants appeal from convictions arising out of a home invasion. The central issue at trial was identification of the intruders. The trial judge relied largely on the eyewitness identification evidence of one of the complainants, supported by evidence of a post-offence conversation tending to connect Mr. Vidal to the offences. The appellants allege the trial judge (1) misapprehended the evidence of the witness who overheard Mr. Vidal discussing the incident, (2) misapplied the law on recognition evidence, and (3) rendered an unreasonable verdict unsupported by the evidence. Held: appeals dismissed. The judge properly applied the law and came to a reasonable verdict supported by the evidence. Reasons for Judgment of the Honourable Madam Justice Fenlon: Introduction [1] The appellants, Travis Carl Richard Soderstrom and Curtis Wayne Vidal, appeal convictions for breaking and entering, assault, robbery and use of an imitation firearm while committing a robbery. The convictions were pronounced May 26, 2015 following a seven-day judge alone trial. The charges arose out of a home invasion. The principal issue at trial was identification of the intruders. Background [2] The offences occurred on the night of December 16, 2013, shortly before 9:00 p.m. Two men and a woman entered the second floor apartment of Kyle Nelmes and Brendan Wilson on McIntosh Drive in downtown Chilliwack, British Columbia. Mr. Wilson was home at the time with two friends, Nick Gauthier and Brittany Martens. One of the male intruders who appeared to have a handgun asked for “Kyle”. Mr. Gauthier fled the apartment by leaping from the balcony, and ran to a nearby building where he telephoned 911. [3] Shortly thereafter Mr. Nelmes returned home from work and encountered the intruders. The gunman asked if he was Kyle and when Mr. Nelmes said he was, the gunman asked where the stuff was. Mr. Nelmes said he did not know what the gunman was talking about, at which point the gunman struck him in the face, causing Mr. Nelmes to fall to the floor. Ms. Martens helped him to his feet. [4] Mr. Nelmes was then taken to his bedroom where he was forced to open a safe in the closet. At some point while this was taking place, Ms. Martens took a tea towel to Mr. Nelmes in the bedroom so he could wipe the blood from his face. The gunman, who was at the safe in the closet, turned to look at her and they had a brief conversation which Ms. Martens described in her testimony as follows: Q         What did you do? A          I gave Kyle the tea towel, and the gunman had looked at me, and I can’t remember, quote, word for word, what he had stated, but something about me having to keep an eye on him. And my response to that form of statement he had made to me was, “No, I just want to make sure that my fucking friends are okay.” Q         Sorry, just trying -- what were the words you said? A          “I’m just trying to make sure that my fucking friends are okay.” THE COURT:  Just a second. I may have -- I may have got something wrong, the first part of that wrong, because the note I made is he some -- he said something about you having to keep an eye on him, referring to Kyle. A          No. The gunman was looking -- when I had entered the room, he had turned to look at me, as I’m standing there staring at the two guys in there. He had made a comment about, “What, do you have to keep an eye on me?” Some form of statement in that -- in that aspect. THE COURT: Referring to himself? A          Mm-hmm. MR. WALDOCK: Q         Sorry, that’s a “yes”? A          Correct. Yes. Q         At this -- at this time, what, if anything, could you see of his hands? A          I couldn’t. Q         What do -- what do you recall next? A          I had made eye contact with the gunman, definitely felt a pressing cold feeling take over me. Kyle had said, “Just shut up, stop, get out of here.” Like, “Leave it alone.” So I left and proceeded back to the kitchen. [5] At another point, Ms. Martens told the second male intruder that she knew him. He responded that he did not know her. At trial Ms. Martens testified that she recognized the second intruder as Travis Soderstrom because she had spent some time with him when she was about 13 years old, about 10 years before trial. [6] The intruders took $700 to $800 in cash, Mr. Nelmes’ laptop, his spare set of keys for his car and motorcycle, a watch, a ring and a cell phone. They then left the apartment. [7] The police responded to the 911 call within about five minutes but the intruders had already fled. The complainants provided the police with descriptions of the male intruders and Ms. Martens informed the police that she believed she recognized one of them and provided Travis Soderstrom’s name. Based on this information, the police focused their investigation on Mr. Vidal and Mr. Soderstrom. [8] Within hours, photo lineups were presented to the complainants. Mr. Gauthier had fled the apartment before being able to see the intruders’ faces so was unable to provide any descriptions and was not shown the photo lineups. Ms. Martens positively identified photographs of Mr. Vidal and Mr. Soderstrom and later identified them both at trial, specifying that she recognized Mr. Vidal as the gunman. Mr. Wilson was unable to identify the intruders from the photo lineup. He testified at trial that he had no memory of what the intruders looked like as he had been trying to avoid looking at them throughout the incident. Mr. Nelmes was unable to identify the intruders in the photographs and he also testified at trial that he did not think either male intruder was in the courtroom. [9] Ms. Koehler, an acquaintance of Mr. Vidal, provided further circumstantial evidence. She testified that on December 20, 2013, about four days after the offences occurred, Mr. Vidal drove her and other friends to a building in the area where the home invasion had taken place. She testified to overhearing a conversation between Mr. Vidal and a Mr. Schooner concerning “some guy doing a swan dive” off the third floor of the building. She said that when they arrived at the building, Mr. Vidal had a key fob which he pressed to see if he could hear a vehicle. When they heard nothing, they drove off. At trial [10] The judge began by correctly instructing himself on the law regarding eyewitness identification. He reviewed at length the decision in R. v. Hay , 2013 SCC 61, with specific reference to the well-recognized frailties of eyewitness identification. The judge also considered the decision of this Court in R. v. Smith , 2011 BCCA 362, in which Madam Justice Neilson reviewed the need for caution in considering identification evidence: [28]      It is well-known it may be dangerous to convict an accused solely on evidence of visual identification, and that a fact-finder must thoroughly and cautiously examine such evidence before relying on it. The principles governing the assessment of such evidence were set out by the English Court of Appeal in the seminal case of R. v. Turnbull (1976), 63 Cr. App. R. 132, [1976] All. E.R. 549 at 137. The Lord Chief Justice observed the need for caution is rooted in the fact a witness who appears convincing may nevertheless be mistaken in his or her identification of the accused. He listed the circumstances a fact-finder should examine in assessing such evidence, including the duration and ease of the witness’ observation, the extent of any earlier dealings between the witness and the accused, the time elapsed between the incident and any subsequent identification of the accused by the witness, and whether there was any material discrepancy between the description of the assailant given by the witness and the appearance of the accused. The Chief Justice also acknowledged that “recognition may be more reliable than identification of a stranger”, but warned the fact-finder in such cases must nevertheless be aware that mistakes in identifying an accused may still occur. The key is the quality of the identification evidence. [11] The judge considered the position of the parties, summarizing the appellants’ position as follows: [87]      Mr. Vidal submits that Ms. Martens’ identification is not reliable and is not supported by other credible evidence. He submits that the evidence of Ms. Koehler does not assist the Crown. He submits that the photo lineup was unfair and that little weight should be given to it. He also submits that Ms. Martens’ evidence is contradicted by the evidence of Mr. Nelmes and that Mr. Wilson failed to make a positive identification. [88]      Mr. Soderstrom submits that Ms. Martens’ identification of Mr. Soderstrom is not reliable. He submits that Ms. Martens’ attention throughout the incident was focused on the gunman, and that she had little opportunity to observe the other male intruder and was unable to provide much of a physical description of him to the police. Mr. Soderstrom argues that Ms. Martens’ apparent growing certainty as to the identity of Mr. Soderstrom ought to be of concern and cause doubt as to her reliability. [89]      Mr. Soderstrom argues that initially Ms. Martens thought she recognized the other intruder as one of the Soderstrom brothers whom she had known, but was uncertain which one. When presented with a photo pack containing the photograph of Travis Soderstrom but no photograph of the brother Dillon Soderstrom, she had in her mind that the subject resembled the Soderstroms and all she had to do was find a Soderstrom amongst the photographs and her job was done. [90]      Mr. Soderstrom also argues that the other photos in the pack lacked the only distinguishing characteristic that Ms. Martens mentioned to the police, large ears, and that the photo pack was therefore not fairly representative. Mr. Soderstrom submits that Ms. Martens’ eyewitness identification is not sufficient evidence upon which to found a conviction and there is no corroborating evidence regarding Mr. Soderstrom. [12] The judge concluded the photo packs were fairly prepared and presented. He then turned to his assessment of the weight to be given to the identification evidence. The judge found Mr. Wilson’s evidence to be “neutral” because he did not want to become involved and deliberately looked away from the intruders, only noticing the gunman’s tattoo. As for Mr. Nelmes, the judge noted he had been struck in the face within a minute of entering the apartment, was bleeding, had a swollen face, and was in shock. He said: [103]    At trial, Mr. Nelmes testified that he did not get a particularly good look at the gunman’s face. In cross-examination, Mr. Nelmes did agree that at the preliminary inquiry he testified that he got a clear look at the gunman’s face. Mr. Nelmes was unable to make any identification during the photo lineup procedure. By the time of trial, his inability to identify anyone had grown and he was certain that the two accused in the prisoners’ dock were not the two intruders. However, the trial was 16 months after the incident. This is unlike the evidence of Ms. Martens who made a positive identification of both suspects within hours of the incident. [13] The judge was evidently impressed by Ms. Martens’ ability to identify the intruders: [104]    Based on her demeanour in the witness box, Ms. Martens struck me as a woman who is not easily shaken by traumatic events. Rather, she is able to maintain her composure under stressful situations. My impression is reinforced by the fact that she was able to go to the aid of Mr. Nelmes by taking him a cloth for his bleeding face when he was in the bedroom, rather than remain in the other room away from the male intruders. [105]    While Ms. Martens may only have had a couple of minutes or so to observe the gunman, the lighting was good and she was unimpaired by any drugs or alcohol. In the bedroom particularly, she had the opportunity to look the gunman directly in the face when he turned and asked her whether she was keeping an eye on him, to which she replied that she was making sure her friends were okay. [14] The judge addressed inconsistencies and discrepancies in Ms. Martens’ evidence: [110]    There are some aspects of Ms. Martens’ testimony where there are inconsistencies or discrepancies. For example, she testified that Mr. Nelmes owned a champagne-coloured BMW, whereas from the photograph of it in evidence, it appears white. In her evidence in trial, she testified that after the incident and before the occupants gave their statements to the police, there was no discussion among them. In her statement to the police, at one point she said, “I’m worried that if they know who I am or whatever, because everybody is saying like we are talking back and forth to our friends right now.” She maintained her evidence that there was no discussion, but could not explain that discrepancy. [111]    There is some uncertainty, as I have indicated, when the two male intruders went to the bedroom and whether Ms. Martens went to the bedroom once or twice. However, Ms. Martens is certain that she saw both of the male intruders in the bedroom at some point. [112]    Ms. Martens’ evidence about how the four people got from where they had eaten dinner to the apartment differs from that of some of the other witnesses. [113]    It is my view, however, that the foregoing differences in evidence and apparent discrepancies are understandable in the circumstances, are not particularly material, and do not go to the heart of the reliability of her evidence concerning the identification of the accused. [15] At trial, Mr. Soderstrom emphasized the discrepancy between Ms. Martens’ testimony in chief and her prior statements to the police and at the preliminary inquiry as to how she knew Mr. Soderstrom. He also emphasized that when she gave her statement to the police she was not certain that he was the intruder, but was rather 100% certain the intruder was “ a Soderstrom”. [16] The judge acknowledged the discrepancy in Ms. Martens’ evidence over time as to how she had met Mr. Soderstrom. He concluded, however, that the fact that she undoubtedly knew him was more significant than how she knew him. As for Ms. Martens’ initial uncertainty about whether it was Travis Soderstrom or his brother in the apartment, he said: [120]    When Ms. Martens recognized Mr. Soderstrom in the apartment, she may have been less than certain which Soderstrom brother it was, because they look very much alike, but she was sure it was one or the other of them. The evidence concerning Dillon Soderstrom’s whereabouts at the time of the offences excludes him as a suspect. [121]    I am satisfied that the man Ms. Martens recognized on the night of the offences was Travis Soderstrom. [17] The judge also considered the circumstantial evidence of Ms. Koehler that tended to connect Mr. Vidal to the offences, concluding: [125]    While this circumstantial evidence on its own does not provide a terribly strong basis to draw an inference connecting Mr. Vidal to the crimes, it is nonetheless some additional evidence that contributes to the weight of the eyewitness identification. [18] Ultimately, the judge concluded that taken as a whole, the evidence satisfied him that the Crown had proved beyond a reasonable doubt that Mr. Vidal was the gunman and Mr. Soderstrom was the other male intruder. The judge specifically noted that he did not have a reasonable doubt as a result of Mr. Wilson’s inability to identify the intruders and Mr. Nelmes’ evidence at trial that he did not believe the accused were the intruders. On appeal [19] Mr. Vidal and Mr. Soderstrom each raise two grounds of appeal particular to them and one ground of appeal in common. Those grounds can be stated as follows: 1.       Mr. Vidal contends the judge erred by misapprehending the evidence of Ms. Koehler, specifically whether it was Mr. Vidal or Mr. Schooner who commented on the “swan dive”; 2.       Mr. Soderstrom contends the judge misapplied the law on recognition evidence; and 3.       Both appellants contend the judge erred in assessing the eyewitnesses’ respective abilities to identify the intruders, rendering the verdict unreasonable and unsupported by the evidence. I will address each ground of appeal in turn. 1.       Did the judge misapprehend Ms. Koehler’s evidence? [20] Ms. Koehler’s testimony provided some circumstantial evidence corroborating Mr. Vidal as one of the perpetrators. She said that four days after the robbery, during a car ride, Mr. Vidal and Mr. Schooner described what seemed to be Mr. Gauthier’s “swan dive” from a building on McIntosh Drive. [21] Mr. Vidal submits that while Ms. Koehler gave evidence that Mr. Vidal and Mr. Schooner had a conversation concerning someone doing a swan dive off the third floor of the building, she did not specify that Mr. Vidal talked about that event. He contends therefore that the judge erred when he concluded the conversation amounted to circumstantial evidence against Mr. Vidal. I would not accede to this ground of appeal. [22] Ms. Koehler testified that Mr. Vidal and Mr. Schooner both described the “swan dive”. The full extract of Ms. Koehler’s testimony about the conversation she overheard reads as follows: Q         Who was in the vehicle? A          Curtis [Vidal] and Ashley [Mercier] were in the front seats, and me and Ben [Schooner] were in the back seat. Q         During that drive, do you recall the conversation? A          Yeah, a little bit of it. Q         Well, what was the conversation? A          Just about a guy doing a swan dive out of a building on McIntosh Drive. Q Who was talking about this ? A Curtis and Ben . THE COURT: Just give me a moment. A guy doing a swan dive? A          Off the third floor balcony. THE COURT: Of the third floor of? A          McIntosh Manor. MR. WALDOCK: Q Who -- who described that ? A Curtis and Ben. Q         Did either of them say who was present? A          No. [Emphasis added.] A joint discussion of this kind is admissible against its participants even if the witness does not specify precisely who said what: R. v. Nornberg (1994), 41 B.C.A.C. 208. 2.       Did the judge misapply the law on recognition evidence? [23] Mr. Soderstrom contends the judge misapplied the law on recognition evidence as stated by Justice Laskin in R. v. Spatola , [1970] 3 O.R. 74 at 82 (C.A.): Bare recognition unsupported by reference to distinguishing marks, and standing alone, is a risky foundation for conviction even when made by a witness who has seen or met the accused before. Of course, the extent of their previous acquaintanceship must have a very important bearing on the cogency of the identification evidence, as will the circumstances in which the alleged recognition occurred. Where some distinguishing marks are noticed and later verified, there is a strengthening of credibility according to the nature of such marks. But the initial issue of the caution with which identification evidence must be received, particularly where it is the unsupported evidence of one witness, remains; [24] Mr. Soderstrom submits the judge in the present case focused on resolving the discrepancies in Ms. Martens’ evidence as to how she knew him and failed to consider the strength of their association, how long ago that association had occurred, and Ms. Martens’ inability to recall specific details about Mr. Soderstrom’s appearance. [25] Mr. Soderstrom submits further that Ms. Martens was doing nothing more than identifying a photograph of someone she knew from her past — an error that could have been avoided if a photo of Mr. Soderstrom’s brother Dillon had also been included in the photo pack. [26] In my view, the judge was aware of and considered all of these aspects of Ms. Martens’ evidence. First, he expressly referred to Ms. Martens knowing one of the intruders “was a Soderstrom” but not being sure if it was Travis or Dillon. The judge responded to the suggestion that Dillon’s picture should have been included by asking counsel whether this would have mattered, because the brothers’ faces were remarkably similar. Mr. Soderstrom was before the judge in person and the judge had a photograph of Dillon Soderstrom. There was no suggestion at trial that Dillon was the intruder and the evidence of his whereabouts on the night of the offences excluded him as a suspect. [27] Second, the judge referred to Ms. Martens’ evidence from the preliminary inquiry that she had known Mr. Soderstrom “10 years ago” (at para. 116) and that she “had a brief teen crush” on him (at para. 118). Further, Ms. Martens was never challenged on her evidence that she had seen and recognized Mr. Soderstrom in the community once or twice and that he had not changed in appearance since she had known him. [28] Finally, I note that prior acquaintance is simply one factor in assessing the weight to be given to identification evidence. The judge addressed the prior acquaintance of the appellant and the witness, but also considered the lighting, Ms. Marten’s level-headedness, and the fact that she was not impaired by drugs or alcohol. [29] In summary on this ground of appeal, I am of the view that the judge did not misapply the law on identification evidence. 3. Did the judge err in assessing the eyewitnesses’ identification evidence, rendering the verdict unreasonable or unsupported by the evidence? [30] The appellants both challenge the reasonableness of the verdict on the basis that the judge failed to give proper effect to Mr. Nelmes’ evidence in court that the appellants were not the intruders. Mr. Soderstrom further challenges the reasonableness of the verdict on the basis that the judge gave too much weight to Ms. Martens’ evidence. [31] Under s. 686(1)(a)(i) of the Criminal Code , this Court may set aside a verdict on the ground that it is unreasonable or cannot be supported by the evidence. The test to determine whether a verdict is unreasonable or unsupported by the evidence is set out in Corbett v. The Queen , [1975] 2 S.C.R. 275 and R. v. Yebes , [1987] 2 S.C.R. 168, which provides at 186: The Court must determine on the whole of the evidence whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. While the Court of Appeal must not merely substitute its view for that of the jury, in order to apply the test the Court must re ‑ examine and to some extent reweigh and consider the effect of the evidence. [32] I turn first to the assessment of Mr. Nelmes’ evidence. The judge squarely addressed Mr. Nelmes’ inability to identify either of the appellants in the photo lineup procedure, as well as his certainty at trial “that the two accused in the prisoners’ dock were not the two intruders” (at para. 103). The appellants challenge the judge’s finding that Mr. Nelmes’ evidence was explained by the fact that he had not clearly seen the intruders’ faces. They argue to the contrary that Mr. Nelmes spent the most time with the suspects and had the best opportunity to view them in close quarters. [33] However, Mr. Nelmes testified that he never stood face-to-face with the intruders and never really looked at either of their faces. In cross-examination when it was suggested to him that he got a good look at the gunman’s face, Mr. Nelmes replied “not particularly”. When it was put to him that he looked at both the intruders, Mr. Nelmes replied that he “glanced” at them. [34] The judge found that Mr. Nelmes was struck in the face within a minute or less of entering the apartment, and that the blow knocked him over and caused his face to swell and bleed around one eye. He found that, as a result of the blow, Mr. Nelmes was in shock, unable to see well, and under a lot of stress. He found it understandable in such circumstances that Mr. Nelmes’ main concern was complying with the demands of the intruders “as quickly and obediently as possible, so that he would not suffer more serious injuries or worse”, rather than trying to observe and make a mental note of what the intruders looked like (at paras. 101-102). [35] The judge observed Mr. Nelmes testify. His findings of fact were supported by the evidence and are entitled to appellate deference. [36] I turn next to Mr. Soderstrom’s challenge to the weight the judge gave to Ms. Martens’ evidence. He argues she was an unreliable eyewitness and that her evidence was not sufficient to ground a conviction. [37] Mr. Soderstrom points out that Ms. Martens was unable to testify as to any distinguishing features of the other intruder, describing him as “very tall”, “lean” and having a “thinner build” — a description so vague and generic that it could not be relied on to identify him. He further submits that Ms. Martens only had a brief and limited opportunity to look at the intruders, given she was in their presence for a total of two minutes. Moreover, during that time he points out that she agreed she was not focused on the second intruder. [38] Mr. Soderstrom submits that Ms. Martens’ view of the intruders amounted to nothing more than “a momentary glance”. He submits this was an emotionally charged situation with a brief opportunity to view the intruders — exactly the set of circumstances the bulk of judicial authority warns triers of fact to be cognizant of given “the inherent frailties of identification evidence arising from the psychological fact of the unreliability of human observation and recollection”: R. v. Sutton , [1970] 2 O.R. 358 at 368 (C.A.). [39] In my view, the judge’s reliance on Ms. Martens’ evidence did not result in an unreasonable verdict. He assessed her evidence carefully. After observing that she was a “woman who [was] not easily shaken by traumatic events” and maintained her composure in stressful situations, he rejected the suggestion that she did not have a good opportunity to look at the gunman, saying: [105]    While Ms. Martens may only have had a couple of minutes or so to observe the gunman, the lighting was good and she was unimpaired by any drugs or alcohol. In the bedroom particularly, she had the opportunity to look the gunman directly in the face when he turned and asked her whether she was keeping an eye on him, to which she replied that she was making sure her friends were okay. [40] The judge stated that Ms. Martens’ attention was less focused on the other intruder, but concluded “she had sufficient time to observe the other male in order to recognize him from a past association” (at para. 109). Again, there was evidence to support these findings. Ms. Martens’ description of engaging in conversation with the gunman in the bedroom, and directly looking at him, has been set out earlier in these reasons. When the gunman and the second intruder first entered the apartment, Ms. Martens said that the gunman was “staring directly” at her and she backed away from the door. After the gunman and Mr. Nelmes went to Mr. Nelmes’ bedroom, Ms. Martens remained in the dining area facing toward the kitchen where the second intruder stood and she spoke directly to him, asking him why he was doing this. The second intruder responded by denying that he knew her. Ms. Martens testified that she was looking at the second intruder during this exchange. Mr. Soderstrom’s assertion that Ms. Martens had a “mere glance” of the intruders is not consistent with the evidence at trial. [41] In my view, the appellants have not demonstrated that the trial judge erred in his reasoning or that his verdict was unsupported by the evidence. His conclusion that the appellants’ identification was proven beyond a reasonable doubt was a verdict that a properly instructed trier of fact, acting judicially, could reasonably have reached. Accordingly, I would not accede to this ground of appeal. [42] In the result, I would dismiss both appeals from conviction. “The Honourable Madam Justice Fenlon” I AGREE: “The Honourable Madam Justice Kirkpatrick” I AGREE: “The Honourable Mr. Justice Harris”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Romanchych, 2018 BCCA 26 Date: 20180125 Docket: CA44084 Between: Regina And Colby Dean Romanchych Before: The Honourable Mr. Justice Frankel The Honourable Madam Justice Bennett The Honourable Mr. Justice Savage On appeal from:  An order of the Provincial Court of British Columbia, dated September 9, 2016 ( R. v. Romanchych , Abbotsford Docket 82309). Counsel for the Appellant: R.P. Thirkell K. Beatch Counsel for the Respondent: T. Shaw Place and Date of Hearing: Vancouver, British Columbia October 5, 2017 Place and Date of Judgment: Vancouver, British Columbia January 25, 2018 Written Reasons by: The Honourable Madam Justice Bennett Concurred in by: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Savage Summary: The appellant was sentenced to 29.5 months’ imprisonment for firearms and credit card-related offences. He received credit for 10.5 months’ pre-sentence custody on a 1:1 basis through the operation of s. 719(3.1) of the Criminal Code, due to breach of bail terms leading to the cancellation of his bail. He appeals that sentence on the basis of a s. 7 Charter overbreadth challenge to s. 719(3.1). Held: Appeal allowed. The second part of s. 719(3.1) is overbroad, and thereby in violation of s. 7 of the Charter. Accused persons who are alleged to have committed technical bail breaches, or who breach bail conditions with which they have no real ability to comply, can be statutorily barred from enhanced credit. Accordingly, there is no rational connection between the law’s purpose – enhancing public safety and security by increasing violent and chronic offenders’ access to rehabilitation programs – and some of its impacts. The overbreadth is not justified by s. 1 of the Charter, so the second part of s. 719(3.1) is declared of no force or effect under s. 52 of the Constitution Act. Reasons for Judgment of the Honourable Madam Justice Bennett: [1] On March 3, 2015, Colby Romanchych was found with loaded guns and stolen credit cards. He was eventually convicted and received a total sentence of 29.5 months after receiving credit for 10.5 months’ pre-sentence custody on a 1:1 basis. He appeals that sentence on the issue of whether he is entitled to 1.5 days’ credit for pre-sentence custody based on a s. 7 Charter challenge to s. 719(3.1) of the Criminal Code , R.S.C. 1985, c. C-46. Background [2] Mr. Romanchych was convicted on four counts following a trial in Provincial Court: i)      Count 2 – Possession of a loaded restricted firearm contrary to s. 95(1); ii)     Count 3 – Occupy a vehicle in which there is a firearm contrary to s. 94(1); iii)    Count 4 – Possession of a stolen credit card contrary to s. 342(1); and iv)    Count 5 – Use of another’s identity documents without lawful excuse contrary to s. 56.1(1). [3] The sentencing judge summarized her findings of fact in her reasons for sentence as follows: [3]        Referring briefly to the circumstances of the offence, Mr. Romanchych was under surveillance as a result of the belief by police that he was driving a stolen pick-up truck. He was arrested at a gas station in Langley a short time later. At the time of his arrest, several items were found in the pick-up truck including a loaded handgun, which is the weapon referred to in Counts 2 and 3 of the Information. A number of credit cards, debit cards and identity documents were also found in the pickup, including those which are referred to in Counts 4 and 5 of the Information. [4]        After ascertaining that the owners of some of the credit cards alleged that their cards had been used fraudulently, the police ascertained when and where the cards had been used for purchases, or attempted purchases, by someone not authorized to use those cards. Mr. Romanchych was caught on video recordings at several different gas stations using credit cards and debit cards that did not belong to him. Facts relating to Mr. Romanchych’s pre-sentence release status [4] Mr. Romanchych was arrested on March 3, 2015 for the offences before the Court. He applied for and was granted bail that day but was unable to perfect that bail until April 30, 2015. [5] In May 2015, Mr. Romanchych was twice arrested for further offences: i) on May 11, 2015, he was arrested for credit-card related offences committed in September 2014 (before the offences at issue in these proceedings) and released on bail that day; and ii) on May 22, 2015, he was arrested for offences committed that day involving flight from the police using a motor vehicle. He was not released from custody pending a cancellation (or revocation) hearing. [6] On May 29, 2015, Mr. Romanchych’s bail was cancelled pursuant to s. 524 of the Criminal Code and he was ordered detained in custody for failing to show cause why he should be released. [7] In September 2015, Mr. Romanchych pleaded guilty to four offences relating to the matters for which he was arrested on May 11 and May 22, 2015. He served a total sentence of 84 days on those four counts. He did not seek to be released pending his trial on the offences before the court once he had served the sentence on those counts. [8] At trial, and on appeal, the Crown and defence agree that the total pre-sentence time in custody was 10.5 months. [9] At the sentencing hearing, Mr. Romanchych asked the sentencing judge to decline to follow the decision in R. v. Chambers , 2014 YKCA 13, which found, among other things, that the second part of s. 719(3.1) is not overbroad. The sentencing judge concluded that she was “virtually bound to follow the Chambers decision” because two of the justices who decided Chambers are also justices of the Court of Appeal for British Columbia. The sentencing judge also noted an unrelated decision where this Court referred to a Yukon case as the “leading” case in British Columbia: R. v. Chudley , 2015 BCCA 391 at para. 9. [10] The Crown sought a five-justice division of this Court to reconsider the decision of the Yukon Court of Appeal in Chambers . The request was refused. All justices of the Court of Appeal for British Columbia are also justices of the Court of Appeal of Yukon. The Chief Justice of British Columbia is also the Chief Justice of the Court of Appeal of Yukon. However, Northern judges (Yukon Territory, Northwest Territories and Nunavut) are also members of the Court of Appeal of Yukon. It is a distinct court in a different jurisdiction. Its decisions are not binding on any level of court in British Columbia. Like all appellate courts, the Court of Appeal of Yukon has “persuasive” authority on British Columbia’s courts. See also R. v. Joe , 2017 YKCA 13 at para. 72. [11] From time to time, slips have been made that suggests the courts are the same, Chudley being one of those slips. They are not. Thus, neither the sentencing judge nor this Court is “bound”, in the sense of stare decisis , to follow the decision in Chambers . Position of the Parties [12] The positions of the parties are straightforward: Mr. Romanchych says that the reasoning in R. v. Safarzadeh-Markhali , 2016 SCC 14 , which struck down the first part of s. 719 (3.1) and was decided after Chambers , applies equally to the second part of the provision, which limited his pre-sentence custody credit. The Crown says it does not, and that Chambers was correctly decided. Discussion Legislative framework 719 (3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody. (3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8). [Emphasis added.] [13] The Criminal Code section at issue is the underlined portion of s. 719(3.1), above. That part of the provision restricts a sentencing judge’s ability to grant 1:1.5 credit where “a person was detained in custody under subsection 524(4) or (8)”. The limitation found in the first part of s. 719(3.1), referring to s. 515(9.1), was struck down as overbroad and not justified under s. 1 of the Charter in Safarzadeh-Markhali . The other part of the legislative scheme at issue is the mechanism by which an accused person can be detained in custody under s. 524(4) of the Code : 524 (1) Where a justice is satisfied that there are reasonable grounds to believe that an accused (a) has contravened or is about to contravene any summons, appearance notice, promise to appear, undertaking or recognizance that was issued or given to him or entered into by him, or (b) has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him, he may issue a warrant for the arrest of the accused. (3) Where an accused who has been arrested with a warrant issued under subsection (1), or who has been arrested under subsection (2), is taken before a justice, the justice shall (a) where the accused was released from custody pursuant to an order made under subsection 522(3) by a judge of the superior court of criminal jurisdiction of any province, order that the accused be taken before a judge of that court; or (4) Where an accused described in paragraph (3)(a) is taken before a judge and the judge finds (a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or (b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him, he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10). (6) Any order made under subsection (4) or (5) is not subject to review, except as provided in section 680. (8) Where an accused described in subsection (3), other than an accused to whom paragraph (a) of that subsection applies, is taken before the justice and the justice finds (a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or (b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him, he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10). [14] Section 515(10) of the Code is the provision governing when detention is justified. [15] The reviewability of a decision under s. 524(4) of the Code is addressed in s. 680(1): 680 (1) A decision made by a judge under section 522 or subsection 524(4) or (5) or a decision made by a judge of the court of appeal under section 261 or 679 may, on the direction of the chief justice or acting chief justice of the court of appeal, be reviewed by that court and that court may, if it does not confirm the decision, (a) vary the decision; or (b) substitute such other decision as, in its opinion, should have been made. [16] The relevant provisions of the Charter are ss. 1 and 7: 1. 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. 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The evolution of credit for pre-sentence custody [17] Historically, offenders were given credit for pre-sentence custody, generally on a 2:1 basis. The doubling of time was to compensate those detained for the lack of programming in remand centres, for the fact that that period of detention was not subject to reduction for remission, either statutory or earned, and a host of other reasons: R. v. Summers , 2014 SCC 26 at paras. 3, 31. [18] Over time, and as conditions in certain remand centres became public, credit for pre-sentence custody began to increase. Some judges were granting 3:1 and even 4:1 enhanced credit depending on the evidence. In R. v. Wallace , [2005] O.J. No. 1759 (S.C.), the following cases are cited as examples of this development at para. 38: [38]      In R. v. Poirer , [2001] O.J. No. 2320 (O.C.J.) , the Ontario Court of Justice gave the accused three months credit for one month pre-sentence custody spent in the Don Jail, emphasizing the deplorable conditions of the jail. Ormston J. noted that there were three or four people in cells that were designed for two, inmates were forced to sleep on the floor, there was no statutory remission of the offender’s sentence, no counselling was available, and there were no education facilities. Justice Bentley held in R. v. Dorian , [2003] O.J. No. 1415 , that frequent lock-downs, triple bunking and the cancellation of many programs at the Don Jail justified an enhanced credit of 3:1 as the circumstances of the accused’s pre-sentence incarceration were particularly troubling. In truly exceptional circumstances, such as in R. v. Critton , [2002] O.J. No. 2594 , the Court at paras. 104-106 granted 4:1 credit for an accused due to his loss of privileges and the “myriad of indignities he was forced to endure” at the Maplehurst Detention Centre during a civil service strike. [19] In response, the government introduced the Truth in Sentencing Act , S.C. 2009, c. 29 (“ TISA ”), which capped credit at 1:1, except “when the circumstances justify” 1:1.5 credit, and completely prohibited enhanced credit in certain circumstances, including those set out above in s. 719(3.1), which are at issue in this appeal. [20] In Summers , the Supreme Court of Canada interpreted the phrase “when the circumstances justify it” in s. 719(3.1). The trial judge in Summers granted 1:1.5 enhanced credit to compensate the offender for the loss of eligibility for early release and parole, finding that was a circumstance that justified the extra credit. [21] Justice Karakatsanis, for the Supreme Court, confirmed that the loss of access to parole and early release constitutes a “circumstance” justifying enhanced 1:1.5 credit: Summers at paras. 34, 68. As part of her analysis, Karakatsanis J. concluded that offenders who are not granted bail and do not receive enhanced credit will serve longer terms in prison than the same offender who is released on bail. Enhanced credit addresses that disparity. Section 7 and Overbreadth [22] The only basis for the challenge to the provision in this appeal is overbreadth as a violation of the right to life, liberty and security of the person enshrined in s. 7 of the Charter of Rights and Freedoms . The Supreme Court closely examined the principles underlying a constitutional challenge based on overbreadth in Canada (Attorney General) v. Bedford , 2013 SCC 72, which involved challenges to Criminal Code provisions governing activities relating to prostitution. [23] An overly broad law goes too far and interferes with some conduct that bears no connection to its objective: Bedford at paras. 101, 119. The Court described the concept of overbreadth at paras. 112-113: [112]    Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part . At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some , but not all, of its impacts. For instance, the law at issue in Demers required unfit accused to attend repeated review board hearings. The law was only disconnected from its purpose insofar as it applied to permanently unfit accused; for temporarily unfit accused, the effects were related to the purpose. [113] Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others. Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose. For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual . Enforcement practicality may be a justification for an overbroad law, to be analyzed under s. 1 of the Charter . [24] In R. v. Moriarity , 2015 SCC 55, Justice Cromwell, for the Court, described overbreadth at para. 2: [2] In my view, the appellants’ contention fails because these provisions are not overbroad. A law is overbroad when there is no rational connection between the purpose of the law and some of its effects. The touchstones of the analysis are, therefore, the objective of the law and whether its effects are connected to that objective. Properly understood, the challenged provisions have a broader purpose than that identified by the appellants and they have failed to show that the law’s effects are not rationally connected to that broader purpose. Their claim of overbreadth fails as a result. [25] To succeed in a s. 7 challenge on this basis, the challenger must show that their liberty rights are engaged and that the impugned provisions puts their liberty at risk in a way that is not connected to its purpose ( Moriarity para. 16). [26] The decision in Moriarity is particularly helpful as it articulates that, at the outset of the analysis, a court must identify both the impugned law’s purpose and its effects because the issue of overbreadth depends on a disconnect between the two: Moriarity at para. 24. The decision also assists in how to approach the search for the law’s purpose or objective, at paras. 26-27: [26]      The objective of the challenged provision may be more difficult to identify and articulate. The objective is identified by an analysis of the provision in its full context. An appropriate statement of the objective is critical to a proper overbreadth analysis. In general, the articulation of the objective should focus on the ends of the legislation rather than on its means, be at an appropriate level of generality and capture the main thrust of the law in precise and succinct terms. [27] The overbreadth analysis turns on the relationship between the objective of the law and the effects flowing from the means which the law adopts to achieve it -- in other words the relationship between the law’s purpose and what it actually does. It follows that the statement of the challenged provision’s purpose should, to the extent possible, be kept separate from the means adopted to achieve it. While of course the means adopted may throw light on the objective, the focus must remain on the objective: see, in a roughly analogous context, Ward v. Canada (Attorney General) , 2002 SCC 17, [2002] 1 S.C.R. 569, at para. 25. If undue weight is given to the means in articulating the legislative objective in an overbreadth analysis, there will be nothing left to consider at the rational connection stage of the analysis . [27] As noted at para. 26, the statement of purpose must be framed at the appropriate level of generality. According to Cromwell J., the appropriate level lies between “the statement of an “animating social value” – which is too general – and a narrow articulation which can include a virtual repetition of the challenged provision, divorced from its context – which risks being too specific.” The statement need also be “precise and succinct”: Moriarity at paras. 28-29. [28] Justice Cromwell also outlines the appropriate sources for determining an impugned provision’s legislative purpose at para. 31: [31]      Courts have used many sources to determine legislative purpose: see R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at ss.9.41 to 9.66. In some cases, legislation contains explicit statements of purpose, but there is no such statement here. Courts also look at the text, context and scheme of the legislation in order to infer its purpose. For instance, in Heywood , the Court concluded that the purpose of a vagrancy law that prohibited convicted offenders from loitering in public parks, which was to protect children from becoming victims of sexual offences, was “apparent from the places to which the prohibition of loitering applies”: p. 786; see also R. v. Garofoli , [1990] 2 S.C.R. 1421, at pp. 1470-71. In addition, courts may also resort to extrinsic evidence such as legislative history and evolution. But as Prof. Sullivan wisely observes, legislative statements of purpose may be vague and incomplete and inferences of legislative purpose may be subjective and prone to error: s.9.90. [29] Once legislative purpose is identified, the next question is whether “the law is inherently bad because there is no connection, in whole or in part, between its effects and its purpose”: Moriarity at para. 49, citing Bedford at para. 119 (emphasis in Bedford ). [30] I will next turn to the decision in Safarzadeh-Markhali , where the Court struck down part of s. 719(3.1) on the basis of overbreadth. [31] The Court quickly concluded that s. 719(3.1) limits liberty. The effect of the provision is to require offenders to serve more time in prison than they would have otherwise. The only issue was whether the provision nonetheless complied with the principles of fundamental justice: Safarzadeh-Markhali at para. 20. [32] The Court considered the purpose of the provision, making the point that the impugned law’s purpose is distinct from the means used to achieve that purpose. The means may be helpful in determining the purpose or objective, but they are to be treated separately: Safarzadeh-Markhali at para. 26. [33] The question was framed by McLachlin C.J.C., as formulating a statement of purpose for s. 719(3.1)’s denial of enhanced credit to persons denied bail primarily because of a prior conviction. The Court reviewed the TISA , and concluded that it contained no explicit statements of specific purpose for the legislation as a whole, or for s. 719(3.1) in particular: Safarzadeh-Markhali at para. 32. [34] The Court did not find much assistance in determining purpose from the context and scheme of the legislation. It then looked at the extrinsic evidence, and the statements made by the Minister of Justice, while acknowledging that such statements may be rhetorical and imprecise: [37]      In presenting the Truth in Sentencing Act to Parliament and the House of Commons Standing Committee on Justice and Human Rights, the Minister of Justice explained that denial of enhanced credit was aimed at promoting public safety and public confidence in the justice system, by imposing longer sentences on violent and repeat offenders and increasing their exposure to rehabilitative programming. He said: The practice of awarding generous credit erodes public confidence in the integrity of the justice system . It also undermines the commitment of the government to enhance the safety and security of Canadians by keeping violent or repeat offenders in custody for longer periods. [Emphasis added.] ( House of Commons Debates , vol. 144, No. 41, 2nd Sess., 40th Parl., April 20, 2009 (“ Debates ”), at p. 2418) The Minister’s reference to “violent or repeat offenders” suggests that the challenged provision is targeted at two groups: (1) dangerous persons, who have committed crimes of violence or threatened violence; and (2) chronic offenders, whether convicted of violent crimes or not. [38]      The Minister also linked longer periods in custody to rehabilitation: As a result of [the challenged provision], a greater number of offenders would now serve a federal sentence of two or more years, and there will be an increased number of federal offenders spending in federal custody. This time [in] the federal system will present the opportunity for longer-term programming that may have a positive effect on the offender. [Emphasis added.] (Standing Committee on Justice and Human Rights, Evidence , No. 20, 2nd Sess., 40th Parl., May 6, 2009 (“ Evidence ”), at pp. 11-12) [39] The Minister referred to other goals. One was the goal of adequate or fit punishment, in a retributive sense. On this, he said: Not only does [enhanced credit] deprive offenders of the prison programs that might help to keep them out of jail in the future, it also fails to punish them adequately for the deeds that led to their convictions in the first place . [Emphasis added.] ( Debates , at p. 2418) [35] After reflecting on the statements of the Minister noted above, the Court concluded that the “animating social value” behind the denial of enhanced credit for pre-sentence custody in s. 719(3.1) is enhancing public confidence in the justice system. The Court concluded, at para. 47, that the legislative purpose of the first part of s. 719(3.1) is as follows: [47]      Second, the legislative purpose of the total denial of enhanced credit for pre-sentence custody to offenders who are denied bail because of a prior conviction is to enhance public safety and security by increasing violent and chronic offenders’ access to rehabilitation programs . To be sure, the Minister referred to other legislative purposes -- providing adequate punishment, increasing transparency in the pre-sentence credit system, and reducing manipulation. But these are peripheral, for the reasons discussed above. [36] The Court concluded that the purpose of preventing accused persons from manipulating the system by prolonging pre-sentence custody in order to get more credit was resolved by the 1:1.5 cap: Safarzadeh-Markhali at para. 44. [37] The Court found that the means for achieving the purpose was the challenged provision itself – the denial of enhanced credit for pre-sentence custody to persons refused bail on the basis of an existing criminal record. In addition, the Court found that the provision imposed longer periods of custody on all persons who receive an endorsement indicating that bail was denied primarily on the basis of a previous conviction. [38] The Court concluded that the provision was overbroad because it captured people in ways that had nothing to do with enhancing public safety and security. The Court found, at paras. 53-54: [53]      First, the provision’s ambit captures people it was not intended to capture: offenders who do not pose a threat to public safety or security. Section 515(9.1) is broadly worded. It catches any person denied bail primarily for a criminal record, without specifying or even broadly identifying the nature or number of offences that would warrant a s. 515(9.1) endorsement. The section may therefore ensnare persons whose imprisonment does not advance the purpose of the law. For example, a person with two or three convictions for failing to appear in court might be subject to a s. 515(9.1) endorsement, even though he or she did not pose any real threat to public safety or security. And even if such a person receives greater access to rehabilitative programming and benefits from it, the consequence is not necessarily to improve public safety and security. In short, a s. 515(9.1) endorsement is an inexact proxy for the danger that an offender poses to public safety and security. The Crown says the law casts the net broadly because targeting all offenders with a criminal record is a more practical option than attempting to identify only offenders who pose a risk to public safety and security. But practicality is no answer to a charge of overbreadth under s. 7: Bedford , at para. 113. [54]      Second, regardless of the types of offenders the challenged provision was meant to capture, the provision suffers from overbreadth because, as the intervener the Criminal Lawyers’ Association (Ontario) notes, the limited availability of judicial review means that persons wrongly tagged with an endorsement will be without recourse to have the error remedied. There is dispute about precisely when if ever review for an endorsement is available. But the Crown concedes that if the reviewing judge finds that the detention order was properly made, he or she is powerless to vacate an endorsement and that the sentencing judge has no choice under the challenged provision but to give effect to an endorsement in computing an offender’s sentence. This absence of review and discretion renders the challenged provision overbroad for at least two categories of individuals: (1) persons who erroneously received the endorsement because their detention is not warranted primarily because of their criminal record, and (2) persons who, during the period between the bail hearing and sentencing, successfully appeal the conviction that drew the endorsement. In both cases, the effect of the provision is to strip persons of liberty even though their detention does not obviously advance public safety and security. [39] The Court concluded that the provision was not saved by s. 1. [40] The Court also resolved an important issue in relation to s. 7, and that is, contrary to the weight of appellate authority, proportionality in sentencing is not a principle of fundamental justice: Safarzadeh-Markhali at para. 71. [41] Before turning to the analysis in this case, I will briefly refer to two competing appellate decisions, both which were decided before Safarzadeh-Markhali : Chambers , and R. v. Kovich , 2016 MBCA 19. [42] In Chambers, the Court identified the purpose as follows, at para. 96: [96]      As I have outlined, the general purpose of s. 719(3) and (3.1) of the Code is to restrict the amount of presentence credit (I do not overlook the other subsidiary purposes identified in Summers as discussed above). Parliament has chosen to do so by capping that credit at 1.5:1, if circumstances justify it. But Parliament has also targeted a population which includes those who find themselves back in custody because of their own misconduct on bail, who are not entitled to an award of this enhanced credit. [43] With respect, characterizing the purpose of the legislation in this way is not in accordance with Moriarity , where the Supreme Court held that the purpose of an impugned law must not be drawn too generally or too narrowly. As Cromwell J. said in Moriarity at para. 28: [28]      The appropriate level of generality for the articulation of the law’s purpose is also critically important. If the purpose is articulated in too general terms, it will provide no meaningful check on the means employed to achieve it, almost any challenged provision will likely be rationally connected to a very broadly stated purpose: see, e.g. Carter v. Canada (Attorney General) , 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 77. On the other hand, if the identified purpose is articulated in too specific terms, then the distinction between ends and means may be lost and the statement of purpose will effectively foreclose any separate inquiry into the connection between them. The appropriate level of generality, therefore, resides between the statement of an “animating social value” -- which is too general -- and a narrow articulation, which can include a virtual repetition of the challenged provision, divorced from its context -- which risks being too specific: Carter , at para. 76. An unduly broad statement of purpose will almost always lead to a finding that the provision is not overbroad, while an unduly narrow statement of purpose will almost always lead to a finding of overbreadth. [44] In my view, in light of the decisions in Moriarity and Safarzadeh-Markhali , the Court in Chambers articulated the purpose of the provision in overly specific terms, attracting Cromwell J.’s warning in Moriarity that, in such a case, “the distinction between ends and means may be lost and the statement of purpose will effectively foreclose any separate inquiry into the connection between them”. As a result, the overbreadth analysis in Chambers , which was decided without the benefit of the Supreme Court’s guidance on this point in Moriarity , is no longer persuasive. A similar conclusion was reached in R. v. Taylor , 2017 YKTC 3. [45] In Kovich , the court considered whether s. 719(3.1) complies with s. 7 of the Charter . There, the Court found that the purpose of the legislation was to restrict the amount of credit given for pre-sentence custody, and to end the practice of granting 2:1 credit, to make the process more transparent, and to limit pre-sentence custody to 1:1 for certain offenders: Kovich at para. 99. [46] The Court concluded that the provision was overbroad because it does not target violent offenders or wrongful conduct, but targets those who are unable to obtain bail: Kovich at para. 106: see also R. v. Meads , 2016 ONSC 7156 at paras. 30-35. [47] Turning to the constitutionality of the provisions engaged in this case and whether the legislation is overbroad, the first question is: does the provision engage s. 7 and the right to life, liberty and the security of the person? It is not disputed that it engages liberty rights, as its effect is to require offenders to whom it applies to serve more time in prison than they otherwise would: see Safarzadeh-Markhali at para. 20. [48] Accordingly, the only issue under s. 7 before this Court is whether this deprivation of liberty comports with the principles of fundamental justice or whether it is overbroad, as Mr. Romanchych alleges. The next step in the overbreadth analysis is to ascertain the purpose of the law. [49] Mr. Romanchych submits that the purpose of the second part of s. 719(3.1) is exactly the same as the purpose identified in Safarzadeh-Markhali at para. 47: enhancing public safety and security by increasing violent and chronic offenders’ access to rehabilitation programs. [50] The Crown submits that the second part of s. 719(3.1) has a different purpose. It says that unlike the first part of the provision, the part of the section dealing with credit when there is a bail cancellation and detention order has a long legislative history, which suggests a different legislative purpose. [51] It may be useful to examine the operation of s. 524, which can lead to bail cancellation that triggers the operation of the second part of s. 719(3.1). Where there are grounds for a justice to believe that an accused has either contravened or is about to contravene their release (which may include an appearance notice or summons), or has committed an indictable offence while on a form of release, the justice may issue a warrant for their arrest. All hybrid offences are indictable until the Crown elects to proceed summarily: Interpretation Act , R.S.C. 1985, c. I-21, s. 34. The exception is if the Crown fails to make the election at trial, a court may presume the Crown elected to proceed summarily: R. v. Dudley , 2009 SCC 58 at para. 20. Thus, s. 524(1) can capture relatively minor offences. A peace officer with the same grounds may arrest an accused without a warrant under s. 524(2). [52] The accused is then brought before a justice who will either remand them to a superior court if that court has exclusive jurisdiction or will otherwise deal with the accused: s. 524(3). If the Crown demonstrates the appropriate basis, the judge or justice will cancel the bail (sometimes referred to as revoking the bail) under s. 524(4) or s. 524(8), and the onus then shifts to the accused to show cause why they should be released under s. 515(10). The accused is detained unless they show cause. [53] An accused’s bail must first be cancelled before s. 719(3.1) can statutorily bar enhanced credit: R. v. Vinepal , 2015 BCCA 349 at paras. 15-20. However, I agree with Chief Justice Bauman in Chambers at para. 51 that, once the bail is cancelled under s. 524, the accused is detained in custody unless and until they satisfy a judge or justice that they should be released. Accordingly, someone who consents to remain in custody after their bail is cancelled is still detained. [54] The Crown submits that the legislative purpose of the provision is to encourage accused persons to comply with their bail conditions by imposing sanctions on those who breach their bail conditions. It says that this differs from the first part of the provision and therefore the objective of “advancing the objective of enhancing public safety and security by increasing violent and chronic offenders’ access to rehabilitation programs” is not the purpose. In support of this argument, the Crown attempts to draw a link between the purpose of the Bail Reform Act , which it says is to ensure compliance with bail conditions, and the impugned provision. [55] The Crown submits that the legislative context of the second part of s. 719(3.1) (but not the first part) includes the operation of the Bail Reform Act scheme because it “explicitly adopts as its triggering mechanism s. 524”, which was part of the Bail Reform Act amendments to the Criminal Code . In my view, there is nothing in any of the sources for determining legislative purpose as outlined in Moriarity and Safarzadeh-Markhali that supports a link between the Bail Reform Act and the second part of s. 719(3.1). This is because I do not agree with the Crown’s characterization of the legislative purpose of the Bail Reform Act scheme in the Criminal Code . Those provisions were part of the Bail Reform Act , S.C. 1970-71-72, c. 37, which had a legislative purpose of releasing individuals, not detaining them. Martin J.A. reviewed the legislative purpose of the Bail Reform Act in R. v. Bray , [1983] O.J. No. 2509 (C.A.), cited with approval on this point in R. v. Pearson , [1992] 3 S.C.R. 665 and R. v. Morales , [1992] 3 S.C.R 711: The Bail Reform Act, 1970-71-72 (Can.), c. 37, introduced a liberal and enlightened system of pre-trial release. The object of the legislation clearly was to reduce pre-trial detention consistent with securing the attendance of the accused at his trial and the protection of the public interest [Emphasis added]. [56] The incompatibility of the legislative purpose of the Bail Reform Act and the second part of s. 719(3.1) is also demonstrated by reference to the interaction between s. 719(3.1) and the offence of breaching a bail condition in s. 145. If an accused person’s bail is cancelled under s. 524, they are statutorily barred from enhanced credit under s. 719(3.1), resulting in a longer underlying sentence. If that accused person is then also prosecuted and sentenced under s. 145, they receive a second punishment for the same conduct (the breach of the bail condition). In this light, it is difficult to see how the Bail Reform Act ’s legislative purpose of promoting the release of individuals can lend any interpretive assistance to the second part of s. 719(3.1). [57] The Minister of Justice’s Parliamentary submissions do not distinguish the second part of s. 719(3.1) from its first part, which was addressed in Safarzadeh-Markhali . The section as a whole is addressed in terms of denying enhanced credit entirely to lengthen sentences, and ensuring that violent and chronic offenders receive longer sentences, and access to programs for a longer period of time in the federal penitentiary system. [58] Thus, in my view, the animating social value and the legislative purpose for the second part of s. 719(3.1) is the same as the legislative purpose identified in Safarzadeh-Markhali at paras. 46-47 – to enhance public confidence in the justice system, and to enhance public safety and security by increasing violent and chronic offenders’ access to rehabilitation programs. The means to effect this legislative purpose is the challenged provision itself – the denial of enhanced credit for pre-sentence custody to persons whose bail is cancelled as a result of an alleged breach of a bail condition. The effect of the provision is to impose longer periods of custody to persons whose bail is cancelled because they have been charged or suspected of having breached a term of an earlier release order: Safarzadeh-Markhali at paras. 48-49. [59] Given the length of time some cases take to get to trial, the time served in pre-sentence custody may be significant. [60] Once the purpose of the impugned provision is determined, the next question is whether it is overbroad. To avoid a finding of overbreadth in violation of s. 7 of the Charter , “the law must not go further than reasonably necessary to achieve its legislative goals”: Safarzadeh-Markhali at para. 50. [61] The Crown submits that even if the legislative purpose is the same as that found in Safarzadeh-Markhali , the provision is still not overbroad because not every person who is alleged to have breached their bail ultimately has their bail cancelled under s. 524. [62] The Crown argues, relying on Chambers at para. 96, that it is not overbroad to deny bail to those who are returned to custody as a result of their misconduct on bail. It cites R. v. Hussain , 2015 ONSC 7115, where the Court at para. 93 said: The Ontario Court of Appeal in Akintunde confirms that Parliament specifically intended that offenders who choose to continue committing serious criminal offences while released on a recognizance will be treated differently than other offenders. As a matter of policy, those who re-offend while on bail will be denied enhanced credit for pretrial custody, while others remain entitled to seek it. The choice is that of the accused out on bail. He can abide by the terms of his release and become eligible for enhanced credit for the time spent in pre-sentence custody. Or he can choose to re-offend and lose the ability to seek enhanced credit. Rhetorically, one may ask how this is unfair. [63] There is nothing wrong with the proposition that serious offenders may not be entitled to enhanced credit, depending on the circumstances. But neither Chambers nor Hussain address the question of who is captured by the legislation. As seen in Safarzadeh-Markhali , Kovich and Meads , it is not always the serious, violent, or even chronic offender whose enhanced credit is statutorily barred by the second part of s. 719(3.1). Like those who would be denied enhanced credit for a prior record, this provision also catches individuals in ways that have nothing to do with enhancing public safety or security. [64] A bail breach leading to cancellation under s. 524 (which then engages the second part of s. 719(3.1)) could be for failing to attend court, for a minor or technical breach, or for breaching a restriction that was next to impossible to comply with – the alcoholic who agrees to a ban on consuming alcohol so they can be released. While such terms are readily agreed to at a bail hearing, in reality, the accused may have no real ability to comply. The statutory bar on enhanced credit at issue here can also apply to a homeless person with a residency requirement, who is then evicted from those premises because the dwelling is shut down by health inspectors (a reasonable prospect in some single-room occupancy hotels). Thus, an accused person may be in breach of a bail term through no fault of their own, yet they are subject to a statutory bar on enhanced credit whose legislative purpose is “enhance public safety and security by increasing violent and chronic offenders’ access to rehabilitation programs”. [65] The Crown also argues that there is a greater power of review accorded to the second part of s. 719(3.1) than to the first part, which remedies any s. 7 overbreadth-related infirmity. The Crown in Safarzadeh-Markhali conceded that there was no avenue to review an endorsement that a person was detained because of their prior conviction, and the sentencing judge was bound by that endorsement. The Crown in this case submits that this was a significant part of the Court’s conclusion that the provision was overbroad. I do not disagree with that submission. However, that does not mean that the ‘breach of bail’ part of s. 719(3.1) is not overbroad. [66] In Safarzadeh-Markhali the Court concluded that there was no avenue to review the endorsement made in terms of the purpose of the detention order. However, the detention order itself may be reviewed, and set aside, pursuant to s. 520 of the Code . I am alive to the fact that the Court in Safarzadeh-Markhali at para. 12 did not resolve whether a s. 520 review overturning a detention order would quash an endorsement. The only avenue for review of a detention order made under s. 524, which we are concerned with here, is through s. 680 of the Code . A reviewing court accords deference to initial decisions under both s. 520 ( R. v. St. Cloud , 2015 SCC 27 at paras. 116-21) and s. 680 ( R. v. Oland , 2017 SCC 17 at paras. 61-62). [67] Thus, while the lack of review was a relevant feature in Safarzadeh-Markhali , the fact that the provision captured many people who were neither violent nor chronic offenders, as this provision also does, was, in my view, the primary basis on which the provision was found to be overbroad. As in Safarzadeh-Markhali , the effect of the provision is to “strip persons of liberty even though detention does not obviously advance public safety and security”: at para. 54. [68] In my opinion, s. 719(3.1), as it relates to those who have allegedly breached bail, is overbroad and thus violates s. 7 of the Charter . [69] The Crown did not strongly press justification of the provision pursuant to s. 1 of the Charter . However, it did not concede the argument. For clarity, I adopt the s. 1 analysis in Safarzadeh-Markhali at paras. 56-66. The means chosen to advance the objective of public safety and security are not proportionate to the objective of the legislation. As stated in Safarzadeh-Markhali at para. 65, “…the law’s overbreadth means that offenders who have neither committed violent offences nor present a risk to public safety will be unnecessarily deprived of liberty.” [70] Thus, the challenged provisions are not saved by s. 1. [71] This does not mean that the sentencing judge cannot take all of these matters (prior conduct, bail breaches, and so on) into account when crafting a sentence – these are often factors that will affect the length of a term of sentence. The sentencing judge may also consider these factors when determining whether “circumstances justify” enhanced credit within the meaning of Summers . This conclusion means, however, that the sentencing judge is not constrained from granting 1:1.5 credit where it is justified. [72] In my view, this is a case where enhanced credit should have been granted. There is nothing to suggest that Mr. Romanchych would not receive remission in the ordinary course of events. Conclusion [73] I would grant leave and allow the appeal. I find that the challenged portion of s. 719(3.1) violates s. 7 of the Charter because it is overbroad, and the Crown has not justified that infringement under s. 1 of the Charter . The impugned provision is declared of no force and effect under s. 52 of the Constitution Act . I would increase Mr. Romanchych’s pre-sentence custody credit by an additional 5.25 months, reducing his sentence from 29.5 months to 24.25 months. “The Honourable Madam Justice Bennett” I AGREE: “The Honourable Mr. Justice Frankel” I AGREE: “The Honourable Mr. Justice Savage”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Swaby, 2018 BCCA 35 Date: 20180125 Docket: CA44930 Between: Regina Applicant Appellant And Matthew Christopher Swaby Respondent 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 Mr. Justice Hunter (In Chambers) On appeal from: an order of the Supreme Court of British Columbia, dated November 8, 2017 ( R. v. Swaby , 2017 BCSC 2020, Vancouver Registry No. 27223) Oral Reasons for Judgment Counsel for the Applicant: L.A. Vizsolyi Counsel for the Respondent: L.J. Helps Place and Date of Hearing: Vancouver, British Columbia January 23, 2018 Place and Date of Judgment: Vancouver, British Columbia January 28, 2018 Summary: The Crown applies for leave to appeal the decision of a summary conviction appeal court that upheld a Provincial Court of British Columbia judge’s decision that the mandatory minimum sentence of 90 days’ imprisonment then prescribed by s. 163.1(4)(b) of the Criminal Code infringes s. 12 of the Charter of Rights and Freedoms. The respondent opposed leave on the basis that the question does not raise an issue of law alone and that the appeal lacks merit. Held: Application granted. The constitutional question is a question of law and the matter is one of considerable significance beyond the immediate case. [1] HUNTER J.A. : The Crown seeks leave to appeal a judgment of a judge of the Supreme Court of British Columbia, sitting as an appeal judge on a summary conviction sentence appeal. The sole issue in the appeal is whether the mandatory minimum sentence provided by s. 163.1(4) of the Criminal Code , R.S.C. 1985, c. C-46, which was in force at the time of the offence, infringes s. 12 of the Charter of Rights and Freedoms . [2] Mr. Swaby was charged with and pleaded guilty to a single count of possession of child pornography contrary to s. 163.1(4) of the Criminal Code . The Crown proceeded by way of summary conviction. At the relevant time, the minimum sentence for such an offence was imprisonment for 90 days. [3] Mr. Swaby sought a declaration before the sentencing judge that s. 163.1(4) prescribed a minimum sentence which is grossly disproportionate to the offence alleged and thereby amounted to cruel and unusual punishment, contrary to s. 12 of the Charter . The sentencing judge agreed and held that s. 163.1(4) was unconstitutional. [4] The Crown appealed this decision to the Supreme Court of British Columbia, but the appeal was dismissed and the constitutional remedy confirmed. The Crown seeks leave to appeal this decision to this Court. Test for leave [5] This leave application is brought pursuant to s. 839(1) of the Criminal Code , which restricts appeals to this Court from summary conviction sentence appeals to grounds that involve a question of law alone for which leave to appeal has been granted by this Court or a judge of this Court. [6] The test for granting leave to appeal under s. 839 was summarized by Justice Frankel in R. v. Winfield , 2009 YKCA 9 as follows: [13] T o 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) . [14]      In R.(R.) , Mr. Justice Doherty discussed the approach to be taken in deciding whether to grant leave to appeal the decision of a summary conviction appeal court. In this connection, he stated: [27]      The requirement that the applicant obtain leave to appeal in s. 839 provides the mechanism whereby this court can control its summary conviction appeal docket. Access to this court for a second appeal should be limited to those cases in which the applicant can demonstrate some exceptional circumstance justifying a further appeal. ... [37]      In summary, leave to appeal pursuant to s. 839 should be granted sparingly. There is no single litmus test that can identify all cases in which leave should be granted. There are, however, two key variables — the significance of the legal issues raised to the general administration of criminal justice, and the merits of the proposed grounds of appeal. On the one hand, if the issues have significance to the administration of justice beyond the particular case, then leave to appeal may be granted even if the merits are not particularly strong, though the grounds must at least be arguable. On the other hand, where the merits appear very strong, leave to appeal may be granted even if the issues have no general importance, especially if the convictions in issue are serious and the applicant is facing a significant deprivation of his or her liberty. [7] In R. v. Klos , 2015 BCCA 360 (in Chambers), Justice Frankel summarized the considerations for a leave judge in this way: [33]      … The overriding consideration in determining whether to grant or refuse leave is the interests of justice: R. v. Alpha Manufacturing Inc. , 2009 BCCA 443 at para. 13, 277 B.C.A.C. 17. That leave will be granted sparingly is evinced by the following from R. v. Bresnark , 2013 ONCA 110: [5]        A second appeal in summary conviction proceedings is the exception, not the rule. R. v. R.(R.) , 2008 ONCA 497, 90 O.R. (3d) 641. First, the matter in issue must raise a question of law alone. Even if the proposed appeal involves a question of law alone, there are only two types of cases in which leave to appeal may be granted. One is when the matter raised has significance to the administration of justice beyond the particular case and the grounds of appeal are at least arguable. The other is where the merits appear to be very strong – particularly if the conviction is serious and the appellant is facing a significant deprivation of his or her liberty. Do the grounds involve a question of law alone? [8] The first requirement is that the ground of appeal involves a question of law alone. The question for appeal proposed by the Crown is as follows: Does the mandatory minimum sentence of 90 days’ jail as provided by s. 163.1(4)(b) of the Criminal Code infringe s. 12 of the Charter of Rights and Freedoms ? [9] In my view, the question whether a mandatory minimum sentence required by the Criminal Code offends s. 12 of the Charter is a question of law. [10] Mr. Swaby has argued that in this case, the conclusions of the sentencing judge were inextricably bound to the factual context before the Court. The fact that the sentencing judge made certain factual findings in order to reach a decision on this point does not detract from the nature of the issue. The New Brunswick Court of Appeal considered a similar argument in R. v. Dunnett (1990), 62 CCC (3d) 14 at 18-19 (N.B.C.A.) and made the following comments in relation to a leave application under s. 839 of the Criminal Code : The legal rights protected by the Charter must always be considered in a factual context. They cannot arise in the abstract. The facts must be found by the trial Judge. Once the facts have been established by the trial Judge, an appellate court must consider the application of the Charter to those facts. The application of the facts as found by the trial Judge to the legal rights protected by the Charter involves, in my opinion, questions of law. As such, subject to leave being given, these questions are reviewable by this Court. [11] I conclude that I have the jurisdiction to grant leave to appeal on the ground advanced by the Crown. Is the issue one of importance? [12] Striking down a provision of the Criminal Code is a matter of considerable importance. The respondent does not suggest otherwise. Does the application meet the merits test? [13] The traditional merits test requires the leave judge to determine whether there is sufficient merit in the proposed appeal that it has a reasonable possibility of success. The respondent argues strongly that the summary conviction appeal judge considered the appropriate tests and that there is no merit to the proposed appeal. [14] I agree with the respondent that the judgment of the summary conviction appeal judge is thoughtful and well reasoned. However, in my view this application engages the principle set out by Justice Doherty in R. v. R.(R.) , 2008 ONCA 497 adopted by Frankel J.A. in the passage from Winfield to which I have referred: if the issues have significance to the administration of justice beyond the particular case, then leave to appeal may be granted even if the merits are not particularly strong, though the grounds must at least be arguable. [15] In relying on this passage, I do not mean to suggest that the merits of this appeal are not particularly strong. I take this as an indication that if the issues are of significance to the administration of justice beyond the specific case at bar, then as long as the issue is arguable it is not necessary to assess the merits of the appeal as closely as would be necessary if the legal issue was not likely to affect other parties not before the Court. [16] Here, the question whether a provision of the Criminal Code should be struck down as contrary to the Charter is a matter of considerable significance beyond the immediate case. If leave is denied, the decision of the summary conviction appeal judge will be binding in the Provincial Court and in the Supreme Court of British Columbia. While the section under consideration in this appeal has been amended to increase the mandatory minimum sentence, if the judgment sought to be appealed is correct, it will of necessity apply to the current provision in the Criminal Code . It may as well have application to other analogous offences with mandatory minimum sentences. I agree with the Crown that given the importance of the issue and the impact beyond the immediate parties, it should be a division of this Court that decides whether the mandatory minimum sentence in s. 163.1(4)(b) contravenes s. 12 of the Charter . [17] I am satisfied that it is at least arguable that a jail sentence of 90 days is not a grossly disproportionate penalty for the serious offence of possession of child pornography. As I am granting leave and the appeal will be heard by a division of this Court, I do not propose to say anything further about the merits of the appeal. [18] Accordingly, leave to appeal is granted on the following ground: Does the mandatory minimum sentence of 90 days’ jail as provided by s. 163.1(4)(b) of the Criminal Code infringe s. 12 of the Charter of Rights and Freedoms ? “The Honourable Mr. Justice Hunter”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Zakreski v. British Columbia Public School Employers’ Association, 2018 BCCA 43 Date: 20180126 Docket: CA44545 Between: Donna Zakreski Appellant (Petitioner) And British Columbia Public School Employers’ Association, The Board of School Trustees of School District No. 68 (Nanaimo), British Columbia Labour Relations Board Respondents (Respondents) Correction: The front cover was corrected on March 19, 2018. Before: The Honourable Mr. Justice Harris The Honourable Madam Justice Stromberg-Stein The Honourable Mr. Justice Willcock On appeal from: An order of the Supreme Court of British Columbia, dated June 8, 2017 ( Zakreski v. British Columbia Public School Employer’s Association , 2017 BCSC 1038, Vancouver Registry S153161). Oral Reasons for Judgment K. Zakreski appearing as agent for the appellant D. Zakreski Counsel for the Respondents BC Public School Employers’ Association & The Board of School Trustees of School District No. 68 (Nanaimo): P.A. Csiszar Counsel for the Respondent BC Labour Relations Board: J. O’Rourke Place and Date of Hearing: Vancouver, British Columbia January 23, 2018 Place and Date of Judgment: Vancouver, British Columbia January 26, 2018 Summary: This is an appeal of an order dismissing a petition for judicial review because it is plain and obvious the petition is bound to fail. Held: Appeal dismissed. The judge did not err in his analysis that the petition is bound to fail because, for the most part and in substance, it attempted to review decisions falling within the exclusive jurisdiction of the Labour Relations Board. To the extent the petition impugned decisions subject to judicial review, it is plain and obvious that the relevant decisions were not patently unreasonable. Applications to admit new evidence were also dismissed. [1] HARRIS J.A. : This is an appeal of an order dismissing a petition for judicial review, pursuant to Rule 9‑5(1) ( Supreme Court Civil Rules ), on the basis that it is plain and obvious that the petition is bound to fail. [2] The context of this appeal can be summarized briefly. [3] The appellant was a schoolteacher. Her employer terminated her employment for cause alleging misconduct and dishonesty relating to her claims for sick leave. [4] The appellant was a member of a union. The union grieved the decision to terminate her employment. Further to the collective agreement, the grievance was referred to arbitration. After a 10‑day arbitration, the arbitrator denied the grievance, concluding that the employer had just cause for discipline and termination. The arbitrator applied the settled Wm. Scott (Wm. Scott & Co. (Re) , [1976] B.C.L.R.B.D. No. 98) test in reaching her conclusion. The basis of the arbitrator’s decision is rooted in findings of credibility adverse to the appellant. [5] The union applied to the B.C. Labour Relations Board (the “Board”) for a review of the arbitrator’s decision. Such a review is provided for by s. 99(1) of the Labour Relations Code , R.S.B.C. 1996, c. 244 [ Code ], which stipulates the grounds on which the Board may set aside the award or provide other relief. That section reads: 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 express or implied in this Code or another Act dealing with labour relations. [6] The grounds on which an arbitration decision may be reviewed by the Board are circumscribed by the section. [7] The application for review alleged that the decision denied a fair hearing to a party and that the decision was inconsistent with the principles expressed in the Code . In support of these arguments, the union contended that the arbitrator made determinations of the appellant’s medical condition appropriately made by a medical professional, the decision was inconsistent with the Human Rights Code , R.S.B.C. 1996, c. 210, the arbitrator improperly relied on a perceived difference between medical accommodation and sick leave to the appellant’s detriment, and she confused two separate questions, namely, whether the appellant was entitled to medical leave and whether the appellant was deliberately dishonest. For the most part, the issues now raised on judicial review were not advanced before the Board on review. [8] The Board dismissed the application for review on December 11, 2014. It concluded that the arbitrator’s decision was not inconsistent with express or implied principles in the Code including human rights principles, there was no denial of a fair hearing, nor any palpable and overriding error in the arbitrator’s findings of fact. The Board recognized the extent to which the arbitration decision turned on a credibility assessment underlying a finding of dishonesty. [9] At this point, the union ceased to be involved in the appellant’s case. Acting on her own behalf, though now claiming to be an agent of the union, the appellant applied for leave to apply for a reconsideration of the Board’s review decision as permitted by s. 141(1) of the Code . It is important to note that the application is for leave to reconsider the Board’s review decision. It is not directly an application for a second review of the arbitration decision. Again, the section circumscribes the grounds on which a party affected by a decision may apply for leave. It provides: 141 (1) On application by any party affected by a decision of the board, the board may grant leave to that party to apply for reconsideration of the decision. (2) Leave to apply for reconsideration of a decision of the board may be granted if the party applying for leave satisfies the board that (a) evidence not available at the time of the original decision has become available, or (b) the decision of the board is inconsistent with the principles expressed or implied in this Code or in any other Act dealing with labour relations. (3) Leave to apply for reconsideration of a decision of the board under this section may be granted only once in respect of that decision. (4) Subsection (1) does not apply to a decision of the board to grant or deny leave under subsection (2) or to a decision made by the board on reconsideration. (5) An application under subsection (1) must be made within 15 days of the publication of the reasons for the decision that is the subject of the application. [10] It is of some moment to note that subsequent to her application, but out of time, the appellant filed further submissions. The Board, for reasons I will come to, dismissed the appellant’s application for leave for a reconsideration on January 30, 2015. I will refer to this decision as the “reconsideration decision”. Subsequently, on February 10, 2015, the appellant filed a second application with the Board for leave to apply for reconsideration under s. 141. That application was dismissed on February 19, 2015, on the basis that the statute provided for only one application for leave for reconsideration. I will refer to this decision as the final decision. [11] On April 20, 2015, the appellant filed a petition seeking judicial review of the arbitrator’s decision, the review decision, the reconsideration decision and the final decision. The petition was amended on September 13, 2016. The orders sought on judicial review are: a. an order declaring that BCLRB erred in law or exceeded its jurisdiction by making patently unreasonable decisions, or both, in making the Review Decision, Reconsideration Decision and Final Decision; b. an order that the “Board’s Decisions” (i.e., the Review Decision, Reconsideration Decision and Final Decision) be set aside and quashed; c. an order that the Arbitrator’s Decision be set aside and quashed, or alternatively, remitting the Union’s s. 99 application to the original panel that made the Review Decision for reconsideration with directions; and d. an order granting the appellant permission to enter and recover all personal property remaining at her former employer’s offices. [12] The grounds alleged to support the petition are: 1)         The Board erred in law or exceeded its jurisdiction by making patently unreasonable decision, or both, when it: a.   upheld the Korbin award as consistent with the principles expressed or implied in the Labour Relations Code ; b.   denied an agent to the grievance to proceed with a grievance under the Code ; c.   erred in recognizing confirmation bias in the William Scott & Co. test; d.   determined that arbitrators and the Board are competent medical diagnosticians; and e.   did not recognize FOIPPA as a statute dealing with labour law. [13] The petition was filed outside the 60‑day statutory limitation period to seek judicial review of the reconsideration decision, but within the limitation period to apply for judicial review of the final decision. In striking the petition as disclosing no reasonable claim for judicial review, the judge elected not to rely on the effluxion of the limitation period as a basis to dismiss the petition, even though on the record that would have provided a proper basis to dismiss the petition insofar as it related to the reconsideration decision. Rather, he chose to strike the petition on what he characterized as substantive grounds. I will proceed on the same basis. [14] The judge recognized that only the reconsideration decision and final decision were subject to judicial review. The Court had no jurisdiction directly to review the arbitration decision or the review decision since these matters by legislation fall within the exclusive jurisdiction of the Board. He identified the applicable standard of review as patent unreasonableness, not as the appellant argued before us, correctness. He then identified the test to apply on the application; namely, whether it is plain and obvious, assuming the facts alleged in the petition to be true, that the petition is bound to fail. [15] On the appeal of the order of the chambers judge, our first task is to determine whether the reviewing judge had chosen the correct standard of review. No deference is owed to the reviewing judge in relation to whether he selected the appropriate standard of review nor on the question of the test to be applied on the application before him. The judge answered each of these questions correctly ( B.C. Ferry and Marine Worker’s Union v. B.C. Ferry Services Inc. , 2012 BCSC 663, affirmed 2013 BCCA 497; Stark v. Vancouver School District No. 39 , 2006 BCCA 124 at paras. 4, 6, 7; Canada (Attorney General) v. Public Service Alliance of Canada , [1991] 1 S.C.R. 614; Gorenshtein v. British Columbia (Employment Standards Tribunal) , 2016 BCCA 457 at paras. 24‑26; Hunt v. Carey Canada Inc. , [1990] 2 S.C.R. 959; R. v. Imperial Tobacco Canada Ltd. , 2011 SCC 42). [16] The next question is whether the judge applied the standard of review correctly, and correctly answered the question whether it is plain and obvious the petition for judicial review is bound to fail. In my opinion, he did. [17] The judge concluded that the petition is bound to fail because the arguments advanced were, for the most part, properly understood to be in substance an attack on the arbitration or review decisions, not on those decisions the court has a jurisdiction to review. Those arguments in a variety of ways all call into question the fairness of the arbitration decision or the review decision. That is true in respect of the suggestion that the test applied by the arbitrator is inherently contaminated by “confirmation bias”, that privacy principles were not properly recognized in the arbitration, that there was no evidence in support of the arbitrator’s findings in relation to malingering, and that the appellant could resile from an agreement made by the union and the employer to call one witness to give medical evidence. I see no error in the judge’s conclusion and share the view that the petition seeks to impugn the arbitration and review decisions, both of which fall within the exclusive jurisdiction of the Board. As a result, the judge correctly concluded that it is plain and obvious the petition is bound to fail to the extent in substance it sought to impugn those decisions and, in effect, to attempt to reargue the case before the arbitrator. [18] Beyond this I propose to make only a few additional comments in respect of the reconsideration and final decision and the issue of new evidence. The grounds on which the Board may grant leave to apply for a reconsideration are either that evidence not available through reasonable diligence at the time of the original decision has become available, or that the decision of the Board is inconsistent with the principles expressed or implied in the Code or any other Act dealing with labour relations. In denying the appellant’s application, the Board recognized, at para. 11 of its reasons, that the onus is on an applicant to establish a good, arguable case of sufficient merit that may succeed on one of the established grounds for reconsideration. [19] The reconsideration Board dismissed the arguments advanced after the initial application on the basis that they were advanced out of time. Having reviewed the record, it is apparent that the Board was correct. That conclusion disposes of several of the arguments the appellant advanced and attempts to support her series of new evidence applications, including the Freedom of Information and Protection of Privacy Act , R.S.B.C. 1996, c. 165 [ FOIPPA ], argument, the confirmation bias argument, and the agency argument. Confirmation bias was not raised before the review Board. The paragraph in the union submission the appellant refers to suggesting it was in substance raised offers no support for her argument. Similarly, the FOIPPA argument was not raised, even if the union expressed its concern about the use made of social media evidence by the arbitrator in support of her credibility findings. The reconsideration Board expressed its view that these arguments were, in any event, without merit. I am satisfied that it is plain and obvious that a judicial review impugning those conclusions, either that the submissions were out of time or were unmeritorious, is bound to fail. [20] The reconsideration Board examined whether the appellant could resile from the agreement entered into by the union. It concluded she could not. The Board did not prevent the appellant carrying on the grievance. Whether she did so as an agent would not, in any event, affect the Board’s reasoning that the appellant could not resile from the agreement made by the union. The Board’s reasoning is cogent and rooted in the purposes and objectives of the statutory scheme. It is not patently unreasonable. It is plain and obvious that the judicial review is bound to fail. [21] The reconsideration Board also denied leave in respect of the proposed new evidence on the basis that the appellant could not meet the test for its admission because it was available by the exercise of reasonable diligence at the time of the arbitration and, in any event, was not sufficiently material to the issue before the arbitrator, given that the material issues related to adverse credibility findings. The reasoning in the decision is not patently unreasonable. It is plain and obvious that the petition is bound to fail. The same conclusion applies in respect of the final decision based on the application of s. 141(3) which dictates that there may be only one application for leave to reconsider the review decision. [22] To the extent that the petition for judicial review can be characterized as impugning the reconsideration or final decision, there is no arguable case that either is patently unreasonable in any relevant respect. It is plain and obvious that the petition is bound to fail. The chambers judge did not err in striking the petition. [23] I turn now to the various applications to introduce new evidence relating to such issues as alleged confirmation bias, perceived political influence with the Board, the assertion that the appellant acted as the union’s agent, as well as additional medical evidence bearing on the appellant’s medical condition and the perceived benefits of quilting. None of this evidence meets the test for admitting new evidence. All of it could have been tendered to the arbitrator or the review board, if it were admissible. An attempt to put the thrust of the new evidence before the reconsideration Board was rejected. No error in that conclusion has been demonstrated. Much of the “evidence” is in the nature of expert opinion evidence and has not, in any event, been tendered in admissible form. The proposed evidence fails the Palmer ( Palmer v. The Queen , [1980] 1 S.C.R. 759) test in a number of ways: it is not new evidence, it was available at the material time, it is not sufficiently material to the matters in dispute before the arbitrator so as to have likely affected the outcome, and it could not affect the outcome of the judicial review application. In any event, and quite apart from all of these deficiencies in the proffered evidence, I would decline in the circumstances of this case to exercise my discretion to admit any of the evidence on a judicial review, which generally is based on the record before the tribunal. [24] The appellant expresses frustration about the scheme for resolving disputes of the kind she became involved in. She contends that there is no adequate forum to raise the issues that concern her, particularly as they relate to a perceived unfairness or some kind of inherent or institutional bias. She considers the labour relations scheme to be unfair. But there are opportunities to raise valid concerns about procedural fairness, the test that should be applied in determining whether termination is for just cause, or to raise new issues if genuinely new evidence emerges. Those fora are before the arbitrator and then the review board with a limited right of reconsideration if leave is granted. If the appellant considered the test the arbitrator applied to be intrinsically flawed, the time to raise that issue was before the arbitrator. If a test was applied in a procedurally unfair manner, then the issue could be canvassed before the Board on a review. The union, in its representational capacity, chose the grounds it considered had sufficient merit to advance on review. It did not take the points the appellant wishes now to advance. The appellant’s complaint is either with the way the union represented her at the arbitration or on review or with the legislative scheme which confers exclusive jurisdiction to review arbitration awards on the board. The appellant did not challenge the constitutionality of the legislative scheme in a timely manner. The issue came up in reply: far too late and without proper notice. [25] For the foregoing reasons, no reviewable error has been demonstrated to underlie the judge’s order. It is plain and obvious that the judicial review is bound to fail. I would dismiss the appeal. [26] Costs ordinarily follow the event as a result of s. 23 of the Court of Appeal Act , R.S.B.C. 1996, c. 77. Typically, therefore, this Court does not comment on costs in its reasons for judgment. Here, the issue of costs was raised before us. I see no reason to depart from the ordinary rule. [27] The applications to admit new evidence are dismissed. The appeal is dismissed. The ordinary rule as to costs applies. [28] STROMBERG-STEIN J.A. : I agree. [29] WILLCOCK J.A. : I agree. “The Honourable Mr. Justice Harris”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Johnson v. Law Society of British Columbia, 2018 BCCA 40 Date: 20180129 Docket: CA43750 Between: Martin Drew Johnson Appellant And The Law Society of British Columbia Respondent Before: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Savage The Honourable Mr. Justice Hunter On appeal from:  A decision of the Benchers on Review, dated May 31, 2016 ( Law Society of British Columbia v. Johnson , 2016 LSBC 20). Oral Reasons for Judgment Counsel for the Appellant: T.C. Paisana Counsel for the Respondent: G.B. Gomery, Q.C. Place and Date of Hearing: Vancouver, British Columbia January 29, 2018 Place and Date of Judgment: Vancouver, British Columbia January 29, 2018 Summary: Appeal by J from a decision of a Law Society review board upholding a finding by a hearing panel that using profanity in a courthouse hallway in a heated conversation with a police officer constituted professional misconduct. J contends the board did not properly apply its internal correctness standard of review to the facts found by the panel and that, in any event, the board’s decision was unreasonable. Held: Appeal dismissed. The review board reviewed the facts found by the panel and independently determined J’s conduct was a marked departure from the conduct the Law Society expects of its members. That determination was a reasonable one. [1] FRANKEL J.A :  The appellant, Martin Drew Johnson, is a lawyer who was disciplined by the Law Society of British Columbia for using profanity in a courthouse hallway. A hearing panel found Mr. Johnson guilty of professional misconduct and a review board dismissed his appeal. Mr. Johnson now appeals to this Court. [2] The incident in question involved an interaction between Mr. Johnson and a police officer, Constable B, at the Kelowna courthouse. At that time, Mr. Johnson acted for a client who was being tried in Provincial Court on an assault charge. The complainant was the client’s estranged wife; Constable B was a potential Crown witness. [3] After the complainant completed her testimony, the trial adjourned for the afternoon break. Mr. Johnson and Crown counsel then had a discussion in which they agreed the appropriate disposition of the charge was for Mr. Johnson’s client to enter into a peace bond. As Crown counsel wished to speak with Constable B, he and Mr. Johnson met with the officer in the hallway outside the courtroom. No one else was in the immediate area. [4] What happened next can be stated as follows: (a)    Mr. Johnson asked Constable B to attend the former matrimonial home with his client while the client picked up a few of his belongings; (b)    Constable B refused; (c)     the situation between Constable B and Mr. Johnson became heated and volatile; (d)    Crown counsel intervened and suggested a solution that seemed workable to both sides; (e)    when Mr. Johnson asked Constable B if he could smell the marihuana in the house, Constable B replied, “Don’t for a minute think that I don’t know who you are or what you are about”; (f)     Mr. Johnson said “fuck you” to Constable B; (g)    at this point Mr. Johnson and Constable B came very close together, almost nose to nose. Their chests or stomachs were touching; (h)    Constable B said, “You don’t scare me, you big shot lawyer,” and he pointed out that their chests were touching. Constable B then said, “That’s assaulting a police officer”; (i)      Mr. Johnson said, “You are assaulting me,” to which Constable B replied, “You haven’t seen anything until you’ve seen an RCMP assaulted”; and (j)      Constable B then spun Mr. Johnson around, arrested him and, with the assistance of one of the sheriff’s officers, handcuffed Mr. Johnson. [5] Constable B sought to have Mr. Johnson charged with assault. The matter was referred to the Crown counsel office in Prince George, which declined to approve any charges. [6] A three-member hearing panel unanimously found Mr. Johnson’s use of the “F word” constituted professional misconduct, i.e., his conduct was “a marked departure from the conduct the Law Society expects of its members”: see The Law Society of British Columbia v. Martin , 2005 LSBC 16 at para. 171. The panel members, however, were not unanimous in their reasoning. [7] What divided the panel members was the concept of provocation. The majority, which found Mr. Johnson had acted in anger and meant to insult Constable B, stated provocation can never be used as a defence to uttering profanities in anger in a courthouse, as lawyers are expected to “rise above the fray”. The minority, on the other hand, stated the use of profanities can, in some circumstances, be excused. However, that panel member was of the view Constable B’s conduct did not excuse Mr. Johnson’s conduct. [8] Mr. Johnson appealed the finding of professional misconduct. Before the review board he argued the hearing panel erred in: (a)       concluding that provocation is “irrelevant” to a determination of professional misconduct; (b)       concluding that provocation should not be a defence or excuse to professional misconduct; and (c)        finding his actions constituted professional misconduct. [9] In reasons indexed as 2016 LSBC 20, a review board (6:1) dismissed that appeal. Both the majority and dissenting board members stated they were applying the correctness standard of review to the facts found by the hearing panel. I will return to the standard of review as it is one of Mr. Johnson’s grounds of appeal. [10] The majority of the review board held that provocation could not be used as a “defence” to an allegation of professional misconduct. Rather, it opined that provocation was only one of many possible factors to be considered on a case-by-case basis in determining whether professional misconduct had occurred. Turning to what transpired between Mr. Johnson and Constable B, the majority stated: [24]      Each case will have its own unique facts, and we will not set out here a test for what amount or quality of provocation is required to prevent what would otherwise be a finding of professional misconduct. Provocative words are so enmeshed in the context of what was said, who said it, how it was said, timing, intent, demeanour, who heard the words, who was intended to hear the words, cultural understandings and so forth, that it is impossible to lay down a rule here. Even using the qualifier by the minority that the provocation must be “extreme” is difficult to define. Again, this is best left with future hearing panels to determine should the issue arise again. [25]      In any event the words spoken by the officer (“Don't for a minute think I don't know who you are and what you're all about”) were found by the hearing panel to be insufficiently provocative. The hearing panel was in the best position to observe and determine this issue. There is nothing in the evidence to suggest any error in this conclusion. [26]      [Mr. Johnson] argued that such words were intended to impugn his character. This might be so, but many lawyers at some point in time have had an opposing party or hostile witness call into question their character. No doubt such comments sting, but to excuse [Mr. Johnson’s] reply to these provocative words in the circumstances of this case would send a message that it is permissible for counsel to trade an “insult for an insult.”  This cannot be countenanced. [11] In addition, at para. 30 of its reasons, the majority quoted with approval the following from the minority reasons of the hearing panel: [48]      I conclude that, while the remarks of [Mr. Johnson] are understandable, they are not excusable and constitute a marked departure from what the Law Society expects of its membership. I find that [Mr. Johnson’s] words constitute professional misconduct. I feel that a reasonable and proper response from [Mr. Johnson] was to say nothing further. He should have bitten his lip and walked away. [49]      The public’s confidence in their public institutions, such as the courts, and the integrity of the legal profession, are but a few of the underpinnings in safeguarding a free and democratic society. The use of profanity by [Mr. Johnson], a member of the legal profession and an officer of the court, towards a potential witness in a case within the confines of the courthouse and within the presence of others could have the effect of eroding public confidence in these bodies and constitutes behaviour that I believe must be rebuked. [51]      Even if litigation can occasionally be hostile, aggressive and even fierce, that does not, in our view, excuse the conduct of [Mr. Johnson]. If indeed the practice of litigation has become aggressive and fierce, then it becomes even more important that the Law Society, to the extent it can, control and limit the type of behaviour that constitutes a marked departure from the conduct it expects from its members. [12] The dissenting review board member found the hearing panel had erred in disregarding Constable B’s conduct and that, under the circumstances, Mr. Johnson’s conduct, although wrongful, was excusable. [13] Mr. Johnson now advances two grounds of appeal. These are stated as follows in his factum: i.       The Majority of the Review Board erred in applying an incorrect standard of review; and ii.       The Decision of the Majority of the Review Board was unreasonable. [14] The first ground relates to what is sometimes referred to as the “internal standard of review”. At the outset of its reasons the majority said this with respect to that standard: [4]        It was agreed by both parties that the standard of review is “correctness.”  This applies to both the finding of professional misconduct and the penalty imposed. Although this Review Panel is bound by the findings of fact made by the hearing panel, if the hearing panel applied the law in error and reached the wrong conclusion or determination, the Review Panel may “correct” this with its own determination (see Law Society of BC v. Foo , 2015 LSBC. 34 at paragraph 9; Law Society of BC v. Harding , 2015 LSBC 45 at paragraph 23). [15] As discussed in Harding v. Law Society of British Columbia , 2017 BCCA 171, 98 B.C.L.R. (5th) 275, Law Society review boards have with rare exceptions, applied what has come to be known as the “ Hordal/Berge standard”, named after the decisions in Law Society of British Columbia v. Hordal , 2004 LSBC 36, and Law Society of British Columbia v. Berge , 2007 LSBC 7. In Harding , Justice Kirkpatrick described that standard as follows (at para 6): [T]he standard is correctness, except where the hearing panel has heard viva voce testimony and had the opportunity to assess witnesses’ credibility, in which case the review board should show deference to the hearing panel’s findings of fact. [16] Mr. Johnson does not challenge the Hordal/Berge standard. His complaint is that the review board’s reference to that standard was nothing more than “boilerplate”. Mr. Johnson says the majority of the board did not conduct its own correctness assessment of the facts but, rather, limited its consideration to whether the hearing panel’s finding of professional misconduct was reasonable. In support of this submission, Mr. Johnson places emphasis on certain passages from the majority reasons. [17] I am unable to accept this argument. When the majority reasons are read as a whole, it is apparent that it based its decision on an independent assessment of the facts found by the hearing panel. In other words, the majority applied the correctness standard required by Hordal/Berge . [18] Mr. Johnson next says that even if the majority applied the proper standard of review, its decision is unreasonable. It is settled law that the reasonableness standard of review applies on an appeal to this Court from a disciplinary decision: Harding at para. 5. [19] Recently, in Foo v. Law Society of British Columbia , 2017 BCCA 151, 97 B.C.L.R. (5th) 148, this Court upheld a review board’s finding of professional misconduct against a lawyer who, in a courthouse hallway, told a social worker whom he did not know, that he “should shoot” her, because “she takes away too many kids”. In discussing the deference owed to the board’s decision (at para. 48), I quoted the following from the judgment of Justice D. Smith in Salway v. Association of Professional Engineers and Geoscientists of British Columbia , 2010 BCCA 94, 3 B.C.L.R. (5th) 213, leave to appeal ref’d [2010] 2 S.C.R. vii: [32]      The reasonableness standard of review acknowledges that there is “a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. Reasonableness requires courts to give deference to a professional body’s interpretation of its own professional standards so long as it is justified, transparent and intelligible. … [I]t is the disciplinary body of the professional organization that sets the professional standards for that organization. So long as its decision is within the range of reasonable outcomes—i.e., it is justified, transparent and intelligible—it is not for courts to substitute their view of whether a member’s conduct amounts to professional misconduct. [20] With respect to law societies in particular, it has long been accepted that “benchers are in the best position to determine issues of misconduct and incompetence”: Pearlman v. The Manitoba Law Society Judicial Committee , [1991] 2 S.C.R. 869 at 880 ( per Iacobbuci J.). As Justice MacFarlane stated in Wilson v. Law Society of British Columbia (1986), 33 D.L.R. (4th) 572 at 575 – 576 (B.C.C.A): What is and what is not professional misconduct is a matter for the benchers to determine, and the court must be very careful not to interfere with the decision of the benchers for their decision is, in theory, based on a professional standard which only they, being members of the profession, can properly apply. [21] I do not accept Mr. Johnson’s argument that the review board took what he describes as a “categorical approach”, namely that any lawyer who swears in anger in a courthouse will automatically be guilty of professional misconduct. It is clear from the majority’s reasons that it proceeded on the basis that each case is to be decided on its particular facts. [22] In this case, the board took all of the circumstances into account. Those circumstances include Constable B’s inappropriate behaviour and its effect on Mr. Johnson, that Constable B was a potential witness in the trial in which Mr. Johnson was then engaged, and that the incident occurred in the hallway of a courthouse. Having done so, the majority concluded Mr. Johnson’s use of profanity constituted a marked departure from the conduct the Law Society expects from its members. With reference to the language used in Salway to describe the application of the reasonableness standard in the context of a professional discipline body, I am unable to say the majority’s decision falls outside the range of acceptable and defensible results. [23] I would dismiss this appeal. [24] SAVAGE J.A. : I agree. [25] HUNTER J.A. : I agree. [26] FRANKEL J.A. : The appeal is dismissed. “The Honourable Mr. Justice Frankel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Rousta v. MacKay, 2018 BCCA 29 Date: 20180129 Docket: CA44447 Between: Yassaman Rousta Appellant (Plaintiff) And Sabrina W. MacKay Respondent (Defendant) Before: The Honourable Chief Justice Bauman The Honourable Mr. Justice Lowry The Honourable Mr. Justice Savage On appeal from:  An order of the Supreme Court of British Columbia, dated April 20, 2017 ( Rousta v. MacKay , 2017 BCSC 644, Vancouver Registry M151252). Counsel for the Appellant: F.E. Hayman Counsel for the Respondent: S. Schwartz G. Crouch Place and Date of Hearing: Vancouver, British Columbia January 10, 2018 Place and Date of Judgment: Vancouver, British Columbia January 29, 2018 Written Reasons by: The Honourable Mr. Justice Savage Concurred in by: The Honourable Chief Justice Bauman The Honourable Mr. Justice Lowry Summary: The appellant, Ms. Rousta, was injured in a motor vehicle accident. She appeals an order dismissing her claim for past loss of earning capacity and limiting her award for future loss of earning capacity to $100,000 in relation to the prospects of her business venture. Ms. Rousta submits that the judge considered the wrong standard of proof for assessing loss of past earning capacity, and in wrongly giving no weight to an expert report favourable to her cause. Held: appeal dismissed. While the judge incorrectly articulated the standard of proof for assessing the likelihood of past hypothetical events, stating it was the balance of probabilities standard as opposed to the “real and substantial possibility” threshold, this error was not material because the judge appropriately concluded the expert report did not rise above the level of speculation. Ms. Rousta’s evidence therefore did not meet the requisite standard of proof. Given the judge’s inability to place weight on the expert report, it was appropriate for him to assess loss of future earning capacity in the manner he did. Reasons for Judgment of the Honourable Mr. Justice Savage: I. Introduction [1] Ms. Yassaman Rousta appeals the order of Mr. Justice Skolrood, submitting he erred (1) in dismissing her claim for past loss of income earning capacity, and (2) in awarding her $100,000 for loss of future income earning capacity. She submits the amount of the award for future income earning capacity was too low. [2] Ms. Rousta says the judge erred in applying the wrong standard of proof regarding past earning capacity, in wrongly giving no weight to the evidence of Dr. Silk, an expert witness favourable to her cause, and in failing to consider important facts concerning her potential for earning income contained in Dr. Silk’s report. [3] The respondent, Ms. MacKay, concedes that the judge erred in articulating the test applicable to proof of past loss of income earning capacity, but says that the wrong articulation of the test was not material to the outcome. The respondent submits the judge considered the evidence presented, including the evidence of Dr. Silk, but found that the assumptions on which it was based were unproven and speculative, and therefore properly gave the report no weight. [4] For the reasons that follow, I would dismiss the appeal. II. Background [5] On December 4, 2013, Ms. Rousta was injured in an automobile accident in West Vancouver, when her car was hit from behind while she was stopped at an intersection. Ms. Rousta suffered significant injuries, for which the respondent was found liable. After an approximately three-week long trial, Ms. Rousta was awarded $110,000 in non‑pecuniary damages, $85,000 for the cost of future care, and over $18,000 in special damages. None of these awards are contested on appeal. [6] The most controversial issue at trial was whether Ms. Rousta should receive an award for loss of past and future earning capacity, and if so, in what amount, in relation to the new launch of a business venture called “Néange”. Néange is a line of beauty products, namely face creams, developed by Ms. Rousta. [7] Ms. Rousta presented evidence which she said supported an award of between $8.6 million and $10.9 million, conservatively estimated, for her loss of past and future earning capacity. However, the judge rejected the evidence of Ms. Rousta’s principal expert, Dr. Silk, whose calculations of her loss he found to be both speculative and unproven. The judge declined to make an award for loss of past earning capacity, and made an award for loss of future earning capacity of $100,000, relying on past decisions of this Court. [8] The judge found that the plaintiff suffered soft tissue injuries to her neck, shoulders and back, as well as an injury to her right hip as a result of the accident. He accepted her evidence that she still experiences pain in these areas, but has a full range of motion in her neck and back. He found that the injuries “will continue to cause her some pain and discomfort but are not by themselves disabling” (RFJ, para. 80). [9] The judge considered her other symptoms, namely balance and coordination issues, headaches, sleep disturbance and resulting fatigue. He concluded that her ability to work to the same capacity was affected but she has “some residual capacity that would enable her to operate Néange to some degree” (RFJ, para. 130). He did not accept that “she cannot do anything to develop the business, which is what has essentially happened since the accident” (RFJ, para. 132). [10] With respect to the claim for past loss of income the judge said: [133]    Where does this leave the court in terms of assessing the plaintiff’s claims for loss of past and future earning capacity? With respect to the past loss claim, the evidence does not satisfy me that Néange would have become a profitable business in the time period between the date of the accident and the date of trial. I do not accept that the business was ready to launch in January 2014, given that no seminars had been scheduled and, according to Ms. Travers, the presentation was not completed until late January or February. I do accept that at some point in 2014, the plaintiff would have held some additional seminars but the evidence simply does not support a finding that the business would have become profitable by the end of 2016. I therefore decline to make any award for past loss of earning capacity. [11] With respect to loss of future income earning capacity the judge said: [134]    With respect to the claim for future loss, I have found that the plaintiff is unable to work to the same degree as before the accident and, as such, her capacity to earn income is diminished. However, I have also found that I am unable to place any weight on Dr. Silk’s opinion concerning the value of that diminution. [135]    In the circumstances, I adopt the approach taken in Gojevic v. Philpott , 2001 BCSC 748, aff’d 2002 BCCA 483. There, the plaintiff advanced a claim for loss of future earning capacity based on her inability to pursue and build her business of selling women’s clothing through a direct home sales model, similar to the plaintiff’s model for Néange, due to her injuries suffered in the accident. There, as in this case, the plaintiff had made no money from the business prior to the accident. The evidence in that case was that the plaintiff also worked as a nurse but saw the clothing business as something in the future she could build into a viable business. [12] In Gojevic , the judge awarded $100,000 for loss of future earning capacity. That award was upheld on appeal. Although the award was made in 2001, and therefore the passage of time would support a higher award today, the plaintiff in Gojevic was 34 at the time of the accident and had a much longer working life ahead of her than Ms. Rousta, who was 59 at the time of the accident. The judge therefore concluded that an award of $100,000 would be reasonable for Ms. Rousta’s loss of future earning capacity. III. Test for Past Loss of Income Earning Capacity [13] With respect to past loss of income earning capacity, the judge quoted from Ostrikoff v. Oliveira, 2015 BCCA 351, saying: [103]    In Ostrikoff v. Oliveira , 2015 BCCA 351 [ Ostrikoff ] , the Court of Appeal considered claims for past and future income loss based on projected earnings from a business formed shortly before the accident. [104]    In dealing with the past income claim, Madam Justice Saunders said at para. 21: it remains true that it is for the plaintiff to prove a claim for past loss of earning capacity on a balance of probabilities, and that an award must keep in touch with the evidence before the court. It seems to me that the judge himself, in saying a projection of increased income would be speculation, recognized that past income capacity loss predicated on increasing earnings was not proved to the requisite standard. [14] The test to be applied to hypothetical events , past and future, is whether there is a real and substantial possibility that the events in question would occur. [15] In Grewal v. Naumann , 2017 BCCA 158, the Court described the principles underlying this approach as follows: [42]      The trial judge commenced his analysis by setting out the principles that govern awards concerning past loss of opportunity and diminished earning capacity: [134]    The essential purpose of an award for past loss of opportunity and diminished earning capacity is to provide the plaintiff with full compensation for all of his pecuniary losses, subject to rules of remoteness and mitigation: Andrews v. Grand & Toy Alberta Ltd. , (1978), 83 D.L.R. (3d) 452, [1978] 2 S.C.R. 229, [1978] 1 W.W.R. 577, 8 A.R. 182, 3 C.C.L.T. 225, 19 N.R. 50. It is to restore, as best as is possible with a monetary award, an injured plaintiff to the same position he or she would have been in had the negligence not occurred. It is the difference between the plaintiff’s original position just before occurrence of the negligent act or omission, and the injured position after and as a result of such act or omission, that comprises the plaintiff’s loss: Athey v. Leonati , [1996] 3 S.C.R. 458 at paras. 34‑35. [135]    As an initial threshold issue, the plaintiff must demonstrate both impairment to his or her earning capacity and that, in this case, there is a real and substantial possibility that the diminishment in earning capacity will result in a pecuniary loss. It is not to be an exercise in the abstract though at the same time is described in Andrews v. Grand & Toy Alberta Ltd. , as “gazing deeply into the crystal ball”. If established, quantification of the loss can be by either an earnings approach or a capital asset approach: Perren v. Lalari , 2010 BCCA 140 at para. 32. [136]    In Brown v. Golaiy , (1985), 26 B.C.L.R. (3d) 353 (S.C.), Finch J. as he then was stated: The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether: 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. [137]    Under any approach to assessing damages, the court is to make an assessment as opposed to applying a mechanical mathematical or statistical exercise. [138]    Ultimately, the court must base its decision on what is fair and reasonable in all the circumstances: Parypa v. Wickware , 1999 BCCA 88. [16] In its analysis of the error below, the Court in Grewal said this: [43] The appellants submit that the trial judge erred and applied an incorrect lesser burden of proof in his analysis of Mr. Grewal’s claim for loss of past income earning capacity. They rely on this Court’s comments in Reynolds v. M. Sanghera & Sons Trucking Ltd. , 2015 BCCA 232 at paras. 15‑16 and in Osterkoff v. Oliveria , 2015 BCCA 351 at para. 15. Both cases suggest that the plaintiff’s task in respect of past loss of earning capacity is to prove that loss on a balance of probabilities as contrasted with the task in claiming future loss of earning capacity, which requires a plaintiff establish a real and substantial possibility of a future event occurring that could result in the plaintiff’s loss of earning capacity. [44] With respect, I cannot agree. The appellants’ submission conflates the way courts deal with alleged past events and the way courts deal with hypothetical events, past or future. This fundamental distinction was explained in Athey v. Leonati , [1996] 3 S.C.R. 458: [27]      Hypothetical events (such as how the plaintiff’s life would have proceeded without the tortious injury) or future events need not be proven on a balance of probabilities. Instead, they are simply given weight according to their relative likelihood: Mallett v. McMonagle , [1970] A.C. 166 (H.L.); Malec v. J. C. Hutton Proprietary Ltd. (1990), 169 C.L.R. 638 (Aust. H.C.); Janiak v. Ippolito , [1985] 1 S.C.R. 146. For example, if there is a 30 percent chance that the plaintiff’s injuries will worsen, then the damage award may be increased by 30 percent of the anticipated extra damages to reflect that risk. A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation: Schrump v. Koot (1977), 18 O.R. (2d) 337 (C.A.); Graham v. Rourke (1990), 74 D.L.R. (4th) 1 (Ont. C.A.). [28]      By contrast, past events must be proven, and once proven they are treated as certainties. In a negligence action, the court must declare whether the defendant was negligent, and that conclusion cannot be couched in terms of probabilities. Likewise, the negligent conduct either was or was not a cause of the injury. The court must decide, on the available evidence, whether the thing alleged has been proven; if it has, it is accepted as a certainty: Mallett v. McMonagle, supra ; Malec v. J. C. Hutton Proprietary Ltd., supra , Cooper-Stephenson, supra , at pp. 67–81. [29]      This point was expressed by Lord Diplock in Mallett v. McMonagle, supra , at p. 176: The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards. [45] The governing authority in this Court is Smith v. Knudsen , 2004 BCCA 613. In Smith , this Court, after an extensive review of the authorities, rejected the proposition that a claim for past loss of opportunity had to be established on a balance of probabilities. Rowles J.A. wrote for the court. She explained that the plaintiff in the first instance was required to establish both liability and causation on a balance of probabilities. This required the plaintiff to establish that the respondent's negligence, in whole or in part, caused the accident, and that the injuries the appellant sustained in the accident caused or contributed to the loss for which damages were sought (para. 26). [46] Rowles J.A. then went on to discuss the assessment of damages. She noted that the same test applies regardless of whether you are assessing past or future loss of earning capacity. In both situations the judge is considering hypothetical events. She reasoned: [29]      … What would have happened in the past but for the injury is no more “knowable” than what will happen in the future and therefore it is appropriate to assess the likelihood of hypothetical and future events rather than applying the balance of probabilities test that is applied with respect to past actual events. [17] As can be seen from the above, the standard for the proof for hypothetical past events, like hypothetical future events, is the lesser “real and substantial possibility” threshold. This standard can be contrasted with the standard of proof for past events, which is on the ordinary civil balance of probabilities standard, and alleged events which do not rise to the “real and substantial possibility” standard because they constitute mere speculation. [18] In his analysis, the judge considered the evidence led regarding Néange’s prospects, and concluded that the evidence regarding the business was, at best, speculative. The judge held Dr. Silk’s “projections do not rise above the level of speculation” (RFJ, para. 109). Accordingly, he determined no award for past income loss was merited and rejected Dr. Silk’s analysis with respect to loss of future earning capacity. [19] Ms. Rousta submits that the incorrect articulation of the test relating to past income loss infected the judge’s approach to loss of future earning capacity. That is because, in part, the method used to prove such alleged losses was based on the expert analysis of Dr. Silk. Ms. Rousta argues that in the circumstances of this case it was, at the very least, appropriate to assess her losses with reference to Dr. Silk’s report. In oral argument she submitted they should be assessed as a percentage of the range provided by Dr. Silk’s report. [20] In my view, if Néange’s prospects, as described by Dr. Silk, did not rise to the level of a “real and substantial possibility”, as they were merely speculative, then the judge’s wrongful articulation of the test was not material to the outcome of the case. It is necessary, therefore, to consider whether the judge made a palpable and overriding error in finding that the earnings approach proffered did not rise above the level of speculation. IV. Past and Future Earning Capacity Claims [21] The judge concluded that the analysis of Dr. Silk did not rise above the level of speculation for three principal reasons: (1) consideration of the evidence regarding the development of the business opportunity up the point of injury, (2) the failure to address key elements of a successful business plan, and (3) the basic assumption that postulated the plaintiff was unable to pursue the opportunity as a result of her injury. In the result, he found the report unhelpful and afforded it no weight in his analysis of the losses. [22] Ms. Rousta argues that it was an error for the judge to admit the report and then to give it no weight. However, as the judge correctly noted, the admissibility of expert evidence is a different inquiry than the weight to be given to such a report (RFJ, para. 118). Simply put, an expert report may be admissible, but its conclusions rejected or afforded no weight. [23] I turn now to the judge’s analysis of Dr. Silk’s expert report, and his related consideration of past and future earning capacity. (1)  Past Business Performance [24] Ms. Rousta submitted that she had been working on this business for some 10 years prior to the motor vehicle accident. Ms. Rousta estimated she had spent over $350,000 of her own money in development. Notwithstanding those efforts, the actual performance of the business had not proven financially viable. [25] For the years 2006 to 2014, the business had accumulated deficits of $276,813 and had not in any year broke even or generated a profit. During its best year (2006), Néange had a net loss of $12,349, and, in the most recent pre‑accident year (2013), it had a net loss of $36,469 (RFJ, para. 35). [26] With respect to the past performance of the business, the judge said: [123] A second concern with Dr. Silk’s report is that it ignores that past earnings performance of Néange which, as noted previously, had accumulated losses of about $250,000 by June 30, 2013, the last fiscal year before the accident. Dr. Silk’s explanation for not considering past performance was that the plaintiff had not previously identified a preferred sales methodology. That may be so, but it is difficult to accept that past performance is wholly irrelevant to future success. [27] Ms. Rousta, however, submits that past performance in this case is not a good indicator of the viability of the business, because she is a perfectionist and the preferred sales methodology was not determined until 2011. However, the judge found that she did not work full time on the business and found that the desultory progress called into question her commitment. The judge said: [128]    Two other factors undermine the plaintiff’s income loss claims as presented. First, it is apparent on the evidence that she did not work full-time on developing Néange since leaving Dior in 2004. While there was clearly considerable time spent initially developing the products and sourcing suppliers, subsequent efforts to market and sell the products were somewhat sporadic. That is particularly so in the years since 2009, which was the year that sales revenues peaked at approximately $46,000. The following year, sales revenues fell precipitously to $3,429, which the plaintiff attributed to the recession and to the loss of her U.S. distributor. However, apart from attending one trade show and talking to two shopping channels, the plaintiff appears to have taken minimal steps to build the business or recapture the market that she had developed in the U.S. [129]    Further, the plaintiff did not adequately explain why, after the successful 2011 seminar that led her to focus on a direct sales model, she did not do more to pursue that model immediately; for example, she did not explain why her home seminar presentation was not completed until early 2014. The clear impression is that it is because she was not in fact working on Néange full-time. This calls into question her commitment to spending the time and effort necessary to build the business to the degree contemplated by Dr. Silk’s projections. [28] It cannot be said that the judge erred by considering past business performance and the desultory progress of the business as factors worthy of significant consideration in determining whether the losses proposed by Ms. Rousta rose above the level of speculation. He considered, and rejected, Dr. Silk’s reasons for not factoring in this past performance. In this case, the evidence was that Ms. Rousta had worked on N é ange for some 10 years and it had never been profitable. In my view, it was open for the judge to consider this as a factor in rejecting the analysis as not rising above speculation. (2)  Business / Business Plan [29] Ms. Rousta represented that significant initiatives by Néange were incipient as of the date of the accident. She had spent many years considering and developing her business, and her evidence was that she intended to newly launch Néange with seminars beginning in January 2014, within a month or two of the accident. [30] In relation to her business plan, Ms. Rousta submitted that she had two key employees to assist her in the business, Wendy Travers, who was to assist in presentation development, and Sima Hirbod, who would give seminars. Both of these persons figured significantly in the assumptions made by Dr. Silk. [31] With respect to Ms. Travers, Dr. Silk said: 22.       In October 2013, Ms. Travers moved from Paris to Vancouver for the purpose of working with Ms. Rousta in launching Néange. During the next few months, she settled into a condo, renovated it, and worked very closely with Ms. Rousta in developing the seminar presentation. She put in an average of 25 hours per week working on Néange. She anticipated being able to support herself financially through the sales of Néange products. [32] With respect to roles of Ms. Travers and Ms. Hirbod, Dr. Silk said: 30.       Starting in January 2014, Ms. Rousta planned on holding six seminars per month for the first two months. Néange had three people committed to delivering the seminars: Ms. Rousta, Ms. Travers, and Sima Hirbod, a former dermatologist office assistant who also worked as an esthetician. The 12 sessions held in the first two months would be conducted by Ms. Rousta and Ms. Travers with Sima Hirbod attending to observe, learn and help refine the presentation. Starting in the third month, Ms. Rousta, Ms. Travers and Sima Hirbod would deliver 6 seminars each for a total of 18 seminars per month. Thereafter, they would each continue delivering 6 seminars per month. [33] However, the judge found that Ms. Travers intended to participate only to supplement her income from other sources and the fact that she left to find other employment within three months of the accident was indicative of her level of commitment to the business (RFJ, para. 113). [34] In cross-examination, Ms. Hirbod described her proposed role in the following way: Q         Did, ah, Ms. Rousta ever ask you to present a sales seminar in someone’s home? A          Ah, she told me that’s her plan, but, of course, (indiscernible) told her, so I don’t have any friends or I don’t have that opportunity to I can threw a party or seminar in my home or my friends. Q         And -- and why did you say that? A          Why? Q         Yeah. A          So because I didn’t have that opportunity. Q         Sorry, and -- but what -- what do you mean by you didn’t have the opportunity? A          So I didn’t have that chance to threw a party at my home, or any of my friends didn’t, they were not interested. Q         Your -- your friends were not interested? A          No. [35] The judge held that Ms. Hirbod “appeared to know little about the products and she showed minimal interest in hosting or presenting at seminars” (RFJ, para. 114). [36] Ms. Rousta’s plan, as outlined by Dr. Silk, required the holding of seminars conducted by sales associates to interested customers. The plan was to hold 462 seminars by the end of year one, 1650 seminars by the end of year two, 3702 seminars by the end of year three, 6,618 seminars by the end of year four, with projected attendance growing from 5,544 persons in year one to 79,416 by the end of year four. [37] Despite these outlined plans, the judge found that as of December 2013 no seminars had actually been scheduled and no hosts had been recruited. Moreover, Ms. Rousta had only held one informally organized seminar in 2011 (RFJ, para. 111). [38] With respect to Ms. Rousta’s plan to recruit and retain sales associates, the judge found it to be both “vague” and “unrealistic” (RFJ, para. 111). As the judge noted, the assumption that Ms. Rousta could have recruited and retained the projected number of sales associates and held the projected number of seminars underpinned Dr. Silk’s analysis (RFJ, para. 110). [39] Ms. Rousta objects to the characterization of her plan by the judge. She testified to doing significant seasonal hiring for sales staff for cosmetic firms in the past, and as a component of her prior employment. While that may be so, Ms. Rousta testified as follows regarding her actual scheduling efforts prior to the accident: In addition to that, I had talked to six of my friends would -- that they had -- said they were completely open to host a place -- a party at their place. Or seminar, if you want to call it. [40] The judge further found that no evidence was led to show how Ms. Rousta or Néange “would be able to support the hosts and sales associates” or “manage and distribute the products purchased” (RFJ, para. 115). [41] In arguing her case before us, Ms. Rousta points to passages in the evidence which she says supports her contention that she considered many issues connected with the successful launch of her business, and that she herself possessed qualities that would make that business successful. For example, she points to evidence that part of the distribution plan was that sales associates would pick up supplies from Ms. Rousta who stored them in her garage. [42] Although Ms. Rousta had a supply of N é ange products in her garage, there was no evidence that Ms. Rousta “had been in contact with the supplier in recent years to determine if it could or would supply the anticipated increased volumes” (RFJ, para. 117). In response to Dr. Silk’s projected expansion of the business beyond British Columbia’s lower mainland, the judge noted that there was no evidence about “how products would be distributed throughout that expanded network” (RFJ, para. 116). [43] In this case, the findings of the trial judge, absent an error in principle, or a wholly erroneous estimate based on an inordinately high or low award, are entitled to deference: Reynolds v. M. Sanghera & Sons Trucking Ltd. , 2015 BCCA 232 at para. 14. Absent a manifest or palpable and overriding error, an appellate court should not interfere with a trial judge’s assessment of damages: Jarmson v. Jacobsen , 2013 BCCA 285 at para. 14; Fan v. Chana , 2011 BCCA 516 at para. 13. [44] It is not the role of this Court to reweigh the evidence in respect of the inference-drawing process. As set out in Nelson (City) v. Mowatt , 2017 SCC 8 at para. 38: It is certainly possible to weigh parts of the evidence differently than the chambers judge did. The possibility of alternative findings based on different ascriptions of weight is, however, not unusual, and presents no basis for overturning the findings of a fact-finder. It is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence . Absent palpable and overriding error — that is, absent an error that is “plainly seen” and has affected the result — an appellate court may not upset a factfinder’s findings of fact ( Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 6 and 10; see also H.L. v. Canada (Attorney General) , 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 55). The standard of palpable and overriding error applies with respect to the underlying facts relied upon by the Trial Judge to draw an inference, and to the inference-drawing process itself ( Housen , at para. 23). [Emphasis added.] [45] In contrast to N é ange’s actual desultory track record, the envisioned business was a multimillion-dollar enterprise with hundreds of sales associates in several countries. In my view, it was open to the judge to conclude that the evidence, considered as a whole, did not rise to the requisite “real and substantial possibility” threshold. (3)  Impact of Injury on Business [46] The judge also found that Ms. Rousta was not so disabled as to preclude her from pursuing the business in any event. While he accepted that her injuries would impact her ability to work to the same level as she could prior to the accident, she retained a residual capacity to work. In support of this finding, the judge noted her success in participating in the seminars organized by Dr. Silk ( RFJ, paras. 130‑31). V. Conclusion [47] While Ms. Rousta emphasizes the trial judge’s incorrect articulation of the test for past loss of earning capacity at the beginning of his analysis, I have concluded that the error was not material to his reasons, as he found that the track record of Néange did not support a past income loss claim nor, as presented by the evidence of Dr. Silk, present a scenario rising above the level of speculation for a loss of future earning capacity award. [48] Given his inability to place weight on Dr. Silk’s expert opinion, the judge chose to assess damages for loss of future earning capacity in a manner similar to that accepted by this Court in Gojevic , taking into consideration the date of that award and the relative age of Ms. Rousta, as discussed above. I see no error in that. [49] It is, then, for these reasons I would dismiss the appeal. “The Honourable Mr. Justice Savage” I agree: “The Honourable Chief Justice Bauman” I agree: “The Honourable Mr. Justice Lowry”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Leatherman v. 0969708 B.C. Ltd., 2018 BCCA 33 Date: 20180130 Docket: CA44488 Between: Charles Brooke Leatherman and Sandra Lea Leatherman Respondents (Petitioners) And 0969708 B.C. Ltd. and Kootenay Lake Estates Ltd. Appellants (Respondents) And Oliver Berkeley and Her Majesty the Queen in Right of Canada Respondents (Respondents) Before: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Willcock The Honourable Mr. Justice Savage On appeal from:  An order of the Supreme Court of British Columbia, dated May 15, 2017 ( Leatherman v. 0969708 BC Ltd. , 2017 BCSC 793, Nelson Registry H19731). Counsel for the Appellants: T.W. Pearkes Counsel for the Respondents: A.A. Edgar Place and Date of Hearing: Vancouver, British Columbia January 8, 2018 Place and Date of Judgment: Vancouver, British Columbia January 30, 2018 Written Reasons by: The Honourable Mr. Justice Savage Concurred in by: The Honourable Mr. Justice Lowry The Honourable Mr. Justice Willcock Summary: Appeal from an order granting foreclosure to the respondent mortgagees. The appellant mortgagors say the respondents commenced the underlying action more than two years after they discovered their right to realize on the mortgage security and therefore, the proceeding was filed out of time as s. 15, not s. 14, of the Limitation Act applied. Because of his findings, the judge did not determine whether the limitation periods had been postponed. Held: Appeal allowed in part. Under the mortgage the covenant to pay was a demand obligation, s. 14 applied, and had not tolled. Subject to postponement (1) the interest payments, due annually, were not demand obligations, and therefore the mortgagees were barred from suing to recover payments missed more than two years prior to the commencement of the action, and (2) the ability to realize on the security was governed by s. 15 of the Act and was time barred as the mortgagees’ right to realize on the security arose more than two years prior to commencement of the action. The matter is remitted to the court below to determine whether the running of the limitation periods were postponed. Reasons for Judgment of the Honourable Mr. Justice Savage: I. Introduction [1] This appeal arises out a mortgage transaction between former friends. The central issue in the appeal is whether the debt and the mortgage security were demand obligations, in which case they would be subject to the limitation period prescribed by s. 14 of the Limitation Act , S.B.C. 2012, c. 13 [ Act ], as found by the judge below. [2] The appellant mortgagors say that the obligations were contingent obligations and s. 15 of the Act applies. Since the respondent mortgagees commenced this proceeding more than two years after they discovered their right to realize on the mortgage security, the proceeding was filed out of time. The appellants therefore submit that the appeal must be allowed and remitted for a trial of the issue that the borrowers acknowledged liability, and thereby postponed running of the limitation period, a matter not determined by the chambers judge. [3] The respondent mortgagees say that the obligations were demand obligations. The failure of the mortgagors to comply with their demand for payment triggered the running of the limitation period pursuant to s. 14 of the Act . The decision of the chambers judge should be upheld and the appeal dismissed. Alternatively, the mortgagees say this Court should find that the mortgagors confirmed the cause of action within the meaning of s. 24 of the Act , thereby postponing the running of the limitation period, and the appeal should be dismissed. II. Background [4] On May 28, 2013, Kootenay Lake Estates Ltd. (“KLE”) granted a mortgage to Mr. and Ms. Leatherman (collectively, the “Leathermans”) with respect to KLE’s interest in land, securing a $1,500,000 debt owed by KLE to the Leathermans (the “Mortgage”). [5] KLE subsequently sold its interest in the land to 0969708 B.C. Ltd. (“708 B.C. Ltd.”), which assumed KLE’s obligations under the Mortgage on August 2, 2013. Mr. Oliver Berkeley was the principal and operating mind of KLE, while his wife, Ms. Siara Berkeley was the authorized signatory of 708 B.C. Ltd. [6] Under the Mortgage, the date of payment is on demand. Until the demand was made by the mortgagees, the mortgagors were obliged to pay accrued interest. The Mortgage defined “maturity date” as the balance due date shown on the mortgage form, or any earlier date on which the mortgagees could lawfully require payment of the mortgage money. The Mortgage incorporated the provisions of Schedule B – The Prescribed Standard Mortgage Terms . [7] KLE and 708 B.C. Ltd. gave the Leathermans a General Security Agreement (“GSA”) over the proceeds of sale of lots that might be subdivided from the mortgaged land. The GSA provided that if the mortgagors were in breach of the Mortgage, the mortgagees were free to realize on the GSA. [8] 708 B.C. Ltd. first failed to make a required interest payment on October 31, 2013. No action was taken by the Leathermans in response to this failure. 708 B.C. Ltd. continued to fail to make the required interest payments in the subsequent years. Correspondence was exchanged in relation to the debt and its repayment between the mortgagees and the mortgagors in November 2015. [9] The Leathermans issued a demand for payment of the whole amount of the principal and interest due on the debt (and are now seeking only 6% annual interest, the lowest amount of interest contemplated by the Mortgage) after 708 B.C. Ltd. again failed to make an interest payment on October 31, 2016. This demand was made on November 9, 2016. The Leathermans filed a petition seeking repayment and foreclosure in December 2016. [10] The mortgagors responded to the petition by arguing it was statute barred because the two‑year limitation period commenced on November 1, 2013 when the mortgagors first failed to make a required payment. According to the mortgagors, their failure to make payment on October 31, 2013 was a breach of the promise contained in the agreement, and an act of default pursuant to Clause 7, which triggered the right of the mortgagees to accelerate payment pursuant to Clause 8 Schedule B – The Prescribed Standard Mortgage Terms (“Clause 8 of the Prescribed Terms”). In support of this argument, the mortgagors relied on ss. 6(1) and 15 of the Limitation Act . [11] Conversely, the Leathermans submitted the failure of the mortgagors to comply with their demand for payment, made November 9, 2016, was the triggering event for the purposes of the Limitation Act . They referred to s. 14 of the Limitation Act , which provides that a “claim for a demand obligation is discovered on the first day that there is a failure to perform the obligation after a demand for the performance has been made”. Thus, the mortgagees submit, there is no merit to the limitation period response made by the mortgagors. Alternatively, they say that the limitation period was postponed. Decision of the Chambers Judge [12] In reasons indexed as Leatherman v. 0969708 BC Ltd. , 2017 BCSC 793, Mr. Justice Rogers found that the Mortgage and assumption agreement are governed by the provisions of the 2013 iteration of the Limitation Act . The earlier iteration of the Limitation Act [ R.S.B.C. 1996, c. 266 ] did not apply. The judge considered the authorities submitted by the mortgagors, namely 492621 B.C. Ltd. v. Bustin Farms Ltd. , 2009 BCSC 1464, and Kong v. Saunders , 2014 BCCA 508. The judge concluded that the case at bar was distinguishable from both those cases. [13] Bustin Farms was not instructive because the mortgage at issue stipulated a maturity date, unlike the Mortgage at issue, which indicated the mortgagee could demand payment at any time. While Clause 8 of the Prescribed Terms was incorporated into the Mortgage, the judge held that its inclusion was superfluous as the mortgagees could in fact realize on the Mortgage at any time. [14] Likewise, Kong did not help the mortgagors. Kong noted that the ability of a lender to realize on a demand loan arises from the moment the agreement is reached. However, the judge noted the 2013 amendments to the Limitation Act modified the law. [15] Section 14 of the Limitation Act provides that a pure demand loan will be treated like a delayed-demand loan in which the lender may demand payment at any time but stipulates that payment occur upon some future event. The effect of s. 14 is that the limitation period for pure demand loans commences not upon the making of the loan but rather when a demand is made and the borrower fails to comply. [16] The judge said the mortgagors’ argument confused the legal right to sue with the start of a limitation period. Section 14 does not modify when the lender may make a demand for payment on a demand loan. It simply modifies when the limitation period commences once the lender has issued such a demand. The judge was unpersuaded by the further submission that the existence of the GSA indicated the parties did not intend to create a simple demand loan. [17] Accordingly, the Leathermans had the right to demand repayment of the loan at any time once the agreement was made, and the limitation period to seek foreclosure was triggered by their request for repayment in November 2016. An order nisi was therefore entered, pursuant to the terms requested by the mortgagees, granting a six‑month redemption period and $1,934,827.65 due with 6% interest accruing per annum. III. Legislation [18] British Columbia’s new Limitation Act came into force on June 1, 2013. Unlike the former act, the new Act sets out the governing limitation period unless modified by another law. [19] The new Act created a single two‑year basic limitation period for most civil claims (s. 6), modifying the limitation periods found in the prior Act which varied between two, six, and ten years depending on the cause of action: see Graeme Mew, Debra Rolph & Daniel Zacks, The Law of Limitations , 3d ed. (Markham, Ont.: LexisNexis, 2016) at 11. The two‑year basic limitation period commences once the claim has been discovered (s. 6(1)). [20] Significantly, for the matter at bar, the new Act introduced discovery rules for certain types of claims, including the enforcement of demand obligations and realizing or redeeming securities in the secured transactions context. [21] Prior to the enactment of the amended Act , there was no special rule in place for demand obligations, which are financial arrangements with no fixed conditions for repayment and are payable on the demand of the lender. [22] Absent specific statutory provisions, the common law interpretation was that the limitation period for demand loans commenced the day at which the parties entered into the demand loan. In Berry v. Page (1989), 38 B.C.L.R. (2d) at 247 (C.A.), the Court said: The characterization of the loan as either a contingent loan or a demand loan determines whether or not the action is statute barred under the Limitation Act. It is well established that the cause of action accrues, and the statute of limitation runs, from the earliest time at which repayment can be required (Chitty on Contracts, 25th ed. (1983), vol. I, para. 1843, p. 1024). For a demand loan, the statute of limitations runs as of the date of the advancement of the funds, and not from the date of the demand. No demand is necessary in order for the cause of action to arise : Barclay Const. Corp. v. Bank of Montreal (1988), 28 B.C.L.R. (2d) 376 at 381 (S.C.); Henback v. Sprague , [1933] 3 D.L.R. 647 (Man. C.A.). [Emphasis added.] [23] On the other hand, in the context of delayed-demand or contingent loans, the cause of action and thus, the limitation period, would commence on the repayment date or upon the happening of the contingency: see Ewachniuk Estate v. Ewachniuk , 2011 BCCA 510; Kong v. Saunders , 2014 BCCA 508. In Berry v. Page , at 247, the Court said this: Case law supports the proposition that if money is lent to be repaid at a particular time in the future, or upon the happening of a specified contingency, then the cause of action arises at the time specified or upon the happening of the contingency: Ingrebretsen v. Christensen , 37 Man. R. 93, [1927] 3 W.W.R. 135 (C.A.); Re Gould; Ex parte Garvey , [1940] O.R. 250, [1940] 3 D.L.R. 12 (C.A.). In these circumstances, the cause of action does not arise, and the statute of limitations does not run until the contingency is satisfied. [24] The relevant sections of the new Act are as follows: Discovery rule for claims for demand obligations 14 A claim for a demand obligation is discovered on the first day that there is a failure to perform the obligation after a demand for the performance has been made. Discovery rule for claims to realize or redeem security 15 A claim to realize or redeem security is discovered on the first day that the right to enforce the security arises. [25] It is the impact of these provisions that is in issue in this appeal. IV. Standard of Review [26] The issue on appeal concerns both the interpretation of the Limitation Act and the interpretation of the Mortgage. The judge’s interpretation of the Limitation Act is reviewable on the standard of correctness. The interpretation of the Mortgage is a question of mixed fact and law, and reviewable on the more deferential palpable and overriding error standard, unless there is an extricable question of law. V. Discussion and Analysis (i) The New Act [27] The inclusion of s. 14 in the amended Act was designed to address the difficulties arising from the application of the limitation period to pure demand obligations. Lenders who enter into such obligations range from unsophisticated parties lending to friends, to institutions such as banks and credit unions lending in a commercial context. [28] Under the former Act , the limited timeframe in which a lender could seek recourse to enforce repayment could be problematic as persons who entered into demand loans included unsophisticated parties, or family members, whose agreements were often informal. Unfairness could also occur where a lender died before recovering payment and the lender’s beneficiaries, for example, did not know of the informal arrangement: see Civil Policy and Legislation Office, British Columbia Ministry of Justice, “White Paper on Limitation Act Reform: Finding the Balance” (Victoria: Ministry of Attorney General, September 2010), at 75; John D. Morrison & Navnit Duhra, “New B.C. Limitation Act More Favourable to Lenders Holding Demand Obligations,” (2014) 31:1 Nat’l Insolv Rev 4 at 4; Katherine A. Reilly & Jamieson D. Virgin, “The “Discovery” of Demand Obligations under B.C.’s Limitation Act ” (2014) 34 Est. Tr. & Pensions J. 288 at 293 . [29] The effect of s. 14 in the new Act brings the limitation period for demand obligations in line with delayed-demand obligations. Pursuant to s. 14, a claim for repayment of a demand obligation is discovered on the first day there is a failure to make repayment once a demand has been made . The two‑year limitation period thus commences once there is a default after a demand for repayment is made. [30] While deciding an appeal in the context of the prior Act , Mr. Justice Tysoe of this Court noted that with the passage of s. 14 of the new Act addressing the limitation period for demand obligations “the limitation period does not begin running until demand is made”: Kong at para. 23. While obiter dicta , this interpretation is consistent with legislative intent given the harms the amended legislation sought to address. [31] In the secured transactions context, s. 15 of the new Act modified the limitation period for secured parties seeking to bring a claim to realize or redeem their security. Under s. 3(4) of the prior Act , there was no limitation on the period in which a secured party could bring an action to realize on collateral that they already possessed. If the collateral was not in the possession of the secured party, then the six‑year limitation period applied (s. 3(6)(a)). This provision was often cited in mortgage foreclosure proceedings: see e.g., Taylor Ventures Ltd. (A Bankrupt) v. High Meadow Holdings Ltd. , 2006 BCSC 1095 at para. 23, aff’d 2008 BCCA 80 at para. 13. [32] The effect of s. 15 of the new Act is that the general two‑year limitation period applies to actions seeking to realize or redeem a security, but the time starts running from the first day the right to enforce the security arises . This change would not have an adverse effect on secured parties holding demand obligations, for which the limitation period will only commence once a demand has been made: see Morrison & Duhra at 4‑5. [33] If a security is realizable or redeemable upon default, then the limitation period commences when the default – or right to enforce the security – occurs. If the security is enforceable on demand, then logically the limitation period will commence once the demand has been made, and there has been a default. [34] Sections 14 and 15 of the new Act have yet to receive judicial consideration, apart from the present proceedings. On its face, s. 14 modifies the commencement date for the limitation period for demand obligations to the date of demand. On its face, s. 15 did not modify the law regarding the commencement date for tolling the limitation period for a claim to realize or redeem security. (ii) The Mortgage [35] The Mortgage in this case was for the principal amount of $1,500,000. The first payment of interest was October 31, 2013. The last payment day is specified as “On Demand” and the balance due date is “On Demand”. The Prescribed Standard Mortgage Terms are checked off as applying. [36] Under “Payment Dates” the following provision occurs: This Mortgage is due On Demand. Until Demand is made, the Borrower must make minimum payments of interest only, such payments of interest to be paid on the earlier of (a) any sale of any lot subdivided from the Mortgaged Lands, and (b) on October 31st of each and every year commencing October 31, 2013. [37] Clause 8 of the Prescribed Terms provides: 8(1) If a default occurs, all the mortgage money then owing to the lender will, if the lender chooses, at once become due and payable, (2) if a default occurs the lender may, in any order that the lender chooses, do any one or more of the following: (a) demand payment of all the mortgage money; (b) sue the borrower for the amount of money due (f) apply to the court for an order that the land be sold on terms approved by the court; (g) apply to the court to foreclose the borrower’s interest in the land so that when the court makes its final order of foreclosure the borrower’s interest in the land will be absolutely vested in and belong to the lender; [38] The term “mortgage money” is defined to mean: the principal amount, interest and any other money owed by the borrower under this mortgage, the payment of which is secured by this mortgage. [39] The judge interpreted Clause 8 of the Prescribed Terms to be “superfluous”. This was because the Mortgage did not have a maturity date and the right to demand payment was not contingent on some act of default by the mortgagor. (iii) Application [40] The appellants argue that the Mortgage is not a pure “demand obligation”, relying on Bustin Farms and the authorities cited therein, to claim that the running of the limitation period begins immediately upon default by the borrower. In Bustin Farms , the mortgage in question was not a demand mortgage, it provided for monthly payments, had a last payment date and balance due date. Upon the first incident of default the lender had the option to accelerate the debt. The cases relied on in Bustin Farms did not concern demand obligations: each had an explicit payment due date and required an acceleration provision to seek payment in full after default. [41] The situation in Kong is an example of a demand obligation under the old Limitation Act . The Court found that the limitation period began to run on the date the loan was made, and expired six years later. The Court noted that s. 14 of the new Limitation Act would have treated the case differently, as the limitation period would not have commenced to run until demand was made. [42] The appellants submit that the Mortgage here is a “contingent loan with a demand element” and the use of the term “payable on demand” does not make the Mortgage a “demand obligation”. The appellants rely on Ontario authorities saying that loans that have demand elements may not be considered “demand obligations” for the purposes of parallel provisions under the Ontario legislation. [43] In my view, the Ontario authorities are not particularly helpful. In Berry v. IPC Securities Corp. , [2009] O.J. No. 1598, the loan called for monthly interest payments and had an explicit due date for the principal sum (para. 17). In Urbas Estate v. Home Savings and Loan Corp. , 2015 ONSC 6399, the demand component was inherent in the loan, which was found to be a “demand obligation” in circumstances where the demand date was uncertain (paras. 47‑56). A debt obligation that does not specify a date for repayment is a demand obligation. Where a debt obligation was payable on a specified date, it was found not to be a demand obligation: Skuy v. Greennough Harbour Corporation , 2012 ONSC 6998 (paras. 50‑51). [44] I agree that the mere insertion of the term “payable on demand” does not render a mortgage a “demand obligation”. In my view, the agreement here reflects a reasonable arrangement in a high-risk lending environment where there was little prospect for repayment on strict terms or on a specified due date. As such, it included both a demand obligation and a contingent obligation. [45] This Mortgage, like most mortgages, includes both a covenant to pay and security for the debt. The covenant to pay the principal, considered on its face, and alone, is a demand obligation. With respect to it, s. 14 applies; that is, it is not payable until demand. The obligation to pay interest, however, is not a demand obligation because it was payable without demand on October 31 of each year. The Mortgage also provides that the property mortgaged is security for the debt. With respect to security for the debt, s. 15 of the Act applies. The right to realize on the security arises upon discovery of that right. [46] Discovery of the right, by s. 15, arises upon default. The default occurred when an interest payment was not made under the Mortgage, and thus the right to realize on the security arose on such default, and the two‑year limitation period would apply from default, unless postponed. [47] With respect to the demand obligation, s. 14 applied. Thus, the limitation period with respect to the ability to seek judgment enforcing the covenant to pay ran from November 9, 2016, the first day of a failure to pay after demand. With respect to the right to realize on the security, the limitation period ran from the first day that the right to enforce the security arose, namely, the date of default, October 31, 2013, by virtue of s. 15. [48] Accordingly, absent postponement , the limitation period has expired with respect to the Leathermans’ ability to realize on the security and some of the interest. However, the limitation period had not tolled with respect to their ability to seek judgment on the covenant to pay, except to the extent of the interest payable more than two years prior to the commencement of the foreclosure action. [49] The appellants submit that the incorporation of the Clause 8 of the Prescribed Terms accelerates the due date of the Mortgage to the first instance of default: when the first payment of interest was due and not paid. The appellants submit that, as in Bustin Farms, the first missed interest payment commenced the limitation period for the entirety of the Mortgage, that is, for actions on the covenant as well as enforcement of the security. [50] The judge found that the inclusion of Clause 8 of the Prescribed Terms into the Mortgage was superfluous, but I do not see how that can be so. Rather, the Prescribed Terms must be read alongside the stipulated terms of the Mortgage. [51] Clause 8 of the Prescribed Terms provides that “if a default occurs, all the mortgage money then owing to the lender will, if the lender chooses, at once become due and payable”. As noted above, “mortgage money” is defined to include the “principal amount, interest and any other money owed by the borrower under this mortgage, the payment of which is secured by this mortgage”. [52] In the context of this particular Mortgage, the parties stipulated that the principal was payable on demand. Therefore, consistent with the language of the Prescribed Terms, the repayment of the principal remains a demand obligation. Pursuant to s. 14 of the new Act , the limitation period for this demand component will only commence once demand is made. In my view, the Prescribed Terms cannot render inapplicable the changes to the Limitation Act concerning demand obligations. [53] This does not render the Prescribed Terms superfluous. Certain other obligations stipulated by the Mortgage that are not demand obligations may be impacted by the Prescribed Terms. For example, while the parties did not make submissions to the effect that the interest and principal owing should be treated differently with respect to limitation periods, the Prescribed Terms’ effect is to treat these moneys differently. [54] The judge found it unnecessary to deal with the postponement issue. However, as I have concluded the limitation period has tolled with respect to the respondents’ ability to realize on the security, and to sue for some of the interest, it is necessary to consider whether postponement actually occurred in this case. [55] In general, it is inappropriate for this Court to determine factual issues at first instance. To do so would require appellate fact-finding, something, ordinarily, this Court will not do: Swiss Reinsurance Company v. Camarin Limited, 2015 BCCA 466 at para. 65; Winstanley v. Winstanley , 2017 BCCA 265 at para. 64. I see no reason to depart from that principle here. VI. Conclusion [56] In the result, I would dismiss the appeal from the order granting judgment on the covenant. I would allow the appeal as it pertains to the ability to realize on the security, and the obligation to pay some of the interest, set aside the order nisi , and remit the matter to the court below to deal with the postponement issue and any residual issues. “The Honourable Mr. Justice Savage” I agree: “The Honourable Mr. Justice Lowry” I agree: “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Nelson, 2018 BCCA 45 Date: 20180130 Docket: CA44586 Between: Regina Respondent And Berk Vili Nelson Appellant Pursuant to s. 16(4) of the Sex Offender Information Registration Act ( SOIRA ), 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 Mr. Justice Fitch (In Chambers) On appeal from: an order of the Supreme Court of British Columbia, dated August 2, 2016 (conviction) ( R. v. Nelson , Williams Lake Registry No. 33585) and April 28, 2017 (sentence) ( R. v. Nelson , 2017 BCSC 1050, Williams Lake Registry No. 33585) Oral Reasons for Judgment Appellant appearing In Person (via videoconference re. conviction appeal) B.V. Nelson Counsel for the Appellant (sentence appeal): E. Purtzki Counsel for the Respondent: D. Layton, Q.C. Place and Date of Hearing: Vancouver, British Columbia January 30, 2018 Place and Date of Judgment: Vancouver, British Columbia January 30, 2018 Summary: The appellant appeals both conviction and sentence. He applies for an order allowing the sentence appeal to be heard before the conviction appeal. The Legal Services Society is funding the sentence appeal. The appellant’s application for court-appointed counsel to argue the appeal from conviction has been dismissed. The appellant wishes to prosecute the conviction appeal but does not currently have the resources to do so on his own. Held: Application granted. In the exceptional circumstances of this case, it would be in the interests of justice to hear the sentence appeal first. Because the appellant’s application for state-funded counsel on his conviction appeal has just been dismissed, he is entitled to more time to acquire resources to prosecute that appeal. He has not yet ordered transcripts or appeal books and may never be in a position to do so. The conviction appeal has not been show to have merit. If the order sought is not made, the sentence appeal may be moot, or nearly so, by the time it is heard. The appellant was sentenced to two years’ imprisonment and has already served approximately nine months. [1] FITCH J.A. : I have been case managing this appeal from conviction and sentence since September 2017. The background circumstances were canvassed in my reasons for judgment delivered on November 10, 2017, which dealt with the appellant’s applications to extend time and to have counsel appointed on his behalf pursuant to s. 684 of the Criminal Code , R.S.C. 1985, c. C-46. The reasons I am delivering today should be read in conjunction with the reasons given on November 10, 2017. [2] Since November 10, 2017, the following significant events have occurred. [3] First, the limited s. 684 appointment was accepted by Mr. Purtzki. By letter dated January 24, 2018, Mr. Purtzki advised the Court that he had conducted the investigations contemplated by the limited appointment of counsel order in relation to the conviction appeal. Having conducted those investigations, he has come to the conclusion that there is no basis on which to proceed with a full application for the appointment of counsel to conduct the appellant’s conviction appeal. [4] Second, the Legal Services Society has reconsidered its original decision in relation to the appellant’s sentence appeal and has now determined to fund that appeal. Mr. Purtzki has agreed to act for the appellant on the appeal from sentence. [5] The appellant, who appears this afternoon by video conference, advises that, despite Mr. Purtzki’s assessment of the matter, he plans on pursuing the conviction appeal. He is not prepared to abandon it at this stage even though he has no current ability to pay for the required transcripts and appeal books. [6] In any event, I consider the limited s. 684 order to be spent at this stage. I dismiss the original application to appoint counsel to argue the conviction appeal. I do so because the appeal from conviction has not been shown to be possessed of any merit. I addressed this issue in my reasons given on November 10, 2017, at paragraphs 20–29. Mr. Purtzki’s assessment of the matter, having had the opportunity to investigate the appellant’s ineffective assistance of counsel claims and his contention that fresh evidence exists that could assist him on the appeal, simply fortifies me in this conclusion. As the appeal has not been shown to have any merit, it is not in the interests of justice that public funds be expended on the full appointment of counsel order the appellant sought. [7] Mr. Purtzki takes the position that, in the unusual circumstances of this case, I should exercise my discretion to direct that the appeal from sentence proceed in advance of the appeal from conviction. The application is supported by the Crown. I confirmed with Mr. Nelson this morning that he, too, supports the making of this order. [8] Despite the unusual nature of the application, the matter is time sensitive and I have determined to give oral reasons today on the application to reverse the usual order of hearing. [9] I will say at the outset that both counsel quite properly recognize that the making of such an order is a departure from the usual practice of this Court. For sound reasons, the practice of the Court is to hear conviction appeals first. There are at least three reasons for this. The first is rooted in the prudent allocation of judicial resources. If a conviction appeal is successful, the sentence appeal becomes redundant and the Court will have wasted its time and public resources in disposing of the sentence appeal first: R. v. Freeman (1998), 101 B.C.A.C. 79 at para. 5 (Chambers); R. v. Reed (1998), 102 B.C.A.C. 157 at para. 10 (Chambers). Second, even when a conviction appeal is dismissed, the reasons may provide a helpful perspective regarding facts and issues relevant to the merit and disposition of the appeal from sentence: R. v. Owusu , 2006 ABCA 91 at para. 6 (Chambers). Third, proceeding with the sentence appeal first might be seen as potentially compromising the appearance of fairness if the conviction appeal is allowed, a new trial is ordered, and the appellant is convicted following a retrial. In these circumstances, the appellant will appear for sentencing before a judge who has the considered opinion of this Court as to the fitness of the sentence originally imposed. An appellant in that situation might perceive (reasonably or not) that the sentencing judge will feel bound to follow the decision of this Court. [10] While the usual practice exists for good reasons, this Court has acknowledged that there may be exceptions to the practice where it is shown that the interests of justice would be served by an order reversing the usual order of hearing: Freeman at para. 5; Reed at paras. 9–10. Although rare, orders of the kind sought in this case appear to have been made in the past both in this jurisdiction (see R. v. Hossainnia , 2011 BCCA 379 at para. 2) and elsewhere (see R. v. Delchev , 2014 ONCA 448 at para. 1; R. v. M.W ., 2015 ONCA 644 at paras. 9–15). [11] From my review of the authorities provided in support of the application, it is clear that the order sought should only be granted in exceptional circumstances where compelling reasons to depart from the usual order of hearing have been demonstrated. [12] I agree with the joint position of counsel that the exceptional circumstances of this case are such that the interests of justice would best be served by making the order sought. [13] There are a number of considerations that have led me to this conclusion. Many of them are identified in the materials filed by the parties. [14] First, transcripts from the five-day trial have not yet been ordered. The appellant has just learned of the disposition of his s. 684 application and is entitled to additional time to acquire the resources necessary to fund the conviction appeal on his own. It is likely that an application to dismiss the conviction appeal for want of prosecution would be viewed as premature at this stage. [15] Second, although the appellant should be given some additional time to prosecute the appeal with his own resources, there is a very real possibility in this case that the appellant will be unable to fund the costs of transcripts and appeal books such that the appeal from conviction will never be heard. [16] Third, as the conviction appeal has not been shown to have any merit, it is unlikely (at least on the basis of material before me) that hearing the sentence appeal first will result in squandering scarce judicial resources because the conviction appeal is subsequently allowed. [17] Fourth, further delay in scheduling the sentence appeal to permit the appellant an opportunity to proceed with his conviction appeal means that it is likely that the sentence appeal will become moot, or nearly so, through the passage of time. After being given credit for pre-sentence custody, the appellant was sentenced on April 28, 2017, to two years’ imprisonment to be followed by two years’ probation. By my calculations, he has now served approximately nine months of that sentence. I would add that concerns arise about the sentence appeal becoming moot from a pragmatic perspective even if the conviction appeal languishes and is eventually dismissed for want of prosecution. [18] Fifth, failing to grant the order sought would likely result in a sentence appeal the Legal Services Society has determined to have sufficient merit to fund never being heard by this Court, or heard at a time when no practical remedy will be available to the appellant even if the original sentence is found to be unfit. In my view, and in all the circumstances of this case, allowing the sentence appeal to become moot, or nearly so, through the passage of time would be contrary to the interests of justice. [19] Finally, my assessment of the interests of justice in this case takes account of the evidence before me that the appellant has experienced in the past, and continued to experience at the time of sentencing, significant mental health challenges. I appreciate that the appellant rejects the notion that he is unwell or in need of professional assistance but the evidence before me is capable of suggesting otherwise. While the appellant continues to assert his desire to proceed with the conviction appeal, I question the extent to which his decision is truly an informed one, or whether the appellant understands the consequences of his intended course of conduct and how pursuit of what appears to be a meritless conviction appeal could potentially prejudice the prosecution of his appeal from sentence. [20] The unusual features of this case, viewed cumulatively, support the making of an order that the sentence appeal be heard in advance of the appeal from conviction. I make that order. [21] Further, I order that the appeal from sentence be expedited to the earliest possible date. To that end, I would direct counsel to attend before the registry and secure the earliest date upon which a one-hour sentence appeal could reasonably be heard once it is known when the reasons on sentencing will be transcribed and available for filing. [22] If the appellant determines to proceed with a bail application pending the hearing of his appeal from sentence, it would be desirable that the application come before me as I am familiar with the circumstances of this appeal. Having said that, I am not seizing myself of the application for the practical reason that I am sitting with a division of the Court during the weeks of February 5 and February 12, 2018, and may not be in a position to entertain the application, particularly if it is opposed. If an application for bail is made, I will leave it with counsel to determine whether that application should come before me or another judge. “The Honourable Mr. Justice Fitch”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Vickerson, 2018 BCCA 39 Date: 20180130 Docket: CA43736 Between: Regina Respondent And Conrad Vickerson Appellant Before: The Honourable Mr. Justice Groberman The Honourable Madam Justice Bennett The Honourable Mr. Justice Hunter On appeal from:  An order of the Provincial Court of British Columbia, dated May 30, 2016 ( R. v. Vickerson , 2016 BCPC 204 , North Vancouver Docket 59932-2-C ). Counsel for the Appellant: D.N. Fai Counsel for the Respondent: C. Greenwood Place and Date of Hearing: Vancouver, British Columbia June 13, 2017 Place and Date of Judgment: Vancouver, British Columbia January 30, 2018 Written Reasons by: The Honourable Madam Justice Bennett Concurred in by: The Honourable Mr. Justice Groberman The Honourable Mr. Justice Hunter Summary: The appellant seeks to overturn four convictions of possession for the purpose of trafficking a variety of illicit drugs. He says the trial judge erred by (1) concluding that there was evidence that could support the issuance of a search warrant after infirm evidence was expunged from the supporting affidavit; and (2) determining that the appellant did not have standing to challenge the grounds of arrest and search of a third party. Held: Appeal dismissed. (1) The trial judge declined to hold a voir dire into the merits of an issue the appellant now seeks to raise on appeal. Without a determination that the trial judge did not exercise his discretion judicially in declining to hold the voir dire, this Court cannot and should not disturb such rulings. In any event, there was overwhelming evidence to support the issuance of the warrant. (2)The appellant had standing to challenge the search of the seized third party’s mobile phone as he had a reasonable expectation of privacy in the texts and call logs he had sent, but he did not have standing to challenge the search of the third party or the vehicle. Reasons for Judgment of the Honourable Madam Justice Bennett: [1] Conrad Vickerson was convicted on December 4, 2015 of four counts of possession for the purpose of trafficking a variety of illicit drugs. He appeals these convictions, arguing that the search warrant obtained to search his residence was invalid; that he had standing to challenge the grounds of arrest and search of a third party; and finally, any evidence obtained as a result of the unlawful search should be excluded under s. 24(2) of the Charter . [2] The focus of the appeal is the validity of the warrant to search Mr. Vickerson’s residence in Whistler. [3] The decisions in R. v. Marakah , 2017 SCC 59 and R. v. Jones , 2017 SCC 60 were released after the appeal hearing. Counsel filed further submissions in relation to those decisions. [4] For the reasons that follow, I would dismiss the appeal. Background [5] The police began investigating Mr. Vickerson for drug trafficking in October 2013. The police had information from two confidential informants, who told them that “Conrad” or “JT” (a known nickname of Mr. Vickerson) was selling drugs from his house. One of the informants had purchased drugs from him, and had seen drugs inside the house. Constable Wirth was the investigating officer and the affiant on the information to obtain a search warrant (“ITO”). [6] Confidential Informant A advised the police on October 11, 2013, that “Conrad” sells drugs, including cocaine and marihuana, from his residence in Nordic Estates, and that he kept drugs in his home. Informant A had seen packaging materials inside Conrad’s residence. [7] Informant A identified Mr. Vickerson’s residence by pointing it out to the police. He also stated that Conrad drove a beat-up looking tan or gold coloured Nissan Pathfinder and provided the licence plate number. The police verified that Mr. Vickerson was the registered owner of a gold coloured Nissan Pathfinder with the same licence plate number provided by Informant A, and they had seen the vehicle parked outside Mr. Vickerson’s residence while doing surveillance. Constable Wirth conducted police checks on Mr. Vickerson’s drivers licence and noted that his first name was Conrad. [8] Constable Wirth set out the reliability of Informant A in the ITO. Informant A had provided the information voluntarily without expectation of personal gain or reward. Informant A had provided approximately 60 pieces of information to the police and the majority of them had been confirmed by police observations. Informant A had also provided information in an unrelated investigation that led to an arrest and seizure of drugs, and his police handler had not encountered any information provided by informant A that was misleading or false. Informant A had purchased drugs from the Appellant. Informant A advised the police that Conrad’s nickname was “JT”. [9] Informant B had provided information to the police in September of 2012. Informant B stated that “JT”, who lives in Nordic Estates, sells cocaine, marihuana and MDMA. Informant B advised that JT sold at the gram to ounce level, kept drugs in his residence and kept a certain amount of drugs on hand. [10] The police accessed Mr. Vickerson’s public Facebook profile and observed a photograph of Mr. Vickerson that had been posted by a friend on Mr. Vickerson’s birthday with a caption reading “baked JT a cake…”. Constable Wirth identified Mr. Vickerson in the photograph and swore to her belief that his nickname was JT. [11] Constable Wirth set out facts that were relevant to the reliability of Informant B in the ITO, including that the information was provided for the prospect of financial gain. Informant B had provided over 20 pieces of information to the police and much of it was consistent with other police files and information from other informants. Informant B had provided information to the police in the past that had resulted in the seizure of illegal items, an investigation resulting in an arrest, and the seizure of drugs and trafficking paraphernalia . [12] The affiant noted that both Informant A and Informant B said that Mr. Vickerson kept drugs in his residence . [13] The police conducted surveillance on Mr. Vickerson’s home over a two-month period, and observed a number of people arriving, staying for a few minutes and then leaving. [14] The ITO described a number of surveillance observations including the following: (a)      On October 17, 2013 an individual arrived in a white Chevy Impala and was observed entering Mr. Vickerson’s residence. The police could not determine the gender of the individual. Three minutes later a female left the residence and drove away in the white Chevy Impala; (b)      Approximately an hour and a half later, Mr. Vickerson attended a residence in the Whistler Cay Heights subdivision. He was observed coming out of the residence and meeting with the driver of a vehicle for less than a minute; (c)      On November 5, 2013, a male and a female were observed leaving a neighbouring suite. The female then attended Mr. Vickerson’s residence for approximately two minutes and returned to the neighbouring suite while the male returned to his truck; (d)      On November 6, 2013, a male arrived in a Nissan Pathfinder carrying a white plastic grocery bag and entered Mr. Vickerson’s residence for approximately 4 minutes and then left; and (e)      On December 18, 2013 an unknown female attended Mr. Vickerson’s residence for approximately eight minutes and was heard saying “thank you” when she left the residence. She was driving the same white Chevy Impala as the female who was observed leaving the residence on October 17, 2013. [15] On December 20, 2013, the police observed a truck arrive at Mr. Vickerson’s residence and stop outside. A male, later identified as Mr. Schnarr, entered Mr. Vickerson’s residence, stayed for six minutes, re-entered the truck, and drove away. The police stopped the truck at 6:45 p.m., and arrested the driver and passenger on the belief that the passenger, Mr. Schnarr, had purchased cocaine from Mr. Vickerson. [16] The arresting officer, Constable Wirth, asked Mr. Schnarr if he had any weapons or drugs on him, and he told her he had drugs hidden in the crotch of his pants. During cross-examination on voir dire , Constable Wirth explained that she declined to search Mr. Schnarr at the scene so that a male officer could conduct a “proper search” at the police station. [17] Constable Wirth handcuffed Mr. Schnarr, read him his Charter rights from a police card, and requested a police transport for him. Subsequently, Corporal Blaine escorted Mr. Schnarr to the station. [18] Corporal Shore searched Mr. Schnarr at around 7:30 that night. In addition to finding seven 0.5 gram bags of cocaine, Corporal Shore searched his mobile phone and found a series of text messages between Mr. Schnarr and “JT” (a nickname the police understood was Mr. Vickerson’s through information from both confidential informants), including one on December 20, in which JT said “Sry im home call me back”. The officer also searched Mr. Schnarr’s call logs, and found logs of two short conversations between Mr. Schnarr and JT in the hour preceding Mr. Schnarr’s visit to Mr. Vickerson’s residence. [19] The information from the confidential informants, the surveillance, and the evidence from the arrest of Mr. Schnarr provided the grounds for the ITO a search warrant of Mr. Vickerson’s residence on December 20, 2013. A telewarrant was issued, and Mr. Vickerson’s house was searched the same night. [20] When the police executed the search warrant, they arrested Mr. Vickerson and conducted a search of his person, his vehicle and his residence. [21] The police found the following items in a large safe, which they unlocked with keys seized from Mr. Vickerson: a) Two bundles of Canadian currency, totalling $4,000 CAD; b) A one-gram package of powdered cocaine; c) A 40-gram bag of powdered cocaine; d) A 19.7-gram bad of MDMA; e) A bag containing 33 pills of BZP and TFMPP; f) 100 plastic baggies and some empty pill capsules; and g) A score sheet. [22] In Mr. Vickerson’s living room, the police found: a) Four $20 Canadian bills; b) Pipes containing marihuana residue; c) A marihuana grinder; and d) Glass pipes. [23] When the police searched Mr. Vickerson at the time of his arrest, he was in possession of $360 in $20 Canadian bills folded around a lighter, and another $93.20 in his wallet. The police also found a pipe and one gram of THC in Mr. Vickerson’s truck. Proceedings at Trial [24] At the start of the trial Mr. Vickerson applied for a constitutional remedy to exclude evidence. In particular, he sought a voir dire to determine the validity of the warrant. The trial judge made three rulings as a result of the application. [25] Mr. Vickerson was initially denied a voir dire because he failed to meet the threshold test set out in R. v. Vukelich (1996), 108 C.C.C. (3d) 193 (B.C.C.A), leave to appeal ref’d [1997] 2 S.C.R. xvi, in the first ruling: Ruling Re Application for Voir Dire ( R. v. Vickerson (October 21, 2015), North Vancouver 59932-2-C (B.C.P.C.)) at para. 8. Rather than dismiss the application, the trial judge ordered Mr. Vickerson to particularize the portions of the ITO that he took issue with. [26] In his second ruling, Ruling on Voir Dire (October 23, 2015), the trial judge reasoned that the ITO had three distinct aspects: (1) the confidential informants; (2) the observations of the police; and (3) the evidence obtained when the police stopped and searched Mr. Schnarr. The trial judge dealt swiftly with the first two: Mr. Vickerson did not display a reasonable likelihood that the evidence from the confidential informants or the police observations would be excluded. Therefore, he concluded that there was no need to declare a voir dire on this point. However, the trial judge did declare a voir dire with respect to the evidence obtained through the search of Mr. Schnarr’s vehicle. [27] The decision to declare the voir dire rested on what the trial judge saw as two irreconcilable decisions of the British Columbia Supreme Court related to whether evidence obtained in the breach of a third party’s Charter rights is admissible: R. v. Todd , 2015 BCSC 680, and R. v. Brown, Lambrecht and Manuel , 2014 BCSC 1872. [28] Todd and Brown diverge on the issue of whether an accused has standing to apply to exclude evidence from his trial by establishing that the evidence was obtained via the breach of a third party’s Charter rights. [29] Todd answers that question in the negative, applying the established principle that an application to exclude evidence in this context can only be made by the person whose Charter rights have been infringed: Todd at paras. 29-30, citing R. v. Edwards , [1996] 1 S.C.R. 128 at para. 45. [30] Brown answers that question in the affirmative through an independent statutory interpretation analysis. Brown acknowledges, but does not apply, the principle in Edwards : Brown at paras. 44, 56, 65. [31] On the voir dire , Mr. Vickerson argued that the police did not have reasonable grounds to stop the truck, and arrest and search its occupants. Accordingly, Mr. Vickerson contended that the evidence of the seven 0.5-gram bags of cocaine, and the information on the mobile phone related to the alias JT, was collected in violation of s. 8 of the Charter , and should be excluded. [32] In his third ruling, the Ruling Re Admissibility of Evidence (November 10, 2015), the trial judge held that the evidence obtained from the search of Mr. Schnarr and the vehicle could be included in the ITO, but that the text messages and call logs between Mr. Schnarr and Mr. Vickerson could not. [33] With respect to the non-mobile phone evidence, the trial judge reviewed the events leading to Mr. Schnarr’s arrest and concluded that the arrest was lawful. The trial judge held that the police did have subjectively and objectively reasonable grounds to arrest the occupants of the truck based on the lead investigator’s observations of the comings and goings to Mr. Vickerson’s house during the investigation, informed by her experience in over 100 CDSA -related investigations. Accordingly, the trial judge found that the seven 0.5-gram bags of cocaine found on Mr. Schnarr were obtained in compliance with s. 8 of the Charter and were thus admissible as legally obtained as a search incident to arrest. [34] In the alternative, the trial judge held that if the search was unlawful, Mr. Vickerson did not have standing to raise the Charter issue related to the non-mobile phone evidence. [35] There were text messages and a call logged from Mr. Vickerson on Mr. Schnarr’s mobile phone, as well as a logged call from Mr. Schnarr to Mr. Vickerson in the hour preceding their meeting. The trial judge concluded, citing R. v. Pelucco , 2015 BCCA 370, that Mr. Vickerson retained a privacy interest in the “electronic communications”, referring to the text messages and call log information, on Mr. Schnarr’s mobile phone. The trial judge rejected the Crown’s submissions that Mr. Vickerson’s failure to display a subjective expectation of privacy was fatal. Such an interest could be inferred. Moreover, the trial judge rejected the submission that “having found the arrest and search of the occupants of the vehicle was lawful, then [Mr.] Vickerson lacked standing to allege there was a violation of his rights to privacy”. This was because the trial judge reasoned that “ Pelucco supports a finding that [Mr.] Vickerson had a right to privacy even though the arrest of the owner of the mobile phone was lawful”: Ruling Re Admissibility of Evidence at para. 13. [36] Given that the trial judge had already found reasonable and probable grounds to arrest Mr. Schnarr, the trial judge reasoned there were also sufficient grounds to support the warrant. [37] Having found that the warrant was lawful, the trial judge concluded that there was no need to consider s. 24(2) of the Charter . The Issues on Appeal [38] Mr. Vickerson raises three grounds of appeal. He says that the trial judge failed to excise unconstitutionally obtained evidence from the ITO; that he erred in finding that the ITO as amplified on review contained sufficient grounds to justify granting the search warrant; and finally, that the trial judge erred in failing to exclude the evidence pursuant to s. 24(2) of the Charter of Rights and Freedoms . [39] Mr. Vickerson breaks the first ground into three parts, alleging that the trial judge erred by: a) finding that the police had reasonable grounds to arrest him on the strength of the confidential informant information and police surveillance that formed the basis of the warrant; b) determining, after a voir dire , that he did not have standing to challenge the admissibility of evidence obtained in the search of Mr. Schnarr, which he contends occurred in breach of his s. 8 Charter rights; and, c) determining that even if Mr. Vickerson did have standing, that the police had reasonable grounds to stop, arrest, and search Mr. Schnarr, and admit into evidence the drugs found on him. Position of the Parties [40] Mr. Vickerson submits that the grounds set out in the ITO do not amount to reasonable grounds, and the trial judge erred in so finding. For example, he says that there was no observed “hand-to-hand” transaction, and questions how one could infer that drugs were being exchanged with no hand-to-hand contact. He further questions the reliance on the officer’s experience with a number of drug transactions. He argues that the trial judge erred in finding that he did not have standing to challenge the search of Mr. Schnarr or the vehicle. Finally, he submits that the finding that the text messages and call logs were unlawfully obtained should have led the trial judge to exclude all of the evidence obtained pursuant to s. 24(2) of the Charter . [41] The Crown’s position is that there is an abundance of evidence to justify the issuance of the search warrant to search Mr. Vickerson’s house. It says that Mr. Vickerson had no standing to challenge the arrest and search of Mr. Schnarr and the vehicle he was in, and that if there was, the arrest and search was lawful in any event. It argues that the trial judge erred in excluding the evidence of the mobile phone text messages found in Mr. Schnarr’s telephone. Discussion Standing [42] I will address the issue of standing first. Although this was an alternative route to the trial judge’s conclusion, there appears to be some conflict in the decisions in the trial court that should be resolved, if possible. [43] A person is granted standing to challenge a search and seizure in a criminal case when they have a reasonable expectation of privacy. The factual matrix is all-important when assessing a reasonable expectation of privacy. Here, Mr. Vickerson challenges the search of Mr. Schnarr, and the seizure of drugs, text messages and call logs pursuant to that search. [44] The trial judge proceeded with the analysis of the stop, arrest, search and seizure in relation to Mr. Schnarr as if Mr. Vickerson had standing. He found no violation of the Charter that would result in the exclusion of the drugs. He also stated, that if he was wrong in that regard, Mr. Vickerson did not have standing to challenge the search in any event. [45] He also concluded that Mr. Vickerson had standing to challenge the search of the text messages on the mobile phone, and found that the search was unlawful based on Pelucco . He expunged that evidence from the ITO. [46] In R. v. Craig , 2016 BCCA 154, this Court examined standing, and the framework established in Edwards, R. v. Tessling , 2004 SCC 67 and R. v. Patrick , 2009 SCC 17, in terms of how to approach whether someone has standing based on a reasonable expectation of privacy. In Tessling and Patrick , the Court modified the framework to fit the factual matrix in those cases. In my view, the Edwards framework does not need modification for the facts in this case, which are straightforward. In Craig , the Court set out the standing test as follows: [65] Justice Cory, writing for the majority, held that the assessment of whether a person has a reasonable expectation of privacy is considered in all of the circumstances of the case (para. 31). He continued, however, and added that the conduct of the police in conducting the search is not relevant to the inquiry in relation to the reasonable expectation of privacy (para. 33). [66]      He affirmed the principle found in Alderman v. United States , 394 U.S. 165 at pp. 171-172 (1969), that: . . . [the] suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence . [Emphasis added.] [67]      The Court also affirmed that a reasonable expectation of privacy can exist, even when it shelters illegal activity (para. 43). Cory J. summarized non-exhaustive factors pertaining to the nature of the s. 8 right to be secure against unreasonable search or seizure, at para. 45: 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 , [1992] O.J. No. 450 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. [47] Here, Mr. Vickerson was not present when Mr. Schnarr’s vehicle was stopped and searched, he was not in possession or control of the property (the vehicle), he had no ownership in the property, there was no evidence that Mr. Vickerson had any attachment to the property at all, and Mr. Vickerson did not testify on the voir dire . Therefore, there was no direct or indirect evidence of any subjective expectation of privacy. In short, there is nothing to support that Mr. Vickerson had a reasonable expectation of privacy with respect to the search of the vehicle, the arrest and search of Mr. Schnarr, or the seizure of the drugs and the mobile phone. Clearly, the trial judge was correct in concluding that Mr. Vickerson had no standing to challenge the search and seizure in relation to Mr. Schnarr, apart from the contents of the mobile phone. [48] Mr. Vickerson argues that he should have been able to challenge all aspects of the searches on a voir dire because he had “partial standing” based on the search of Mr. Schnarr’s mobile phone. Either one has standing or not. The standing analysis is founded on a reasonable expectation of privacy in the thing searched or seized. Standing to challenge the contents of a mobile phone does not translate into standing to challenge searches or seizures where there is no expectation of privacy. [49] I wish to address briefly the Todd and Brown decisions. In Todd , Rogers J. applied the test found in Edwards , which is, as noted above, the correct approach to assessing whether there is standing to challenge a s. 8 Charter violation. In Brown [1] , Funt J. conducted an analysis of the statutory meaning of “reasonable grounds” in coming to his conclusion that co-accused Manuel and Lambrecht had standing to challenge a violation of Brown’s rights. Suffice it to say that the analysis performed in that case should be restricted to that case. The Edwards framework, subsequently modified in Tessling and Patrick , is the appropriate context to determine if a person has standing to challenge a Charter violation. [50] I turn now to the search of the mobile phone and the discovery of the text messages. The trial judge concluded, based on Pelucco , that Mr. Vickerson had a reasonable expectation of privacy in the text messages and call logs, and thus, they should be excluded from the ITO. The Crown, on appeal, submits that the trial judge erred in that conclusion by misapplying Pelucco . I agree. [51] The trial judge’s holding that Mr. Vickerson had a reasonable expectation of privacy in text messages sent to a third party’s mobile phone is grounded in his reading of Pelucco . In his voir dire ruling, the trial judge read Pelucco to “stand for the proposition [ sic ] the court must infer that the sender of a message has a reasonable expectation of privacy” with respect to messages found in the search of a third party’s mobile phone, and thus he excluded the evidence of the text messages without any further analysis. [52] With respect, the trial judge erred in his application of Pelucco . [53] The holding in Pelucco is narrower than the general proposition that the trial judge describes. Mr. Justice Groberman, for the majority, explains that “a sender will ordinarily have a reasonable expectation that a text message will remain private in the hands of its recipient”: at para. 68 (emphasis added). [54] However, Groberman J.A. continues, noting that whether a sender of a text message has a reasonable expectation of privacy in a received message depends on the totality of the circumstances, which is a test of substance rather than form, to be determined under the framework established in Edwards and elaborated upon in R. v. Cole , 2012 SCC 53: Pelucco at paras. 35-36. Accordingly, Pelucco does not stand for the proposition that the sender of a text message always has a reasonable expectation of privacy in that text message as stored on its recipient’s mobile phone. [55] This conclusion was also reached in Marakah at para. 4, where McLachlin C.J.C. held, for the majority, that “depending on the totality of the circumstances, text messages that have been sent and received may in some cases be protected under s. 8…”. [56] Secondly, the majority holding in Pelucco is expressly inapplicable to situations of a lawful search. At para. 49, Groberman J.A. notes: [49]      … A person cannot have a reasonable expectation that messages on another person’s cellphone will remain private in the face of a lawful search of the device . [Emphasis added.] [57] The trial judge in this case determined that Mr. Schnarr’s arrest was lawful, however, he did not consider whether the search of the mobile phone was a lawful search incidental to arrest. He drew a direct line from a reasonable expectation of privacy to a breach of s. 8. [58] In Marakah , the majority concluded that the warrantless search of Mr. Winchester’s (the third party) mobile phone two hours after his arrest was not a search incidental to arrest and was thus in breach of s. 8, a fact conceded by the Crown. Mr. Marakah had standing to challenge that search. The majority excluded the evidence of the “electronic conversations” pursuant to s. 24(2) of the Charter . [59] The trial judge was, in my view, correct in concluding that Mr. Vickerson had standing to challenge the search of Mr. Schnarr’s mobile phone. The search was conducted approximately 45 minutes after Mr. Schnarr’s arrest because Constable Wirth was waiting for a male officer to search him. That does not explain the delay in searching the mobile phone. The trial judge did not consider whether this was a search incidental to arrest, however we do not need to resolve that question because the trial judge ultimately excluded the evidence of the text messages and the call logs from the ITO based on his misapplication of Pelucco . However, since this decision was in favour of Mr. Vickerson, it does not assist him in this appeal. Other Grounds [60] The trial judge refused to permit Mr. Vickerson to raise a challenge to the ITO based on either the surveillance or the informant information in the Ruling Re Application for Voir Dire . On appeal, Mr. Vickerson renews his challenge to the surveillance and informant information, rather than challenging the Vukelich ruling itself. It seems to me that should be the first step in the analysis. When reviewing a trial judge’s exercise of discretion to refuse to hold a voir dire , the standard of review limits appellate intervention to cases in which the discretion has not been judicially exercised. This is a high threshold for an appellant to overcome: R. v. M.B. , 2016 BCCA 476 at paras. 46, 107; R. v. Mastronardi , 2015 BCCA 338 at para. 63. The Crown, in its factum, did not take issue with Mr. Vickerson’s failure to challenge the Vukelich ruling on appeal, and argued that the evidence was unassailable and therefore correctly admitted. [61] The discretion to decline to hold a voir dire is founded in the need for trial judges to control the course of proceedings and to not embark upon enquiries that will not assist the real issues in the trial: M.B. at para. 45. These case management powers are a critical tool that trial judges should use to minimize delay: R. v. Cody , 2017 SCC 31 at para. 38, citing Vukelich with approval on this point. [62] Absent an argument on appeal demonstrating that the trial judge’s discretion in declining to hold a voir dire was not exercised judicially, this Court cannot and should not disturb such rulings. [63] However, since both parties argued this ground of appeal on the merits of the challenge to the surveillance and the informant information, I will address those submissions. I reiterate that, going forward, the proper approach in these circumstances is to challenge directly the trial judge’s exercise of discretion in declining to hold a voir dire as explained in M.B. , Mastronardi , and Cody . Standard of Review [64] The standard of review of whether reasonable and probable grounds exist is found in R. v. Shepherd , 2009 SCC 35 at para. 20: While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law. As with any issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem at first blush as though the issue of reasonable and probable grounds is a question of fact. However, this Court has repeatedly affirmed that the application of a legal standard to the facts of the case is a question of law:  see R. v. Araujo , 2000 SCC 65 , [2000] 2 S.C.R. 992 , at para. 18 ; R. v. Biniaris , 2000 SCC 15 , [2000] 1 S.C.R. 381 , at para. 23 . ... Although the trial judge’s factual findings are entitled to deference, the trial judge’s ultimate ruling is subject to review for correctness. [65] The test on the review of the issuance of an ITO is well established: The question for the reviewing judge is “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge”: R. v. Vu , 2013 SCC 60 at para. 16, quoting R. v. Araujo , 2000 SCC 65 at para. 54. [66] A review of the evidence that sets out the grounds for the ITO establishes that it not only met the test that the authorization could have issued, but overwhelmingly supported the issuance of the warrant to search Mr. Vickerson’s residence. Thus, the trial judge made no error in his conclusion on that basis. [67] Mr. Vickerson has not demonstrated that the trial judge failed to exercise his discretion judicially in declining to hold a voir dire related to the surveillance and informant information, and he has not established a breach of s. 8. It is, therefore, not necessary to address his final ground of appeal in relation to s. 24(2). Conclusion [68] For all of these reasons, I would dismiss the appeal. “The Honourable Madam Justice Bennett” I AGREE: “The Honourable Mr. Justice Groberman” I AGREE: “The Honourable Mr. Justice Hunter” [1] The Crown appealed the decision in R. v. Brown et al (CA42669), however, the appeal was dismissed as abandoned on October 27, 2015.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Levy v. British Columbia (Crime Victim Assistance Program), 2018 BCCA 36 Date: 20180201 Docket: CA44551 Between: Michael Levy Respondent (Plaintiff) And The Director of Crime Victim Assistance Program and Her Majesty The Queen in Right of the Province of British Columbia, as represented by the Ministry of Public Safety and Solicitor General Appellants (Defendants) Before: The Honourable Mr. Justice Willcock The Honourable Mr. Justice Savage The Honourable Mr. Justice Hunter On appeal from:  An order of the Supreme Court of British Columbia, dated June 2, 2017 ( Levy v. British Columbia (Crime Victim Assistance Program) , 2017 BCSC 1455, Vancouver Registry S161147). Counsel for the Appellants: D.R. Suntjens J. Van Camp Counsel for the Respondent: G.R. Cameron Place and Date of Hearing: Vancouver, British Columbia January 5, 2018 Place and Date of Judgment: Vancouver, British Columbia February 1, 2018 Written Reasons by: The Honourable Mr. Justice Savage Concurred in by: The Honourable Mr. Justice Willcock The Honourable Mr. Justice Hunter Summary: The Director of the Crime Victim Assistance Program and Mr. Levy entered into a settlement agreement in which the Director agreed to fund his care under the Crime Victim Assistance Act. After disagreement on the benefits to which he was entitled, Mr. Levy sued the Director. British Columbia and the Director appeal from an order dismissing their applications to strike Mr. Levy’s underlying action saying that the pleadings disclosed no reasonable claim as it was founded on an interpretation of a contract which is contrary to law, and the action was an abuse of process as an impermissible collateral attack on a reviewable determination. Held: appeal dismissed. The judge correctly held the appellants’ arguments failed to establish the claim was bound to fail because application of the anti‑fettering doctrine was not settled law, and whether the agreement was ultra vires the legislative scheme required appropriate factual context. The judge did not err in concluding it is not plain and obvious at this stage that Mr. Levy’s claim was a collateral attack on the director’s determination rather than a breach of the director’s obligations under the settlement agreement. Reasons for Judgment of the Honourable Mr. Justice Savage: Overview [1] The appellants, the Director of the Crime Victim Assistance Program (the “Director”) and the Province of British Columbia (collectively “British Columbia”), appeal from an order of Mr. Justice Grauer dismissing their applications to strike the underlying action for (1) disclosing no reasonable claim, or (2) constituting an abuse of process as an impermissible collateral attack on decisions of the Director which should have proceeded through internal and/or judicial review. Background [2] In 2006, Mr. Levy, the respondent, suffered catastrophic injuries when he was assaulted by individuals with a hatchet, rendering him quadriplegic. He was accepted as a victim of crime by the Crime Victim Assistance Program (“CVAP”), which agreed to fund his care pursuant to the Crime Victim Assistance Act , S.B.C. 2001, c. 38 [ CVAA ]. [3] Mr. Levy sued his assailants and others whose negligence he said contributed to his injuries. The Director required him to include in his tort claim past and future healthcare costs to be paid on his behalf by the CVAP. Mr. Levy settled with the alleged tortfeasors in 2009. [4] The Director attended the settlement negotiations and entered into the contract of settlement (the “Settlement Agreement”) which resulted in the following terms germane to this appeal: 1) The alleged tortfeasors would pay Mr. Levy $2.1 million; 2) The alleged tortfeasors would pay the CVAP $312,000 for healthcare costs incurred to date; and 3) The CVAP agreed to continue funding Mr. Levy’s future care without “seeking repayment over and above the amount of $312,000 paid for support to date”. [5] In the underlying notice of civil claim, Mr. Levy sues the CVAP for breach of the Settlement Agreement, claiming that the CVAP has breached the contract by curtailing and refusing to pay for care to which he is entitled. Specifically, he alleges that the CVAP breached the Settlement Agreement by refusing to pay for: 1) The incremental increased cost for attendant care services; 2) Increased attendant care needs as a result of Mr. Levy living alone; and 3) Wound care services to treat pressure sore ulcers. [6] Before filing its response to civil claim, British Columbia applied to strike Mr. Levy’s claim pursuant to Rule 9‑5(1)(a) as disclosing no reasonable cause of action and pursuant to Rule 9‑5(1)(d) as an abuse of process. Issues [7] I would describe the issues as follows: 1) Did the chambers judge err in declining to strike the pleadings pursuant to Rule 9‑5(1)(a), by failing to apply the anti‑fettering doctrine or recognizing the agreement at issue represents an improper contracting out of the CVAA ? 2) Did the chambers judge err in declining to strike the pleadings pursuant to Rule 9‑5(1)(d) as constituting an abuse of process? 3) Did the chambers judge err in allowing Mr. Levy the opportunity to amend his pleadings? Discussion and Analysis Standard of Review [8] The decision to strike pleadings is generally a discretionary decision, attracting a deferential standard of review: Carhoun & Sons Enterprises Ltd. v. Canada (Attorney General) , 2015 BCCA 163 at para. 18. However, if there is an extricable error of law, the correctness standard of review applies, because where the law dictates a specific outcome, there is no discretion: Carhoun at paras. 19‑20. [9] The parties disagree with respect to the appropriate standard of review on appeal. British Columbia submits that the decision regarding Rule 9‑5(1)(a) involves evaluating the pleadings against the limitations of the statutory scheme, which is an extricable question of law. British Columbia submits that, with respect to the Rule 9‑5(1)(d) abuse of process decision, the chambers judge considered whether the contract claim is sustainable as a separate and distinct justiciable claim, which is also an extricable question of law. [10] Mr. Levy emphasizes as discretionary the nature of the judge’s decision, which is entitled to deference, and submits that there is no extricable question of law determinative as to the outcome. As I understand his argument, even if there is an extricable question of law under the Rule 9‑5(1)(a) application, in circumstances where the law is unsettled, there is a discretion to decline to answer the question posed, in the absence of a proper context. With respect to the application under Rule 9‑5(1)(d), as that determination requires both context and evidence, the judge’s decision is entitled to deference. Preliminary Issue: Amending Pleadings [11] In its factum, British Columbia submits that the judge erred in law by permitting Mr. Levy to amend his notice of civil claim, and by concluding amendments could save Mr. Levy’s claim from being struck. British Columbia argues that even the amended notice of civil claim should be struck as it discloses no reasonable cause of action. This argument was not discussed in any substantive manner in oral argument, so I briefly deal with it at the outset here. [12] The judge permitted the notice of civil claim to be amended after dismissing British Columbia’s motion to strike application, as it “could usefully be improved by amendment” (para. 26). When considering a motion to strike, the court may consider whether there was “disclosed from [the] pleading with such amendments as might reasonably be made, a proper case to be tried”: see Chang Estate v. Chang , 2010 BCCA 111 at para. 39. [13] The decision to allow parties to amend pleadings is a discretionary one. Here, the decision did not impact the order under appeal, and considering amendments to the pleadings is consistent with the proper judicial role in considering a motion to strike application. In my view, the judge did not err in allowing Mr. Levy to amend his notice of civil claim. Issue 1 – No Reasonable Cause of Action [14] The legal test on a motion to strike application is not disputed by the parties. Pleadings should be struck under Rule 9‑5(1)(a) only if it is plain and obvious, assuming the facts as pleaded to be true, that the pleading discloses no reasonable cause of action: Hunt v. Carey Canada Inc. , [1990] 2 S.C.R. 959 at 978‑80; R. v. Imperial Tobacco Canada Ltd. , 2011 SCC 42 at para. 17. [15] Broadly speaking, British Columbia makes two arguments with respect to why it is plain and obvious Mr. Levy’s notice of civil claim discloses no reasonable claim. Both arguments hinge on interpreting the Settlement Agreement as it pertains to the relationship between Mr. Levy and British Columbia in light of the CVAA . i. Fettering Discretion [16] First, British Columbia submits Mr. Levy’s interpretation of the Settlement Agreement would fetter the Director’s discretion, contrary to law. British Columbia submits that the Supreme Court of Canada’s decision in Pacific National Investments Ltd. v. Victoria (City) , 2000 SCC 64, is binding authority for the proposition that the Director’s discretion cannot be fettered. [17] British Columbia also relies upon the decision of Andrews v. Canada (Attorney General) , 2009 NLCA 70 [ Andrews No. 1 ], where the Court of Appeal upheld a successful application to strike. In that case, the plaintiffs claimed the Minister of Fisheries and Oceans breached a contract reducing crab quotas. In dismissing the appeal, the Court held that the Minister’s discretion to issue quotas could not be fettered directly or indirectly. [18] Applied to the present matter, British Columbia argues the interpretation of the Settlement Agreement proffered by Mr. Levy would impermissibly fetter the discretion of the Director (which is broad under the CVAA ) to award benefits, and therefore the notice of civil claim discloses no reasonable cause of action. [19] Mr. Levy, in response, submits that his interpretation of the Settlement Agreement does not fetter the discretion of the Director. The Settlement Agreement does not fetter the ability of the Director to determine whether the criteria of the statute have been satisfied, or to assess the quantum of benefit to be awarded in any given case. He submits that the Settlement Agreement simply reflects an acknowledgment that British Columbia and the Director will continue to fund his care without recourse to his settlement to pay for things they otherwise would have compensated. [20] Mr. Levy alternatively submits that the state of the authorities regarding fettering discretion is not such that it is plain and obvious the “fettering doctrine” bars contractual claims against the Crown. He argues that the anti‑fettering doctrine set out in Pacific National Investments only applies to agreements fettering the ways in which a government may exercise its legislative powers . On his reading of Pacific National Investments , the anti‑fettering doctrine does not apply to business agreements, like the Settlement Agreement at issue in the present proceeding. [21] In support of his interpretation of Pacific National Investments , Mr. Levy relies on two Ontario decisions, Weyerhaeuser Company Limited v. Ontario (Attorney General) , 2016 ONSC 4652, and Ontario First Nations (2008) Limited Partnership v. Aboriginal Affairs (Ontario) , 2013 ONSC 7141. He also cites academic criticism of an expansive reading of Pacific National Investments and the anti‑fettering doctrine: Peter W. Hogg, Patrick J. Monahan & Wade K. Wright, Liability of the Crown , 4th ed. (Toronto: Carswell, 2011) at 324‑31. [22] In the context of a motion to strike application, Mr. Levy refers to Andrews v. Canada (Attorney General) , 2014 NLCA 32 [ Andrews No. 2 ] . Despite the presence of facts substantially similar to those of Andrews No. 1 , in Andrews No. 2 , the Court of Appeal held that the prior authorities, including Pacific National Investments , did not mean it was plain and obvious the “fettering doctrine” bars contractual claims against the Crown. In so holding, the Court found the impact of Pacific National Investments in relation to the scope of the anti‑fettering doctrine to be unclear (para. 42). [23] Mr. Levy also relies on Wells v. Newfoundland , [1999] 3 S.C.R. 199, for the proposition that while the Crown can act in breach of contractual obligations, it is still liable for the legal consequences of doing so. While the Crown can limit those consequences by legislatively extinguishing the cause of action, this has not occurred in this case. He relies on the decision in Radusin v. British Columbia , 2005 BCSC 373, where liability was established for breach of contract when the Director failed to pay a lump sum agreement made pursuant to s. 4(7) of the CVAA . Mr. Levy argues this decision demonstrates that his claim is not destined to fail, as a contractual claim against the Director has succeeded in the past. [24] In a motion to strike application, Mr. Levy submits, the law must be clear beyond doubt, and in this case, the judge properly concluded the authorities were not sufficiently settled. ii. Ultra Vires Legislation [25] In its second argument pertaining to Mr. Levy’s claim disclosing no reasonable claim, British Columbia submits the claim is bound to fail because Mr. Levy’s interpretation of the Settlement Agreement is ultra vires the legislative scheme. British Columbia argues that Mr. Levy’s interpretation would in effect represent a “contracting out” of the CVAA , a result that is impossible in law. [26] British Columbia argues that the statutory scheme – and particularly s. 9(4)(a) – expressly prevents the parties from entering into the alleged contract because the Director is obligated to deduct settlements in determining benefits. The Director’s ability to enter into agreements pursuant to s. 22.1 of the CVAA does not authorize the Director to enter into agreements inconsistent with the CVAA . This, British Columbia submits, distinguishes the facts in the present matter from those in Radusin , where the enforced contract complied with s. 4(7) of the CVAA . Therefore, no contracting out issues were engaged. [27] Beyond fettering the Director’s discretion, the pleaded interpretation of the Settlement Agreement would be grossly unfair to other victims and fail to advance the purposes of the CVAA . [28] Mr. Levy, to the contrary, submits that the purpose of the CVAA and the CVAP scheme and the relevant provisions of the CVAA support a conclusion that the Director is entitled to enter into a Settlement Agreement such as the one at issue here. Mr. Levy puts forth a different statutory interpretation than the one offered by British Columbia. In his reading of the CVAA , the agreement was authorized by the terms of the statute, and furthers the purposes of the scheme. [29] In the result, Mr. Levy submits that contracting out principles are not engaged because the Settlement Agreement arises from the legislation and furthers its purpose. iii. Analysis A. Law Regarding Anti-Fettering Doctrine [30] British Columbia says Pacific National Investments clearly establishes that the anti‑fettering doctrine was binding on the judge in his determination of whether the pleadings should be struck. As the law is clear on this point, British Columbia alleges an extricable error of law was made by the judge. British Columbia says the anti‑fettering doctrine demonstrates Mr. Levy’s claim is bound to fail because his interpretation of the Settlement Agreement cannot stand alongside this doctrine. [31] I am not persuaded by these arguments. As Mr. Levy submits, and as the judge found, the application of the anti‑fettering doctrine is not settled in law. The narrow reading of Pacific National Investments endorsed by Mr. Levy, limiting the doctrine to agreements fettering legislative discretion, has been accepted by other Canadian courts: see Weyerhaeuser at para. 51; Ontario First Nations at paras. 53‑59; and Andrews No. 2 at paras. 36‑42. [32] Courts ought to be cautious in striking out claims, particularly novel ones that may not yet be embedded in existing legal rules, lest it stunt the growth of the law. This does not mean that fanciful claims, or claims based on wishful thinking, should proceed to trial. Where a claim is based on rational argument that involves an extension, development or reasonably arguable restriction or reversal of some existing authority, the situation may be otherwise. In Imperial Tobacco , McLachlin C.J.C. said: [19] The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial . [20] This promotes two goods - efficiency in the conduct of the litigation and correct results. Striking out claims that have no reasonable prospect of success promotes litigation efficiency, reducing time and cost. The litigants can focus on serious claims, without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless. The same applies to judges and juries, whose attention is focused where it should be - on claims that have a reasonable chance of success. The efficiency gained by weeding out unmeritorious claims in turn contributes to better justice. The more the evidence and arguments are trained on the real issues, the more likely it is that the trial process will successfully come to grips with the parties’ respective positions on those issues and the merits of the case. [21] Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed . Before Donoghue v. Stevenson , [1932] A.C. 562 (H.L.) introduced a general duty of care to one’s neighbour premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners, Ltd. , [1963] 2 All E.R. 575 (H.L.), a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial. [Emphasis added.] [33] In the instant case, the claim arises in respect of legislative provisions that have not yet received appellate consideration. It arises on a factual matrix that is not fully articulated or robust. It arises in the context of a decision based on a doctrine which has been the subject of negative academic commentary and confined in its application. In those circumstances, I see no error in the judge’s decision that: [22] On this state of the law, I conclude that it cannot be said that the claim is bound to fail. Whether the law dictates a dismissal of this claim should properly be decided on the basis of full pleadings and an evidentiary record as was the case in Andrews No. 2 . B. “Contracting Out” [34] I turn to British Columbia’s arguments pertaining to contracting out of the scheme of the CVAA . In my view, the arguments on this point focus upon the statutory scheme without appropriate engagement with the terms of the Settlement Agreement. The problem with British Columbia structuring its arguments in this manner is that it overlooks the underlying nature of Mr. Levy’s claim: a breach of contract. [35] While the legislative framework necessarily factors into the contractual interpretation issue at the heart of Mr. Levy’s claim, both contractual interpretation and statutory interpretation must be considered in determining whether it is plain and obvious that Mr. Levy’s claim discloses no reasonable cause of action. [36] The nexus of contractual and statutory interpretation engaged by British Columbia’s contracting out argument does not, in my view, point at this stage to a clearly extricable question of law. Rather, as the judge said: [12] As to contractual interpretation, it is my view that a definitive interpretation cannot sensibly be made without having recourse to evidence, particularly in relation to the surrounding circumstances . For instance, it may be that the value of Mr. Levy’s tort claim was significantly higher than $2,100,000 and that it was necessary to compromise the claim (being not only the plaintiff’s claim but also the CVAP’s claim) given the resources of the defendants and insurance coverage issues. In this regard, the approach taken by the plaintiff, the defendants, and the Director may well be relevant to how one interprets the contract. [13] British Columbia objects that the materials relating to the mediation are privileged. Without deciding that point, I am not convinced that that necessarily flows in this case, where the claim seeks to enforce the settlement agreement that was allegedly reached. But even if it does, affidavit evidence from Mr. Levy as to the circumstances surrounding his claim and his agreement to settle may be admissible, relevant and probative of how the agreement is to be interpreted. That cannot be decided here. [Emphasis added.] I am not persuaded that there is any error in the judge so reasoning. [37] In general, the question of whether a pleading discloses a reasonable cause of action under Rule 9‑5(1)(a) is an extricable issue for which no deference need be accorded the chambers judge. As I have said, where there is an extricable question of law where the law is unsettled , a judge should be cautious in striking a claim at this stage. I find it unnecessary to characterize the standard applicable to this Court’s review of the judge’s discretion in these circumstances, as I agree with his conclusion. However, I would observe that this Court is in the same position as the chambers judge in determining whether the state of the law is unsettled. [38] That said, on both contractual interpretation arguments offered by British Columbia, I am of the opinion that the judge was correct in holding it was not plain and obvious the claim was bound to fail. Both the state of the law regarding the applicability of the anti‑fettering doctrine in this context, as well as the nexus of statutory interpretation and contractual interpretation, lead me to conclude that it is correct in law not to strike the claim, absent a proper evidentiary record, at this stage. Issue 2 – Abuse of Process i. Submissions of the Parties [39] British Columbia submits Mr. Levy’s claim constitutes an abuse of process because it is in actuality a collateral attack on the Director’s decisions, and recourse should be sought through judicial review, not an artfully pleaded contract claim. [40] British Columbia cites the Supreme Court of Canada’s decision in Boucher v. Stelco Inc. , 2005 SCC 64. It attempts to distinguish the case at bar from Canada (Attorney General) v. TeleZone Inc. , 2010 SCC 62, in which the Supreme Court of Canada dismissed the argument that judicial review needed to be sought before pursuing claims for breach of contract, negligence and unjust enrichment in the provincial superior courts. [41] In so doing, British Columbia emphasizes the privative clause found in the CVAA . This privative clause, it says, is similar to one found in s. 96(1) of the Workers Compensation Act , R.S.B.C. 1996, c. 492, and to that end, cites a body of case law interpreting and applying that privative clause. Ultimately, British Columbia argues Mr. Levy is attempting to use artful pleadings as a thin pretense to establish a private wrong in order to launch a collateral attack on administrative decisions, and therefore his claim should be struck as an abuse of process. [42] Mr. Levy submits British Columbia’s cited case law is not relevant. Rather, the governing authority is TeleZone , as well as this Court’s decision in Camp Development Corporation v. Greater Vancouver Transportation Authority , 2010 BCCA 284. [43] Mr. Levy agrees with British Columbia’s submission that the collateral attack doctrine prevents a party from using an institutional detour to attack the validity of an order. However, he submits that he does not impugn the validity of the Director’s decision, but rather argues that the decisions made by the Director demonstrate a private law wrong committed by the Director: breach of the Settlement Agreement. [44] He therefore says that, as in TeleZone , the litigation should be permitted to proceed, as he has more than an arguable case and it cannot be said it is plain and obvious that the claim pleaded is an abuse of process. ii. Analysis [45] The facts of TeleZone involved a statement provided by Industry Canada in the context of a call for personal communication services licenses. In this statement, Industry Canada indicated that up to six licenses would be granted. Ultimately, when Industry Canada announced its decision, only four licenses were awarded. [46] TeleZone, which did not obtain a license, commenced a civil action seeking damages for breach of contract, negligence and unjust enrichment. The Attorney General of Canada challenged the jurisdiction of the provincial superior courts to hear the action, arguing that TeleZone’s action was actually a collateral attack on the decision, which properly should have been brought by way of judicial review to the Federal Court. [47] The Supreme Court of Canada ultimately held TeleZone was entitled to bring its action in provincial superior court because its claim disclosed a private law action and TeleZone’s claim did not attempt to invalidate or render inoperative the Minister’s decision. [48] British Columbia submits the current claim can be characterized as an action seeking to vary the order made by the Director, through an artful pleading that is more properly addressed through judicial review with only a thin pretense to establishing a private wrong: TeleZone at paras. 60, 78. I would agree with British Columbia to this extent: there is a substantial practical overlap between increased benefits pursuant to the CVAA and the damage award Mr. Levy seeks. [49] If the question is asked, in Binnie J.’s words in TeleZone , “[w]hat is the practical benefit to a litigant who wants compensation rather than a reversal of government decision” (para. 27), it is arguably unclear whether or not there is any practical benefit to bringing the action by way of a civil claim instead of through judicial review. Moreover, unlike in TeleZone , which operated within a statutory scheme directing appeals from ministerial decisions to the Federal Court, the legislative scheme operative here – the CVAA – describes a clear process for judicial review with a strong privative clause. [50] On the other hand, as Mr. Levy submits, the claim may be characterized as disclosing a private cause of action, a valid action for damages that he should be entitled to pursue: TeleZone at para. 76. Mr. Levy submits he is not challenging the validity of the Director’s decision, but rather is using the decision to demonstrate a private law wrong, the breach of contract. Moreover, the Supreme Court of Canada indicated the defence of statutory authority may be raised by the government body in the damages action itself as a defence. Such an argument would function as a defence to the civil claim and does not go to jurisdiction: TeleZone at para. 69. [51] In my view, there is at least an arguable case that Mr. Levy’s civil action is with merit. At the very least, on my reading of TeleZone , it is not plain and obvious his claim discloses no reasonable cause of action. Therefore, I am not persuaded that there was any error of law made by the judge. He considered the submissions of both the parties, and was persuaded by Mr. Levy’s characterization, holding: [24] Mr. Levy does not challenge the Director’s decisions or seek a review of them. He does not suggest that those decisions were not open to the Director under the Act . What he does say is that those decisions were in breach of the Director’s obligations under the settlement agreement, not that they were ultra vires the Act . On the face of the pleadings, he pursues what is essentially a private wrong seeking specific performance and damages. Consequently, at this stage, I do not see this as a case where Mr. Levy could accomplish what he seeks to achieve through judicial review ; see Canada (Attorney General) v TeleZone Inc. , 2010 SCC 62. [Emphasis added.] [52] I see no error in the judge’s reasoning on this point. The decision to strike pleadings based on an abuse of process is a discretionary one entitled to deference. It cannot be said that it was plain and obvious at this stage that Mr. Levy’s claim was bound to fail. Conclusion [53] In the result, I am of the opinion that the appeal should be dismissed, for these reasons, and for substantially the reasons of the judge below. “The Honourable Mr. Justice Savage” I agree: “The Honourable Mr. Justice Willcock” I agree: “The Honourable Mr. Justice Hunter”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Singh v. Workers’ Compensation Board of British Columbia, 2018 BCCA 49 Date: 20180201 Docket: CA44252 Between: Manoj Singh aka Mike Singh, Seattle Environmental Consulting Ltd., Shawn Singh, ESS Environmental Ltd. Appellants (Plaintiffs) And Workers' Compensation Board of British Columbia doing business as WorkSafe BC, Nick Bower, Ben Parkin, John Beckett, Lynn Bueckert, Margaret McNeil, Tazeem Nathoo, Brooks Patterson, Lillian White, Alan Cooke and Diana Miles, Ian Shaw Respondents (Defendants) Before: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Savage The Honourable Mr. Justice Hunter On appeal from: An order of the Supreme Court of British Columbia, dated January 30, 2017 ( Singh v. Workers’ Compensation Board of British Columbia , 2017 BCSC 138) Oral Reasons for Judgment Acting on behalf of himself and Seattle Environmental Consulting Ltd.: M. Singh Acting on behalf of himself and ESS Environmental Ltd. S. Singh Counsel for the Respondent: G.B. Gomery, Q.C. G. Hoekstra Place and Date of Hearing: Vancouver, British Columbia February 1, 2018 Place and Date of Judgment: Vancouver, British Columbia February 1, 2018 Summary: Appeal from an order striking a notice of civil claim on the basis the: (a) an action does not lie against the lawyers who acted against the appellants in other litigation involving the appellants; (b) the claims were statute barred; (c) the action was an abuse of process; and (d) the allegations are scandalous and without merit. The appellants contend their pleadings should not have been struck. They also contend the chambers judge was biased, in particular, because he refused to grant a right of audience to a former lawyer who had recently become a director the corporate appellants. They say the judge was improperly “briefed” before the hearing because he was aware of previous decisions in which the former lawyer had been denied a right of audience. Held:  Appeal dismissed. The chambers judge was correct in striking the notice of civil claim. The allegation of bias is without merit. It is not improper for judges to inform themselves of relevant, or potentially relevant, authorities in preparation for a hearing. [1] FRANKEL J.A. : This appeal is brought from the order of Justice Kent of the Supreme Court of British Columbia dismissing an action. That order was made on an application to strike the notice of civil claim brought by the respondents pursuant to Rule 9-5(1) of the Supreme Court Civil Rules . The chambers judge’s reasons are indexed as 2017 BCSC 138. [2] At the outset of his reasons the chambers judge reviewed the history of the litigation between the parties. There is no need to repeat it now in any detail. [3] The appellants are in the business of asbestos inspection and abatement. For several years, the Workers’ Compensation Board has taken steps to require the appellants to comply with the applicable health and safety regulations. The appellants are of the view the Board has targeted them because of the ethnicity of Manoj Singh and Shawn Singh who are, respectively, the principals of Seattle Environmental Consulting Ltd. and ESS Environmental Ltd. [4] At para. 45 of his reasons, the chambers judge summarized his reasons for striking the notice of civil claim: · As a matter of law there cannot exist any cause of action against the lawyers for the matters alleged; · Section 113(4) of the [ Workers Compensation Act , R.S.B.C. 1996, c. 492] is also a complete defence to the claim for all defendants; · The plaintiffs are attempting to re-litigate claims that have previously been struck out/dismissed by the Court, a classic example of abuse of process; · The conduct of the plaintiffs and the present claim display all of the hallmarks commonly seen with vexatious litigants, including numerous technical deficiencies, causes of action unknown at law, and repeated improper and scandalous allegations that plainly have no merit. [5] The appellants contend that the chambers judge erred in striking their pleadings, provided inadequate reasons for doing so, and displayed clear bias and a lack of impartiality. They list eight grounds of appeal in their factum. They go so far as to allege the judge was improperly “briefed” prior to the hearing. [6] In my view, all of the appellants’ arguments are devoid of merit. With respect to the decision to strike the pleadings, I am in substantial agreement with the chambers judge’s reasons and, therefore, need say no more in that regard. [7] Alleging actual bias is a serious accusation. Regrettably, this is not the first time the appellants have made that allegation against a judge: see Workers’ Compensation Board of British Columbia v. Seattle Environmental Consulting Ltd. , 2017 BCCA 19 at paras. 112 − 116, 407 D.L.R. (4th) 484 (“ Seattle No. 1 ”); and Seattle Environmental Consulting Ltd. v. Workers’ Compensation Board of British Columbia , 2017 BCCA 386 at paras. 21 − 22. In addition, in Singh v. British Columbia (Workers’ Compensation Board) (January 29, 2016), Vancouver Registry No. S150011 at paras. 25 − 39 (B.C.S.C.), the appellants alleged bias against the British Columbia Human Rights Tribunal and the Tribunal member who summarily dismissed their racial discrimination complaint against the Board and two of its employees. [8] Nothing in the transcript of the hearing before the chambers judge is capable of supporting a finding of either actual bias or a reasonable apprehension of bias. In particular, the allegation that the judge was “briefed” before the hearing is baseless. Given the extremely serious nature of that allegation, I will address it more fully. [9] The allegation that the chambers judge was “briefed” is set out as a ground of appeal in the appellants’ factum in the following terms: A travesty of justice occurred in that Mr. Justice Kent received a briefing prior to the commencement of the hearing, about the “audacity” of Mr. Pyper requesting leave to speak for the corporate Appellants [in the] court below. The word “audacity” does not appear in the transcript of the hearing. [10] The circumstances relating to Gerhard Pyper’s request to speak and the denial of that request are as follows. [11] On November 8, 2016, the respondents filed a notice of application seeking an order striking the notice of civil claim and dismissing the action. That application was returnable on January 23, 2017. On January 16, 2017, the appellants filed their response to that application. The Singhs signed that response on behalf of themselves and their respective companies. [12] At one time, Mr. Pyper had been licenced to practice law in British Columbia and had appeared as counsel for the Singhs and their companies. After Mr. Pyper ceased to be licenced to practice he was appointed as a director of the companies and, in that capacity, sought to speak for them in court. [13] On December 15, 2016, this Court heard the case referred to above as Seattle No. 1 . A single factum had been filed by counsel acting on behalf of the Singhs and Seattle Environmental Consulting; ESS Environmental was not a party to that appeal. Prior to the hearing, Seattle Environmental Consulting filed a notice of intention to act in person. [14] When the case was called, counsel who had signed the factum appeared for the Singhs. Mr. Pyper appeared and sought leave to address the Court on behalf of Seattle Environmental Consulting. The Court declined to grant Mr. Pyper a right of audience. In explaining why that decision was taken, Justice Savage stated, in part (at para. 16): Mr. Pyper’s appointment as a director is designed to circumvent the fact that he is not currently licenced to practice law in this province. There is no suggestion that there is any other reason for his appointment. It would not be proper to hear from Mr. Pyper. [15] Returning to the case at bar, on January 17, 2017, respondents’ counsel sent a letter to the appellants advising them that should Mr. Pyper seek leave to speak to the motion to strike, counsel would draw Seattle No. 1 to the presiding judge’s attention. [16] On January 19, 2017, the companies filed a notice of application returnable on January 23, 2017, seeking an order that Mr. Pyper be permitted to speak to the motion to strike on their behalf. In that notice, the companies stated that if their application was opposed, then they would seek costs against the respondents. [17] When court convened on January 23, 2017, Mr. Pyper introduced himself and stated he appeared for the two companies. In response, the chambers judge stated: Well, Mr. Pyper, I have had occasion this morning to read the Court of Appeal decision [in Seattle No. 1 ], which would seem to suggest that you don’t get to first base on your ability to represent the company [ sic ]. [18] Mr. Pyper then made submissions as to why he should be allowed to speak on behalf of the companies. During those submissions, the judge referred to the fact that in another matter, Justice Verhoeven had expressed concerns with respect to Mr. Pyper having appeared on behalf of Seattle Environmental Consulting and, because of those concerns, had directed a copy of his reasons be sent to the Law Society: see Singh v. Nielsen , 2016 BCSC 2331 at paras. 36 − 42, referred to in Seattle No. 1 . Although the respondents’ counsel took no position with respect to Mr. Pyper’s participation, he did advise the chambers judge that Justice Leask had refused to grant Mr. Pyper a right of audience the previous week. [19] The chambers judge refused to allow Mr. Pyper to speak on behalf of the companies. After doing so, the judge stated Mr. Pyper was entitled to remain in the courtroom and was not precluded from discussing the companies’ affairs with the Singhs. [20] The appellants contend the chambers judge’s knowledge of Seattle No. 1 , evinces that he inappropriately received information concerning Mr. Pyper in advance of the hearing. That contention is not supported by any evidence. The pejorative inference the appellants ask this Court to draw amounts to gross speculation. All that can be said is that the judge, knowing he would be hearing an application to grant Mr. Pyper a right of audience, made himself aware of recent relevant authority. [21] In ICBC v. Patko , 2008 BCCA 65 at para. 37, 290 D.L.R. (4th) 687, Chief Justice Finch stated that, in deciding a matter, it is not improper for judges to “consult, refer to or rely on” authorities not referred to or relied on by the parties. It is similarly not improper for judges to inform themselves of relevant, or potentially relevant, authorities in preparation for a hearing. [22] I would dismiss this appeal. [23] SAVAGE J.A. : I agree. [24] HUNTER J.A. : I agree. [25] FRANKEL J.A. : The appeal is dismissed. “The Honourable Mr. Justice Frankel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Harrison Hydro Project Inc. v. British Columbia (Environmental Appeal Board), 2018 BCCA 44 Date: 20180202 Docket: CA44323 Between: Harrison Hydro Project Inc., Fire Creek Project Limited Partnership, Lamont Creek Project Limited Partnership, Stokke Creek Project Limited Partnership, Tipella Creek Project Limited Partnership, and Upper Stave Project Limited Partnership Appellants (Petitioners) And: Environmental Appeal Board and Deputy Comptroller of Water Rights for the Province of British Columbia Respondents (Respondents) Before: The Honourable Mr. Justice Tysoe The Honourable Mr. Justice Willcock The Honourable Mr. Justice Hunter On appeal from:  An order of the Supreme Court of British Columbia dated February 27, 2017 ( Harrison Hydro Project Inc. v. Environmental Appeal Board , 2017 BCSC 320, Vancouver Docket S160831) Counsel for the Appellants: D.G. Cowper, Q.C., and N.R. Hughes Counsel for the Respondent, Environmental Appeal Board: M.G. Underhill Counsel for the Respondent, Deputy Comptroller of Water Rights for the Province of British Columbia: D.G. Cowie Place and Date of Hearing: Vancouver, British Columbia November 28, 2017 Place and Date of Judgment: Vancouver, British Columbia February 2, 2018 Written Reasons by: The Honourable Mr. Justice Tysoe Concurred in by: The Honourable Mr. Justice Willcock Dissenting Reasons by: (P. 27, para. 76) The Honourable Mr. Justice Hunter Summary: Appeal from an order of a chambers judge dismissing the appellants’ petition for judicial review of a decision of the Environmental Appeal Board. In its decision, the Board dismissed an appeal from an order that the power produced at five separate power plants should be combined as if they were one power plant for the purposes of calculating water rentals payable. The five water licences had been in the names of five limited partnerships, each of which had the same general partner, but they were put in the name of the general partner by the Ministry of Forest, Lands and Natural Resource Operations when it learned that the Crown leases for the lands appurtenant to the licences were registered in the name of the general partner.  The Board held that the licences were properly in the name of the general partner.  Held: Appeal dismissed, Hunter J.A. dissenting.  Majority (per Tysoe J.A. and Willcock J.A.): The Board performed reasonable statutory interpretation, its decision was reasonable in light of the legal principles surrounding limited partnerships and its decision did not contain contradictory reasoning.  There was nothing unreasonable in the Board’s decision-making process, and the decision fell within a range of possible, acceptable outcomes.  Dissent (per Hunter J.A.): The dissenting judge would have allowed the appeal on the basis that the Board’s conclusion that limited partnerships could not hold water licences in their names was based on an unreasonable interpretation of the governing statute. Reasons for Judgment of the Honourable Mr. Justice Tysoe: Introduction [1] This is an appeal from an order of a chambers judge dismissing the appellants’ petition for judicial review of a decision of the Environmental Appeal Board (the “Board”) dated December 8, 2015 and indexed under numbers 2014-WAT-002(a) to 2014-WAT-007(a) (the “Board’s Decision”). [2] The Board dismissed an appeal by the appellants from an order dated December 17, 2013 made by the Comptroller of Water Rights, Ministry of Forest, Lands and Natural Resource Operations (the “Ministry”) that the power produced at five separate power plants should be combined as if they were one power plant for the purpose of calculating water rentals payable to the Province of British Columbia.  This results in water rental rates that are 4.7 times higher than if the power plants were treated as separate projects, and we are advised that this extra rental rate amounts to approximately $1.5 million a year. [3] The chambers judge found it was not established the Board’s Decision was unreasonable.  The appellants appeal the dismissal of their petition, saying the Board’s Decision was manifestly unreasonable in its analytical approach and in its result. [4] For the reasons that follow, I would dismiss the appeal. Background [5] The five power projects are located on separate streams in the Ministry’s South Coast Region.  As they are all located on Crown land, their operation requires Crown land tenures under the Land Act , R.S.B.C. 1996, c. 245, and water licences issued by the Crown under the Water Act , R.S.B.C. 1996, c. 483 (now called the Water Users’ Communities Act by virtue of s. 197 of the Water Sustainability Act , S.B.C. 2014, c. 15, effective February 29, 2016). [6] The former owners of the five projects, including a company called Cloudworks Energy Inc., initially developed the projects and applied, between 2004 and 2006, for water licences.  Land tenures were issued in the form of licences of occupation that permitted non-exclusive use and occupancy of the Crown land for site exploration and preparation.  Ultimately, title was raised in the Land Title Office with the Crown as the registered owner and long-term leases, granted by the Crown, registered against the respective titles. [7] As of February 28, 2007, each of five limited partnerships, having been formed in accordance with the Partnership Act , R.S.B.C. 1996, c. 348 (individually a “Limited Partnership” and collectively the “Limited Partnerships”), entered into an agreement with Harrison Hydro Inc., the named general partner of each of the Limited Partnerships (the “General Partner”).  The Limited Partnerships and the General Partner are named as the appellants in this appeal. [8] The agreements contained a provision that no limited partner was entitled to take part in the management or control of the Limited Partnership’s business, and set out the nature of the businesses of the Limited Partnerships to be the development, construction, ownership and operation of a run-of-the-river hydroelectric project on the respective streams, and the sale of the power to British Columbia Hydro.  Each of the agreements set out the powers of the General Partner, including the power to carry on the business of the Limited Partnership and the power to acquire and hold property for the benefit of the Limited Partnership, with legal title to be held by the General Partner or other persons as nominees, agents and bare trustees for the Limited Partnership. [9] The General Partner also entered into a trust agreement in respect of each Limited Partnership.  It provided that the General Partner held title to the Limited Partnership’s property as bare trustee for the sole use, benefit and advantage of the Limited Partnership, had no beneficial interest in the Limited Partnership’s property and would be only acting as agent for the Limited Partnership in dealing with the Limited Partnership’s property. [10] Following the creation of the Limited Partnerships, the water licences and environmental approvals were transferred from Cloudworks Energy Inc. into the names of the Limited Partnerships.  After title to the land was raised, long-term leases were granted by the Crown in 2008 and 2009 to the General Partner and the leases were registered in the Land Title Office. [11] Up until 2013, the Ministry invoiced each Limited Partnership separately for the water rental charges of its respective project.  The output of the five projects was not combined for the purpose of calculating the charges.  During this time, it appears the Ministry was under the impression the Crown land tenures were held by the Limited Partnerships – in a letter dated October 7, 2009 to three of the Limited Partnerships advising them that the water licences had been updated to show them (rather than Cloudworks Energy Inc.) as the holders of the licences, the representative of the Ministry stated that the information received by the Ministry indicated that the Crown land tenures for each of the powerhouses were in the names of the respective Limited Partnerships. [12] Commencing in 2012 and continuing into 2013, a technician with the Ministry undertook a review of water licences “to ensure that clauses of water licences describing land appurtenant to a particular licence matched the land tenures on which the beneficial use of water diverted under that licence was occurring”.  When she found inconsistencies in respect of land tenures recorded in the land title system, she checked Land Title Office records.  This review disclosed that while the water licences for the five projects were in the names of the Limited Partnerships, the leases registered in the Land Title Office were all in the name of the General Partner. [13] As a result of this review, the Ministry adjusted its records to name the General Partner as the licensee under each of the five licences.  In the spring and summer of 2013, the Ministry notified the Limited Partnerships of the amendments to the water licences and began billing for the water rentals on an aggregate basis (beginning with two of the projects and eventually including all five projects in the aggregate billing). [14] In March 2013, the Senior Vice President, Western Region, of Innergex Renewable Energy Inc., which indirectly owned 50.0024% of each of the Limited Partnerships, wrote to the Ministry on behalf of two of the Limited Partnerships advising that the invoices would be paid under protest.  In a further letter in August 2013, he stated that the leases were registered in the name of the General Partner “in trust for the benefit of” the respective Limited Partnership “solely because the BC land title system does not permit the registration of an interest in land in the name of a limited partnership”. [15] In the fall of 2013, legal counsel for the General Partner and the Limited Partnerships made written submissions to the Comptroller of Water Rights that the five water licences should be in the names of the respective Limited Partnerships.  On December 17, 2013, the Comptroller issued an order concurring with the decision of the Ministry to transfer the water licences into the name of the General Partner based on the recorded land tenures and concluding that the billing of the General Partner as a single licensee for the five projects was in accordance with the Water Act and the Water Regulation , B.C. Reg. 204/88 (repealed by B.C. Reg. 36/2016 effective February 29, 2016).  The appellants appealed the order to the Board. The Water Act [16] The Board’s Decision set out numerous provisions of the Water Act and the Water Regulation , but I will only reproduce the ones relevant to this appeal. [17] Regulation 16(4) authorized the rental charges for each calendar year based on, among other things, “the total of the output from all power developments owned or operated by a single licensee during the preceding calendar year”. [18] Section 7 of the Act provided that a water licence could be issued to, among others, an owner of land or a mine.  Section 1 contained the following definitions: “owner” means a person entitled to possession of any land, mine or undertaking in British Columbia, and includes a person who has a substantial interest in the land, mine or undertaking; * * * “person” includes a firm, association or syndicate; [19] Section 16(1) provided that a licence that was made appurtenant to land passed with a conveyance or other disposition of the land.  Section 16(2) required a person conveying or otherwise disposing of such land to give written notice of the conveyance or other disposition to the comptroller or regional water manager. [20] Section 5(c) provided that a licence entitled its holder to construct, maintain and operate the works authorized under the licence for the diversion, storage, distribution and use of the water or the power produced from it.  Section 21(1) required a licensee to exercise reasonable care to avoid damaging land, trees and other property and to make full compensation to the owners for damage or loss resulting from the works.  Subject to that limitation, s. 21(2) authorized a licensee to remove trees, rocks and other things that endangered the licensee’s works. [21] Section 25 provided that the abandonment or cancellation of a licence did not relieve the owner of the land to which the licence was appurtenant of liability for damage resulting from the works. The Board’s Decision [22] The Board addressed four issues in its decision.  Only one of the Board’s four conclusions is challenged on this appeal; namely, the second issue of whether the water licences for the five projects should be in the name of the General Partner.  However, the Board’s reasoning on the first issue is relevant because the appellants say the Board’s conclusion on the second issue is inconsistent with its reasoning on the first issue. [23] The first issue was whether the concurrence of the Comptroller of Water Rights with the transfer of the water licences from the names of the Limited Partnerships to the name of the General Partner was an “order” that needed to have been appealed within the 30-day appeal period set out in s. 92 of the Water Act .  The Board found that a conveyance or disposition of the lands appurtenant to the water licences occurred when the Crown raised title to the lands and replaced the licences of occupation with Crown leases in the name of the General Partner.  As a result, s. 16(1) of the Water Act operated to have the licences pass to the General Partner with this conveyance or other disposition, and the regional office was merely correcting the Ministry’s records to reflect the operation of s. 16(1). [24] The Board therefore concluded that the Comptroller’s concurrence with the licences being in the name of the General Partner was not an appealable order.  This made it unnecessary for the Board to consider the second issue but it did “out of an abundance of caution and for greater certainty”.  The reason this conclusion is not directly at issue on the appeal is because it was conceded by the Comptroller before the judicial review judge that the conclusion was unreasonable.  As a result, the Board’s decision on the second issue became the important one. [25] The Board began its analysis on the second issue by noting that a key issue was whether each Limited Partnership fell within the definition of “owner” in the Water Act so that it could be issued a licence under s. 7 of the Act .  The Board looked at dictionary definitions of the words “entitle” and “firm”, and found that a limited partnership is not barred from acquiring a water licence if it can qualify as a licensee under the Act by being an owner entitled to possession of the appurtenant land. [26] The Board next considered the phrase “and includes a person who has a substantial interest in the land” in the definition of “owner” in s. 1 of the Act .  The Board concluded that, as a result of the words “and includes” at the beginning of the phrase, the substantial interest had to be one that entitled the person to possession of the appurtenant land. [27] The Board referred to ss. 5(c), 21(1) and 21(2) of the Act , and found that the rights and obligations under these sections could only be carried out by a person entitled to physical possession, occupancy and control of the appurtenant land. [28] The Board reviewed the provisions of the limited partnership agreements and concluded that only the General Partner could exercise the rights of a licensee and undertake the obligations of a licensee.  It found that the limited liability of the limited partners pointed to the General Partner being the licensee for the purposes of ss. 21 and 25 of the Act . [29] The Board found the Limited Partnership’s beneficial interest in the appurtenant land was insufficient to constitute a “substantial interest” within the meaning of the definition of “owner” because only the General Partner had possession, occupancy and control of the lands. [30] The Board summarized its findings as follows: [159]    The Panel finds that Harrison, as the general partner, qualifies as an “owner” within the meaning of the Water Act , as it holds legal title of the Crown lease, and Harrison is the only person with a substantial interest in land for the purposes of the Water Act . Harrison is the holder of the leases to the Crown land where the powerhouses are located, and the arrangements in the Limited Partnership Agreement provide only Harrison with the ability to exercise possession and control of the appurtenant lands, and the ability to exercise the rights and undertake the responsibilities of a licensee under the Water Act . Therefore, the Panel finds that Harrison is the “owner” of the appurtenant land for the purposes of the Water Act , and is the proper licensee of the subject water licences. [31] The appellants petitioned to the Supreme Court of British Columbia for judicial review of the Board’s Decision. The Chambers Judge’s Decision [32] In his reasons for judgment (indexed as 2017 BCSC 320), the chambers judge who heard the judicial review petition canvassed the facts and then addressed the appropriate standard of review.  As the Administrative Tribunals Act , S.B.C. 2004, c. 45, was not applicable, he looked to the common law jurisprudence developed in Dunsmuir v. New Brunswick , 2008 SCC 9, and subsequent decisions, and he concluded the appropriate standard of review was the reasonableness standard. [33] In discussing the positions of the parties, the judge referred to the argument of the appellants that the Board’s flawed reasoning was demonstrated by the fact that another limited partnership (Douglas Creek Limited Partnership) continues to hold a water licence in its name, with the only difference being that the land appurtenant to its licence is located on the Douglas Indian Reserve No. 8, and the Indian Lands Registry was prepared to register a lease in favour of the limited partnership.  The judge stated that he did not find this to be a relevant consideration. [34] In applying the reasonableness standard, the judge found the appellants’ interpretation of whether they have a “substantial interest” in the land or are “entitled to possession” of the land to be a reasonable interpretation.  However, he held that the appellants had to meet the “high hurdle” of showing that the Board’s interpretation was not reasonable.  He concluded he was unable to find the Board’s Decision to be unreasonable.  Accordingly, he dismissed the petition. Discussion a) Standard of Review [35] On appeal, the appellants do not challenge the chambers judge’s conclusion that the appropriate standard of review to be applied to the Board’s Decision is one of reasonableness.  I will briefly refer to some of the leading authorities discussing the content of this standard. [36] The seminal decision in this area is Dunsmuir , which decided that the two previous reasonableness standards of review (reasonableness simpliciter and patent unreasonableness) should be combined into one reasonableness standard.  Justices Bastarache and LeBel set out the meaning of the revised reasonableness standard: [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.  Instead, they may give rise to a number of possible, reasonable conclusions.  Tribunals have a margin of appreciation within the range of acceptable and rational solutions.  A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.  In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.  But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Thus, there are components to the reasonableness standard.  First, the tribunal’s decision-making process must be reasonable in terms of justification, transparency and intelligibility.  Second, the outcome of the decision must fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. [37] Justices Bastarache and LeBel went on to discuss the meaning of deference: [48] What does deference mean in this context?  … deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. … We agree with David Dyzenhaus where he states that the concept of “deference as respect” requires of the courts “not submission but a respectful attention to the reasons offered or which could be offered in support of a decision”: “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286 (quoted with approval in Baker [ Baker v. Canada (Minister of Citizenship and Immigration , [1999] 2 S.C.R. 817], at para. 65, per L’Heureux-Dubé J.; Ryan [ Law Society of New Brunswick v. Ryan , 2003 SCC 20], at para. 49). See also Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 at paras. 12 to 16. [38] The decision in McLean v. British Columbia (Securities Commission) , 2013 SCC 67, is informative with respect to the interpretation by administrative tribunals of their home statutes.  Mr. Justice Moldaver addressed the situation of legislation that is susceptible to multiple reasonable interpretations and posed the question of who is better positioned to decide among the competing reasonable interpretations: [33]      The answer, as this Court has repeatedly indicated since Dunsmuir , is that the resolution of unclear language in an administrative decision maker’s home statute is usually best left to the decision maker.  That is so because the choice between multiple reasonable interpretations will often involve policy considerations that we presume the legislature desired the administrative decision maker — not the courts — to make.  Indeed, the exercise of that interpretative discretion is part of an administrative decision maker’s “expertise”. [Emphasis in original.] [39] Mr. Justice Moldaver went on to caution that there will not always be multiple reasonable interpretations: [38]      It will not always be the case that a particular provision permits multiple reasonable interpretations.  Where the ordinary tools of statutory interpretation lead to a single reasonable interpretation and the administrative decision maker adopts a different interpretation, its interpretation will necessarily be unreasonable — no degree of deference can justify its acceptance; see, e.g., Dunsmuir , at para. 75; Mowat [ Canada (Canadian Human Rights Commission) v. Canada (Attorney General) , 2011 SCC 53], at para. 34.  In those cases, the “range of reasonable outcomes” ( Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 4) will necessarily be limited to a single reasonable interpretation — and the administrative decision maker must adopt it. [40] The appellants say that where the ordinary tools of statutory interpretation preclude a particular interpretation of the Water Act , the acceptance of such an interpretation is unreasonable because it will be outside the range of possible, defensible outcomes. b) Limited Partnerships [41] Although the literature suggests that limited partnerships may have existed at common law hundreds of years ago, they are now creatures of statute in Canada.  The concept of limited partnerships is discussed in Alison R. Manzer, A Practical Guide to Canadian Partnership Law , loose-leaf (updated to December 2014) (Aurora, Ont.: Canada Law Book, 1994) at pp. 9-10 and 9-11: The limited partnership is a relatively modern concept, evolving essentially during the 20th century.  The limited partnership combines the limited liability, shareholder-type contribution, in the relationship of a limited partner to the remaining partners, with many of the concepts of a general partnership.  The purpose behind the development of the limited partnership assists in understanding the evolution of the statutory entity.  The limited partnership was designed to facilitate the raising of capital, while maintaining the partnership structure required for many enterprises, resulting in a combination of legal concepts.  A limited partnership, like a corporation, can only be formed by statutory compliance, taking its existence from the filing of a statutory declaration and from the powers stated in the statute.  It is often confusing that the limited partnership is similar to the corporation, which also takes its powers from statutory authority, because limited partnerships legislation encompasses the concept of general partnership powers for the undertaking of business. Limited partnerships became popular in Canada in the 1970s and 1980s because losses could be flowed through to the limited partners and offset against their income from other sources for tax purposes (Lyle R. Hepburn & William J. Strain, Limited Partnerships , loose-leaf (updated to May 2016) (Toronto: Carswell, 1983) at p. 1-1). [42] The British Columbia legislation dealing with limited partnerships is found in Part 3 of the Partnership Act .  A limited partnership must consist of one or more general partners and one or more limited partners (s. 50).  A limited partnership is formed by filing with the registrar of companies a certificate containing prescribed information (s. 51).  A limited partner may contribute money and other property to the limited partnership, but not services (s. 55(1)).  A limited partner’s interest in the limited partnership is personal property (s. 55(2)). [43] A general partner has the same rights and powers and is subject to the same liabilities as a partner in a general partnership but does not have the authority to do certain specified things, including possessing limited partnership property for other than a partnership purpose (s. 56(c)).  A limited partner is only liable for the amount of property he or she contributes or agrees to contribute to the limited partnership (s. 57) but is liable as a general partner if he or she takes part in the management of the business (s. 64).  The Supreme Court is given the authority to charge the interest of a limited partner with payment of a monetary judgment but property of the limited partnership may not be disposed of in order to obtain the release of the charge (s. 76).  It is not necessary to name any of the limited partners in a legal proceeding against a limited partnership (s. 77). [44] Part 3 of the Partnership Act is similar to the Ontario legislation, the Limited Partnerships Act , R.S.O. 1990, c. L.16.  There are three Ontario decisions which are useful in understanding limited partnerships.  The first is Lehndorff General Partner Ltd. , Re (1993), 9 B.L.R. (2d) 275, 17 C.B.R. (3d) 24 (Ont. Gen. Div.), which considered whether a stay pursuant to the inherent jurisdiction of the court should be granted in respect of limited partnerships at the same time as a stay under the Companies’ Creditors Arrangement Act , R.S.C. 1985, c. C-36, was granted in respect of the property of related corporations.  In the course of his decision, Mr. Justice Farley made the following general comments about limited partnerships at 38–40 (C.B.R.): A limited partnership is a creation of statute, consisting of one or more general partners and one or more limited partners. The limited partnership is an investment vehicle for passive investment by limited partners. It in essence combines the flow through concept of tax depreciation or credits available to “ordinary” partners under general partnership law with limited liability available to shareholders under corporate law. … A general partner has all the rights and powers and is subject to all the restrictions and liabilities of a partner in a partnership. In particular a general partner is fully liable to each creditor of the business of the limited partnership. The general partner has sole control over the property and business of the limited partnership: see Ontario LPA ss. 8 and 13. Limited partners have no liability to the creditors of the limited partnership’s business; the limited partners’ financial exposure is limited to their contribution. The limited partners do not have any “independent” ownership rights in the property of the limited partnership. The entitlement of the limited partners is limited to their contribution plus any profits thereon, after satisfaction of claims of the creditors. ... * * * It appears that the preponderance of case law supports the contention that contention [ sic ] that a partnership including a limited partnership is not a separate legal entity. See Lindley on Partnership, 15th ed. (1984), at p. 33-5; Seven Mile Dam Contractors v. R. in Right of British Columbia (1979), 13 B.C.L.R. 137 (S.C.) affirmed (1980) 25 B.C.L.R. 183 (C.A.) and “Extra-Provincial Liability of the Limited Partner”, Brad E. Milne, (1985) 23 Alta. Law Rev. 345, at p. 350-1. It appears to me that the operations of a limited partnership in the ordinary course are that the limited partners take a completely passive role (they must or they will otherwise lose their limited liability protection which would have been their sole reason for choosing a limited partnership vehicle as opposed to an “ordinary” partnership vehicle). … The limited partners leave the running of the business to the general partner and in that respect the care, custody and the maintenance of the property, assets and undertaking of the limited partnership in which the limited partners and the general partner hold an interest. The ownership of this limited partnership property, assets and undertaking is an undivided interest which cannot be segregated for the purpose of legal process. ... These comments were quoted with approval in the other two Ontario cases to which I will be referring. [45] The second decision is Kucor Construction & Developments & Associates v. Canada Life Assurance Co. (1998), 41 O.R. (3d) 577, 167 D.L.R. (4th) 272 (C.A.).  In my opinion, this is an important case because it dealt with the ability of a limited partnership to hold property.  At issue was whether a mortgage granted by a limited partnership could be prepaid pursuant to a statutory provision entitling mortgagors other than corporations to prepay long-term mortgages after the expiration of five years.  The Ontario Court of Appeal agreed with the application judge that the mortgage could not be prepaid because the limited partnership was not a legal entity capable of holding title to real property or granting a mortgage, and the mortgage must be taken to have been granted by the general partner, a corporation which was not entitled to take advantage of the statutory provision. [46] Mr. Justice Borins first concluded that the application judge was correct in holding that a limited partnership is not a legal entity.  In that regard, he relied, in part, on the statement in R.C.P. Banks, Lindley & Banks on Partnership , 17th ed., (Sweet & Maxwell, 1995) at 864 that “[a] limited partnership is not a legal entity like a limited company but a form of partnership with a number of special characteristics introduced by the Limited Partnerships Act 1907”.  He also made the point that, if the Legislature had intended to make a limited partnership a legal entity, it would have included a provision similar to the one found in corporate statutes declaring that a corporation has the capacity and powers of a natural person. [47] After quoting most of the above passage from Lehndorff , Borins J.A. pointed out distinctions between general partnerships and limited partnerships: [31]      … The first distinction is that in a general partnership all of the partners are liable for the obligations of the partnership, whereas in a limited partnership the general partner is fully liable for partnership obligations, with the financial exposure of limited partners being limited to their contributions to the partnership. The second distinction is that in a general partnership any partner can conduct the usual business of the partnership, whereas in a limited partnership the limited partners are passive and the general partner manages and controls the business of the partnership. [48] He continued with the following conclusion: [33]      It follows, therefore, from the statutory characteristics of a limited partnership that if its management and control are the exclusive responsibility of the general partner, who derives its powers from the Limited Partnerships Act , it is through the general partner that a limited partnership acquires and conveys title to real property. [49] He concluded that although the mortgage on its face had been granted by the limited partnership, it was in law granted by the general partner which, being a corporation, was not entitled to rely on the statutory provision permitting prepayment of a long-term mortgage after five years. [50] Before turning to the third Ontario decision, I wish to address two decisions relied upon by the appellants on issues decided by Kucor .  First, they point to the following passage from Backman v. Canada , 2001 SCC 10, which was dealing with a general partnership, for the proposition that a partnership may be viewed as an independent entity depending on the context: [37] A partnership can be viewed as either an independent entity or a relationship between individuals depending on the context in which it is observed.  That a partnership may be considered an entity for some purposes is clear from s. 5 of the Ontario Partnerships Act , R.S.O. 1980, c. 370, where it is prescribed that for the sake of convenience a partnership may be referred to as a “firm” and the name under which it carries on business is called the firm name.  Likewise, for income tax purposes, the income from the partnership business is calculated at the firm level.  And typically, rules of civil procedure provide for actions against a partnership to be commenced and defended using the partnership name, and any order made against a partnership may be enforced against the property of the partnership, as well as the property of the partners:  J. A. VanDuzer, The Law of Partnerships and Corporations (1997), at p. 26. [51] With respect, I do not take this passage to stand for the proposition that partnerships are legal entities for general purposes.  The fact that a partnership may use a firm name does not make it a legal entity.  The B.C. Partnership Act defines “firm” as “the collective term for persons who have entered into partnership with one another”.  Section 8 of that Act provides that any act done in the firm name is binding on the firm and all the partners.  I do not quarrel with the assertion that if a statute, like the Income Tax Act , R.S.C. 1985, c. 1 (5th Supp.) in Backman , treats a partnership as if were a legal entity, then it will be regarded as a legal entity for the purposes of that legislation.  In the present case, while the definition of “person” in the Water Act includes a “firm”, that does not, in my view, mean that it is treating partnerships as legal entities.  It simply means that when the word “person” is used in the Water Act , it includes a collective of persons who are members of a partnership. [52] Secondly, the appellants cite Kornfeld v. Intrawest Corp. , 2005 BCSC 162, for the proposition that partnership law does not recognize a distinction between the rights and actions of a partner and the partnership itself with respect to partnership property.  One of the submissions made in that case was that an exemption clause in a building scheme could not be exercised by a limited partnership because it was not an owner of the property in question.  Madam Justice Boyd rejected the submission for the following reasons: [25]      … WMRLP is the owner-developer of Kadenwood.  WMRLP’s general partner is Intrawest Corporation.  Legal title to the Kadenwood land is held by WMRLP’s general partner Intrawest as nominee, agent and bare trustee for and on behalf of WMRLP.  Under partnership law, there is no distinction to be drawn between the rights and actions of a partner and the partnership itself with respect to the partnership property.  Thus the fact that WMRLP is the “Administrator” under the Building Scheme and that title is held by its general partner Intrawest, in trust and as agent for WMRLP, is irrelevant.  WMRLP and Intrawest are partners.  WMRLP can act only through Intrawest.  Just as only Intrawest can hold title to the lands, only Intrawest can exercise WMRLP’s rights under the Building Scheme. I agree with Boyd J.’s statement that there is no distinction between the rights of a partner and the partnership in the context of a general partnership.  It seems to me, however, that the statement may be questionable in the context of a limited partnership in view of s. 55(2) of the Partnership Act , which provides that a limited partner’s interest in the limited partnership is personal property.  More importantly, I agree with the statement that a limited partnership can act only through its general partner, which is consistent with the conclusion in Kucor . [53] The third Ontario case is Hudson’s Bay Company v. OMERS Realty Corporation , 2016 ONCA 113.  The issue was whether the consent of the landlord was required to an assignment of leases which contained provisions that no consent was required for an assignment to an affiliate of the existing tenant.  The proposed assignment was to be from Hudson’s Bay Company to itself as general partner of a limited partnership.  The Ontario Court of Appeal upheld the decision of the application judge that there was no need to look beyond the fact that the proposed assignments were to the general partner and that no consent was therefore required because the transaction fell within the affiliate exception. [54] The Court adopted the reasoning of the application judge.  In particular, it agreed that a limited partnership is not a legal entity, and it agreed with the following two conclusions of the judge: [19]      First, any property in which a limited partnership has an interest can be held only by the general partner. In the case of a lease, there can be no assignment of the lease to the limited partnership – it must be assigned to the general partner. [20]      Second, it is not simply a matter of the general partner acquiring legal title to the property. The general partner has control over the property and is solely responsible for the operations of the limited partnership. The limited partner, as a passive investor, is restricted from taking part in the control or management of the business. To do otherwise would jeopardise its limited partner status. [55] Several propositions come from these authorities.  First, a limited partnership is not a legal entity.  Second, a limited partnership acts through its general partner (subject to the hypothetical possibility that a limited partner could act contrary to the typical provisions of a limited partnership agreement and become involved in the management of the limited partnership, in which case he or she would lose the protection of limited liability and become the equivalent of a general partner).  Third, a general partner has exclusive control of the management of the business of the limited partnership and its property.  Fourth, the property of the limited partnership can be held only by the general partner. c) Was the Board’s Decision Unreasonable ? [56] The appellants say the Board’s Decision was unreasonable for several reasons.  First, they submit the Board did not conduct a reasonable analysis of the manner in which the Water Act should be applied to limited partnerships.  They maintain the definitions of “licensee”, “owner” and “person” in the Act should be given a broad or permissive reading to permit a wide array of persons to hold water licences, and the Board acted unreasonably in interpreting the definitions as limiting or exclusionary.  They assert the Board acted illogically by accepting that the word “firm” included limited partnerships but then failed to give effect to it, and the Board misinterpreted the definition of “owner”.  The appellants argue the Board failed to adequately consider the agency and trust relationships between the General Partner and each of the Limited Partnerships and failed to focus on the powers and capacity of the Limited Partnerships. [57] In my opinion, none of these submissions establishes that the Board conducted an unreasonable analysis.  The Board reasonably interpreted the definitions within the context of the Water Act , and did not give them such a narrow interpretation so as to amount to an unreasonable interpretation.  The Board accepted that the definition of “firm” included a limited partnership and that a limited partnership fell within the definition of “person”.  However, that did not end the analysis.  As a result of the definition of “owner”, it was necessary to determine whether each Limited Partnership was a “person entitled to possession of any land, mine or undertaking in British Columbia”.  The Board concluded that it was only the General Partner which was “entitled to physical possession, occupancy and control of the appurtenant land”.  There is nothing illogical or unreasonable about this analysis. [58] The appellants criticize the Board for using the word “physical” to modify the word “possession” and say the Board imposed a requirement of physicality that does not exist in the statute.  The Board used the word because it concluded that only a “person entitled to physical possession, occupancy and control of the appurtenant land” could carry out the rights and obligations of a licensee under ss. 5(c), 21(1) and 21(2) of the Water Act .  Hence, the Board interpreted the word “possession” as meaning physical possession (as opposed to constructive possession) when determining its meaning within the context of the entire Water Act and considering the scheme and object of the Water Act .  In my opinion, the Board did not impose a requirement not found in the Act , but simply interpreted the word “possession” in accordance with accepted principles of statutory interpretation (see Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27 at para. 21). [59] The appellants also criticize the Board’s interpretation of the phrase “includes a person who has a substantial interest in the land, mine or undertaking” in the definition of “owner”.  The Board held this phrase was subject to the preceding phrase requiring the person to be entitled to possession of any land, mine or undertaking.  The appellants say this interpretation is unreasonable because the Board departed from the ordinary tools of statutory interpretation, which dictate that the word “includes” occurring subsequent to the word “means” in a statutory definition is intended to enlarge rather than limit the meaning of the preceding words. [60] I do not dispute that the use of the word “includes” in such a definition may, in a particular case, be intended to enlarge the meaning of the preceding words, but I do not accept it to be an inviolable principle that applies in all circumstances irrespective of the context and the scheme of the statute.  It can also be used as a drafting method of clarifying the definition or listing illustrations.  For example, in Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, the definition of the word “copyright” in s. 3(1) of the Copyright Act , R.S.C. 1985, c. C-42, was defined to mean “the sole right” to do certain things but also to include “the sole right” to do nine specified things.  Writing for the minority, Mr. Justice Rothstein held that the context required the words after “includes” to enlarge the rights given in the definition preceding “includes” (para. 91).  On the other hand, Madam Justice Abella and Mr. Justice Moldaver, for the majority, held that the term “means” confined the scope of the definition and that the enumerated rights after the word “includes” were intended to be illustrative (para. 42). [61] In the present case, the first phrase of the definition of “owner” speaks in terms of possession and the second phrase speaks in terms of an interest which is less than an ownership interest.  One reasonable interpretation is that the words after “includes” were intended to expand the meaning of owner.  Another reasonable interpretation is that the words were intended to clarify that the person entitled to possession of the land need not be its “owner” as that word is commonly understood.  As mandated by McLean at para. 33, it should be the Board, and not the courts, which is to choose between two reasonable interpretations of wording in the Board’s home statute.  For this Court to choose between the two reasonable interpretations would be to apply a standard of correctness, not reasonableness. [62] While it is true that the Board did not consider the law of limited partnerships in depth, it did look to the provisions of the limited partnership agreements in reaching its conclusions.  However, more importantly, the conclusion of the Board is not inconsistent with the principles relating to limited partnerships set out above.  Based on Kucor , the trust agreements executed by the General Partner in respect of the property of each of the Limited Partnerships must be taken to be nothing more than a statement that the General Partner was holding the property for the benefit of the Limited Partnership.  The trust agreements cannot be effective to vest the beneficial interest in each property in the respective Limited Partnership because the Limited Partnership is not a legal entity.  Both Kucor and Hudson’s Bay are consistent with the conclusion that the powers and capacity of the Limited Partnership are exercised by the General Partner.  The Board’s Decision cannot be said to be unreasonable in light of these principles. [63] Next, the appellants say the outcome of the Board’s Decision is unreasonable because it contradicts the Board’s earlier conclusion that limited partnerships can be licence holders under the Water Act. In my view, the Board did not conclude earlier in its reasons that limited partnerships can be licence holders.  Rather, it concluded that limited partnerships fall within the definitions of “firm” and “person” but, in order to qualify as an owner capable of holding a licence, a limited partnership was required to be entitled to possession of land, a mine or an undertaking.  The Board held the Limited Partnerships were not entitled to possession of the appurtenant land, and this conclusion does not contradict any earlier conclusion reached by the Board. [64] The appellants go on to argue it was not reasonable for the Board to prohibit limited partnerships from obtaining water licences because it is contrary to the clear intent of the Legislature to allow them to hold water licences as evidenced by the inclusion of the word “firm” in the definition of “person” in the Water Act. The appellants say the Board’s Decision fails to give meaning to the word “firm”.  I have three comments on these submissions. [65] First, even if the Board did hold that limited partnerships generally (as opposed to these Limited Partnerships) are prohibited from obtaining water licences or if it is an inevitable result of the Board’s Decision, I do not regard it as an unreasonable outcome in view of the decisions in Kucor and Hudson’s Bay .  Under those decisions, particularly Kucor , a limited partnership does not own any assets but, instead, the general partner owns the assets for the benefit of the limited partnership.  Even interpreting the Board’s Decision in the manner suggested by the appellants, it does not mean a limited partnership may never have the benefit of a water licence; it just means the licence must be held by the general partner. [66] My second comment is that the inclusion of the word “firm” in the definition of “person” does not evince a clear intention of the Legislature to allow limited partnerships to hold water licences.  The word “firm” is not included in the definition of “owner” to whom licences can be issued under s. 7 of the Water Act , but is contained in the definition of “person”.  One does not become entitled to hold a licence simply because he or she falls within the definition of “person”.  Rather, a licence holder must qualify as an “owner”, which has the added requirement of being entitled to possession of land, a mine or an undertaking.  If a limited partnership is not entitled to possession of land, a mine or an undertaking, then it was not the intention of the Legislature for it to hold a water licence. [67] My third comment is that the use of the word “firm” in the definition of “person” is not rendered meaningless if limited partnerships cannot become licensees.  It is open to general partnerships to become licensees if they can satisfy the definition of “owner”.  Without deciding the point because it should be left to the Board to decide in the appropriate case, it seems to me that, unlike limited partners, partners in a general partnership can be entitled to possession of land, a mine or an undertaking. [68] It is true that, consistent with its practice in respect of limited partnerships, the Land Title Office may well not register title to land or register a lease in the name of a general partnership because it is not a legal entity.  Although this matter came before the Board as a result of the audit which discovered inconsistencies between the holders of water licences and the holders of the appurtenant land tenure on the records of the Land Title Office, I do not read the Board’s Decision as holding that it is a requirement of the Water Act that the holder of the licence must be the registered holder of the appurtenant land tenure.  My reading of the Board’s Decision is that it turned on the definition of the word “owner”, which together with s. 7 and other provisions of the Act relied upon by the Board, requires the licensee to be entitled to possession of the land. [69] In addition, even if no type of partnership can hold a water licence, it does not follow that the use of the word “firm” in the Water Act definitions is rendered meaningless.  There were several uses of the word “person” in the Water Act to signify those other than holders of licences.  For example, s. 18(1) provided for notice to be given to “all persons whose rights would be injuriously affected” by certain specified types of amendments to licences.  Section 27 authorized a licensee to expropriate land reasonably required for its works and subsection (6) prohibited any “person” from interfering with the works while the licensee was diligently prosecuting expropriation proceedings.  The persons referred to in these sections could be firms. [70] The appellants also say the outcome of the Board’s Decision is contradictory to its reasoning on the first issue, holding the Comptroller’s decision was not an appealable order on the basis the Comptroller was simply concurring with the correction of the Ministry’s records to reflect the operation of s. 16(1) of the Water Act (which the Comptroller conceded before the judicial review judge was an unreasonable decision).  The appellants submit the Board’s decision on the first issue was premised on the assumption that the Limited Partnerships were the proper holders of the water licences prior to the issuance of the Crown leases in the name of the General Partner, and this contradicts the Board’s decision on the second issue that the Limited Partnerships could never have been the proper holders of the licences. [71] In my view, the Board did not accept that the Limited Partnerships were the proper holders of the licences when it considered the first issue.  It only accepted that the water licences were recorded in the names of the Limited Partnerships, and it held the licences should be in the name of the General Partner by operation of s. 16(1) as a result of the leases of the appurtenant lands being granted to the General Partner.  The Board never analyzed whether the licences were properly recorded in the names of the Limited Partnerships when the tenure of the appurtenant lands was in the form of licences of occupation in the names of the Limited Partnerships.  The reasoning of the Board on the two issues was not contradictory because, even in the words of the appellants, it was an “assumption” on the first issue which did not involve any analysis. [72] The final point made by the appellants is that the outcome of the Board’s Decision is unreasonable because it results in an unequal application of the law.  The appellants point to the fact that the water licence for the Douglas Creek Limited Partnership project remains in the name of the limited partnership.  Douglas Creek Limited Partnership has the same general partner as these Limited Partnerships, and the only difference is that the Indian Lands Registry permitted the registration of the Crown lease in the name of the Douglas Creek Limited Partnership and did not require it to be in the name of its general partner.  The appellants assert the judicial review judge erred in declining to deal with the issue on the basis that it was not relevant. [73] In my opinion, the Board’s Decision cannot be regarded as being unreasonable on the basis that another water licence continued to be recorded in the name of a limited partnership.  The issue of the water licence in the name of Douglas Creek Limited Partnership was not before the Board.  The Board mentioned the Douglas Creek project once in passing and stated that it did not form part of the proceedings before it.  It is not known what the Board may decide with respect to the licence in the name of Douglas Creek Limited Partnership, and the fact that the Board has not made a decision in respect of that licence cannot make the Board’s Decision unreasonable.  As the licence in the name of Douglas Creek Limited Partnership is not part of these judicial review proceedings, it would be inappropriate for us to comment further on it. [74] I therefore conclude there was nothing unreasonable in the Board’s decision-making process, and the result of the Board’s Decision falls within a range of possible, acceptable outcomes which are defensible in law and in fact.  The appellants have not established the Board’s Decision to be unreasonable. Conclusion [75] It is for these reasons that I would dismiss the appeal. “The Honourable Mr. Justice Tysoe” I agree: “The Honourable Mr. Justice Willcock” Reasons for Judgment of the Honourable Mr. Justice Hunter: [76] I have had the privilege of reading the draft reasons for judgment of Justice Tysoe in which he concludes that the decision of the Environmental Appeal Board under appeal was a reasonable interpretation of the provisions of the Water Act at issue. Respectfully, I am unable to agree. In my opinion, the Board’s analysis has taken it to a conclusion that cannot reasonably be sustained by the legislation. For the reasons that follow, I would allow the appeal. [77] The sole issue in this appeal is whether a limited partnership has the capacity to be a licensee under the Water Act . This is a pure question of law. The parties have agreed that the standard of review of this decision is one of reasonableness. Background [78] Justice Tysoe has set out the background of this dispute at paragraphs five to 34 of his judgment. I will not repeat the matters he has covered, but I do wish to clarify the circumstances by which the water licences at issue came to be held and then lost by the five Limited Partnerships that are appellants in this appeal. [79] The five Limited Partnerships initially acquired their interests in their respective projects by an assignment agreement dated May 29, 2007. Six agreements termed “Assignment/Assumption” were entered into in identical form. In each case, the parties were Cloudworks Energy Inc. as Assignor, one of the Limited Partnerships as Assignee, and Her Majesty the Queen in right of the Province of British Columbia, represented by the Minister responsible for the Land Act as a party of the third part. [80] There were six agreements signed with the reference date May 29, 2007 because in addition to the five Limited Partnerships, the Douglas Creek Project Limited Partnership executed an identical agreement. [81] In each case, the effect of the agreement was to assign to the Limited Partnership the tenure documents related to the project in question. The Province expressly consented to the assignment. In each case the agreement was signed “on behalf of” the Limited Partnership “by its general partner Harrison Hydro Project Inc.” [82] At the time these agreements were entered into, the tenure documents (at least for the Limited Partnerships) consisted of licences of occupation for the specific project. [83] The Ministry then transferred each of the water licences appurtenant to the land that was the subject of each of the licences of occupation to the particular Limited Partnership that had acquired the specific project. [84] Subsequently, the Limited Partnerships and Douglas Creek Project Limited Partnership sought leases on the appurtenant land and the Crown raised title and issued leases. [85] In the case of the Douglas Creek Project Limited Partnership , the appurtenant land was on an Indian Reserve. The Douglas Creek Project Limited Partnership took a sublease on the land. The sublease was executed in the name of Douglas Creek Project Limited Partnership “by its general partner Harrison Hydro Project Inc.” The sublease was then registered in the name of Douglas Creek Project Limited Partnership in the Indian Lands Register. [86] In the case of the five Limited Partnerships, the appurtenant land was on Crown land. The Land Title Office has a policy not to permit limited partnerships to register their interests in land in their own name, and accordingly their Crown leases were registered in the name of Harrison Hydro Project Inc., which is the General Partner for each of the Limited Partnerships. [87] From 2007 to 2013, the Province treated the Limited Partnerships and Douglas Creek Project Limited Partnership as holders of licences under the Water Act . They were billed annual fees which they paid. There is no evidence that the fact that the licences were being held by limited partnerships and not corporations had any tangible effect on the operation of the projects, and there is evidence in the record that other water licences have been issued to limited partnerships. [88] In 2013, however, Ministry staff noticed that in the case of each of the five Limited Partnerships, the registered owner of the appurtenant land (Harrison Hydro Project Inc.) did not match the name of the water licensee (the Limited Partnership), and unilaterally changed the name of the licensee in each case to Harrison Hydro Project Inc. The effect of this change was to increase the licence fees by approximately five times. [89] No change was made in the identification of the licence held by the Douglas Creek Project Limited Partnership. Statutory Framework [90] The statutory provisions of the Water Act that lie at the heart of this dispute are as follows: [7]        A licence … may be issued by the comptroller or the regional water manager to any of the following: (a)        an owner of land or a mine [1]        In this Act “licensee” and “holder of a licence” mean an owner of any land, mine or undertaking with respect to which a licence is issued under this or a former Act; “ owner ” means a person entitled to possession of any land, mine or undertaking in British Columbia, and includes a person who has a substantial interest in the land, mine or undertaking; [and] “ person ” includes a firm, association or syndicate. [Emphasis added.] [91] The Board stated the issue succinctly in this way: [139]    A key issue in these appeals is whether the Limited Partnerships fall within the definition of “owner” in the Water Act , such that they meet the definition of “licensee” and “holder of a licence” in section 1 of the Water Act , and may, therefore, hold a water licence in accordance with section 7 of the Water Act . [92] It is the Board’s analysis of this question that is the subject of this appeal. [93] In my view the crux of the issue turns on the meaning and significance in the legislative scheme to be given to the definition of “person” as including a “firm, association or syndicate”. It either has an expansive meaning permitting licences to be issued to entities that are not legal entities – firms, associations and syndicates to be specific – or it has some other, less consequential significance. It seems to me the Board took both sides of that issue, and the result is an analysis that cannot stand up to the scrutiny appropriate to the importance of the issue to the Limited Partnerships. The Board’s Decision [94] The Board, sitting as a single-member panel, considered this issue in paragraphs 139 to 159 of its decision, indexed at 2014-WAT-002(a) to 2014-WAT-007(a), and concluded that only the General Partner of a Limited Partnership could hold a water licence. A judicial review application to the Supreme Court of British Columbia was dismissed in reasons indexed at 2017 BCSC 320. [95] I propose to review the Board’s decision in some detail because it is the logic and rationality of the analysis that is challenged by the appellants. This is consistent with the role of this Court as described in Unifor Local 2301 v. Rio Tinto Alcan Inc. , 2017 BCCA 300 at para. 28: this Court owes no deference to the views of the chambers judge on this appeal. Rather, the Court is to look directly at the Environmental Appeal Board’s decision and determine whether or not it is reasonable [96] The Board’s analysis can conveniently be divided into two parts. In the first part, the Board considered whether a limited partnership is a person that could be an owner for purposes of the Water Act , notwithstanding that it could not be an owner for purposes of the Land Title Act , R.S.B.C. 1996, c. 250. In the second part, the Board considered whether a limited partnership can be an owner having in mind its structure. In my view, on a proper interpretation of the Water Act these are essentially the same questions, worded differently. The Board, however, came to a different conclusion on each question. The issue on appeal is whether this analysis is reasonable. The Board’s Decision Part 1 – A limited partnership can be a licensee [97] The first step taken by the Board was to address an argument that the definition of “owner” in the Water Act was broader than the definition of “owner” in the Land Title Act . This was important because it was clear that the Limited Partnerships were not and could not be “owners” for purposes of the Land Title Act , which defines “owner” as a person registered as an owner. The Land Title Office does not as a matter of policy permit limited partnerships to register their interests. [98] The Board agreed that the Land Title Act definition was not relevant to the issue to be decided: [140]    … The Panel finds that the definition of “owner” in section 1 of the Water Act , which is broader than the definition of “owner” in the Land Title Act , clearly applies for the purposes of interpreting and applying the Water Act . [99] The Board then embarked upon a close examination of the definition of “owner” in the Water Act . The Board stated that an owner must be a person who is entitled to possession of land, but concluded at para. 142 that “a person may have a right to possess land even if they do not have title to the land.” [100] The Board then focused on what I consider to be the key question for the analysis, namely the meaning and significance of the definition of “person” in the Water Act . The Board considered the meaning of “firm” by reference to dictionary definitions and concluded at para. 146 that “these dictionary definitions of ‘firm’ clearly include a partnership, including a limited partnership.” [101] The Board then came to the following conclusion: [147]    For these reasons, the Panel finds that a limited partnership is not barred from acquiring a water licence if, on the facts, it can qualify as a licensee under the Water Act by being an owner entitled to possession of the appurtenant land. The question of whether the Limited Partnerships may hold the water licences, based on the facts in this case, is further examined below. Based on all of these considerations, the key question at this stage of the analysis is whether a limited partnership is capable of being entitled to possession of the lands appurtenant to a water licence. [102] Thus, the Board appears to have come to the conclusion that a limited partnership is not ineligible from holding a licence. If “person” in the definition of “owner” is to be given the same meaning as “person” as defined in s. 1 of the Water Act , this conclusion seems to me inescapable. The Question of Legal Status [103] The Board’s decision that a limited partnership is not barred from acquiring a water licence, provided that it has the requisite connection with the appurtenant land, is based primarily on the expansive definition of “person” in the Water Act . This seems to me both reasonable and correct. The Board does not make reference to the legal status of a limited partnership. Indeed, the Board never refers to the argument that a limited partner cannot hold a licence because it is not a legal entity, although the argument was made before it. Again, I agree with this part of the analysis. [104] The Respondent Deputy Comptroller of Water Rights has argued that because a limited partnership is not regarded as a legal entity, only its General Partner can hold property in which the partnership has an interest. [105] In my opinion, the status of a limited partnership is highly contextual. That has been explained by the Supreme Court of Canada in Backman v. Canada , 2001 SCC 10. [106] Justice Tysoe has set out the excerpt from Backman that is relevant to this issue, but I would like to do so with particular emphasis, as I view the effect of the judgment differently. The passage reads as follows, with my emphasis: [37] A partnership can be viewed as either an independent entity or a relationship between individuals depending on the context in which it is observed . That a partnership may be considered an entity for some purposes is clear from s. 5 of the Ontario Partnerships Act , R.S.O. 1980, c. 370, where it is prescribed that for the sake of convenience a partnership may be referred to as a “firm” and the name under which it carries on business is called the firm name. Likewise, for income tax purposes, the income from the partnership business is calculated at the firm level. And typically, rules of civil procedure provide for actions against a partnership to be commenced and defended using the partnership name , and any order made against a partnership may be enforced against the property of the partnership , as well as the property of the partners:  J. A. VanDuzer, The Law of Partnerships and Corporations (1997), at p. 26. [107] My colleague has commented that this passage does not stand for the proposition that partnerships are legal entities for general purposes and I take no issue with that observation. But it seems to me that the question before us is not whether limited partnerships are legal entities for general purposes, but whether they are to be treated as independent entities for the limited purpose of holding water licences under the Water Act . That, in my view, depends primarily on the legislative scheme of the Water Act . [108] One illustration of how a limited partnership may be treated as an independent entity for specific purposes can be found in the principle that the rule in Foss v. Harbottle (1943), 2 Hare 461, 67 E.R. 189 (Ch.) applies in respect of limited partnerships as well as corporations: Watson v. Imperial Financial Services Ltd. (1994), 88 B.C.L.R. (2d) 88 at paras. 24-28 (C.A.); Everest Canadian Properties Ltd. v. CIBC World Markets Inc. , 2008 BCCA 276 at paras. 19-20. [109] The rule in Foss v. Harbottle provides that a shareholder of a corporation does not have a personal cause of action for a wrong done to the corporation; only the corporation may sue. In Watson , the rule was applied to limited partnerships. The relevant portions of the judgment in Watson were cited by Justice Newbury in Everest as follows: [19]      More importantly, I note this court’s decision in Watson v. Imperial Financial Services Ltd. (1994), 88 B.C.L.R. (2d) 88 (C.A.) , [1994] 5 W.W.R. 197 , in which the defendant successfully argued that “a wrong done to the [limited] partnership is one for which redress can be sought by the partnership only.”  (Para. 23.)  Speaking for the Court, Hollinrake J.A. reasoned as follows: I think the rule in Foss v. Harbottle is applicable here even if it can be successfully asserted that because a partnership is not a legal entity as is a company, the respondent bank owed the duty I have referred to above to the individual partners. The basis of the application of the rule in Foss v. Harbottle is that the harm or damage is done to the partnership itself and whatever loss or damage the individual members of it suffer is as a consequence of and incidental to the fact that they are members of the partnership . The position of the respondent bank is that it matters not whether the bank participated in a breach of Galcor’s fiduciary duty to the partnership and its individual partners but whether any such breach gives rise to a loss other than one to the partnership. The respondent bank says the true substance of the claim is damage to the partnership and the partnership only . This raises the issue of whether Foss v. Harbottle applies to limited partnerships inasmuch as they do not have a separate legal identity as such as is the case of a company. Lee v. Block Estates Ltd . (1984), 50 B.C.L.R. 289 gives the answer to this question, says the respondent bank. I should say here that I would not decide this issue in favour of the respondent bank because there was a Supreme Court of British Columbia precedent governing it unless I was satisfied that precedent accurately set out the law to the point that the conclusion reached in it was not only correct but further that it was plain and obvious an attack on it could not succeed. Even if it could be said that each of the 845 partners was owed a transmitted or transferred fiduciary duty by the respondent bank I do not think it would be open to those partners to individually commence actions against the bank. That would expose the bank to any number of law suits within the limitation period. I do not think that can be right. In my opinion any such claim by the partners would have to be in the firm name as permitted by the Rules of Court or in some form such that all the partners were before the court in one action such as a representative action. In my opinion this emphasizes the point made by the respondent bank that this claim, in substance, is one of the partnership and not the individual partners. This, in my opinion, is no less so just because the partnership itself is not a legal entity. The fact is that partnerships can sue and be sued as long as the proper procedure is followed . In my opinion the general principle that comes from Foss v. Harbottle applies to the claims of the 845 partners against the respondent bank. It is a claim of the partnership. I am satisfied that this is plain and obvious and that a claim by the individual partners other than in a form that shows it to be a claim of the partnership or a representative action where all the partners are before the court cannot succeed. Having concluded that Lee v. Block Estates correctly decided that the rule in Foss v. Harbottle applies to partnerships I turn now to the claims as they are pleaded as derivative and the issue of whether the appellants can succeed on those claims in the face of the rule in Foss v. Harbottle . [At paras. 24-5 and 27-9; emphasis added.] [20] Foss v. Harbottle has been held to apply, then, to associations that are not legal persons at law and in which the members hold beneficial interests in the assets, or net assets, of the association. [Emphasis of Newbury J.A.] [110] The treatment of limited partnerships as entities to which the rule in Foss v. Harbottle applies is consistent with the proposition in Backman that whether a limited partnership is to be treated as an independent entity or simply a relationship depends on the context. [111] In a similar vein, this Court has held that where an interest in land is held by a partner in a general partnership on behalf of that partnership, a commitment to sell the land by the partnership is enforceable because the partner on title will be bound by the partnership’s commitment: Coal Harbour Properties Partnership v. Liu , 2004 BCCA 283. [112] In the case of the Water Act , the Legislature must be taken to have intended to treat partnerships, including limited partnerships, as entities capable of holding licences for the reason given by the Board – the expansive definition of “person” as a defined term. The difficulty with the conclusion that a limited partnership cannot be a “person” capable of holding a water licence is that it requires “person” in the definition of “owner” to have a meaning different from the expansive definition given to “person” in s. 1 of the Water Act . My colleague has pointed to other uses of the term “person” in the Water Act that could be interpreted by reference to the defined term in s. 1, but that leads to the conclusion that “person” means different things in different parts of the Water Act . [113] For a defined term to have different meanings in the same statute is not impossible, but it runs contrary to what has been described as “a basic principle of statutory interpretation” that words should be given the same meaning throughout a statute, unless the contrary is clearly indicated by the context: R. v. Zeolkowski , [1989] 1 S.C.R. 1378 at 1387 per Sopinka J.; Thomson v. Canada (Deputy Minister of Agriculture) , [1992] 1 S.C.R. 385 per Cory J. This “presumption of consistent expression” is also set out in s. 12 of the Interpretation Act, R.S.B.C. 1996, c. 238, which requires that: Definitions or interpretation provisions in an enactment, unless the contrary intention appears in the enactment, apply to the whole enactment including the section containing a definition or interpretation provision. [114] The conclusion of my colleague seems inconsistent with the conclusion of the Board on this point, and in my view the conclusion of the Board as to the meaning of “person” in the definition of “owner” is correct. It is where the Board goes with the second part of its analysis that raises the issue for appeal. The Board’s Decision Part 2 – A limited partnership cannot be a licensee [115] Returning to the Board’s decision, having concluded that a limited partnership is a person within the meaning of the definition of owner, the Board then turned to the question of whether a limited partnership is capable of having the requisite connection with the land to qualify as an owner. [116] That degree of connection is described in the definition of “owner” as being “entitled to possession of any land, mine or undertaking in British Columbia, and includes a person who has a substantial interest in the land, mine or undertaking”. The Board interpreted this phrase as meaning that “a ‘substantial interest in the land’ is an interest that entitles the person to possession of the land” (at para. 148). In other words, the Board gave no meaning to the term “substantial interest in the land” independent of the entitlement to possession of land requirement. [117] The Board accepted that the Limited Partnerships had a beneficial interest in the lands covered by the leases, but expressed uncertainty as to whether that beneficial interest was sufficient to meet the connection test: [151]    Based on the dictionary definitions of the word “substantial”, it is unclear whether the Limited Partnerships’ beneficial interest in the land covered by the Crown leases qualifies as a “substantial interest in the land”. However, as discussed above, an entitlement to possession of the land in question is a key requirement of the Water Act ’s definition of “owner”. The “substantial interest” referred to in the definition of “owner” must be a substantial interest in land to which the person is “entitled to possession”. [118] The Board then stated that because the Water Act required certain activities on the land, “possession of any land” must mean “physical possession, occupancy and control of the appurtenant land” (at para. 152). Since a Limited Partnership could act only through its General Partner, the Board concluded that “ only the general partner is entitled to physical possession, occupancy and control of the appurtenant land” (at para. 154) and therefore “ only the general partner (i.e., Harrison) has a substantial interest … in the lands to which the water licences are appurtenant” (at para. 158; emphasis added). As a consequence, “Harrison is the ‘owner’ of the appurtenant land for the purposes of the Water Act , and is the proper licensee of the subject water licences” (at para. 159). [119] The appellants point out that this analysis is not fact-dependent and will apply to any limited partnership. Thus, the effect of this reasoning is that a limited partnership is included as a person eligible to be a licensee through the expanded definition of “person” notwithstanding that a limited partnership is not a legal entity and must act through its general partner, but is excluded from being eligible to be a licensee because it can act only through its general partner. [120] It is also noteworthy that while the Board accepted that the definition of owner in the Water Act was broader than the definition of owner in the Land Title Act , the result of the Board’s analysis is essentially the same. The attributes of a limited partnership that preclude registration of its interest in the appurtenant land under the Land Title Act are the very attributes that are found to preclude its status as owner under the Water Act . [121] It is difficult to avoid the conclusion that if the Limited Partnerships’ names appeared as title holders in the Land Title Office’s registry system, as the Douglas Creek Project Limited Partnership does in the Indian Lands Registry System, the Ministry staff would not have taken it upon themselves to unilaterally change the names of the licence holders to the name of the General Partner. Although the Board has correctly stated that it is the definition of “owner” in the Water Act that governs, not the definition of “owner” in the Land Title Act , the effect of the Board’s decision is that the narrower definition requiring the interests to be registrable interests has taken precedence over the expansive definition contained in the Water Act . [122] The interpretation by the Board essentially gives with one hand and takes away with the other. The question is whether this is a reasonable interpretation of the definition of “owner” in the Water Act . Can a limited partnership have a substantial interest in land? [123] The central conclusion of the Board was that while the Limited Partnerships had a beneficial interest in the lands that were being held on their behalf by the General Partner, that interest was not a “substantial interest in the land” because under the Water Act , a “substantial interest in the land” is an interest that entitles a person to physical possession, occupancy and control of the land, and a Limited Partnership could act only through its General Partner. [124] Leaving aside the question why “possession of any land” has expanded to “physical possession, occupancy and control of the land”, an interpretation of the Water Act that gives no independent meaning to “substantial interest in the land” cannot be a reasonable one. The definition of “owner” in the Water Act uses a conventional “means/includes” format that is disjunctive in its meaning. This is explained by Ruth Sullivan, Sullivan on the Construction of Statutes , 6th ed. (Markham:  LexisNexis Canada, 2014) at 74: §4.40 … a definition that first uses “means” to stipulate a definition that displaces ordinary meaning and then uses “includes” to enlarge, clarify or illustrate the stipulated definition makes sense and is a conventional drafting technique. In such a case, anything that comes within the stipulated definition is within the meaning of the defined term regardless of whether it also comes within that list that follows “includes”; similarly, anything that comes within that list is within the meaning of the defined term regardless of whether it comes within the stipulated definition . [Emphasis added.] [125] Thus, an owner can be a person (which includes limited partnerships) who has a substantial interest in the land, regardless of whether that person is entitled to possession of the land. [126] This means of construing a “means/includes” clause is not in my view subject to multiple interpretative techniques. It supports appellate review even on a standard of reasonableness for the reason given by Justice Moldaver in McLean v. British Columbia (Securities Commission) , 2013 SCC 67: [38]      It will not always be the case that a particular provision permits multiple reasonable interpretations. Where the ordinary tools of statutory interpretation lead to a single reasonable interpretation and the administrative decision maker adopts a different interpretation, its interpretation will necessarily be unreasonable — no degree of deference can justify its acceptance [127] Here the ordinary tools of statutory interpretation lead to a single conclusion that the requirement of substantial interest in the land is within the meaning of the defined term “owner” regardless of whether it comes within the stipulated definition of entitlement to possession of the land. [128] Thus, the question devolves to determining whether a limited partnership has, for purposes of the Water Act , a substantial interest in land held on its behalf by its general partner. [129] The term substantial interest in the land is not defined in the Water Act and is not a term of art. The term is used in the Water Sustainability Act , S.B.C. 2014, c. 15, in a somewhat more obviously disjunctive sense, but without further clarification as to its meaning. It presumably does not mean a registrable interest in the land, because that would equate to the definition in the Land Title Act , which, as the Board pointed out, is narrower than the definition in the Water Act . [130] The Board attempted to discern a meaning of “substantial interest in the land” by reference to dictionary definitions. While this is a useful first step, the modern method of statutory interpretation gives greater priority to the context of words and phrases in the particular statute in which they are found. As Sullivan puts it (at para. 3.17), a dictionary definition is “the meaning that a word can bear in many possible contexts”, whereas the meaning of a word or phrase in a statute depends on the context in which it appears in the statute. [131] In my view the term “substantial interest in the land” must take its meaning from the context in which it appears in the Water Act . As the Board points out, the Water Act confers both rights and obligations on a licensee, including the right to “construct, maintain, and operate the works authorized under the licence” and the obligation to exercise reasonable care to avoid damaging land, works, trees or other property. The owner’s interest in the land must be sufficiently substantial to ensure that the licensee can meet the obligations of the licence relating to the appurtenant land. At the same time, meaning must be given to the expansive definition of “person” which includes entities that do not have registrable interests in land. [132] A contextual analysis indicates that ownership of licences was to be available broadly, provided that the owner had a sufficient connection with the appurtenant land that it could ensure that the obligations of the licence were fulfilled. A highly technical analysis of the incidents of partnership is not consistent with the legislative intent disclosed in the statutory definitions, any more than a close examination of the legal meaning of a syndicate is required to determine whether parties can hold a licence through that mechanism. [133] In my view, the Board made the same error as was made by the Board in Unifor Local 2301 . As noted at para. 32 of Unifor , by “artificially narrowing the interpretation” of the statutory provision, “the Board failed to heed a basic principle of statutory interpretation” to give the statute “such fair, large and liberal construction and interpretation as best ensures the attainment of its objects” as required by s. 8 of the Interpretation Act . Conclusion [134] In my opinion, the conclusion of the Board that only the general partner of a limited partnership could hold a water licence under the Water Act does not meet the test of reasonableness. The Board’s view that a limited partnership was a person within the meaning of the definition of “owner” because of the expansive definition of “person” in the Water Act was both reasonable and inescapable. However, the error made by the Board in the interpretation of the “means/includes” provision precludes deference on the question whether the limited partnership had the requisite connection to the appurtenant land to be characterized as a substantial interest in the land. [135] The expansive definition of “person” combined with the practical realities recognized in this Court’s decision in Coal Harbour lead, in my view, to the conclusion that the Legislature intended a broad entitlement to water licences as long as the licensee was capable of ensuring that any licence obligations relating to the appurtenant land were met. [136] I would allow the appeal. “The Honourable Mr. Justice Hunter”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Klann v. Klann, 2018 BCCA 48 Date: 20180206 Docket: CA44349 Between: Trevor William Bird Klann, aka Trevor William Klann Bird, aka Trevor William Klann Respondent (Claimant) And Veronica Klann, aka Veronica Espino Jasmer Appellant (Respondent) Before: The Honourable Mr. Justice Groberman The Honourable Madam Justice A. MacKenzie The Honourable Mr. Justice Goepel On appeal from:  An order of the Supreme Court of British Columbia, dated March 2, 2017 ( Klann v. Klann , 2017 BCSC 344, Vancouver Docket E091805). Counsel for the Appellant: I. I. Turaglio Counsel for the Respondent: A. N. Winters Place and Date of Hearing: Vancouver, British Columbia January 19, 2018 Place and Date of Judgment: Vancouver, British Columbia February 6, 2018 Written Reasons by: The Honourable Madam Justice A. MacKenzie Concurred in by: The Honourable Mr. Justice Groberman The Honourable Mr. Justice Goepel Summary: The appellant challenges the chambers judge’s order varying the amount of spousal support payable by the respondent under a consent order. She argues that, on the evidence presented, the respondent did not establish a material change in circumstances. She also claims the judge erred in law in varying the quantum of support while not adjusting its duration. The appellant further brings an application to adduce fresh evidence. Held: application dismissed; appeal dismissed. The fresh evidence does not meet the test for admission as it could have been discovered earlier with due diligence and is not material. The chambers judge committed no error in finding that a material change in circumstances occurred based on the uncontested affidavit evidence of the respondent and others. The judge considered the relevant principles under the Divorce Act and did not err in limiting the variation to amount of support, the only factor impacted by the material change. There is no automatic requirement that support must be lengthened if its quantum is reduced. Reasons for Judgment of the Honourable Madam Justice MacKenzie: [1] The parties to this appeal were married for 11 years before separating in 2009 and divorcing in 2013. They have two children who are now aged 14 and 16. In January 2011, the terms of a mediated settlement were incorporated by consent into a court order. It included spousal and child support payable by Mr. Klann to Ms. Jasmer (formerly Ms. Klann). The spousal support was to terminate on June 1, 2020. [2] On March 2, 2017, on the application of Mr. Klann, Justice Masuhara reduced the amount of spousal and child support payable retroactive to January 1, 2016, based on what he determined to be a material change of circumstances under s. 17 of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.). [3] Ms. Jasmer appeals the variation order. First, she contends the chambers judge erred in finding Mr. Klann met the threshold requirement of a material change in circumstances, as required by s. 17(4.1) of the Divorce Act , by relying on contradictory, uncorroborated, and incomplete evidence in imputing a reduced income to Mr. Klann. [4] Alternatively, if the judge did not so err, Ms. Jasmer says he erred in reducing the amount of spousal support without increasing its duration, largely because he failed to consider the objectives in s. 17(7) of the Act. [5] Ms. Jasmer also applies to adduce fresh evidence. [6] For the reasons that follow, I would not admit the fresh evidence, and would dismiss the appeal. Background Facts The 2011 Consent Order [7] In January 2011, following mediation, the parties consented to an order (the “2011 consent order”) that included these terms, as summarized by the chambers judge at para. 13: (a)     The parties continued to share joint custody and guardianship, and continued to share parenting of the Children on an equal basis; (b)     [Mr. Klann] was to pay [Ms. Jasmer] $3,114 for child support, which was based on a set-off of the table amounts payable on an income to [Mr. Klann] of $275,000 and $30,000 to [Ms. Jasmer]; (c)     The Children’s extraordinary expenses were to be paid in proportion to the parties’ respective incomes, at the time 68% to [Mr. Klann] and 32% to [Ms. Jasmer]; (d)     [Mr. Klann] was to pay [Ms. Jasmer] $5,559 per month as spousal support, based on an income to [Mr. Klann] of $275,000 and $30,000 to [Ms. Jasmer].  Spousal support was to terminate absolutely on June 1, 2020, with liberty to [Mr. Klann] to apply to the court for termination of his spousal support obligation prior to that date; (e)     The right to review both spousal support and child support was provided for anytime after May 31, 2013, with liberty to apply to the court if the parties were unable to agree; ... [8] During the marriage, Mr. Klann worked for Phoenix Restorations Ltd. (“Phoenix”), a fire and flood restoration company that had been founded by his father and that he inherited alongside his brother. [9] The 2011 consent order provided for a right to review both spousal and child support upon the liquidation, dissolution, or winding up of Phoenix or if any shareholder, other than Mr. Klann, ceased to be an employee. The order did not contemplate a review of support in the event of an involuntary sale by Mr. Klann of his interest in Phoenix. The Parties’ Circumstances [10] Ms. Jasmer has a university degree in fashion design and worked for a design company in Mexico before marrying Mr. Klann. She worked part-time in low-wage hourly jobs during the marriage. Since the divorce, Ms. Jasmer, whose primary language is Spanish, has taken courses to improve her English and has been certified as an esthetician. She has worked since her certification, although her income was below the level of $30,000 per annum attributed to her in the consent order (about $7,000 in 2013; $14,030 in 2014; and $19,880 in 2015). However, Ms. Jasmer received a substantial capital payment to equalize the parties’ assets and debts. The judge noted at para. 38: “At present, Ms. Jasmer has approximately $610,000 in a cash account. She deposes that she has been advised that she earns an annual return of 8% on those funds.” This amounts to annual income of approximately $48,000 to which her spousal support is added. [11] Mr. Klann, who has remarried and started a new family, claimed that since the separation and divorce, Phoenix experienced a decline, partially due to external forces, and partially due to disagreements between himself and his brother. As a result, Mr. Klann sought to reduce his support obligations, and counsel for both parties began corresponding in April 2014. [12] On September 30, 2014, Mr. Klann’s counsel wrote to Ms. Jasmer’s counsel, advising that, using an income of $123,110.64 for Mr. Klann and $30,000 for Ms. Jasmer pursuant to the Federal Child Support Guidelines , SOR/97-175 [ Guidelines ], Mr. Klann’s monthly payments should be $1,311 for child support and (at the low end) $1,475 for spousal support. Starting in October 2014, Mr. Klann began paying these reduced amounts. Mr. Klann claimed that he assumed Ms. Jasmer agreed to this reduction, although Ms. Jasmer denied having done so. [13] Mr. Klann’s dispute with his brother over Phoenix culminated in litigation that settled in July 2015. The result was that Mr. Klann resigned from the company and sold his interest in the company to his brother. Reasons of the Chambers Judge [14] Mr. Klann presented his application as one to vary support under s. 17 of the Divorce Act and the judge proceeded on that basis. Mr. Klann argued there had been a material change in circumstances arising from his significant reduction in income on his departure from Phoenix. He also claimed Ms. Jasmer was capable of earning more than she did at the time. The parties agreed to have the matter determined on a summary basis and the chambers judge relied solely on affidavit evidence, which included expert reports of two Chartered Professional Accountants and Chartered Business Valuators, Ms. Walters for Ms. Jasmer, and Mr. Tidball for Mr. Klann. [15] The judge found Ms. Jasmer never agreed to a reduction in the support provided by the consent order, and that Mr. Klann unilaterally decreased his payments from October 2014 onward. [16] Ms. Jasmer argued, in assessing Mr. Klann’s income, the court should consider the fact that Mr. Klann owned 50% of Athabasca Farms Ltd. (“Athabasca”), which owns and operates an 89-acre blueberry farm. Mr. Klann claimed all of Athabasca’s income went to his father. The judge accepted the evidence of Mr. Klann, as confirmed by his father, that Mr. Klann did not have access to the corporate earnings of Athabasca in light of the historical agreement with his father and brother. [17] For 2015, the judge found Mr. Klann’s income did in fact decline because he did not seek new employment. However, the judge went on to note that Mr. Klann’s justification for not seeking employment––his uncertainty over the close of the Phoenix transaction––was insufficient in light of his obligation to support his children and former spouse. [18] Therefore, the judge concluded Mr. Klann’s income for both 2014 and 2015 should remain at $275,000. Mr. Klann’s unilateral reduction of support in October 2014 was thus unwarranted because his total income could not be said to have materially changed. [19] The judge then found there had been a material change in circumstances after 2015. He noted that on a subjective basis, Mr. Klann would not have had knowledge at the time of the consent order that he would have a dispute with his brother, involuntarily sell his interest in the family business, and lose his job and dividend income. Had Mr. Klann known these facts, it is unlikely he would have agreed to support based on the income levels set out in the 2011 consent order. [20] For Mr. Klann’s income for the period after 2015 (January 1, 2016 – June1, 2020), the chambers judge explained: [67]      In terms of income for the period post-2015, I would impute annual income for support purposes at $123,000 plus investment income.  The $123,000 was the level of employment income which was imbedded in the total income for Mr. Klann for support purposes under the Consent Order.  It is apparent that termination of Mr. Klann from employment at Phoenix would not be the basis of a review.  As a result, at least to this amount, termination was not an unforeseen event.  I would also add to this the after-tax return shown on Mr. Tidball’s calculation at 7%.  The total annual income which I thus find appropriate for support payments are: Year Amount 2016 152,530 2017 166,543 2018 180,105 2019 196,238 2020 211,964 [21] The judge dismissed Mr. Klann’s argument that Ms. Jasmer’s imputed income should be increased based on potential rental income from the basement suite in her home, greater employment income, and investment income from “the large sum she holds in a bank account” (para. 68). The judge noted the parties knew at the time the income level was imbedded in the 2011 consent order of the opportunity for rental income and of interest income. He found Ms. Klann had made appropriate effort to establish herself financially and declined to vary her income level. [22] Based on the revised incomes ascribed by the judge to Mr. Klann after 2015, the judge ordered monthly support obligations (generated from the software program “DivorceMate”), with the termination date for spousal support (at the mid-level) remaining as in the 2011 consent order, June 1, 2020. [23] Finally, the judge concluded Mr. Klann had not established a substantial alteration in his capacity, means, needs, and financial circumstances to justify cancelling his arrears of support that had accumulated following his October 2014 unilateral reduction. The Issues [24] Ms. Jasmer raises the following issues: 1.       Whether the judge erred in finding Mr. Klann had met the threshold requirement of a material change of circumstances, as required by s. 17(4.1) of the Divorce Act , by relying on inconsistent, uncorroborated, or incomplete evidence as to Mr. Klann’s income; and 2.       Alternatively, if the threshold was met, whether the judge erred in reducing Mr. Klann’s spousal support payments without varying the termination date. Standard of Review [25] Ms. Jasmer largely alleges errors of fact which are subject to the deferential standard of review of palpable and overriding error. That is, such errors must be plainly seen and material to the outcome: Housen v. Nikolaisen, 2002 SCC 33 at paras. 5–6, 10, 22. Her second ground, alleging generally a failure to correctly apply the test for a variation, is a question of mixed fact and law in this case to which the same standard of review applies. [26] As this Court said in K.P.B. v. A.S.R., 2016 BCCA 382 at para. 15: The standard of review for a support order on appeal is deferential. That is because support orders are fact-based and discretionary. The deference afforded to support orders promotes finality in family law litigation and recognizes the importance of the trial judge’s appreciation of the facts. Thus, while an appeal court may intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it will not overturn a support order simply because it would have made a different decision or balanced the various factors differently: Beissner v. Matheusik , 2015 BCCA 308 at paras. 37 ‑ 38. This deferential standard applies equally to findings of fact, including inferences made by the trial judge: Beissner v. Matheusik , at paras. 38, 44 ‑ 46. [27] Furthermore, this standard of review applies equally to cases heard on affidavit evidence: Manore v. Manore (1995) , 16 B.C.L.R. (3d) 364 (C.A.) at paras. 17-18. The question for this Court remains whether the judge’s conclusions are reasonably supported by the evidence. It is not enough for Ms. Jasmer to show only that other findings or different inferences were available on the evidence. [28] It is common ground the judge identified the correct legal test for a variation of spousal support as set out in L.M.P. v. L.S., 2011 SCC 64 at paras. 31–35. The questions are whether he erred in making the findings of fact underlying his determination to vary the amount, and correctly applied that test when he reduced the amount, without extending the duration, of spousal support. Discussion 1. Did Mr. Klann Establish a Material Change of Circumstances? [29] Section 17(4.1) of the Divorce Act provides: (4.1)     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. [30] In advancing her position that the judge erred in finding Mr. Klann had met the onus of establishing the required material change in circumstances, Ms. Jasmer asserts various errors of fact, misapprehensions of the evidence, or non-disclosure of information (“incomplete evidence”) regarding whether there was a reduction in Mr. Klann’s income to justify reducing the spousal and child support payable. [31] Ms. Jasmer’s arguments essentially amount to disagreements with the evidence, or the judge’s findings of fact, as to the financial decline in Phoenix, the family conflict said to give rise to Mr. Klann’s involuntary departure from Phoenix, the expert evidence as to his post-2015 income, and his access to income from Athabasca. Interspersed with Ms. Jasmer’s submissions are general complaints of insufficient disclosure of financial records. [32] I will address her submissions in turn. Evidence of Phoenix’s Financial Decline [33] To begin, Ms. Jasmer disputes Mr. Klann’s evidence that Phoenix’s financial health began to decline in 2010 and, in September 2013, began to seriously deteriorate. Ms. Jasmer says this means Phoenix’s gross revenues would have been decreasing during this period, yet they increased sporadically from 2010 to 2015, as indicated by its financial statements. [34] Ms. Jasmer says that 2013 was Phoenix’s second highest grossing year. In 2015, Phoenix had its highest grossing year since 2010. [35] But gross revenues, as noted by Mr. Klann, were not the only indicator in the evidence of the company’s financial health. Ms. Jasmer’s submissions overlook the financial statements showing that from 2010 to 2015, Phoenix’s net income dropped substantially. As Mr. Klann points out, the costs incurred to earn income must be factored into the calculation of net income; he provided, in his factum, a chart setting out both net and gross revenues: YEAR NET INCOME GROSS REVENUE 2010 $1,928,372 $11,145,060 2011 $1,266,421 $11,923,094 2012 $317,106 $11,507,871 2013 $940,004 $12,645,963 2014 $257,946 $11,920,571 2015 $967,668 $13,679,308 [36] The figures in the chart are supported by the financial statements. Ironically, this evidence was adduced by Ms. Jasmer. Thus, the judge did not err in finding there had been a decline in Phoenix’s financial health. Family Conflict Leading to Mr. Klann’s Departure from Phoenix [37] Ms. Jasmer says Mr. Klann’s evidence, accepted by the chambers judge, that he was forced to sell his shares in Phoenix to his brother because the personal and business relationship between them was deteriorating, was contradicted by other evidence in Mr. Klann’s affidavits. She provides as examples that Mr. Klann and his brother continue to each own half of Athabasca, as well as property in Whistler and Mission, B.C. [38] Ms. Jasmer contends Mr. Klann provided no evidence to show his relationship with his brother had a negative effect on their joint ownerships. She also says Mr. Klann did not adduce any written agreement of a certain loan from his father to his brother and Phoenix. Her further complaints include deficiencies in Mr. Tidball’s evidence and in Mr. Klann’s document disclosure, and complaints about certain of Mr. Klann’s evidence being uncorroborated. [39] I see no merit in these contentions. As Mr. Klann points out, Ms. Jasmer did not challenge his evidence in the court below or apply to cross-examine Mr. Klann on his affidavit evidence. Nor was there any requirement of corroboration before the judge could accept Mr. Klann’s evidence. The judge observed there was some conflict on the evidence, but noted the parties sought to have the matter determined on a summary basis. The parties chose to resolve this matter on affidavit evidence. There was evidence on the record, mainly through Mr. Klann’s affidavits, from which the judge could conclude that Mr. Klann had a dispute with his brother that resulted in their inability to continue to work together at Phoenix. The chambers judge committed no reviewable error on this point. Expert Evidence of Income [40] Both parties retained experts to provide opinion evidence as to Mr. Klann’s Guidelines income, both before and after his departure from Phoenix. As Mr. Klann says, the “pre-departure” income was only relevant to retroactive support and arrears, and Ms. Jasmer is not appealing the orders relating to those issues. [41] Mr. Klann’s “post-departure” income was relevant to the amount of support payable going forward, in the event the judge granted a variation. Thus, only the opinions on that issue, and the facts on which they were based, are relevant to this appeal. [42] The facts and assumptions challenged by Ms. Jasmer did not form the basis of Mr. Tidball’s opinion on Mr. Klann’s post-departure income. Instead, Mr. Tidball took calculations from the report prepared by Ms. Walters and modified them to account for tax and rates of return. [43] As part of this argument, and the one as to whether Mr. Klann had access to income from Athabasca, Ms. Jasmer submits that Mr. Klann did not provide the necessary information from his corporations for a full assessment of his income. Thus, he did not meet his burden to establish a material change in circumstances. [44] However, Ms. Jasmer does not say the facts underlying Ms. Walters’ opinion are wrong, and Ms. Walters obviously had enough information to provide an opinion as to the post-departure income. Furthermore, Ms. Jasmer’s complaints about insufficient disclosure of financial information respecting Mr. Klann’s income appear to be fully answered in written reply submissions of Mr. Klann’s counsel at the variation hearing. [45] Thus, Ms. Jasmer has not identified a palpable and overriding error in the judge’s assessment of the post-departure income. Nor is any alleged non-disclosure by Mr. Klann relevant as it concerned only the pre-departure income. Ms. Walters was able to and did provide an opinion as to Mr. Klann’s post-departure income. Access to Income from Athabasca [46] In 2006 (five years before the consent order was made), Mr. Klann’s father sold his interest in Athabasca to Mr. Klann and his brother, who each received a 50% interest. The sale formed part of the father’s estate planning. After the sale, the father continued to manage the operations of the business. [47] The evidence reflects that the father, Mr. Klann, and his brother made an oral agreement that the father would receive all the income of Athabasca. Mr. Klann had not received earnings from Athabasca since the sale of its shares. [48] The father was diagnosed with terminal cancer in 2015. Mr. Klann deposed that at his mother’s request, he began assisting his parents with their finances, including becoming familiar with their holdings, and assisting his father with tasks with respect to Athabasca. [49] Ms. Jasmer complains that in assessing Mr. Klann’s evidence from 2016 forward, the judge did not include income she says Mr. Klann could receive from his 50% interest in Athabasca. She specifically objects to the judge’s rejection of the evidence of Ms. Walters in which she assumed Mr. Klann had, and has, access to the corporate earnings of Athabasca. [50] This argument too must fail. It was open to the judge to accept the evidence of Mr. Tidball excluding any funds from Athabasca in Mr. Klann’s income. This opinion was based on Mr. Klann’s evidence, confirmed by his father, that the family agreed any income from the farm would go solely to the father. The judge simply accepted the unchallenged evidence as to Mr. Klann’s interest in Athabasca. [51] Overall, Ms. Jasmer takes issue with many of the factual findings of the chambers judge that were open to him based on the affidavit evidence before him. She has failed to persuade me of any palpable and overriding factual error. Fresh Evidence [52] On her first ground of appeal, Ms. Jasmer applies to adduce fresh evidence. The test for admissibility of evidence on appeal is set out 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. [53] The evidence sought to be admitted is an affidavit of Ms. Jasmer, sworn October 5, 2017, attaching as one of several exhibits, an appraisal of Mr. Klann’s current residence. The affidavit and exhibits attribute the modest B.C. Assessment value of the property (mortgaged for a higher amount) to not accounting for its income-generating potential as a blueberry farm. [54] Ms. Jasmer said the appraisal “may be material” to this Court’s assessment of the veracity of Mr. Klann’s financial disclosure and evidence presented in the court below. In my view, it is not material for two reasons. First, the fact an appraisal, prepared for the purposes of obtaining a mortgage, reflects income-producing capacity is not evidence of actual (or any) income produced. The appraisal does not affect the calculation of Mr. Klann’s income. Second, with due diligence, the appraisal could easily have been adduced in the court below. [55] I would dismiss the application to adduce fresh evidence as Ms. Jasmer has failed to meet the test in Palmer ; nor are there any special circumstances calling for a departure from the Palmer criteria: Jiang v. Shi , 2017 BCCA 232 at para. 11. Conclusion on Material Change in Circumstances [56] Finally on this ground, I decline to address the argument Ms. Jasmer’s counsel raised for the first time at the end of her reply at the hearing of this appeal. She submitted the judge erred in using Mr. Klann’s after-tax income, instead of his pre-tax income, to calculate his support obligations. This argument was raised far too late in the proceedings and in a manner unfair to Mr. Klann. [57] In sum, the first ground of appeal is properly disposed of by application of the standard of review. Disagreement with the judge’s findings of fact does not amount to palpable and overriding error when those findings were open to him on a consideration of the entire record, including submissions of all counsel. A review of the record discloses the judge’s findings were reasonable. It is not for this Court to reweigh the evidence. I would not give effect to this ground of appeal. 2. Reducing Spousal Support Without Varying Its Termination Date [58] Section 17 of the Divorce Act governs an application to vary spousal support: 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; (4.1)  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. (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. [59] It is common ground the judge identified the correct legal test for the variation of support orders as set out in L.M.P. when he said the following: [45]      The first question to address is whether there has been a material change in the condition, means, needs or circumstances of the applicant. [46]      From [ L.M.P. ], the court stated this with respect to a s. 17 application: 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. 33        The focus of the analysis is on the prior order and the circumstances in which it was made. Willick clarifies that a court ought not to consider the correctness of that order, nor is it to be … departed from lightly (p. 687).  The test is whether any given change “would likely have resulted in different terms” to the order.  It is presumed that the judge who granted the initial order knew and applied the law, and that, accordingly, the prior support order met the objectives set out in s. 15.2(6).  In this way, the Willick approach to variation applications requires appropriate deference to the terms of the prior order, whether or not that order incorporates an agreement. 34        The decisions in Willick and G.(L.) also make it clear that what amounts to a material change will depend on the actual circumstances of the parties at the time of the order. 35        In general, a material change must have some degree of continuity, and not merely be a temporary set of circumstances (see Marinangeli v. Marinangeli (2003), 66 O.R. (3d) 40, at para. 49).  Certain other factors can assist a court in determining whether a particular change is material.  The subsequent conduct of the parties, for example, may provide indications as to whether they considered a particular change to be material (see MacPherson J.A., dissenting in part, in P.(S.) v. P.(R.) , 2011 ONCA 336, 332 D.L.R. (4th) 385, at paras. 54 and 63). [47]      Recently Madam Justice Kirkpatrick in Moazzen-Ahmadi v Ahmadi-Far, 2016 BCCA 503 stated in regard to material change: [14]      The seminal decision is Willick v. Willick , [1994] 3 SCR 670 where Mr. Justice Sopinka stated at 688: ...In deciding whether the conditions for variation exist, it is common ground that the change must be a material change of circumstances.  This means a change, such that, if known at the time, would likely have resulted in different terms.  The corollary to this is that if the matter which is relied on as constituting a change was known at the relevant time it cannot be relied on as the basis for variation. [15]      Thus, the test, at its core, requires subjective knowledge of the change. [48]      Nothing has been brought before me to indicate directly that on a subjective basis the knowledge that Mr. Klann would be involved in a dispute with his brother which would lead to Mr. Klann selling his interest and which would lead to the loss of his job and entitlement to dividends.  Had it been, the idea of Mr. Klann agreeing to support based on a level of income which included substantial dividends from his company would have resulted in different terms.  Though there is clear knowledge embedded in the Consent Order of the potential of the company being dissolved or liquidated (which would trigger a review); and the potential of Mr. Klann ceasing to be an employee of Phoenix (which would not trigger a review); the circumstance of an involuntary sale by Mr. Klann of his interest is not. [60] Ms. Jasmer emphasizes that the terms of the prior order are presumed to have complied with the objectives of the Divorce Act ( L.M.P. at para. 39) and therefore the total amount of spousal support Mr. Klann agreed to pay under the 2011 consent order (having regard to quantum and duration) must also be presumed to have been in compliance with the objectives of the Divorce Act . [61] Ms. Jasmer submits reducing her quantum of spousal support without a corresponding variation to its duration means Mr. Klann will be required to pay significantly less than what the parties agreed to in the 2011 consent order. She claims this results in a “windfall” to Mr. Klann and prejudice to herself, and argues this result does not meet the objectives of the Divorce Act . [62] The 2011 order contemplates final termination of spousal support on June 1, 2020, which date represents “the maximum duration for the payment of Spousal Support to [Ms. Jasmer] pursuant to the Spousal Support Advisory Guidelines ”. [63] In her factum, Ms. Jasmer focused on the judge’s alleged failure to satisfy himself 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” ( Divorce Act , s. 17(4.1)). But at the hearing of this appeal, Ms. Jasmer contended the judge failed to consider the objectives set out in s. 17(7) of the Divorce Act. I do not accept this submission. [64] Although the judge did not specifically mention s. 17(7), he recited other relevant parts of s. 17, considered and quoted extensively from the leading authority on variation orders which comprehensively analyses s. 17, and discussed in his reasons factors relevant to s. 17(7). He addressed the parties’ economic circumstances before, during, and after the marriage. He recognized that Ms. Jasmer’s career plan had not yet turned out the way she planned and noted her original support claim was based on both compensatory and non-compensatory grounds. This analysis subsumes the factors in s. 17(7). [65] It seems to me Ms. Jasmer’s submission in this case would have this Court fall into the same type of error that occurred in L.M.P. and which was corrected by the Supreme Court of Canada. Justices Abella and Rothstein, for the majority, said this: [47] If the s. 17 threshold for variation of a spousal support order has been met, a court must determine what variation to the order needs to be made in light of the change in circumstances.  The court then takes into account the material change, and should limit itself to making only the variation justified by that change.  As Justice L’Heureux-Dubé, concurring in Willick , observed: “A variation under the Act is neither an appeal of the original order nor a de novo hearing” (p. 739).  As earlier stated, as Bastarache and Arbour JJ. said in Miglin , “judges making variation orders under s. 17 limit themselves to making the appropriate variation, but do not weigh all the factors to make a fresh order unrelated to the existing one, unless the circumstances require the rescission, rather than a mere variation of the order” (para. 62). [66] In L.M.P., instead of determining whether there had been a material change of circumstances, the trial judge conducted a de novo assessment of the wife’s ability to work as if the variation application were an original application for support. The trial judge made no finding about whether there had been a material change in the wife’s circumstances since the original order. The Court of Appeal, relying on the de novo assessment to infer a material change in circumstances, fell into the same error. Ms. Jasmer’s submission, in my view, invites the same error of the Court undertaking a de novo hearing in this case. The judge properly limited himself to only making the variation that is appropriate in light of the material change in circumstances identified. The factors relevant to s. 17(7) were addressed by counsel, and it is axiomatic a judge need not record every part of his or her analysis. [67] In my view, Ms. Jasmer has not identified any error in the judge’s application of the test in s. 17(4.1) of the Divorce Act and L.M.P. to the facts as he found them. [68] Section 17 of the Divorce Act required the judge to limit the scope of his variation. He could not reweigh the factors underlying spousal support or disregard the terms of the 2011 consent order. He identified and applied the relevant legal test for the variation having regard to s. 17, and appropriately in this case, the Spousal Support Advisory Guidelines (“ SSAG ”): L.M.P . at paras. 47–50 per Abella and Rothstein JJ., and para. 92(6) per Cromwell J., concurring; Domirti v. Domirti , 2010 BCCA 472 at paras. 40-41. There were no intervening events to make it inappropriate to recalculate support using the SSAG : Boekhoff v. Boekhoff , 2016 BCCA 33 at para. 77 . [69] As Mr. Klann says, Ms. Jasmer is wrong to treat quantum and duration of spousal support as interdependent. While they are conceptually linked under the SSAG , there is no support for Ms. Jasmer’s argument that a decrease in quantum must automatically lead to an increase in duration. There is no sliding scale requirement. Rather, the correct approach is to adjust spousal support having regard to the respective factors underlying the amount and duration calculations. In this case, the material change in circumstances, namely Mr. Klann’s sale of his interest in Phoenix and the corresponding loss of dividend income, informed only the amount. The judge did not err in adjusting the amount of spousal support while maintaining the duration contemplated in the 2011 consent order. [70] I agree with this submission in Mr. Klann’s factum: 75.       The factors underlying amount and duration of support are different. In the with child support , shared parenting formula, the amount of support is calculated based on the net incomes of both parents, with a goal of ensuring that the children of the marriage live in households with similar net disposable income. Duration, on the other hand, is calculated based on the length of marriage and the length of the remaining child-rearing period. See SSAG , ss. 8.3, 8.5 & 8.6 76.       The chambers judge’s decision limited his variation to amount because the material change in circumstances went to the net disposable income of the Husband’s household. There was no change to the length of marriage nor the child-rearing period. In so limiting the variation, the chambers judge refrained from approaching the parties’ circumstances de novo , instead making only a variation justified by the material change. See L.M.P . at para. 47, per Abella and Rothstein JJ. 77.       Had the chambers judge chosen to extend the duration of support, he would have been ignoring the range for duration, making the support award effectively contrary to the SSAG. His decision to maintain a support award that fell within the recommended ranges should be approached with deference. See Domirti at para. 48 [71] The judge’s order was also consistent with the parties’ intention, as reflected in the 2011 order that contemplated a possible variation and a final termination date for spousal support. Ms. Jasmer’s submission that the 2011 order contemplated a specified sum is misguided because the order was not for lump sum support. Instead, the order provided for reviewable periodic support based on the parties’ respective imputed incomes. The clear intention was that the end date represented the maximum duration for support in accordance with the SSAG. [72] I would not accede to this ground of appeal. Costs [73] It is unnecessary to address Ms. Jasmer’s application for special costs of the hearing below. Not only is she unsuccessful on this appeal, but also, the parties did not accept the judge’s invitation to set the matter of costs for hearing before him. Consequently, there is no order for costs from which an appeal may be taken. [74] Mr. Klann will have his costs of the appeal. Conclusion [75] In the result, I would dismiss the application to adduce fresh evidence and dismiss the appeal with costs to Mr. Klann. “The Honourable Madam Justice MacKenzie” I agree: “The Honourable Mr. Justice Groberman” I agree: “The Honourable Mr. Justice Goepel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Duerksen, 2018 BCCA 46 Date: 20180206 Docket: CA43816 Between: Regina Respondent And Christopher John Duerksen Appellant Before: The Honourable Chief Justice Bauman The Honourable Madam Justice Newbury The Honourable Mr. Justice Hunter On appeal from:  An order of the Supreme Court of British Columbia, dated June 16, 2016 ( R. v. Duerksen , 2016 BCSC 1771, Chilliwack Docket 63977). Counsel for the Appellant: C.L. Bauman Counsel for the Respondent: M.A. Street Place and Date of Hearing: Vancouver, British Columbia September 7, 2017 Place and Date of Judgment: Vancouver, British Columbia February 6, 2018 Written Reasons by: The Honourable Chief Justice Bauman Concurred in by: The Honourable Madam Justice Newbury The Honourable Mr. Justice Hunter Summary: The police arrested the accused on charges of kidnapping and robbery. The police also informed the accused of the right to counsel, but he did not identify a specific lawyer to contact because he was unsure of who to call. The accused had previously indicated he did not want to rely on Legal Aid counsel. The accused later spoke with Legal Aid counsel prior to giving statements to police. The accused argued that the statements should be inadmissible because he was not provided with a reasonable opportunity to access counsel of choice as required by s. 10(b) of the Charter. The trial judge held that the evidence was insufficient to determine how the police came to contact Legal Aid counsel, and therefore the accused had not met his burden to show that he was not afforded a reasonable opportunity to contact counsel of choice. Held: Appeal dismissed. The burden to prove that the police failed to provide an accused with a reasonable opportunity to contact counsel lay with the accused. The trial judge did not err in finding that the evidence was insufficient to show that the police pre-empted the accused’s choice of counsel or that they otherwise did not provide the accused with a reasonable opportunity to access counsel of choice. The accused also clearly waived his right to contact counsel again after being charged with robbery since he requested to speak to police. Reasons for Judgment of the Honourable Chief Justice Bauman: Introduction [1] This appeal arises out of a voir dire ruling consequent upon an accused person’s allegation that on his arrest, the police breached his rights under s. 10(b) of the Charter , “to retain and instruct counsel without delay and to be informed of that right”. For reasons that follow, I would dismiss the appeal from the trial judge’s decision dismissing the application. Facts [2] On 20 June 2014, Christopher John Duerksen and his co‑accused, Stuart Forrest, cornered the complainant, Kevin Regehr, in a shed on Mr. Regehr’s family property. Mr. Duerksen planned to tie Mr. Regehr up, take him for a drive in his truck and “scare” him into having his family pay a multi-million dollar ransom. However, after Mr. Duerksen took Mr. Regehr’s wallet and keys and had him write a ransom note, Mr. Regehr attempted to escape. Mr. Forrest reacted by striking Mr. Regehr in the head several times, causing his head to hit the cement. Mr. Forrest also kicked him in the groin. The men then placed Mr. Regehr in Mr. Duerksen’s truck, brought him into a nearby park, tied him up against a tree and left. [3] With the help of a police dog, the police located Mr. Regehr several hours later. Mr. Regehr had suffered a severe head injury, multiple facial fractures, blurred vision, severe scalp lacerations, soft tissue injuries, a groin injury and psychological trauma. [4] In the early morning hours of 21 June 2014, Mr. Duerksen called the Abbotsford Police Department and told Detective Demers he would turn himself into the detachment in the morning in connection with the Regehr matter after he consulted with a lawyer. Det. Demers sought to dispel Mr. Duerksen’s concerns that the police would arrest him before Mr. Duerksen came in voluntarily and suggested that Mr. Duerksen come down to the police station where counsel might then be provided. Mr. Duerksen emphasized his desire to contact a lawyer before turning himself in and that he did not “want to come in and then have to be given [counsel].” [5] Coincidentally, Mr. Duerksen was arrested a short time later by another officer, Sergeant Sansalone, when Mr. Duerksen was found near the truck that had been used to commit the kidnapping. He was arrested and charged with kidnapping and aggravated assault. In response to being read his s. 10(b) Charter rights, Mr. Duerksen said he wished to call a lawyer. Another officer, Constable Walker, then transported Mr. Duerksen to Abbotsford police cells. He knew Mr. Duerksen had asked to speak to counsel and he left a message for Legal Aid. When Legal Aid returned the call, Mr. Duerksen spoke to a lawyer in his cell from 2:46 to 2:48 a.m. [6] Detective Murray then became involved when he re-read Mr. Duerksen his Charter rights after he was also charged with robbery. When Det. Murray asked if he wished to speak to a lawyer, Mr. Duerksen replied “No, the first time was pointless.” He then asked Det. Murray when “someone” would speak to him. Det. Murray expressed surprise that Mr. Duerksen wanted to speak at that late hour. Nevertheless, he took Mr. Duerksen into an interview room and conducted an interview. [7] The interview began at 3:40 a.m. and lasted for just over 3 hours and 40 minutes. Throughout, Mr. Duerksen was hesitant to discuss the offence, but eventually relented and gave further details when prompted by Det. Murray. Det. Murray used a number of ways to prompt Mr. Duerksen to give him information:  he expressed sympathy for Mr. Regehr’s family, concern for Mr. Regehr’s safety (at that time police did not know the identity of Mr. Duerksen’s co‑perpetrator), and urged Mr. Duerksen to be a good person and have a conscience. Mr. Duerksen expressed his wish to consult a lawyer a number of times during the interview. It is apparent from the transcript that Mr. Duerksen believed he could have a lawyer in the interview room with him. At one point, Mr. Duerksen asked if the police had “something…better than the Legal Aid”. In response, Det. Murray referred to a list of counsel kept in a book in the detachment, but said private lawyers would not answer at that early hour. He then said that did not mean there would not be someone available later in the morning. The interview continued and Mr. Duerksen provided evidence incriminating himself. [8] Later that day, just after 5:00 p.m., Detective Wheatley and another officer spoke to Mr. Duerksen and informed him they would be speaking with his father to see if his father wished to arrange a lawyer for Mr. Duerksen. Det. Wheatley told the father that the father’s lawyer could communicate with Mr. Duerksen to provide advice. [9] Mr. Duerksen had another call with counsel at 9:28 a.m. on 22 June 2014. Detective Brown-John then conducted a follow-up interview at 11:36 a.m. When the detective asked him for further details, Mr. Duerksen again said he wished to speak to a lawyer. When Det. Brown-John responded that Mr. Duerksen had already had the opportunity to speak to his lawyer, the interview continued and Mr. Duerksen provided a number of additional details. He admitted to having planned the kidnapping and to his involvement in the offence. [10] At trial, the key issue was the admissibility of Mr. Duerksen’s various statements to police. Mr. Duerksen did not testify at the voir dire on that issue. Following the trial judge’s ruling admitting Mr. Duerksen’s statements, the accused through his counsel invited the trial judge to impose convictions on counts 1, 3 and 5 of the indictment, without prejudice to his right to appeal the voir dire ruling. Decision Under Appeal: voir dire ruling [11] The trial judge found that Mr. Duerksen had failed to establish a breach of his rights under s. 10(b) of the Charter . In his ruling, the trial judge set out all portions of the police interview transcripts of the telephone conversations between Mr. Duerksen and Det. Demers, as well as the formal interviews at the Abbotsford police detachment in which Mr. Duerksen expressed his wish to consult a lawyer, and his frustration as a result of having admitted certain facts. The trial judge also set out the positions of the defence and Crown, and highlighted the Crown’s emphasis on the insufficiency of evidence in support of an actual breach of s. 10(b) in the absence of testimony from Mr. Duerksen as to how he wished to exercise his right to counsel. The trial judge also found that Mr. Duerksen’s statements to Det. Demers could support an inference as to Mr. Duerksen’s intentions to contact counsel if he had been asked (para. 41). [12] The judge then turned to an analysis of the chain of events leading to Mr. Duerksen’s inculpatory statements. The judge accepted that the law requires police to offer the means to a detainee to choose their own counsel, and that the police cannot pre-empt that choice by calling Legal Aid on a detainee’s behalf without direction from the detainee. However, the trial judge found that the defence had failed to establish that Cst. Walker pre‑empted the choice of counsel by calling Legal Aid on his own initiative (para. 43). The evidence did not demonstrate to any reliable degree what Mr. Duerksen said in response to being informed of his rights or how Cst. Walker came to dial Legal Aid. [13] The trial judge also addressed the interview conducted by Det. Murray. He found that Mr. Duerksen had rejected Det. Murray’s offer of alternative contact with counsel and highlighted that Mr. Duerksen had in fact asked to speak with police (at para. 45). The trial judge found that the police had no duty at that point to persuade him to speak to a second lawyer and that their duty to hold off on interviewing Mr. Duerksen was at an end. The judge acknowledged that Det. Murray may have been incorrect in advising Mr. Duerksen that contact with lawyers other than Legal Aid likely could not be made at that time of night, but found that Det. Murray conveyed this misinformation in the context of a gratuitous offer, thus it was not found to constitute a breach of s. 10(b). The judge noted that many of Mr. Duerksen’s comments about having a lawyer appeared to be rooted in his mistaken belief that he could have a lawyer present for the interview — something Det. Murray correctly advised was not a component of the Charter right. In the end, the judge concluded there was no breach of Mr. Duerksen’s s. 10(b) right. Submissions [14] The sole issue on appeal is whether the trial judge erred in holding that the Abbotsford Police satisfied their implementational duty to provide Mr. Duerksen with a reasonable opportunity to exercise his right to counsel. [15] Mr. Duerksen submits that the trial judge erred in placing the persuasive burden on him, not just with respect to proving a breach, but with respect to every factual finding made in analysing whether a Charter breach had been established. Mr. Duerksen cites a decision of the Alberta Court of Appeal, R. v. Luong , 2000 ABCA 301, for the proposition that a s. 10(b) Charter breach is subject to a shifting persuasive burden since police must preserve evidence of their interactions with an accused person. According to Mr. Duerksen, the question was not whether Cst. Walker pre‑empted Mr. Duerksen from exercising his right to counsel by calling Legal Aid when he did, but rather whether the police, after having become aware of Mr. Duerksen’s wish to contact counsel, discharged their duty to facilitate reasonable access to counsel of choice. [16] Mr. Duerksen further submits that the judge failed to consider the evidence of Cst. Walker’s conduct in facilitating access to counsel and Det. Murray’s subsequent advice that it was doubtful a lawyer could be reached at that time. In particular, Mr. Duerksen points to the failure to take into account the context of him clearly advising Cst. Walker that he wished to speak with counsel of choice and later expressing dissatisfaction with the Legal Aid “Brydges” line. Had the judge done so, then he would have concluded that Mr. Duerksen had met his onus of proof. [17] If this Court determines that the police, through Cst. Walker, did not fulfill their implementational duty, Mr. Duerksen says the next question is whether he subsequently waived his right to speak to counsel when he was again advised of his s. 10(b) Charter rights by Det. Murray. He says the trial judge erred in resolving this matter by finding implicitly a waiver when he responded in the negative to Det. Murray’s question as to whether he would like to speak to a lawyer. In this regard he says the trial judge made a factual error in finding that Mr. Duerksen said “No, the first one was pointless” when in fact, the record shows that he said “No, the first time was pointless”. He says, properly understood, this statement did not constitute a waiver, but was an expression of his dissatisfaction with the advice he received. [18] Mr. Duerksen also submits that Det. Murray actively misled him and discouraged him from attempting to seek alternate counsel when the officer told him it was possible to call counsel from a book of lawyers, but that none of those lawyers could be reached at that time. [19] The Crown submits that the trial judge did not err in respect of the persuasive burden. That burden only shifts to the Crown if there is a delay in providing or facilitating the right to counsel, or if the Crown asserts waiver. Here, the Crown asserted waiver only with respect to the right to counsel offered to Mr. Duerksen following his arrest for robbery. Mr. Duerksen still bore the burden of establishing that police had failed to provide him with a reasonable opportunity to contact counsel after arresting him for aggravated assault and kidnapping. [20] The Crown argues that Mr. Duerksen failed to meet this burden. He was entitled to try to meet the burden of proof through cross-examination rather than testifying himself, but he had to live with the consequences of doing so. He adduced no evidence upon which the trial judge could have found a breach. Mr. Duerksen did not ask Cst. Walker about his knowledge of the different ways a detainee may wish to exercise his or her right to counsel, nor his practice when a detainee wants counsel other than Legal Aid, but does not know who to contact. There was no direct evidence as to how Mr. Duerksen intended to exercise his right to counsel. [21] With respect to waiver, the Crown argues that while the trial judge did not explicitly reference the legal test for waiver, the court is presumed to know the law. The record makes it clear that the trial judge did not err in finding Mr. Duerksen had waived his right to counsel. He had sufficient information to have validly waived the right. Although the trial judge misstated Mr. Duerksen’s response to Det. Murray, he was merely paraphrasing a statement he had correctly reproduced earlier in his ruling, and in any event, the misstatement had no effect on the judge’s reasoning. The critical word in the sentence was “pointless”, which was ambiguous and did not indicate that Mr. Duerksen had not been given advice, or that he somehow did not understand the advice he had received. [22] The Crown submits that Mr. Duerksen’s ambiguous comments did not give Det. Murray reason to believe the advice Mr. Duerksen had received was deficient. At best, his remarks suggested that he disliked the lawyer with whom he spoke. Police are not required to monitor the quality of legal advice provided once a detainee has contacted counsel. Had Mr. Duerksen not understood the advice he had received or felt it was deficient, he ought to have said so. He demonstrated an ability to voice his concerns or ask for things on a number of occasions during the interview with Det. Murray. Although Mr. Duerksen made comments indicating a wish to contact a lawyer during the interrogation with Det. Murray, he made those comments as a result of the mistaken assumption that he had the right to have a lawyer present during questioning. [23] In response to the argument that Det. Murray allegedly actively misled or discouraged Mr. Duerksen from using a lawyer, the Crown submits that the defence has pointed to nothing in Det. Murray’s conduct that would support such an inference. Det. Murray was never challenged on the sincerity of his belief that Mr. Duerksen would not have been able to connect with a lawyer at the time of the interview. In any event, Det. Murray’s misunderstanding concerning the availability of a lawyer was inconsequential as Mr. Duerksen had already exercised his right to counsel. Analysis [24] The purpose of section 10(b) is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”: R. v. Manninen , [1987] 1 S.C.R. 1233 at 1242-1243. The police must provide a detainee with a reasonable opportunity to exercise their right to counsel: R. v. Fan , 2017 BCCA 99; R. v. Taylor , 2014 SCC 50 at para. 23. For example, it is incumbent upon the police to offer a telephone to contact counsel, regardless of whether a detainee requests one: Manninen at 1242. Similarly, where it is reasonable to provide private phone access in a hospital ward, it must be provided: Taylor at para. 34. However, s. 10(b) does not create positive substantive obligations on the government to provide duty counsel, nor does it require that counsel be present during interrogation: R. v. Prosper , [1994] 3 S.C.R. 236 at 267-268; R. v. Sinclair , 2010 SCC 35 at para. 2. A detainee must also be reasonably diligent in the exercise of the right to counsel: R. v. Bartle [1994] 3 S.C.R. 173 at 192. [25] The overall burden to prove a Charter infringement lies on the claimant, including infringements of s. 10(b): R. v. Collins , [1987] 1 S.C.R. 265 at 277; R. v. Rindero , 2001 BCCA 336. However, the burden lies on the Crown to show that any delay in affording a detainee an opportunity to access counsel was reasonable in the circumstances: Taylor at para. 24. The burden also lies on the Crown to prove that the detainee waived their right to counsel: Prosper at 275. [26] The application before the trial judge turned on the sufficiency of the evidence of a breach of Mr. Duerksen’s rights under s. 10(b). In particular, it centered on whether he had shown on a balance of probabilities that the police breached their implementational duty under s. 10(b) to provide Mr. Duerksen with a reasonable opportunity to exercise his right to counsel. [27] The crux of the trial judge’s reasoning in concluding that Mr. Duerksen had not met his evidentiary burden is found in paras. 42 to 44 of his reasons: [42]      The first component of the alleged breach here is that Cst. Walker simply facilitated contact with Legal Aid in the absence of a request for a specific lawyer, ignoring the intermediate step, which I accept is required by the authorities that have been cited, of also offering the means to choose his own counsel. The critical evidence in support of this are his earlier statements of intention to obtain a lawyer, Sgt. Sansalone's agreement with the suggestion that he would have considered a statement that Mr. Duerksen could not afford a lawyer or did not have one to be important and would have noted it, and Cst. Walker's apparent position that he would have noted and facilitated access to a specific requested lawyer. [43]      However, even taken at its highest I find the current evidence insufficient to establish on a balance of probabilities that Cst. Walker actually pre-empted the choice of counsel by calling Legal Aid of his own initiative. [44]      It is the accused's burden in this voir dire and we simply do not know to any reliable degree what he said in response to receiving his rights from Sgt. Sansalone, beyond the mere affirmations that are noted, or how Cst. Walker came to dial Legal Aid for him. As the cases emphasize, a great deal of the implementational duties on the police are influenced by what the detainee says and does in response to the required advice. This is not a situation like Kiloh where there is clear evidence that the officer regarded contact with a lawyer and with Legal Aid as the same thing and imposed that misunderstanding on the detainee. Cst. Walker's reference in his evidence to hunting down lawyers was in the context of a request for a specific lawyer, but we do not know what his evidence would have been if he had been asked what he does for detainees who want a lawyer other than Legal Aid, but do not have a name. [28] Mr. Duerksen complains that the trial judge asked himself the wrong question in para. 43 and focused too narrowly on whether Cst. Walker pre-empted his choice of counsel; that the correct question, on the contrary, was more generally whether the police, after having been made aware of Mr. Duerksen’s wish to contact counsel, discharged their duty to facilitate reasonable access to counsel of his choice. I disagree. The judge was clearly alive to the generality of the issue before him. He was simply responding to the central submission advanced by Mr. Duerksen in arguing that the implementational duty had been breached when police choose counsel for a detainee based on the reasoning in cases like R. v. Kiloh , 2003 BCSC 209. [29] This brings the discussion to the merits of Mr. Duerksen’s submission: as between him and the police authorities, who does bear the burden of establishing that the police discharged their duty to facilitate Mr. Duerksen’s reasonable access to counsel? The facts include these: (1) Based on his telephone conversations with Det. Demers, Mr. Duerksen apparently wanted to be advised (indeed accompanied) by counsel of his choice. (2) Mr. Duerksen reiterated his wish to call a lawyer upon being initially advised of his s. 10(b) rights by Sgt. Sansalone. Being advised of “the right to retain and instruct counsel” implicitly informs the detainee that they have the right to hire a lawyer of their choice: R. v. Grouse , 2004 NSCA 108 per Cromwell J.A., as he then was, at para. 24. So there is no doubt that the informational duty was met in this regard. (3) Mr. Duerksen spoke to a Legal Aid lawyer from 2:46 to 2:48 a.m. when Cst. Walker’s call to Legal Aid was returned. No evidence was adduced on the voir dire to the effect that Mr. Duerksen at that time objected to receiving advice from a Legal Aid lawyer. (4) After he was charged with robbery, Det. Murray reread Mr. Duerksen his Charter rights. Mr. Duerksen said, when asked, that he did not wish to speak to a lawyer, that “… the first time was pointless.” Shortly thereafter, he said that he wanted to speak to the police. (5) At 3:40 a.m. Mr. Duerksen was in the police interview room with Det. Murray and Cst. Baker. The transcript discloses this exchange (“CD” is Mr. Duerksen and “KM” is Det. Murray): KM:      Okay; so I’m gonna leave this audio recorder on even though it’s gonna be audio and videoed okay? Just in case there’s a screw up with that machine; at least, at least I have this. Okay? So I’m just gonna make a note here that we’re in here at uh three-forty-four. Alright now, before we begin, I know that you were already provided with your Charter Rights. CD:      Are you gonna read that again? KM:      I am not going to read it again. CD:      Thank you. KM:      I have to read a different part of it. Alright? CD:      Okay. KM:      So it’s called the Secondary Warning. Okay? KM:      Alright. So I mean, my friend, I don’t know where you want to start. So, I, could I – CD:      Well I was to – KM:      -- could I – ((U/I) conversation) KM:      -- ask. CD:      I was told by um, Detective – KM:      Tony? CD:      Tony. KM:      Yeah. CD:      That he want to talk. KM:      Uh – CD:      So I wa – KM:      -- we do. CD:      So I assumed that you guys had a bunch of questions. KM:      I totally do. I just didn’t know if you wanted to st – initiate or start with an opening comment or something. Which you are totally free to do. CD:      St – start asking – KM:      Start? Okay. CD:      Start asking questions. [30] The essential facts before the judge on the voir dire then distill to this essential scenario: Mr. Duerksen initially appeared to want counsel of his own choice and must be taken to have known this was his right. The police contacted Legal Aid. There is no evidence as to why this happened. The Legal Aid lawyer responded to the call and Mr. Duerksen took advice from that lawyer. Mr. Duerksen declined the opportunity to contact a lawyer a second time. He said the “first time was pointless”. He expressed a willingness to talk with police. He said he was thankful that he was not advised of his right to counsel a third time. He assumed the police had “a bunch of questions” and he invited police to “Start asking questions.” [31] Mr. Duerksen relies on Luong to argue that the Crown has the burden of establishing that a detainee who has invoked a right to counsel is provided with a reasonable opportunity to exercise that right. In Luong, the Alberta Court of Appeal summarized the various stages in the s. 10(b) analysis and in particular commented on the Crown’s burden as follows: [12]      For the assistance of trial judges charged with the onerous task of adjudicating such issues, we offer the following guidance: ... 7.         A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with a reasonable opportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counsel was provided with a reasonable opportunity to exercise the right. [32] Before us, the Crown submits that this is a dubious conclusion; that Luong has not been substantially considered in this regard by courts that have cited it. I agree that this statement in Luong has not been critically examined or expressly adopted. I do not accept the soundness of the Court’s comments in light of what this Court has said is trite law: the onus is on the accused to establish on a balance of probabilities that the police have failed to provide him with his rights under the Charter and, in particular, his rights under s. 10(b): Rindero ; Collins at 277; R. v. Baig , [1987] 2 S.C.R. 537 at 540. [33] As already noted, the Crown submits that the persuasive burden shifts to the Crown only if there is a delay in providing or facilitating the exercise of a detainee’s right to counsel, or if the Crown asserted waiver of that right. As to the former the Supreme Court of Canada did cite Luong with apparent approval in Taylor at para. 24: The duty to inform a detained person of his or her right to counsel arises “immediately” upon arrest or detention ( Suberu , at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances ( R. v. Luong (2000), 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry. [34] I do not read this reference, however, as adopting Luong ’s more general statement that “the Crown has the burden of establishing that the detainee who invoked the right to counsel was provided with a reasonable opportunity to exercise the right”. [35] In R. v. A.R.M. , 2011 ABCA 98, leave to appeal ref’d [2012] S.C.C.A. No. 84, the Alberta Court of Appeal extensively discussed the burden of proof with respect to the infringement of s. 10(b). The Court wrote that “the burden of proof is on the Charter claimant, absent a prima facie set of facts that triggers a presumption, such as facial unreasonable trial delay in cases under s. 11(b) of the Charter or facial warrantless search and seizure in cases under s. 8 of the Charter ”: at para. 47. Notably, the Court did not discuss the burden shifting to the Crown with respect to proving reasonable opportunity to exercise right to counsel, even though it cited Luong only a few paragraphs earlier: see para. 43. [36] In A.R.M. , the Court went on to discuss how presumptions which shift the burden of proof are motivated by specific policy choices: [50]      The established onus on a Charter claimant to prove the Charter claim does not defeat justice. There [ sic ] presumptions as to prima facie breaches of certain Charter rights are policy choices under law for specific situations. The respondent’s position would either create a new presumption, or would establish a broader and more general rule which would make the existing presumptions redundant. We are not persuaded that a new presumption should apply to this case. [37] Although Taylor creates a new presumption that effectively shifts the burden of proof on the issue of reasonable delay, in my view the policy rationale for that shift is not applicable in this case. Where there is a delay in accessing right to counsel, it is likely only the police who would be in a position to explain why the detainee was not able to contact counsel and whether the delay was reasonable in the circumstances. On the broader question of whether the detainee was provided a reasonable opportunity to exercise the right to counsel, both sides are likely able to provide some explanation. As the case at bar demonstrates, a central issue might be who the detainee wanted to call, or when, which may be something to which the detainee is best positioned to testify — if not the only one who is capable of doing so. [38] The Court of Appeal for New Brunswick also considered these issues in MacDonald Brown v. R ., 2009 NBCA 27 at paras. 22-23. In that case, the Court was urged to follow Luong , but resisted compartmentalizing the obligations that arise out of the implementation component of the s. 10(b) right. In the Court’s view the main governing principle in determining questions of “reasonable opportunity” and “due diligence” is the need to examine the totality of the circumstances. The trier of fact must look at the facts globally and determine whether in all of the circumstances it can be said that the detainee was not provided with a reasonable opportunity to exercise the right to counsel. [39] While the Supreme Court of Canada in Taylor may have been willing to acknowledge some shifting burdens in the s. 10(b) analysis, I still pay heed to the cautionary note sounded by the Court in MacDonald Brown , and would not adopt the analysis from Luong concerning the shifting of the burden. [40] Mr. Duerksen, in part, supports the assignment of the burden to the Crown on the basis that the police must preserve evidence of their interactions with an accused person. Without a shift in the burden, the police have less incentive to record completely their dealings with a detainee. That observation is not particularly apt here. Mr. Duerksen knows very well whether he was frustrated in his effort to contact counsel of his choice. The very heart of his complaint was within his knowledge and he did not lead evidence on the voir dire . And the ultimate burden was on him to prove a breach of his s. 10(b) rights on a balance of probabilities. [41] As noted earlier, I do not accept the validity of the statement from Luong cited by Mr. Duerksen. He had the burden to establish that the police failed to provide him with a reasonable opportunity to consult counsel. The trial judge concluded that Mr. Duerksen had not met this burden. The judge found as fact that “we simply do not know to any reliable degree…how Cst. Walker came to dial Legal Aid for him.” Mr. Duerksen failed to meet his burden of proof on his application. [42] I turn then to the issue of whether Mr. Duerksen waived his right to counsel after he was subsequently charged with the additional offence of robbery. When Mr. Duerksen again was informed of his right to counsel by Det. Murray, Mr. Duerksen declined with the statement “No. The first time was pointless.” The trial judge reasoned: [45]      Once he was in Det. Murray's company there is no question that Mr. Duerksen made some disparaging comments about the Legal Aid lawyer he had dealt with. But as the Crown notes, his response to the inquiry about whether he would like to speak to a lawyer put to him by Det. Murray was negative, followed by the comment that the first one was pointless. In other words, the context was the rejection of the offer of alternative contact with counsel at that point prior to the first statement. This is consistent with his request to speak to the police at that point, which was certainly not being deterred by concerns about further lawyer contact. [46]      I am unable to find that the police were required to be such proactive guardians of his right at that point as to attempt to persuade him, contrary to his rejection of the offer, that a second counsel might be more fruitful. I also think that in light of what was, at the end of the day a refusal to pursue other choices of counsel, their duty to hold off on interviewing, if indeed it arose at all based on the second Charter warning for an additional offence, was at an end. [47]      I appreciate that when the subject of alternative choices of counsel came up later in the interview, Det. Murray, perhaps inaccurately in light of counsel's own experience, indicated that contact with lawyers other than Legal Aid likely could not be made at that time of night, but this was at a stage after which alternate counsel had been declined and I am not convinced that misinformation in the context of a gratuitous offer, one unrelated to any change in the circumstances giving rise to the need for the right guaranteed by s. 10(b), constituted a breach at that point. [43] I conclude that nothing flows from the slight inaccuracy in the judge’s recital of the evidence here, “the first one” rather than “the first time”. Further, I agree with his conclusion that Mr. Duerksen declined to exercise his right to counsel. Mr. Duerksen understood the extent of his jeopardy and the consequences of waiving his right: R. v. Mehan , 2017 BCCA 21 at paras. 65-69; R. v. Smith , [1991] 1 S.C.R. 714. [44] For these reasons I would dismiss the appeal. “The Honourable Chief Justice Bauman” I agree: “The Honourable Madam Justice Newbury” I agree: “The Honourable Mr. Justice Hunter”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. McDonald, 2018 BCCA 42 Date: 20180206 Docket: CA43325 Between: Regina Respondent And Thomas Anthony McDonald Appellant Restriction on Publication: A publication ban has been imposed pursuant to the inherent jurisdiction of the court restricting the publication, broadcasting, or transmission in any way of the identity, and any information that could disclose the identity, of any of the undercover police officers referred to herein. This publication ban applies indefinitely, unless otherwise ordered. Before: The Honourable Madam Justice Kirkpatrick The Honourable Mr. Justice Savage The Honourable Madam Justice Dickson On appeal from:  An order of the Supreme Court of British Columbia, dated November 20, 2015 (sentence) ( R. v. McDonald , Dawson Creek Registry Docket Number 30925). Counsel for the Appellant: T.C. Boyar S. Arrandale Counsel for the Respondent: C. Lusk Place and Date of Hearing: Vancouver, British Columbia November 29, 2017 Place and Date of Judgment: Vancouver, British Columbia February 6, 2018 Written Reasons by: The Honourable Madam Justice Kirkpatrick Concurred in by: The Honourable Mr. Justice Savage The Honourable Madam Justice Dickson Summary: The appellant appeals his designation as a dangerous offender. He says that the judge erred in his approach to certain Mr. Big evidence, and that the judge reached unreasonable conclusions regarding the criteria under ss. 753(1) and 753.1 of the Criminal Code . Held: appeal dismissed. The judge did not err in his approach to the Mr. Big evidence. He carefully took into account the potential risks that evidence raised, and appropriately attenuated them by considering only sufficiently reliable evidence and limiting the use to which he put that evidence. The judge’s findings that the appellant was likely to commit a future violent offence and that there was no reasonable prospect of the appellant’s control in the community were not unreasonable. Reasons for Judgment of the Honourable Madam Justice Kirkpatrick: [1] The principal issue in this appeal is the extent to which character evidence from a “Mr. Big” operation can be used to establish that the statutory criteria for a dangerous offender designation have been met. A secondary issue concerns the finding that there was no reasonable prospect of controlling Mr. McDonald’s risk in the community in the face of his age and the chance that he will benefit from treatment in a federal penitentiary. BACKGROUND [2] Thomas Anthony McDonald, now aged 66 years, has been convicted of two manslaughters. The predicate offence occurred on September 26, 1981, but Mr. McDonald was not convicted until April 4, 2014. [3] The circumstances of the offence can be briefly stated. Mr. McDonald had been drinking and socializing at the Windsor Hotel in Dawson Creek, British Columbia. He had a late-night scuffle with the victim, Earl Dean Jones, during which Mr. Jones slapped Mr. McDonald. Mr. McDonald was angered and humiliated by being slapped in front of the other patrons of the bar. He waited for Mr. Jones and his wife to leave the bar, followed them in his truck to the outskirts of town, and fired a single round from a .30 – .30 rifle at the vehicle in which Mr. Jones was traveling. The bullet hit Mr. Jones in the head, killing him instantly. Mr. McDonald was 30 years of age at the time of the offence. [4] Mr. McDonald was living in the United States at the time of the predicate offence but was in Dawson Creek for work-related reasons. He abruptly left Canada the morning after killing Mr. Jones. He lived and worked in the United States from approximately 1980 to 2002, during which time he committed a number of petty crimes. [5] In 2002, Mr. McDonald was deported from the United States. He spent some time in South Africa before traveling to England on July 19, 2003. [6] Mr. McDonald met Roger Wilton when he arrived in London. They began rooming together. Mr. McDonald paid for the accommodation. He understood Mr. Wilton would find work for them. [7] On August 4, 2003, at the age of 52 years, Mr. McDonald killed Mr. Wilton with a 14-pound sledgehammer in the course of an altercation triggered by Mr. McDonald’s anger toward Mr. Wilton due to his failure to find work for them. [8] Mr. McDonald found Mr. Wilton rifling through his belongings and smoking, which he had asked Mr. Wilton not to do. After Mr. Wilton left the room, Mr. McDonald felt “angrier and angrier”. He followed Mr. Wilton downstairs and confronted him. An altercation ensued. It ended in Mr. McDonald killing Mr. Wilton by blows with a sledgehammer. Mr. Wilton sustained numerous devastating injuries. The pathologist who examined the body described the injuries as “as bad as it gets”; this was consistent with Mr. McDonald’s acknowledgement that “he set out to destroy [Mr. Wilton]” with repeated sledgehammer blows. [9] Mr. McDonald was charged with murder but was convicted by a jury of manslaughter. The U.K. sentencing judge found that given the brutal attack, the jury could not realistically have accepted that Mr. McDonald did not intend to kill Mr. Wilton and must have found provocation. [10] Mr. McDonald was sentenced to six years’ imprisonment on the basis of the assessments and an apparent absence of a prior history of violence. His responsibility for the killing of Mr. Jones was not known to the psychologist or probation officer who prepared reports in 2004 for his sentencing on the Wilton manslaughter. [11] Mr. McDonald was released in the U.K. in August 2007. He violated the terms of his parole, fled the U.K., and entered Canada surreptitiously sometime between August 2007 and 2009. [12] The R.C.M.P. came to be aware of Mr. McDonald’s whereabouts. He had been the primary suspect in the killing of Mr. Jones early in the police investigation but there was insufficient evidence connecting him to the crime. In December 2010, the R.C.M.P. commenced the Mr. Big investigation. [13] A third, uncharged altercation occurred near the end of May 2011 while the Mr. Big investigation was ongoing but before it had entered the evidence-gathering stage. The altercation occurred outside the context of the investigation and was not anticipated by the police. [14] The altercation occurred when Mohammed Taati, for whom Mr. McDonald had performed welding work, refused to pay Mr. McDonald because his bill exceeded his estimate. Mr. McDonald left Mr. Taati’s office but returned carrying a pickaxe above his head. He shook the pickaxe at Mr. Taati and demanded his money. He threatened to kill Mr. Taati if the bill was not paid in full. He left when Mr. Taati ordered him from his office. [15] As is customary in Mr. Big investigations, numerous scenarios were constructed by the police with the objective of gradually drawing Mr. McDonald into the activities of a fictitious criminal organization. The judge reviewed in great detail the Mr. Big investigation in his ruling on a voir dire held to decide the admissibility of Mr. McDonald’s pre- and post-arrest statements to the police ( R. v. McDonald , 2013 BCSC 2344 (“Statements Ruling”). Those reasons describe each of the 86 scenarios and illustrate the careful cultivation of the relationship between the primary Mr. Big investigator (the “primary”) and Mr. McDonald. [16] One scenario in particular features in this appeal. It concerned a series of events orchestrated to reflect the response of the fictitious criminal organization to a borrower’s default on a $400,000 loan. Mr. McDonald was engaged by the primary to look for the debtor. [17] On September 9, 2011, Mr. McDonald was led to believe the debtor had been located at a motel. Cameo operators eventually pretended to abduct the debtor from the motel and took him to a warehouse. There, the primary pretended to be enraged and threatened the debtor with extreme violence while Mr. McDonald observed. One of the operators testified that Mr. McDonald appeared calm throughout the encounter. The primary similarly testified that Mr. McDonald “seemed perfectly calm, conversational and on a pretty even keel when they left the warehouse” (Statements Ruling at para. 142). At that time, the primary testified that Mr. McDonald made a number of graphic, violent statements, including: saying he would “like to hear the fucker squeal”; suggesting using a castrating implement “to hang … that fucker on his balls”; and suggesting turning a pit bull loose on the debtor while he was hog-tied to a chair (Statements Ruling at para. 142). [18] Of relevance in this appeal is that at the end of the day of the scenario on September 9, 2011, but unrelated to it, Mr. McDonald called his brother, Jeremiah. Jeremiah was his brother’s close confidante and was aware that his brother had killed Mr. Jones. The call was intercepted and ultimately admitted into evidence. The relevant portion was described by the judge in the Statements Ruling as follows: [145]    … Mr. McDonald advised Jeremiah that they had a “fierce day” and that “the fucker … he’s in one place I wouldn’t wanna be tonight”.  Mr. McDonald laughed and told Jeremiah the debtor would be down on his knees tonight and praying and that there would be five guys with him all night. The team commander testified there was nothing in the phone call between the brothers that suggested Mr. McDonald was frightened or traumatized by what had happened, or that he had any concerns about the primary. [19] On September 20, 2011, Mr. McDonald admitted to the primary that he shot Mr. Jones and provided details of the offence. On September 24, 2011, Mr. McDonald participated in a re-enactment of the killing in Dawson Creek in the presence of the primary and a secondary operator, which was audio-recorded. Mr. McDonald was arrested on October 14, 2011. [20] As noted, before Mr. McDonald’s trial a lengthy voir dire was held, inter alia , to determine the admissibility of Mr. McDonald’s pre-arrest statements made to the undercover police officers. In comprehensive reasons handed down on December 20, 2013 (indexed as R. v. McDonald , 2013 BCSC 2344), the judge dismissed Mr. McDonald’s application to exclude the inculpatory statements he made during the course of the Mr. Big operation. [21] Mr. McDonald was tried by judge alone in February 2014. [22] In detailed reasons delivered on April 4, 2014 (indexed as R. v. McDonald , 2014 BCSC 477), the judge found that Mr. McDonald caused the death of Mr. Jones by means of an unlawful act. However, the judge was not satisfied beyond a reasonable doubt that he did so with murderous intent. Mr. McDonald was acquitted of first-degree murder but convicted of the included offence of manslaughter. THE DANGEROUS OFFENDER PROCEEDINGS [23] Before addressing the proceedings in this case, I consider it helpful to set out the relevant statutory requirements for designating someone to be a dangerous offender that were in effect prior to the amendments in 2008. The Legislative Framework [24] Part XXIV of the Criminal Code , R.S.C. 1985, c. C-46 (the “ Code ”) deals with dangerous offenders and long-term offenders. [25] Section 752.1(1) provides that when an offender is convicted of a serious personal injury offence, and before sentence is imposed, the prosecution may apply to have the offender remanded for the purposes of assessment, or to have an assessment performed by an expert. That assessment is used as evidence in an application made under ss. 753 or 753.1, discussed below. [26] The type of “serious personal injury offence” relevant here is described in paragraph (a) of the definition of that expression in s. 752 of the Code : “serious personal injury offence” means (a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving (i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage upon another person, and for which the offender may be sentenced to imprisonment for ten years or more [27] The relevant grounds on which an offender will be found to be a dangerous offender are set out in s. 753 of the Code : 753(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), 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, (ii) a pattern of persistent aggressive behaviour (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such a brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint; or (4) If the court finds an offender to be a dangerous offender, it shall impose a sentence of detention in a penitentiary for an indeterminate period. (5) If the court does not find an offender to be a dangerous offender, (a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or (b) the court may impose sentence for the offence for which the offender has been convicted. [28] The grounds on which an offender may be found to be a long-term offender are set out under s. 753.1 of the Code : 753.1(1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be a long-term offender if it is satisfied that (a) it would be appropriate to impose a sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (b) there is a substantial risk that the offender will reoffend; and (c) there is a reasonable possibility of eventual control of the risk in the community. (3) Subject to subsections (3.1), (4) and (5), if the court finds an offender to be a long-term offender, it shall (a) impose a sentence for the offence for which the offender has been convicted, which sentence must be a minimum punishment of imprisonment for a term of two years; and (b) order the offender to be supervised in the community, for a period not exceeding ten years, in accordance with section 753.2 and the Corrections and Conditional Release Act . (6) If the court does not find an offender to be a long-term offender, the court shall impose sentence for the offence for which the offender has been convicted, 1997, c. 17, s. 4; 2002, c. 13, s. 76. [29] In addition to Part XXIV, the sentencing judge must have regard to the general purpose and principles of sentencing set out in Part XXIII of the Code , particularly ss. 718, 718.1 and 718.2. [30] With the foregoing framework in mind, I turn to review the dangerous offender proceedings in the case at bar. Pre-Hearing Proceedings [31] On June 6, 2014, the Crown appeared on an application under s. 752.1 of the Criminal Code filed on May 6, 2014, for a psychiatric assessment. Mr. McDonald’s counsel took no position on the application. During the course of his submissions, Crown counsel referred to the Mr. Big evidence admitted at trial, which he submitted would support an ultimate finding of a pattern of repetitive behaviour under s. 753(1)(a) of the Code . [32] In remarks that presaged the issue before us on appeal, the judge said: THE COURT:  … But I am troubled by the notion that the court ought to consider, on a 752.1 application, even having regard to the law, that the threshold test is low, to have regard to a target’s contact -- conduct, rather, in the context of a police-created Mr. Big scenario to form part of the background that justifies the 752.1 order, because it’s the police that have created that environment. And I think that subject to your further submissions on the point, I’m troubled that the reliance on that body of evidence is unfair to an accused person. [33] In oral reasons allowing the Crown’s application for an assessment report (indexed as R. v. McDonald , 2014 BCSC 2652), the judge referred to the Mr. Big investigation: [20]      The Crown also relies on Mr. McDonald’s behaviour in and reactions to some of the more violent scenarios constructed by the police in the course of the Mr. Big investigation. The Crown says this demonstrates Mr. McDonald’s failure to restrain his behaviour and his indifference to the reasonably foreseeable consequences his behaviour would have on others. The Crown says this behaviour may properly be considered not only on the s. 752.1 application but, should the Crown be so minded, on any dangerous offender or long-term offender application that might be brought hereafter. I need not resolve on this application the question of whether it is appropriate for the court to have regard to this body of evidence, and I decline to do so. I expect this will be a live issue should the application proceed at a subsequent date. [34] Following the delivery of those reasons, the judge alluded to the potential problem posed by the Crown’s reliance on the Mr. Big evidence: THE COURT:  … I wanted to raise another issue with counsel. It’s just a musing. It is usual for counsel to agree, as I understand it, on the content of a binder that will be supplied to the Forensic Psychiatric Services Commission to do the s. 752.1 order once it has been ordered. This is a bit of an unusual situation, and oftentimes, defence counsel seeks the opportunity to place additional information before the assessor. Have counsel discussed that? I raise this issue not because it just arises in most cases of its kind, but because of the unusual feature of this case, that the Crown may be relying on things Mr. McDonald said or did in the course of the Mr. Big investigation and the contextual knowledge that the assessor may require to understand the dynamic of that encounter in preparing an assessment report. Have counsel given consideration to that issue? THE COURT:  … my preference would be that counsel canvass the issue now. If the defence wished to provide materials additional to those that are presently included in the binder, or any letter contextualizing the Mr. Big undercover operation, I think the fairest way of doing that, subject to the views of counsel, would be for the defence to supply a draft to the Crown to ensure that the Crown is comfortable with the material being provided to the assessor, in addition to what is currently in the binder, as well as any characterization of the Mr. Big investigation, to give the assessor the fullest possible context to do the assessment report we’re asking him or her to do. [35] Dr. Anton Schweighofer, a registered psychologist, was appointed as the assessor pursuant to s. 752.1 of the Code . He filed his psychological risk assessment report on November 13, 2014. [36] The information sources provided to Dr. Schweighofer included transcriptions of the surreptitious recordings of Mr. McDonald while he was subject to the Mr. Big investigation and documents related to that investigation. [37] Mr. McDonald declined to be interviewed for the purposes of the assessment. [38] In February 2015, prior to the commencement of the dangerous offender hearing, Mr. McDonald applied to exclude evidence obtained from him in the course of the Mr. Big investigation in the dangerous offender proceedings. In reasons indexed as R. v. McDonald , 2015 BCSC 256, the judge described the particular evidence at issue: [2]        The evidence at issue includes statements made by the offender about past criminal acts for which he was never charged, and statements made by him to undercover police officers that, on their face, suggest he has a propensity to commit violent acts, is comfortable operating in a violent criminal milieu, and was generally unfazed by the simulated violence he was exposed to in the course of the Mr. Big investigation. [39] The judge also observed that counsel had chosen not to accept his earlier invitation to address the information to be sent to the assessor: [12] Following Mr. McDonald's conviction for manslaughter, I made an assessment order pursuant to s. 752.1 of the Criminal Code , R.S.C. 1985, c. C-46.  When the order was granted, I invited counsel to collaborate on the information that would be provided to the assigned assessor, including the unique investigative context in which the statements and reactions that are the subject of this application were made.  In the event of disagreement, I left with counsel the option of moving for directions respecting the precise information to be supplied the assessor. I am not, of course, privy to the discussions counsel had following the making of this order, but no application for directions respecting the material to be sent to the forensic psychologist assigned to undertake the assessment was made. [Emphasis added.] [40] This issue notwithstanding, Mr. McDonald contended the evidence was presumptively inadmissible and, before being received on the dangerous offender application, it had to meet the test in R. v. Hart , 2014 SCC 52. That position was abandoned at the conclusion of the dangerous offender hearing as was a third ground based on abuse of process. For the purposes of this appeal, I need only review Mr. McDonald’s argument that the evidence be excluded because its prejudicial effect outweighed its probative value. [41] As to this balance, the judge said that the probative value would likely turn on the reliability of the evidence and the use the Crown proposed to make of it. He noted the reliability would “obviously figure prominently” (at para. 37). He said the prejudicial effect was the risk that reliance would be placed on evidence gathered in an unusual investigative context; in other words, that it was unreliable. [42] However, noting that the impact of the evidence on the fairness of the hearing would turn on the extent to which the assessor made use of the evidence, the judge concluded that it was premature to rule on this issue. The question of the extent of use could only be explored in cross-examination during the hearing. Finally, the judge alerted the parties that they should be prepared to make informed submissions on the evidentiary points in issue at that time. [43] On March 27, 2015, Dr. Shabehram Lohrasbe provided to the Crown a psychiatric assessment of Mr. McDonald. That report focused on issues relevant to risk assessment, treatability, and risk management. The Dangerous Offender Hearing [44] The dangerous offender application was heard over 12 days in May, June and September 2015. The judge handed down comprehensive reasons (indexed as R. v. McDonald , 2015 BCSC 2088) on November 20, 2015. [45] The Crown and defence agreed that the legislative framework governing the application was the regime that came into effect on August 1, 1997, as it was judicially interpreted in R. v. Johnson , 2003 SCC 46, and not the more restrictive framework following amendments that came into effect in 2008. The 1997 amendments introduced the long-term offender designation. At para. 26, the judge explained this meant that he could not declare Mr. McDonald to be a dangerous offender if a lesser sentence (e.g. a long-term offender designation) would sufficiently reduce his threat to an acceptable level. [46] To succeed in its application to designate Mr. McDonald a dangerous offender, the Crown had the burden of demonstrating that the criteria of ss. 753(1)(a)(i), (ii), and/or (iii) of the Code were established beyond a reasonable doubt. The judge set out the Crown arguments at para. 28, which were essentially that the evidence established: · a pattern of repetitive behaviour by him, of which the 1981 killing of Mr. Jones forms a part, showing a failure to restrain his behaviour and the 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 behaviour [s. 753(1)(a)(i)]; · a pattern of persistent aggressive behaviour by him, of which the 1981 killing of Mr. Jones forms a part, showing a substantial degree of indifference on his part respecting the reasonably foreseeable consequences to other persons of his behaviour [s. 753(1)(a)(ii)]; and/or · behaviour by Mr. McDonald associated with the predicate offence that is of such a brutal nature as to compel the conclusion that his behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint [s. 753(1)(a)(iii)]. [47] The Crown conceded that it did not seek to use any of the evidence from the Mr. Big investigation to establish the requisite pattern of behaviour contemplated under either ss. 753(1)(a)(i) or (ii). [48] However, the Crown maintained its position that Mr. McDonald’s participation in the Mr. Big investigation, his callous reaction to the scenarios involving simulated violence, and his claims that he had committed previous violent and antisocial acts were, notwithstanding the reliability concerns inherent in Mr. Big investigations, relevant and admissible because they illuminated his present character and attitudes. In support, the Crown relied on s. 757 of the Code , which provides that evidence of character and repute may be admitted on the question of whether an offender is or is not a dangerous offender or a long-term offender. [49] Mr. McDonald submitted that the Crown failed to establish beyond a reasonable doubt that he met the criteria in ss. 753(1)(a)(ii) or (iii) for designation as a dangerous offender. In particular, Mr. McDonald argued that no use should be made of the Mr. Big evidence because the investigation offered inducements to model violent behaviour. He said the evidence was not a reliable indicator of his character, attitude towards violence, or likelihood of reoffending violently. [50] Mr. McDonald also objected to the inclusion of the Taati incident as a proper factor to be considered in the pattern analysis, notwithstanding his concessions that the evidence of the two homicides established beyond a reasonable doubt that the predicate offence was part of a pattern of behaviour contemplated by s. 753(1)(a)(i). The judge did not agree, and Mr. McDonald does not appeal that finding. Accordingly, I say no more about it. [51] The judge dealt first with the Mr. Big evidence. He treated this evidence in the manner agreed to by Mr. McDonald’s counsel in closing submissions. At that time, counsel stated: we are very comfortable with Your Lordship dealing with the Mr. Big evidence in the way that’s described in your reasons from February of 2015, and -- and just dealing with it as a matter of what use can be made by the court of -- of that evidence, rather than dealing with it as an objection and -- and an application to exclude. [52] Accordingly, rather than approach the issue as an application to exclude, the judge considered “the use, if any, that [could] be made of the impugned evidence” before allowing the Crown to introduce it pursuant to s. 757 of the Code . He held that if the evidence was relevant and sufficiently reliable then it should be available for certain uses; its weight was a separate consideration. [53] In taking this approach, the judge adverted to two policy goals he saw as animating sentencing proceedings. First, he recognized that sentencing courts should be given access to the widest possible range of information to determine the acceptability of an offender’s risk – a concern of particular import in dangerous offender proceedings. Second, he appreciated that the court should only act on reliable evidence. [54] The judge also set out three advantages of his approach: [258] First, it recognizes that the impugned evidence has already been admitted at trial, albeit for a limited purpose. The evidence was admitted not for its truth but to contextualize assessment of the reliability of Mr. McDonald's confession to the police that he was the Dawson Creek shooter. The reliability of Mr. McDonald's confessions to the primary could not fully be assessed without looking at the trust relationship that developed between them, and the sort of confidences that were shared in the context of that relationship. Approaching the issue as a question of use, not admissibility, avoids the need for separate admissibility determinations with respect to the same body of evidence for trial and sentencing purposes. [259] Second, it recognizes that there is little practical difference, from an offender's perspective, between a determination that evidence may not be used for a particular purpose on sentencing, and a determination that evidence may not be admitted on sentencing. [260] Third, the potential for prejudice in a sentencing context can more readily be managed by judicial determination to ignore certain evidence, or to use it only for a limited purpose. [55] Applying this approach to Mr. McDonald’s case, the judge concluded no use could be made of the Mr. Big evidence on the issue of whether Mr. McDonald met the criteria for being designated as a dangerous offender. The context of the Mr. Big investigation, in the absence of any independent confirmatory evidence, and together with Mr. McDonald’s tendency to embellish, rendered the claims he made during that time unreliable. [56] Accordingly, the judge did not consider any of the Mr. Big evidence in his determinations under s. 753(1). He particularly noted that he made no use of claims Mr. McDonald related to the primary about unproven past acts of violent or antisocial character, nor of the unproven information regarding his assault of his ex-wife. [57] The judge appreciated that this ruling would have an impact on the weight to be given to expert evidence of Dr. Schweighofer and the Crown’s expert psychiatrist, Dr. Lohrasbe. Both experts submitted reports that, in varying degrees, referred to and relied on the information garnered in the Mr. Big operation. The experts were cross-examined at length. They were asked, often by the court, to eliminate the Mr. Big evidence from their consideration and say how their opinions changed as a result. I review the outcome of these inquiries below. [58] The judge did find that limited use could be made of the evidence if Mr. McDonald met the criteria for designation as a dangerous offender . At that point, it could be used for the restricted purpose of determining whether there was a reasonable possibility of eventual control of Mr. McDonald’s risk in the community (i.e. whether a long-term offender designation was sufficient). [59] The judge was alive to the difficulties inherent in coming to this conclusion. He stated: [268] Whether any use can properly be made of Mr. McDonald's participation in and conduct during the Mr. Big investigation, even on the narrow issue identified (future management of risk) raises complex questions that pull the analysis in different directions. On the one hand, it is remarkable that Mr. McDonald, knowing that he had already taken two lives, would align himself with an organization he believed wholeheartedly endorsed the use of violence. The evidence, if reliable, suggests an entrenchment of antisocial values, operative in the present. The persistence of those personality traits may be relevant to treatability and management of risk in the community. On the other hand, Mr. McDonald had to be encouraged to join the activities of the organization over an extended period during which the financial incentives to participate increased. The scenarios in which Mr. McDonald participated were rich with inducements and his participation, standing alone, demands close scrutiny on the issue of whether it is a reliable measure of his current character, habits of mind or amenability to change through treatment intervention. [60] The judge was careful to explain that his conclusions were not statements of general application; rather, the determination of the proper uses of Mr. Big evidence had to be made on a case-by-case basis, in order to determine “the extent to which the context in which the information was gathered affected its reliability” (at para. 272). [61] In this case, the judge found that two incidents, both external to the police-constructed Mr. Big scenarios, buttressed the reliability of the Mr. Big evidence. These were (i) Mr. McDonald’s conversation with his brother, Jeremiah, following the abduction scenario and (ii) Mr. McDonald’s encounter with Mr. Taati. [62] With respect to (i), the judge said: [274]    Jeremiah is Mr. McDonald’s closest confidant. Mr. McDonald had no reason to misrepresent his state of mind to Jeremiah following the abduction scenario. The conversation reflects that Mr. McDonald was completely unfazed by what he had witnessed. He chuckled about the plight of the supposed debtor whom he thought would be tortured, and told Jeremiah he would be part of “the mopping up” the next day. The conversation is significant because it demonstrates a continuity of character outside of the Mr. Big scenarios, and supports an inference that Mr. McDonald’s conduct within the investigation is an accurate reflection and reliable measure of who he is. This, in turn, suggests that Mr. McDonald’s disposition to violence is an enduring personality trait – one that will likely be less susceptible to treatment intervention and the community-based management of risk. [Emphasis added.] [63] With respect to (ii), the judge noted that this encounter was also outside the Mr. Big scenario, and suggested a “present and enduring disposition to violence” that was relevant to Mr. McDonald’s treatment prospects and the management of his risk (at para. 275). However, the judge made no use of Mr. McDonald’s statement to the primary that he would have “nailed” Mr. Taati with the pickaxe because it lacked sufficient reliability; the fact Mr. McDonald made the statement to the primary raised the concerns discussed in the judge’s para. 268. [64] The judge held that, taking these two factors into account, Mr. McDonald’s conduct during the investigation had sufficient reliability to be considered in assessing his present character, attitudes, and treatability. [65] The judge summarized his entire approach to the Mr. Big evidence as follows: [278]    I wish to emphasize the limited use I propose making of this evidence. The evidence is not relevant to the pattern analysis. In addition, I take no account of it in determining whether Mr. McDonald has been shown to constitute a threat within the meaning of s. 753(1). That issue falls to be determined solely on the basis of evidence of a pattern of behaviour established by the Crown under ss. (i) or (ii). The evidence is, however, relevant to the question of treatability should Mr. McDonald be found to meet the criteria for designation as a dangerous offender. That Mr. McDonald, at the age of 60, continued to hold antisocial views, and act on them, is relevant to the question of the impact, if any, the aging process is having on him and whether his risk can be reduced to an acceptable level through the imposition of community supervision terms to come into effect on his release from custody. [66] Finally, the judge noted that his conclusion would have been the same had he approached the issue as one of admissibility, that is, whether he should have excluded it because its prejudicial effect outweighed its probative value. In his view, the evidence was probative of an important issue (future management of risk) and was sufficiently reliable. He would have attenuated the risk of prejudice by confining the use of the evidence in the manner described above. [67] With these conclusions and cautions in mind, the judge considered whether the Crown had established beyond a reasonable doubt that Mr. McDonald met the criteria set out in ss. 753(1)(a)(i) and/or (ii). [68] This determination required the judge to assess the opinion evidence of both experts. He acknowledged that the expert evidence relied on unproven or unreliable foundational facts. He explained his approach this way: [297]    Dr. Schweighofer relied, to some extent, on past acts of violence Mr. McDonald told the primary he had committed. Although there is conflicting evidence on this point, I am satisfied that Dr. Schweighofer also relied on the fact that Mr. McDonald told the primary he would have nailed Mr. Taati with the pickaxe had Mr. Taati made a move towards him. Finally, Dr. Schweighofer placed at least cautious reliance on the fact that Mr. McDonald has been involved in several altercations while on remand. I am not prepared to make any use of this evidence for sentencing purposes. I am, as a consequence, obliged to assess the impact of this determination on the weight I am prepared to give his opinion. [298]    Dr. Lohrasbe ignored Mr. McDonald’s claim to have committed past acts of violence in formulating his opinion on risk, treatability and risk management. It is also apparent that Dr. Lohrasbe’s opinion was uninfluenced by the negative aspects of Mr. McDonald's behaviour while on remand. [299]    It is clear that both Dr. Schweighofer and Dr. Lohrasbe relied on Mr. McDonald’s participation and conduct within and during the Mr. Big investigation to inform their assessment of the likelihood that Mr. McDonald would re-offend violently in the future. As I have determined to make no use of this evidence in determining whether Mr. McDonald is likely to reoffend, I am obliged to carefully assess the extent to which reliance by the assessors on this evidence in formulating their opinions on this issue affects the weight that can be assigned to their testimony. [300]    I am also cognizant that Dr. Lohrasbe considered that the degree of harm Mr. McDonald is likely to cause in the future justified elevating his risk assessment into the high category. The Crown did not, as a matter of law, seek to support Dr. Lohrasbe’s approach to this issue. While I do not doubt, from a psychiatric perspective, the legitimacy of analyzing the issue this way, I am not prepared (in the absence of full argument on the point) to rely on Dr. Lohrasbe’s approach as justifying, in law, a quantitative elevation in the risk Mr. McDonald poses. Accordingly, I take no account of his evidence on this point and am obliged to carefully assess the extent to which this impacts the weight I can assign to his threat assessment opinion. [301]    Finally, some care has to be taken in approaching the results of actuarial measures for offenders who are “outliers” and may not share the personality characteristics or attributes of the cohort group. Having said that, the Court has the benefit of three generations of risk assessment approaches. Each of them has advantages and disadvantages, both generally and in terms of their application to this case. [69] The judge summarized his reasons for finding that Mr. McDonald met the criteria under s. 753(1)(a)(i) as follows at para. 303: · Mr. McDonald’s score on the VRAG puts him at the 75 th percentile.  This score corresponds to a 45% rate of recidivism at 5 years and a 69% rate of recidivism at 12 years. Dr. Schweighofer testified this likely puts Mr. McDonald in the “moderate high to perhaps high risk” to re-offend violently. Further, Dr. Schweighofer explained why the VRAG score likely represents an underestimation of the risk Mr. McDonald poses. I accept Dr. Schweighofer’s observation on this point; · Mr. McDonald’s PCL-R scores place him in the moderate risk category for future violence and general reoffending; · While neither assessor purports to formally diagnose Mr. McDonald in the absence of a clinical interview, both testified he is socially deviant and has personality characteristics consistent with an Antisocial Personality Disorder diagnosis; characteristics relevant to the likelihood that he will commit future acts of violence; · Both Dr. Lohrasbe and Dr. Schweighofer utilized the HCR-20 as a risk predictor. Dr. Schweighofer concluded on this basis that Mr. McDonald’s future risk for violence or general recidivism is in the moderate to moderate/high range. Although Dr. Lohrasbe was less inclined to attach a label quantifying the risk of re-offence, he noted that, in terms of risk assessment, his overall rating utilizing the HCR-20 was not dissimilar to that reported by Dr. Schweighofer; · Both assessors were of the opinion that Mr. McDonald likely needs little provocation to precipitate a future violent act. The context of daily living is such that the potential sources of such provocation are, to use Dr. Lohrasbe’s term, “endless”; · Dr. Schweighofer testified that excising information sourced in Mr. McDonald’s participation in the Mr. Big investigation (including his claims to have committed past violent acts) would not impact his scoring of the VRAG, HCR-20, or (with one fairly minor exception) the PCL-R. He also testified that his overall assessment of future risk would not vary substantially even if he disregarded the entirety of the evidence sourced in the Mr. Big investigation. While this would result in a “thinner” factual foundation for the opinion, it would not change his opinion of future risk; · Dr. Lohrasbe said in his report: Regarding ongoing risk for violence, that history indicates that many factors that drive his violence are well-established. His lack of self-control appears to have emotional (impulsivity; rage; extreme reactivity) and cognitive/attitudinal (justifications that fly in the face of the ‘magnitude gap’ between a perceived provocation and the extreme response; continuing disrespect and demeaning of his victim; lack of remorse or caring of impact on others; willingness to participate in violent criminal organizations) components. There are no indications of a significant (and expected) improvement of self-control with age. There are no indications that the forces that have driven his serious violence are significantly in decline. That combination of factors that drove his past violence continues to be active. The issue then arises as to whether we are in a position to effectively address them. SUMMARY Having considered all available information, my opinion is that at present and in the foreseeable future: 1.         Mr. McDonald poses a high risk for future acts of violence. · Having made allowance for how disregarding the Mr. Big evidence affects Dr. Lohrasbe’s opinion (see paras. 170 – 171 and 299) and the weight I am prepared to attach to it (see para. 300), I remain satisfied beyond a reasonable doubt that the evidence as a whole establishes the likelihood that Mr. McDonald will cause death or injury to other persons through failure in the future to restrain his behaviour; · The Taati incident confirms that the antisocial personality characteristics and triggers motivating Mr. McDonald’s violent behaviour remain operative, at least as of 2011; and · There is no evidence the aging process is disabling Mr. McDonald in risk-relevant ways. Quite apart from the Taati incident, he committed his second homicide at the age of 52. [70] The judge recognized that the finding of a pattern of repetitive failure to restrain behaviour in the manner described in s. 753(1)(a) would, as a practical matter, make it relatively easier for the Crown to show the offender is a threat within the meaning of s. 753(1)(a) (which results in a dangerous offender designation). [71] The judge diligently addressed s. 753(1)(a)(ii) as well. He summarized his conclusions on both sections as follows: [314]    With respect to s. 753(1)(a)(i), Mr. McDonald has displayed a long-standing and entrenched pattern of repetitive behaviour showing a failure of behavioural restraint and a likelihood that he will act similarly in the future such as to constitute a threat to the life, safety or physical well-being of others. Actuarial and clinical risk measures put him in the moderate or moderate/high risk of re-offence. Mr. McDonald’s capacity and preparedness to respond with violence to stressors that are likely to arise again is not something in the distant past. In 2003, he committed an offence of brutal violence involving use of the sledgehammer that took the life of Mr. Wilton. In 2011, he armed himself with a pickaxe and threatened to kill Mr. Taati. His antisocial attitudes continue as evidenced by his conversation with Jeremiah. The threat Mr. McDonald poses is not only current; there is no evidence it is abating with age. [315]    With respect to s. 753(1)(a)(ii), the two homicides forming the pattern both demonstrate a substantial degree of indifference on Mr. McDonald’s part to the reasonably foreseeable consequences to others of his conduct. The behaviour, and the indifference to life that characterizes it, is enduring. The same indifference to human life emerged 22 years after the predicate offence. It is remarkable that, knowing he had already killed one person, Mr. McDonald intentionally killed a second person and displayed no appreciation of, or remorse for, what he had done. As reflected in the expert evidence before me, his risk factors are well-entrenched and he likely needs little provocation to commit a future violent act. Even weighing the expert evidence in a way that takes account of the considerations set out in paras. 296 – 303, I am satisfied the evidence establishes that the risk of him doing so is, by both clinical and actuarial measures, in the moderate to moderate/high range. In short, I have before me a person who has displayed persistent disregard for human life. The 2003 homicide establishes that Mr. McDonald’s capacity for violence has not diminished with age. His risk factors are enduring, untreated, and, on the evidence before me, likely to be acted on in the future. [72] In coming to those conclusions, the judge again confirmed that he made no use of the Mr. Big evidence. [73] The final question was straightforward – whether the sentencing sanctions available pursuant to the long-term offender provisions were sufficient to reduce the threat Mr. McDonald posed to an acceptable level. [74] The judge first instructed himself as to the requisite analysis, which was summarized in R. v. Allan , 2009 BCSC 1245, aff’d 2015 BCCA 229. In that decision, MacKenzie J. (as she then was) drew on Southin J.A.’s conclusion in R. v. Wormell , 2005 BCCA 328 to hold: [242] Thus, the Court must satisfy itself that there is a reasonable possibility of eventual control of the risk in the community , having regard to the whole of the evidence before it: Wormell at para. 61.  In doing so, the Court must consider the need for resources to control the appellant or to make it reasonably possible for him to control himself, both during and after long-term supervision, without imposing on either side the burden of establishing that such resources would or would not be available: T.R.S. at para. 25. [243] That said, a reasonable possibility does not mean an absolute certainty : R. v. G.L. , 2007 ONCA 548, 87 O.R. (3d) 683 at para. 39, leave to appeal ref’d [2008] S.C.C.A. No. 39. [Emphasis added.] [75] The judge weighed the evidence with the qualifiers he expressed at paras. 296 – 303 “firmly in mind” (at para. 321). He concluded that he was not satisfied that there was a reasonable possibility of eventual control in the community. In other words, he found the threat Mr. McDonald posed could not be reduced to an acceptable level through the imposition of a long-term offender sentence. His reasons for that conclusion were based on a non-exhaustive list of considerations (at para. 323): · Mr. McDonald’s risk factors are entrenched, and his predisposition to violent behavioural acts is enduring. As Dr. Schweighofer put it, Mr. McDonald’s dynamic risk factors are not likely to change simply due to good wishes but will require significant and sustained effort on his part; · As Dr. Lohrasbe noted, simply plugging Mr. McDonald into available programs (described by Ms. Harbour and Mr. Stratford) cannot be relied on to reduce risk; · Mr. McDonald’s history is, in any event, markedly lacking any indication that he is at all motivated to change his behaviour; · Despite having taken two lives, Mr. McDonald made no efforts to obtain any treatment to address his violent behaviour until 2014.  Even then, his motivation for doing so is suspect at best. In addition, I have very little evidence about the nature of the violence prevention program Mr. McDonald participated in while on remand, and no evidence as to whether he derived any benefit from it; · On all the evidence before me, I agree with Dr. Lohrasbe’s observation that it is difficult to imagine the emergence, in middle age, of a sustained motivation on Mr. McDonald’s part to participate in treatment programs and transform himself on the multiple levels that would be required to reduce his risk to an acceptable level; · The evidence of Dr. Schweighofer that, even if Mr. McDonald engages in a treatment regime, his high Factor 1 score on the PCL-R and interpersonal style will likely operate to undermine the chances of a successful outcome; · Mr. McDonald’s generally poor response to previous periods of community supervision; · The fact that very little is known about Mr. McDonald’s criminogenic factors. Unless Mr. McDonald determines to meaningfully engage with a treatment team, it is difficult to envision how those charged with supervising him in the community would be in a position to identify the re-emergence of risk factors enabling an intervention prior to the commission of a further offence; · The absence of evidence that Mr. McDonald’s antisocial attitudes or violent behaviour are diminishing with age. He killed Mr. Wilton when he was 52 years of age. He threatened Mr. Taati with a pickaxe when he was 60 years of age. The persistence of Mr. McDonald’s comfort level with violence is revealed in the conversation he had with Jeremiah the evening of the abduction scenario. It is also demonstrated by Mr. McDonald’s conduct within the Mr. Big investigation; · Although Mr. McDonald appears to be physically diminished, I have no evidence that the aging process is disabling him in risk-relevant ways. I note, in this regard, Mr. McDonald’s use of weapons in the past and his physical capabilities as demonstrated by the Taati incident; · I have closely examined Dr. Schweighofer’s opinion that Mr. McDonald is at least moderately likely to engage in and benefit from treatment, together with his related opinion that the possibility of controlling his risk in the community is moderate. Some of the evidence upon which that opinion is based is set out in para. 212. Collectively, that evidence goes no further than justifying some reason for hope that if a number of contingencies are met and Mr. McDonald takes the right fork in the road at each critical juncture, his risk can be reduced to an acceptable level. Given the scant evidentiary foundation upon which Dr. Schweighofer’s more optimistic appraisal of treatment prospects rests, I am not able to give his evidence any weight on this point. I accept the opinion of Dr. Lohrasbe that, “there are no good reasons to conclude that there is a realistic possibility that available treatment programs can lower his risk to an acceptable level (that is, to the point that risk can be managed in the community) in the foreseeable future”. [76] The judge finally noted: [324]    Given the strength of the evidence that Mr. McDonald’s predisposition to violence has not been impacted by the aging process (he killed Mr. Wilton with a sledgehammer at the age of 52 and threated to kill Mr. Taati with a pickaxe at the age of 60) I would have come to the same conclusion on this point without placing any reliance on Mr. McDonald’s participation in or conduct during the Mr. Big scenarios. [77] In the result, the judge declared Mr. McDonald to be a dangerous offender and sentenced him to detention in a penitentiary for an indeterminate period. ON APPEAL [78] Mr. McDonald alleges three errors: (a)      the judge erred in his approach to the Mr. Big evidence and in dismissing his preliminary objection to the admissibility of that evidence; (b)      the judge erred in finding that Mr. McDonald was likely to commit a future violent offence; and (c)      the judge erred in finding that there was no reasonable prospect of control in the community. [79] Mr. McDonald seeks a new dangerous offender hearing. [80] Before addressing the alleged errors, I observe that the standard of review as to whether the appellant met the definition of dangerous offender is the standard of reasonableness. I acknowledge that the scope of appellate review for a dangerous offender application is broader and more robust than the standard applied to sentencing generally: R. v. Sipos , 2014 SCC 47. Nevertheless, as expressed in R. v. Currie , [1997] 2 SCR 260 at 44: [44]      … absent an error of law, of which there was none, the dangerous offender determination is a finding of fact that is almost always based upon the competing credibility of expert witnesses. As such, it is a decision which should not be lightly disturbed. A.       “Use” of the Mr. Big Evidence [81] Mr. McDonald submits the judge erred in admitting the Mr. Big evidence in its entirety and by focusing on the use that could be made of the evidence. In particular, Mr. McDonald notes that thousands of pages of transcripts and other evidence from the Mr. Big investigation were given to the experts with no instruction as to the use that could be made of it. Both experts relied on this evidence to greater or lesser degrees. [82] Mr. McDonald contends the judge should have determined whether the evidence was sufficiently reliable to be admitted for all purposes in order to decide the issue of its admissibility. [83] I am not persuaded by this submission. [84] At the outset, I do not accept the appellant’s characterization that the judge “admit[ed] the evidence in its entirety”. The judge focused on the use that could be made of the evidence, rather than whether it was admissible or not. The question of permissible use turned on an examination of relevance to each of the Crown’s proposed uses and whether the evidence was sufficiently reliable. [85] Further, the judge noted that his approach was designed to avoid the exact issue the appellant raises. The judge was well aware that admitting the evidence in its entirety was not an option, as described above. Thus, at para. 258, he said, “Approaching the issue as a question of use, not admissibility, avoids the need for separate admissibility determinations with respect to the same body of evidence for trial and sentencing purposes.” [86] This approach is the basis upon which the judge made no use of the Mr. Big evidence to establish patterns of behaviour. The judge also found (at para. 262) that the Mr. Big evidence was not relevant to the threat assessment. The judge was clear: [264]    Applying these principles to the case at bar, I make no use, for any purpose, of Mr. McDonald’s claims that he committed past acts involving violent or antisocial behaviour. Further, I make no use of the unproven information contained in the RTCC that he assaulted his ex-wife. That Mr. McDonald committed the uncharged violent or antisocial acts he related to the primary has not been proven beyond a reasonable doubt. These past acts are unconfirmed by any independent evidence and Mr. McDonald’s claims, standing alone, are unreliable because of the context in which they were made and his pronounced tendency to embellishment. [87] The judge instead used the evidence for the following limited purpose: [278]    … The evidence is, however, relevant to the question of treatability should Mr. McDonald be found to meet the criteria for designation as a dangerous offender.  That Mr. McDonald, at the age of 60, continued to hold antisocial views, and act on them, is relevant to the question of the impact, if any, the aging process is having on him and whether his risk can be reduced to an acceptable level through the imposition of community supervision terms to come into effect on his release from custody. [88] It is clear from the judge’s reasons (at paras. 272 – 277) that he examined in detail Mr. McDonald’s conduct during the Mr. Big operation and found it to be reliable and relevant to the question of whether there was a reasonable possibility of eventual control in the community. It was also confirmed by evidence from two events independent of the investigation. The judge’s examination focused on the context in which the evidence was gathered, and was done with great caution and care. [89] I find no error in the judge’s approach, and further add that the appellant’s submission is problematic for at least two more reasons. [90] First, as I have noted, at the conclusion of the dangerous offender hearing, counsel for Mr. McDonald agreed the judge should determine the use that could be made of the Mr. Big evidence, rather than treat it as a question of admissibility. I reproduce counsel’s statement again for convenience: we are very comfortable with Your Lordship dealing with the Mr. Big evidence in the way that’s described in your reasons from February of 2015, and -- and just dealing with it as a matter of what use can be made by the court of -- of that evidence, rather than dealing with it as an objection and -- and an application to exclude . [Emphasis added.] [91] Second, in his reasons indexed as 2015 BCSC 256 at para. 35, the judge noted that the parties agreed that the assessment reports were admissible on the dangerous offender hearing. They did so having been made aware of the judge’s concerns about the information to be sent to the assessor, and having declined his invitation to request directions before that information was sent. The judge acknowledged that it was nonetheless his responsibility to make: [35]      … all requisite findings of fact, including those regarding the conduct upon which the assessor bases his opinion. It is trite that an opinion is not evidence of the facts upon which it is based. If I am not independently satisfied as to the truth of “facts” relied on by the assessor, the weight I am able to assign his opinion is correspondingly diminished: see, for example, R. v. Pike , 2010 BCCA 401 at paras. 61 – 73. [92] Having agreed that the assessment reports were admissible (subject to the judge’s assessment of the reliability of the evidence), it is difficult to accept the appellant’s argument that the judge erred in admitting the evidence. [93] I would not give effect to this ground of appeal. B.       Likely to Commit a Future Violent Offence [94] Mr. McDonald concedes that two of the three criteria that must be satisfied before an offender can be designated a dangerous offender are met in this case – the predicate offence is a serious personal injury offence, and Mr. McDonald has engaged in a pattern of conduct that demonstrates a failure to restrain his behaviour. [95] The third criterion is not conceded – whether Mr. McDonald is likely to commit a future violent offence in accordance with the pattern of conduct established under the second criterion. [96] Mr. McDonald submits that the evidence must establish that his committing a future violent offence is so likely that it can “quite confidently be expected” ( R. v. Lyons , [1987] 2 S.C.R. 309 at 329). He contends that the expert evidence on this issue (“likelihood”) was equivocal and insufficiently clear and cogent to meet this threshold. In his submission, the evidence as to the likelihood of re-offending lacks the requisite strength and quality necessary to ground an indeterminate sentence. [97] The focus of Mr. McDonald’s argument is on the expert opinions of Dr. Lohrasbe and Dr. Schweighofer. He raises five specific areas of complaint regarding their opinions. He describes these as: (i) the equivocal nature of the expert evidence; (ii) the unreliability of Dr. Lohrasbe’s opinion; (iii) the doubtful validity of Dr. Schweighofer’s evidence; (iv) the effect of aging; and (v) the impact of treatment on recidivism. (i)  The Equivocal Nature of the Expert Evidence [98] To show that the expert evidence was equivocal, Mr. McDonald points to various statements from both doctors acknowledging that their assessments were not unassailable. [99] In my view, Mr. McDonald’s submission amounts to a general attack on expert psychiatric evidence and those experts who responsibly admit they cannot predict the future with absolute certainty. As Justice La Forest, writing for the majority, stated in Lyons at 365–366: This is hardly a revelation. Indeed, the psychiatrists who testified at the hearing in the present case expressly disavowed any such claim. It seems to me that the answer to this argument can be briefly stated. The test for admissibility is relevance, not infallibility. Judges at Part XXI hearings do not assume that psychiatrists can accurately predict the future; however, psychiatric evidence is clearly relevant to the issue whether a person is likely to behave in a certain way and, indeed, is probably relatively superior in this regard to the evidence of other clinicians and lay persons [citation omitted]. [100] Here, both experts acknowledged the imperfection in their respective approaches to risk assessment. Dr. Lohrasbe conceded that risk assessments deal with “probabilities and assessments”. Dr. Schweighofer agreed the instruments he used were only a moderately good predictor of risk. Both experts did not have the benefit of an interview with Mr. McDonald, which, according to the evidence, necessarily limited the confidence expressed in their opinions. [101] I find the judge took these concerns into his account in his reasons. He reviewed the qualifications and reservations each expert made at paras. 296–303, and adjusted the weight he gave their opinions accordingly. (ii)  The Unreliability of Dr. Lohrasbe’s Opinion [102] Mr. McDonald takes special aim at Dr. Lohrasbe’s “clinical formulation of risk approach” which, in the appellant’s view, is no better than guesswork as it is not tied to any empirical data and has been criticized for over-prediction of risk. Mr. McDonald’s counsel went so far as to submit that we should say that this approach has no place in dangerous offender hearings. [103] I am not persuaded that Dr. Lohrasbe’s approach is deserving of such condemnation. His report, and his testimony at the hearing, demonstrate that he was applying his undeniable skill to a difficult question. Indeed, he was candid as to the imperfections in his approach. In his report, Dr. Lohrasbe described his clinical method in this way: The method with the longest history is a clinical formulation of risk (also termed case formulation). This approach allows the assessor to evaluate all historical and clinical findings relevant to risk in a free-ranging manner, a nd the process of decision-making is without explicit rules. A clinical formulation offers hypotheses of the antecedents and kind of risk in the specific case at hand based on theoretical concepts and clinical experience. Unstructured clinical judgment is only as good as the training, knowledge, skills, and experience of the assessor, and therefore runs the risk of being subjective and arbitrary. The main advantages of this approach is its flexibility, and its ability to isolate and explore specific issues that may be of major or even overwhelming importance in any given case. Unstructured clinical judgment is an idiographic approach to risk assessment, emphasizing the unique features of the particular case and the s pecific behaviours of concern, rather than applying group data or broad generalizations. [Emphasis added.] [104] As the judge noted, he had the benefit of three generations of risk assessment, and acknowledged the advantages and disadvantages of each. Dr. Lohrasbe’s evidence being admissible, the appellant’s concerns go to its weight. I find the judge did not err in that regard. (iii)  The Validity of Dr. Schweighofer’s Evidence [105] As for Dr. Schweighofer, the appellant contends that the actuarial measures performed are of doubtful validity because Mr. McDonald is considered an “outlier”. Dr. Lohrasbe explained: Q         For an individual you describe as an outlier, in your opinion, does that make a difference in regards to the usefulness of actuarial instruments? A          Oh, it should because, I mean, let me just illustrate the point. If I use an instrument that has none or few -- let me back up. All actuarial instruments are based on data collected typically from thousands of offenders; okay? I believe the common one like the VRAG would be based on, like, 5,000 people or something like that. Now, without knowing whether in that pool there are people that have a violent history that is in any way comparable to Mr. McDonald’s, it is hard to know how useful that information, purely statistical information, is in making decisions to do with Mr. McDonald. So when you have an outlier, that makes the use of actuarials especially problematic. And just one last point. I really don’t want to prolong this because there are counterarguments that people who love actuarials will make. But it is important that I can make this, that actuarial instruments only address one facet of risk, which is likelihood. And typically the measure is the likelihood of someone being arrested or convicted of a violent offence, any violence offence. It doesn’t tell us about what kind violent offence. So everything from common assault to a homicide is captured in that. Again I don’t find that especially helpful. [Emphasis added.] [106] Further, Mr. McDonald suggests the judge misapprehended some of the evidence relating to the scoring of the risk assessment tests. Several tests were employed. Psychopathy Checklist – Revised (“PCL-R”) [107] Under this measure, Mr. McDonald was assigned a score of 23, placing him in the 52 nd percentile of male federal offenders. Dr. Schweighofer’s ultimate conclusion as to the import of the PCL-R score was: The overall PCL-R score I obtained for Mr. McDonald places him at the 52.4th percentile relative to a sample of male federal offenders. In other words, approximately 48% percent of male federal offenders score higher. Taking the standard error of measurement (SEM) into account, his percentile score could range from 39.7 to 67.2. His raw score of 23, when considered in light of the SEM, suggests that his true score could range from 20 to 26. Some research tends to place individuals in a high risk range when their scores are 25 or above and certainly when 30 or above. Mr. McDonald’s percentile rankings on Factor 1 and 2 are 82.7, and 36.4, respectively – illustrating the presence of significant Factor 1 traits. Mr. McDonald’s total score places him in the moderate risk category for future violence and general offending. If one considers the standard error of measurement the upper limit of his score suggests me may fall in the high risk range relative to other male offenders. His relatively high Factor 1 score does raise increased concern regarding the risk for instrumental violence. Mr. McDonald’s PCL-R also indicates that he poses a moderate risk for failure on conditional release. [108] The appellant raises two concerns about the PCL-R assessment. [109] First, the appellant emphasizes that in one study, the risk of recidivism associated with scores of 25 or below is 21%, while in another study those who score 24 or below were found to have a recidivism rate of 2.7%. [110] However, although Dr. Schweighofer cited the study in question, he nonetheless went on to opine that Mr. McDonald’s total score placed him in the moderate risk category for future violence and general offending. After considering the standard error of measurement, the upper limit of Mr. McDonald’s score suggested that he could fall into the high-risk range relative to other male offenders. [111] Second, the appellant says that while Mr. McDonald’s Factor 1 score is high, his Factor 2 score is the relevant metric. He says that Factor 2 traits, which according to Dr. Schweighofer are associated with increased risk of reactive violence, relate to the type of violence at issue in this case. By contrast, Factor 1 traits measure risk of instrumental violence, which Dr. Schweighofer defined as violence that “isn’t necessarily in the heat of the moment” but there is an objective the person is attending to meet – a “settling of the score”. [112] I do not accept the appellant’s emphasis of Factor 2 traits as dispositive of “the type of violence” used in this case. The judge found that the two homicides and the Taati incident were not “purely impulsive” (at paras. 230, 288). [113] Moreover, Dr. Schweighofer testified that the two factors are not mutually exclusive. Dr. Schweighofer was unable to opine, without an interview of Mr. McDonald, as to whether future violence would be relatively impulsive, and could not rule out instrumental violence. [114] In any event, the judge only cited Mr. McDonald’s overall PCL-R moderate risk rating when explaining his conclusion on s. 753(1)(a)(i) at para. 303. He did not rely on Mr. McDonald’s high Factor 1 score, in which the appellant scored in the 82.7 percentile, or on his Factor 2 score. In that same paragraph, the judge also adverted to Dr. Schweighofer’s evidence in cross-examination, wherein he testified to the effect that disregarding the Mr. Big evidence would have had on the analysis. He accurately summarized Dr. Schweighofer’s findings on this point as follows: [188]    Dr. Schweighofer was cross-examined on his scoring of the PCL-R. For a variety of the personality traits that comprise the PCL-R, he was asked to factor out behaviour rooted in the Mr. Big investigation. With one small exception, he testified that doing so did not change how he would score that particular component of the PCL-R. For example, on the question of whether Mr. McDonald was lacking in remorse, Dr. Schweighofer was asked to re-assess his scoring of this issue after factoring out statements made by Mr. McDonald in the course of the investigation with respect to past criminal acts, and factoring in that Mr. McDonald completed a violence prevention program while on remand. Having done so, Dr. Schweighofer testified that proceeding on this basis would not change his scoring on this personality trait. He made these observations: Throughout the records I had available to me… I mean, two very significant life events. He… takes the life of a man in 1981. He absconds. No apparent concern for how that might impact the victim’s family. It’s clearly a self-interested act. When the police interview him in California, clearly there’s no indications there of remorse. He's still intent on evading detection. With the…2003…killing of Mr. Wilton, again here, there’s no marked indications that he felt particularly remorseful for that. I mean, these are two major events, the most extreme harm that someone can do to another individual and you… really don’t see any marked expressions or indications that there was a deep felt remorse or guilt about those events. And there’s additional information…If you think of the attack on Mr. Taati, there is no indication that he felt any remorse for that that I could see in the record. [115] In my opinion, the judge did not misapprehend the PCL-R evidence. Violence Risk Appraisal Guide – Revised (“VRAG-R”) [116] The VRAG-R measures the likelihood of recidivism as of the 1981 offence (the “index offence”). The circumstances surrounding that offence (e.g., the offender’s age at the time, violent offences prior to the offence) factor into the analysis. On that basis, Mr. McDonald’s likelihood to violently reoffend was at the 75 th percentile, which placed him in the category of “moderate high to perhaps high risk”. [117] Mr. McDonald complains that a number of factors should have been taken into account by Dr. Schweighofer, which would have reduced Mr. McDonald’s score substantially. Those factors included elementary school maladjustment and factors associated with drug and alcohol problems before the age of 18. [118] The judge was alive to Dr. Schweighofer’s decision to omit these factors from his analysis. Dr. Schweighofer himself provided an explanation for both. He excluded elementary school maladjustment because of a lack of information. His reasons for omitting the risk factors related to drugs and alcohol included his doubts about the sincerity of the appellant’s self-reported substance use. On this point, I note again Dr. Schweighofer’s acknowledgement of the fact that he had not had an opportunity to interview Mr. McDonald and the corresponding effect that had on his evidence. [119] Regardless, the appellant’s submission ignores a more significant omission from Dr. Schweighofer’s analysis — the manslaughter of Mr. Wilton. In his testimony, Dr. Schweighofer explained that the VRAG-R does not take into account offences subsequent to the index offence. Dr. Schweighofer observed, and the judge accepted, that “it should also be acknowledged that by dint of his 2003 manslaughter he has already met the criteria for recidivism. As such, his VRAG-R score represents a likely underestimate of risk”. [120] I am unable to conclude that the judge misapprehended this evidence. HCR-20 [121] The HCR-20 is a structured professional judgment that considers 20 risk factors related to violent behaviour and general criminality. [122] On this measure, Dr. Schweighofer concluded that Mr. McDonald’s future risk for violence or general recidivism was in the moderate to moderate/high range. [123] Mr. McDonald submits that Dr. Schweighofer’s analysis was tainted by reference to uncharged and unproven conduct, including: (a)        A reference in a police report that he would sometimes slap around his ex-wife when he had been drinking; (b)        His claim during the Mr. Big operation that he once hit a man with a 2x4 when he witnessed the man vandalizing a vehicle; (c)        His various claims about assaulting prostitutes which were made to impress Mr. Big; (d)        His claim during the Mr. Big operation that he once slashed the tires of a vehicle in order to get back at someone; (e)        His claim during the Mr. Big operation that he set a car on fire; and (f)         His statements to Mr. Big concerning the Taati incident. [124] The judge was acutely aware of Mr. McDonald’s criticisms. He observed: [224]    Dr. Schweighofer was also closely cross-examined on how excluding information sourced in the Mr. Big investigation might change his assessment of the historical, clinical and risk factors addressed by the HCR-20. I have been unable to identify an occasion on which Dr. Schweighofer testified that his assessment of the risk factors encompassed by the HCR-20 would substantially change as a consequence of the exclusion of information sourced in the Mr. Big investigation. [125] In my opinion, this evidence, taken together with the evidence as a whole, supported a finding of likelihood of future harm and present threat. I would not interfere with the weight the judge accorded to it. (iv)  The Effect of Aging [126] Mr. McDonald contends the judge erred in finding there was “no evidence” that the aging process was having an effect on his risk of re-offending. He points to the evidence of Dr. Schweighofer, who stated that the appellant’s age and health issues were mitigating factors with respect to the risk of re-offending, and that there was a decreased risk after the age of 60. [127] Mr. McDonald emphasizes the evidence of Dr. Lohrasbe, who was asked in cross-examination if his opinion that Mr. McDonald poses a high-risk for future acts of violence and, in particular, the effect of aging, would change if the Mr. Big evidence were removed from consideration: Q         And then, just to be clear with respect to -- I’m not asking you to remove the incident involving Mr. Taati from your opinion. I’m asking you to remove from your opinion the Mr. Big operation, and we’ll include in that His Lordship’s comments as referenced in your report. A          So remove it? Q         Yes. A          And then, again, just to clarify, because the Mr. Taati incident comes up only in the context of this hearing and the findings of His Lordship, so what other facts I should assume regarding Mr. Taati? Should I include it as found by the court? Q         Yes. A          With that, I would say, yes, my opinion has changed. It would be weaker in terms of what it tells us about the impact of the aging process on Mr. McDonald, because the last then known act of physical violence would be when he was 52, and then we have this single incident of a threat, which was not carried through and was not even severe enough, at least in the way it played out, to lead to criminal charges. I’m having some difficulty wrapping my head around that part. But it would be an opinion that would be less emphatic that the process of aging has not had the impact on Mr. McDonald as one would have expected just during the normal course of aging for most people. I don’t know if that’s a clear enough answer, but my opinion would change. [Emphasis added.] [128] In follow-up questions from the Court, Dr. Lohrasbe testified: Q         You were asked in cross-examination to exclude from the factual foundation underlying your opinion the Mr. Big operation -- A          Yes. Q         -- and the court’s findings in relation to it as they are set out in your report. A          Yes. Q         Did you understand that question to be a request to exclude, as well, consideration of private conversations Mr. McDonald had with his brother while the Mr. Big operation was ongoing? A          I did not actually think about that. Do you want me now to think about that, My Lord? I’d just taken hocus bolus everything to do with the Mr. Big, but I hadn’t separ -- pieced out the conversation with the brother. Q         If you assume for the moment -- I'll ask you to make this assumption -- that the dynamics of a private conversation between Mr. McDonald and his brother Jeremiah lies outside the inducements to, as you put it, “amp up” criminal propensity in the context of the Mr. Big, while in the presence of the undercover officers, if you assume that, then does the inclusion of this intercept as part of the factual matrix underlying your opinion change your opinion from what you testified to either earlier today or in your report? A          Just one point of clarification. I should also assume the Taati incident several months earlier did occur, even though no charges were forthcoming? Q         I would ask you to make that assumption as well. A          Right. Then, the best way I can answer it is -- is my opinion is affected somewhere half way between my original testimony and before I was asked in cross-examination to exclude the Mr. Big. When I say half way, in terms of diminishing the confidence regarding the effects of time and age on Mr. McDonald and his personality, because now I’d have removed your comments, but I would have this information, that is this phone call, that does at least provide some information of the continuity of antisocial attitudes, in [indiscernible] with violence, at the time when he was making this phone call. Without an interview to explore the details, the context, it’s very difficult for me to say much more than that. [Emphasis added.] [129] The judge assessed the issue of Mr. McDonald’s age in the context of the pattern of repetitive behaviour: [314]    With respect to s. 753(1)(a)(i), Mr. McDonald has displayed a long-standing and entrenched pattern of repetitive behaviour showing a failure of behavioural restraint and a likelihood that he will act similarly in the future such as to constitute a threat to the life, safety or physical well-being of others.  Actuarial and clinical risk measures put him in the moderate or moderate/high risk of re-offence.  Mr. McDonald’s capacity and preparedness to respond with violence to stressors that are likely to arise again is not something in the distant past.  In 2003, he committed an offence of brutal violence involving use of the sledgehammer that took the life of Mr. Wilton.  In 2011, he armed himself with a pickaxe and threatened to kill Mr. Taati.  His antisocial attitudes continue as evidenced by his conversation with Jeremiah. The threat Mr. McDonald poses is not only current; there is no evidence it is abating with age . [315]    With respect to s. 753(1)(a)(ii), the two homicides forming the pattern both demonstrate a substantial degree of indifference on Mr. McDonald’s part to the reasonably foreseeable consequences to others of his conduct.  The behaviour, and the indifference to life that characterizes it, is enduring.  The same indifference to human life emerged 22 years after the predicate offence.  It is remarkable that, knowing he had already killed one person, Mr. McDonald intentionally killed a second person and displayed no appreciation of, or remorse for, what he had done.  As reflected in the expert evidence before me, his risk factors are well-entrenched and he likely needs little provocation to commit a future violent act.  Even weighing the expert evidence in a way that takes account of the considerations set out in paras. 296 – 303, I am satisfied the evidence establishes that the risk of him doing so is, by both clinical and actuarial measures, in the moderate to moderate/high range.  In short, I have before me a person who has displayed persistent disregard for human life. The 2003 homicide establishes that Mr. McDonald’s capacity for violence has not diminished with age.  His risk factors are enduring, untreated, and, on the evidence before me, likely to be acted on in the future. [Emphasis added.] [130] In my opinion, the judge did not err in his conclusions that age was not reducing Mr. McDonald’s likelihood of re-offending and his capacity for future violence. The judge heard days of testimony from the experts. To varying degrees, both experts considered Mr. McDonald to be a meaningful risk for future offending despite his age, his time in custody and his need for treatment. The judge was, in my view, entitled to conclude as he did. (v)  Lower Risk for Offenders Post-Treatment [131] Finally, the appellant says that recidivism rates are significantly lower for offenders who engage in treatment during custodial sentences. He points to statements from each doctor that suggest, in general terms, that completion of violent offender programming can reduce the risk of recidivism for offenders. [132] I note that while the appellant advances this argument as it relates to his larger point that the dangerous offender designation was not reasonably supported by the evidence, the judge addressed the substance of this argument in his discussion of whether there was a reasonable possibility of eventual control of risk in the community (see paras. 317–323). This makes sense; the appellant’s submission focuses on how treatment affects risk. [133] In my view, the general statements to which Mr. McDonald refers do not aid him. The question before the judge was whether Mr. McDonald was likely to reoffend in a manner consistent with the patterns set out in ss. 753(a)(1)(i) and (ii). In this regard, the weight of the evidence bore against the conclusion Mr. McDonald urges on this court. [134] I conclude that, in light of the specificity of the question before the judge, the generality of the appellant’s submission results in two fatal deficiencies, one related to each doctor. [135] Dr. Lohrasbe’s agreement in cross-examination that treatment could reduce Mr. McDonald’s risk was expressly contingent upon proof that the effects of aging further diminished other relevant risk factors and Mr. McDonald’s genuine participation in the programs. He had neither. I have already addressed the judge’s findings with aging above and found them to be without error. [136] With respect to the genuine participation, the judge specifically acknowledged Dr. Lohrasbe’s observation that it was difficult to imagine that Mr. McDonald, in middle age, had become motivated to participate in treatment and effect the transformation required to reduce his risk. Dr. Lohrasbe’s report stated that the kind of effort that would be required from Mr. McDonald meant that simply “plugging him into available programs” could not be relied upon to reduce risk. [137] Dr. Lohrasbe concluded, and the judge accepted, that: [323]    … [T]here are no good reasons to conclude that there is a realistic possibility that available treatment programs can lower his risk to an acceptable level (that is, to the point that risk can be managed in the community) in the foreseeable future". [138] Turning now to Dr. Schweighofer’s evidence, I observe that in relying on his statement that some violent offender programming has been shown to reduce risk in some individuals, the appellant ignores the more specific statements the doctor made about Mr. McDonald. These include: that Mr. McDonald’s dynamic risk factors were unlikely to change simply due to good wishes, but rather require significant and sustained effort; that his history was markedly lacking in indication he is motivated; and that his high Factor 1 score on the PCL-R and “interpersonal style” would likely undermine the chances of successful treatment. [139] The judge summarized his evaluation of the version of Dr. Schweighofer’s evidence that was most favourable to the appellant at para. 323: I have closely examined Dr. Schweighofer's opinion that Mr. McDonald is at least moderately likely to engage in and benefit from treatment, together with his related opinion that the possibility of controlling his risk in the community is moderate.  Some of the evidence upon which that opinion is based is set out in para. 212. Collectively, that evidence goes no further than justifying some reason for hope that if a number of contingencies are met and Mr. McDonald takes the right fork in the road at each critical juncture, his risk can be reduced to an acceptable level.  Given the scant evidentiary foundation upon which Dr. Schweighofer's more optimistic appraisal of treatment prospects rests, I am not able to give his evidence any weight on this point. [140] These observations, together with the judge’ general recognition of Mr. McDonald’s generally poor response to previous periods of community supervision and the lack of evidence surrounding his motivation to participate at all, lead me to conclude the appellant has not demonstrated error on the judge’s part. [141] In conclusion, I would not accede to this ground of appeal. C.       No Reasonable Possibility of Eventual Control of Risk in the Community [142] Mr. McDonald contends the judge erred in four ways in finding that there was no reasonable prospect of managing his risk in the community (in addition to alleging again the error in respect of the effects of aging): (1)      by relying on the Mr. Big evidence to assess treatment prospects; (2)      by relying on Dr. Lohrasbe’s opinion with respect to Mr. McDonald’s motivation to participate in treatment; (3)      contrary to the judge’s finding that little is known about Mr. McDonald’s criminogenic risk factors, both Dr. Schweighofer and Dr. Lohrasbe analyzed the crime cycle and risk factors; and (4)      by relying on Mr. McDonald’s “poor response to previous periods of community supervision.” [143] In my opinion, the appellant’s arguments under this ground of appeal amount to an invitation for this Court to re-examine and re-weigh the evidence before the judge and come to a different conclusion. [144] As to the alleged improper use of the Mr. Big evidence it is, as the Crown submits, an attack on the judge’s finding of fact that the evidence of the appellant’s participation in and conduct during the Mr. Big operation was reliable. The passages I have earlier referred to demonstrate that the judge was alive to the fact that Mr. McDonald is an embellisher and known to invent stories about his past. Furthermore, the judge was acutely aware of the unique context of Mr. Big investigations and “obvious concerns” about the reliability of evidence elicited in such operations. [145] It is clear the judge treated the Mr. Big evidence with great caution. Significantly, he considered the confirmatory effect of character displayed by Mr. McDonald in his conversation with his brother Jeremiah (in the absence of the Mr. Big operators) following the abduction of the fictional debtor, and Mr. McDonald’s attitude toward violence as displayed in the incident involving Mr. Taati (also outside the ambit of the Mr. Big operation). [146] In my opinion, the judge did not err in finding the limited Mr. Big evidence to be a reliable indicator of Mr. McDonald’s treatment prospects. He closely examined the evidence in the context of the evidence as a whole to determine its reliability. He made no use of the evidence, for any purpose that adverted to past acts involving violent or antisocial behaviour, or to unproven information, or to uncharged acts Mr. McDonald related to the primary. In short, the judge was alive to the inherent dangers of the Mr. Big evidence, and submitted it to a thorough reliability examination. To the extent it was prejudicial, it was nonetheless highly probative of the question of the risk Mr. McDonald poses to the community. [147] I also note the judge would have come to the same conclusion on this point without placing any reliance on any of the Mr. Big evidence (at para. 324). [148] Mr. McDonald next criticizes the judge for relying on Dr. Lohrasbe’s opinion that it was “difficult to imagine the emergence, in middle age, of a sustained motivation on Mr. McDonald’s part to participate in treatment programs and transform himself on the multiple levels that would be required to reduce his risk to an acceptable level”. [149] Mr. McDonald contends the judge should have accepted Dr. Schweighofer’s evidence that offenders often have limited motivation at the outset of incarceration but that issues such as motivation can be addressed in the treatment process. Dr. Schweighofer nonetheless expressed the view that, in Mr. McDonald’s case, “lack of motivation is a real concern”. [150] It was open to the judge to prefer the evidence of Dr. Lohrasbe on this issue. In the context of this offender, who had demonstrated no real acceptance of responsibility or motivation to change despite two homicides, the judge’s conclusion was not unreasonable. [151] As to Mr. McDonald’s criminogenic risk factors, I find no error in the judge’s statement that little was known about them. It is true that both Dr. Lohrasbe and Dr. Schweighofer examined them. However, Dr. Lohrasbe was unable to find a “crime cycle”. There was a common triggering feature of frustration in both killings but Dr. Lohrasbe said that meant “little in terms of ‘crime cycle’.” Dr. Schweighofer did find some evidence of “offence dynamics” in the three offences, but without an interview of Mr. McDonald, he could not say “what exactly fuels Mr. McDonald’s anger”. [152] Lastly, Mr. McDonald says the judge relied on his “poor response to previous periods of community supervision”. Mr. McDonald contends that Dr. Schweighofer’s opinion about the “realistic chance of managing that poor response in treatment” is inconsistent with that conclusion. Once again, however, the judge was entitled to give that evidence the weight it deserved, especially in light of the contingent nature of Dr. Schweighofer’s conclusion and the “scant evidentiary foundation” upon which it rested. [153] In my view, this ground of appeal does not warrant appellate intervention. CONCLUSION [154] From all of the foregoing, it is clear that, from the very outset of this dangerous offender proceeding, the judge was acutely aware of the potential risks that the Mr. Big evidence might have on the fashioning of the appropriate sentence. [155] Part of the complexity of this case arises from counsel’s mutual decision – despite being made aware of those risks – not to accept the judge’s invitation to apply for directions regarding the information to be provided to the assessors. In the future, I would encourage counsel to diligently avail themselves of the court’s guidance should they find themselves in a similar situation. [156] In my opinion, the judge conducted his analysis with extreme care and caution. I can see no error in his approach. Indeed, I consider his decision to be entirely reasonable. [157] It follows that I would dismiss the appeal from the designation of Mr. McDonald as a dangerous offender subject to an indeterminate sentence. “The Honourable Madam Justice Kirkpatrick” I AGREE: “The Honourable Mr. Justice Savage” I AGREE: “The Honourable Madam Justice Dickson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Murray Purcha & Son Ltd. v. Barriere (District), 2019 BCCA 4 Date: 20190103 Docket: CA45233 Between: Murray Purcha & Son Ltd. Appellant (Petitioner) And District of Barriere Respondent (Respondent) Before: The Honourable Madam Justice Stromberg-Stein The Honourable Mr. Justice Savage The Honourable Mr. Justice Hunter On appeal from:  An order of the Supreme Court of British Columbia, dated March 19, 2018 ( Murray Purcha & Son Ltd. v. Barriere (District) , 2018 BCSC 428, Kamloops Docket No. 53392). Counsel for the Appellant: R.L.D. Hughes Counsel for the Respondent: S. Dubinsky Place and Date of Hearing: Vancouver, British Columbia October 3, 2018 Place and Date of Judgment: Vancouver, British Columbia January 3, 2019 Written Reasons by: The Honourable Mr. Justice Hunter Concurred in by: The Honourable Madam Justice Stromberg-Stein The Honourable Mr. Justice Savage Summary: The appellant sought judicial review of a procurement decision in which the contract was awarded to a party other than the appellant. Judicial review was dismissed. The issue is whether the District breached a duty of procedural fairness owed to the appellant and the other proponents. Held: appeal dismissed. The District followed the procedure laid out in the Request for Proposal and met its obligation of procedural fairness. The substantive decision met the standard of reasonableness. Reasons for Judgment of the Honourable Mr. Justice Hunter: [1] The appellant brings this appeal to challenge a decision of the respondent, the District of Barriere (the “District”) to award a winter road maintenance contract to a company other than the appellant. The contract was awarded pursuant to a Request for Proposal (“RFP”). The appellant brought an application for judicial review from the District’s decision on the ground that the process followed by the respondent was procedurally unfair. [2] In reasons indexed as 2018 BCSC 428, the judicial review judge reviewed the respondent’s decision against a standard of reasonableness and declined to set it aside. The appellant asserts that the judicial review judge applied the wrong standard of review, and raises five distinct grounds for appeal of the judge’s decision. Each relates to decisions made during the assessment of the proposals, and are said by the appellant to contravene the duty of fairness owed to the appellant under principles of administrative law. [3] In my view, the reasonableness standard utilized by the judicial review judge applies to the substantive outcome of the decisions made by the District, including the decision to award the contract to another bidder, but the standard of review for the issue of procedural fairness is correctness. [4] The RFP initiated by the District did not give rise to a contractual duty of fairness, but insofar as the process initiated by the District engaged the use of statutory powers, a general duty of procedural fairness was owed to the participants. In this case, that duty required the District to carry out the process described by the RFP documents equally for all proponents. In my opinion, the District met this procedural duty. [5] The substantive decisions made by the District were reasonable. Accordingly, and for the reasons that follow, I would dismiss the appeal. Background [6] The District of Barriere is located north of Kamloops on the North Thompson River. It requires winter road maintenance services each year for the District’s roads and contracts out these services to the private sector. The appellant, Murray Purcha & Son Ltd. (“Purcha”), had the contract to provide winter road maintenance from 2013 to 2016, but the contract was not renewed. The amount paid each year to the appellant was $212,979.83 for the plowing, sanding and de-icing of the District’s roads. [7] The District concluded that it should be able to obtain winter road maintenance for a lesser price and decided to seek proposals from private enterprises for these services. The trial judge explained the process followed by the District: [8]        On January 25, 2016, the District issued a Request for Proposal (“RFP”) described as “Winter Road Maintenance Services”, Reference No. 16-01. The closing date and time to receive bids in response to the RFP was 2 p.m. February 15, 2016. [9]        The RFP consisted of 26 pages outlining the District’s conditions and requirements. Listed in a separate document, are Winter Road Maintenance Schedules (“WRMS”) for January 2016. This document contains a map of the District’s roads listed by name, their approximate length, the cost of the rescission process, resolution of disputes, liquidated damages and other matters related to the contract upon it being awarded. [10]      The RFP was a two-envelope bid. The first envelope had to contain: the information necessary to enable the District to determine how the services will be provided and work completed and to assess the quality of the Proponent’s Work Plan and its ability to meet the required level of service and quality standards [RFP at page 9, paragraph 5]. The second envelope contained the pricing which is the lump sum amount the proponent would perform the work for and the breakdown of the lump sum in accordance with Appendix G. In addition, the District could call upon the proponent to perform additional work (it was not obliged to accept it), and the proponent was to provide unit prices for additional work in Appendix H of the RFP. [11]      The work plan for envelope #1 consisted of six key components which required the proponent to complete certain appendices. Each of the key components had a maximum number that could be earned by the proponent described in Table 1 as “weighting”. Each key component had a minimum number that had to be earned, described in Table 1 as “minimum requirement”. [12]      The maximum score a bidder could receive was 110 points. A minimum score of 70 points was required so the bidder’s second envelope could be opened. At this stage, the District “may” reject a bid and envelope #1 would be returned to the bidder. The bid advanced by a proponent had to contain mandatory documents and information set out in paragraph 5.H. of the RFP. Each proposal would then be evaluated by a formula called the “Proposal Factor Adjustment” (“PFA”). The PFA was given a 10% weight for each bid submitted. The PFA formula is set out in the RFP. [8] Five companies, including Purcha, submitted proposals for the contract. The proposal selected by the District was from Defiance Enterprises Inc. (“Defiance”). On the evaluation done by the District, Purcha finished third of the five companies that responded to the RFP. The other bidders were companies referred to in the judgment as Tri Service, Borrow and Surespan. They are not involved in this litigation, but I mention them for the sole purpose of explaining the results of the District’s evaluation, which was summarized in the judgment in these terms: [14]      All the bidders made more than the minimum requirement contained in Table 1 of the RFP. All bidders had their second envelopes opened. Mr. Doherty scored each of the bidders’ RFP Work Plan as follows: Tri Service –107; Borrow – 104; Defiance – 102; Purcha – 93; and Surespan – 76 [15]      The pricing component (the second envelope) of the RFP for each of the proponent’s bid is as follows: Defiance – $156,000.00; Purcha – $179,625.60; Tri Service – $179,999.98; Borrow – $194,258.00; and Surespan – $453,600.00 [16]      After the PFA was applied, the total evaluated proposal price lump sum scores given to each of the proponent’s bid is as follows: Defiance – $159,120.00; Tri Service – $181,349.97; Purcha – $187,259.68; Borrow – $197,171.87; and Surespan – $492,156.00 [9] After the bid evaluation had taken place, the District Council met in camera and awarded the contract to Defiance. A winter road maintenance services contract was subsequently entered into between the District and Defiance. The Judicial Review Application [10] Purcha sought judicial review of the District’s decision pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241. The basis of the application was the allegation that in awarding the contract to Defiance, the District had breached the duty of procedural fairness owed to the proponents who had responded to the RFP. Purcha asserted that the District had breached this duty in five discrete ways: 1. “The District should have disqualified Defiance’s bid because Defiance’s bid was non-compliant.” Purcha alleged that the RFP had required that each bid prove that it had existing insurance or could obtain insurance, and Defiance’s bid did not contain such information. 2. “The District should have disqualified Defiance’s bid because Defiance breached secrecy by revealing its total price in the first envelope.” The price had not been revealed directly, but a reference had been provided by which the price could have been calculated. 3. “The District should have disqualified Defiance’s bid because Defiance appeared to improperly influence the District to pick its bid.” This allegation was based on the same reference by which the total price could have been calculated. Defiance stated that its policy was to donate 3% of its revenue back to the community. This was said to be an attempt to improperly influence the selection process. 4. “The District did not follow a fair process because the District relied on un-disclosed criteria in evaluating the bids.” The evaluator had relied on his personal knowledge that Defiance was capable of plowing snow. 5. “The District did not follow a fair process because the District breached the legitimate expectations of the Petitioner by not complying with its stated process for evaluating bids.” This argument was based on the proposition that the District had historically followed the province of British Columbia’s procurement policy, and that not all of the provincial policy had been followed in this case. [11] The judicial review judge reviewed these allegations against a standard of reasonableness. She reviewed the circumstances of each allegation carefully and concluded that none of the decisions of the District was unreasonable as that term is understood in the context of judicial review. Her one qualification concerned the statement in Defiance’s response concerning its donation policy, which would allow the reader to calculate its bid without the necessity of opening Envelope #2. She accepted the evidence of the evaluator that this calculation had not been made, but commented that “Defiance should not have disclosed the amount it would have contributed to the community based on envelope #1” (para. 81). [12] Although the judicial review judge concluded that the reference to Defiance’s donation policy did not breach the District’s obligations of procedural fairness, she went on to consider the discretion afforded a reviewing judge under the Act . She noted that the judicial review proceeding had not been commenced until after the contract for snow removal with Defiance had been signed. Purcha had initially invoked an arbitration procedure available to it but then had abandoned this remedy. She concluded that even if the indirect revealing of the contract price constituted a breach of the District’s duty of procedural fairness, she would have exercised her discretion not to provide a remedy in these circumstances. Issues [13] The appellant submits that the chambers judge applied the wrong standard of review and then erred in concluding that the District did not breach a duty of fairness to the appellant. [14] The errors alleged by the appellant concerning the judicial review judge’s decision are substantially the same as the appellant’s allegations of error by the District. Purcha asserts that the judicial review judge erred: (i)       in finding that the respondent did not have to disqualify Defiance for breaching secrecy; (ii)      in finding that the respondent did not have to disqualify Defiance’s bid for attempting to improperly influence the respondent; (iii)      in finding that Defiance’s bid was compliant with respect to insurance; (iv)     in finding that the respondent did not take into account undisclosed criteria in scoring Defiance’s bid; and (v)      in finding that Defiance’s scores were within a range of possible acceptable outcomes that are defensible in respect of the facts and the law. [15] The appellant seeks an order that the contract between Defiance and the District of October 1, 2016 be set aside and that the District re-issue the RFP for winter road maintenance. Alternatively, the appellant seeks a declaration that it is entitled to damages for lost profits and an order remitting the case to the Supreme Court for an assessment of damages. Standard of Review [16] The role of this Court in appellate review of a judgment of a superior court on an application for judicial review is to determine whether the reviewing court identified the appropriate standard of review and applied it correctly. To do this, the appellate court is required to step into the shoes of the lower court and focus on the administrative decision: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45 ‒ 46. [17] The judicial review judge concluded that the standard of review was reasonableness, following the decision of the Court in Metercor Inc. v. Kamloops (City) , 2011 BCSC 382. The District supports this conclusion. [18] The appellant argues that the standard of review is correctness on the basis that the central question was whether the respondent had correctly applied its duty of fairness in respect of a decision that influenced the rights of bidders. [19] In Agraira , the process for determining the standard of review was summarized in this way: [48]      As this Court held in Dunsmuir , a court deciding an application for judicial review must engage in a two-step process to identify the proper standard of review. First, it must consider whether the level of deference to be accorded with regard to the type of question raised on the application has been established satisfactorily in the jurisprudence. The second inquiry becomes relevant if the first is unfruitful or if the relevant precedents appear to be inconsistent with recent developments in the common law principles of judicial review. At this second stage, the court performs a full analysis in order to determine what the applicable standard is. [20] In this appeal, Purcha challenges the decision of the District to award the contract to Defiance on both procedural and substantive grounds. It is not necessarily the case that the standard for judicial review will be the same for each ground. [21] The standard for reviewing the merits of procurement decisions has not been definitively established by this Court or the Supreme Court of Canada, but there is authority for the proposition that the standard for substantive review of such decisions is reasonableness: Metercor at para. 4; Bot Construction Ltd. v. Ontario (Ministry of Transportation) , 2009 ONCA 879 at paras. 8 and 18; Mastermeter Products Canada Inc. v. Corporation of the City of North Bay , 2012 ONSC 1887 at para. 25. In the case at bar, the substantive decisions were based on considerations of subjective evaluation, discretion and policy considerations, which supports reasonableness review under the Dunsmuir standard: Dunsmuir v. New Brunswick , 2008 SCC 9 at para. 51. [22] Purcha argues that a correctness standard should apply to the substantive review on the basis that the question at issue is one of general law that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise. I do not agree. The substantive decision of the District rests on a discretionary assessment of the material submitted to it, and is reviewable on a standard of reasonableness. [23] By contrast, compliance with the duty of procedural fairness is not assessed on a standard of reasonableness. The process undertaken by the decision-maker either complies with the duty of fairness or it does not. No deference is given by the reviewing court to the views of the decision-maker on this issue. [24] As a result, it is sometimes said that the standard of review for determining whether a decision-maker has complied with its duty of procedural fairness is correctness. The leading expression of this principle is found in the Supreme Court of Canada’s decision in Mission Institution v. Khela , 2014 SCC 24 at para. 79: [79]      Third, the ability to challenge a decision on the basis that it is unreasonable does not necessarily change the standard of review that applies to other flaws in the decision or in the decision-making process. For instance, the standard for determining whether the decision maker complied with the duty of procedural fairness will continue to be “correctness”. [25] The proposition that the standard of review for procedural fairness is correctness has been followed by a number of appellate courts, including this Court in The Cambie Malone’s Corporation v. British Columbia (Liquor Control and Licensing Branch) , 2016 BCCA 165 at para. 14; the Federal Court of Appeal in Henri v. Canada (Attorney General ), 2016 FCA 38 at para. 16; the Manitoba Court of Appeal in Boeing Canada Operations Ltd. v. Winnipeg (City) Assessor, 2017 MBCA 83 at paras. 32 ‒ 36 ; and the Alberta Court of Appeal in Springfield Capital Inc. v. Grande Prairie (Subdivision and Development Appeal Board) , 2016 ABCA 136 at para. 10. [26] I note that it is not clear that the concept of standard of review applies at all to an allegation of breach of procedural fairness. In Canadian Pacific Railway Company v. Canada (Attorney General) , 2018 FCA 69, the Federal Court of Appeal stated that “the standard of review is applied to consideration of outcomes, and, as a doctrine, is not applied to the procedure by which they are reached” (para. 44), citing the dictum of Binnie J. in C.U.P.E. v. Ontario (Minister of Labour) , 2003 SCC 29: [102]    The content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations. [27] The Ontario Court of Appeal came to a similar conclusion in Brooks v. Ontario Racing Commission , 2017 ONCA 833: [5]        Before turning to the issues, there is the question of the appropriate standard of review. When considering an allegation of a breach of procedural fairness or natural justice, no standard of review analysis is necessary. Rather, the court is only required to analyze whether the rules of procedural fairness or natural justice have been adhered to. [28] Whether expressed as a standard of review in the Dunsmuir sense, or simply the standard by which procedural fairness is assessed, it is clear that no deference is to be paid to the decision-maker in determining whether the duty of procedural fairness has been met. In that sense, the standard of review to be applied on judicial review when the issue is compliance with the duty of procedural fairness can reasonably be characterized as one of correctness. For purposes of this appeal, I will use that nomenclature, which is consistent with the most recent pronouncement by the Supreme Court of Canada in Khela . [29] Accordingly, I conclude that there are two standards of review at play in this judicial review proceeding: correctness for the question of procedural fairness and reasonableness on the merits of the District’s decision, including intermediate decisions made in assessing the proposals. Was the District under a duty of Procedural Fairness to Purcha? Fairness as a Contractual Duty [30] A threshold question is whether the District was under a duty to be procedurally fair to Purcha. The District takes the position that the RFP process did not give rise to a “Contract A”, and therefore either no free-standing enforceable duty of fairness arises, or such a duty is circumscribed, citing this Court’s judgment in Powder Mountain Resorts Ltd. v. British Columbia , 2001 BCCA 619. [31] Purcha argues that the response to the RFP did create a Contract A, on the basis that the District was committed to a specifically defined project, invited proposals from eligible proponents, and evaluated them according to specific criteria outlined in the RFP, relying on the trial decision in Tercon Contractors Ltd. v. British Columbia (Ministry of Transportation and Highways) , 2006 BCSC 499, aff’d 2010 SCC 4. [32] Whether a Request for Proposal creates a contractual duty of fairness under a Contract A analysis is determined by whether the parties intended to initiate contractual relations by the submission of a response to the RFP. If such a contract arises, its terms are governed by the terms and conditions of the RFP: M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd. , [1999] 1 S.C.R. 619 at para. 19. [33] Both Powder Mountain and Tercon were actions in breach of contract. It was necessary in each case to determine whether the terms of the RFP indicated an intention to create contractual relations, the precondition to a Contract A analysis. The case at bar has been framed in judicial review on administrative law grounds, not breach of contract. As a consequence, the chambers judge gave no consideration to a contractual analysis and accordingly made no finding as to whether the terms of this RFP were intended to create contractual relations, as was found in Tercon . [34] In this case, the terms of the RFP make it clear that the parties did not intend that a response to the RFP would create contractual obligations in the nature of a Contract A or otherwise. The General Conditions of the RFP are stated in this way: E.  General Conditions 1.  No Contractual Obligations Arising from this RFP or the Submission of a Proposal This RFP is not a call for tenders or a request for binding offers and no contractual or other legal obligations shall arise between the District and any Proponent as a result of the issuance of this RFP or the submission of any Proposal in response to this RFP, until and unless the District and a Proponent enter into a contract for the services sought by the District under this RFP. For clarity and without limiting the foregoing, this RFP does not commit the District in any way to treat Proponents in any particular manner, to select a Proponent, to proceed to negotiations with any Proponent or to enter into any contract and the District may reject any and all Proposals, re-issue a new RFP or end this RFP process at any time, at its sole discretion. [35] There is nothing in the record before us to mitigate this clear language in the RFP. Accordingly, I conclude that no Contract A was formed by the responses to the RFP, and no contractual duty of fairness arises in this case. Procedural Duty of Fairness [36] This leaves the question whether the District was under a duty of procedural fairness based on principles of administrative law. The doctrine of procedural fairness has been a fundamental component of Canadian administrative law for many years. Every public authority making an administrative decision which affects the rights, privileges or interests of an individual must comply with a duty of procedural fairness. This general rule will yield only to clear statutory language or necessary implication to the contrary: Canada (Attorney General) v. Mavi , 2011 SCC 30 at paras. 38 ‒ 39. [37] It was at one time thought that procurement decisions of a municipality were immune from judicial review, but that view was rejected by the Supreme Court of Canada in Shell Canada Products Ltd. v. Vancouver (City) , [1994] 1 S.C.R. 231 at 239 ‒ 241 (per McLachlin J. dissenting, but not on this point) and 273 ‒ 274 (per Sopinka J.). [38] In my view, the chambers judge was not in error when she concluded that the decision of the District to award the road maintenance contract to another proponent was reviewable on administrative law grounds. The District had an obligation of procedural fairness towards proponents who responded to the RFP. [39] The difficulty in this case is not whether the District owed the proponents responding to its RFP a duty of procedural fairness, but what the content of that duty was. [40] The underlying statute does not assist. The District has the authority through s. 8(2) of the Community Charter , S.B.C. 2003, c. 26 to “provide any service that the council considers necessary or desirable, and may do this directly or through another public authority or another person or organization.” No statutory guidelines constrain the manner in which a municipality must award road maintenance contracts. Procedural duties will arise from the manner in which a municipality chooses to carry out these responsibilities. [41] The concept of procedural fairness has been described as “eminently variable” and “to be decided in the specific context of each case”: Knight v. Indian Head School Division No. 19 , [1990] 1 S.C.R. 653 at 682. In Baker v. Canada (Minister of Citizenship and Immigration) , [1999] 2 S.C.R. 817, the Court identified five factors that were relevant to determining the content of the duty. Of these factors, the most significant for this case arises from the legitimate expectations of those parties who responded to the RFP. [42] The application of the doctrine of legitimate expectations to representations of administrative process was summarized by Justice Binnie in Mavi : [68]      Where a government official makes representations within the scope of his or her authority to an individual about an administrative process that the government will follow, and the representations said to give rise to the legitimate expectations are clear, unambiguous and unqualified, the government may be held to its word, provided the representations are procedural in nature and do not conflict with the decision maker’s statutory duty. [43] Justice Binnie went on to explain the meaning of “clear, unambiguous and unqualified”: [69]      … Generally speaking, government representations will be considered sufficiently precise for purposes of the doctrine of legitimate expectations if, had they been made in the context of a private law contract, they would be sufficiently certain to be capable of enforcement. [44] The doctrine of legitimate expectations cannot give right to substantive rights: Agraira at para. 97. [45] These principles apply to the fairness requirements for procurement decisions to which the Contract A analysis does not apply. In Government Procurement, 4 th ed. (Toronto: LexisNexis Canada, 2017) at 112, Paul Emanuelli expressed the principle in this way: a government procurement decision can be compromised by procedural irregularities when pre-established process rules are not properly followed or where those process rules were inherently flawed due to unlawful or hidden requirements, conditions, criteria or procedures. [46] In the case at bar, there is no suggestion that the procedures set out in the RFP were inherently flawed or unfair to the proponents. On the other hand, the general procedure to be adopted by the District in reviewing the proposals has elements that are clear, unambiguous and unqualified. Proponents responding to the RFP could legitimately expect that the District would follow these general procedures before making a decision on the road maintenance contract. [47] The RFP states that the District intended to make its decision based on what would provide the maximum value for money advantage to the District. The District stated that it would first assess the ability of the proponent to do the work and if the assessment was positive, would then look at the second envelope to determine the price. The price represented 90% of the decision, but would be modified by the District’s assessment of ability to perform the required services. [48] The only two mandatory requirements for the proposals were that they must contain the mandatory information and documents indicated in the RFP and they must be submitted by a specified date. Unlike in Tercon , the proponents were not limited to pre-selected companies or individuals. [49] The procedure for awarding the contract outlined in the RFP consisted of the following: (a)      proponents were to submit two envelopes providing the information required by the RFP; (b)      the information in envelope #1 would be assessed by the District in quantitative terms to determine whether the proponent qualified to do the work; if so, envelope #2 would be opened to determine the proposed price; (c)      the scoring from envelope #1 would be combined with the price from envelope #2 according to a specified formula to determine the lowest adjusted price proposed for the work; and (d)      the proponent with the lowest adjusted price would be offered a contract for the work. [50] If this process was followed equally for all proponents, the District’s duty of procedural fairness would be met. Any remaining questions relating to the substantive fairness of the decisions made by the District would be reviewable on the deferential standard of reasonableness. Did the District breach its Duty of Fairness? [51] The first observation I would make is that the District did follow the procedure outlined in the RFP. Each proponent submitted two envelopes, the first containing the information the District required, and the second containing the proposed price. The District did assess each proponent for its ability to do the work according to the process it established, scored each proponent in largely subjective terms, and then factored in the price from Envelope #2 according to the formula set out in the RFP. On its face, the legitimate expectations of the proponents as to how the process would be carried out were met. [52] A similar argument to the one at bar was made in Agraira , where the Court emphasized at para. 95 the requirement that “the practice or conduct said to give rise to the reasonable expectation must be clear, unambiguous and unqualified.” In Agraira , Guidelines issued by the Government “created a clear, unambiguous and unqualified procedural framework for the handling of relief applications, and thus a legitimate expectation that that framework would be followed”: para. 98. The Court analysed the compliance issue in this way: [99]      The appellant has not shown that his application was not dealt with in accordance with this process outlined in the Guidelines. …  The appellant’s submission and its supporting documentation, the CIC officer’s report, and the CBSA’s recommendation were all forwarded to the Minister, and the Minister rendered a decision on the application. As counsel for the appellant rightly acknowledges, “[i]n the Appellant’s case, the Ministerial relief process followed the process set out in the IP 10 guidelines” (A.F., at para. 53). His legitimate expectation in this regard was therefore fulfilled . [Emphasis added.] [53] The objection of Purcha in this Court is not so much that the procedure was not followed, but that the way in which the procedure was followed gave rise to an unfairness. This focuses on a series of judgments of a more substantive nature that are more appropriately assessed on a standard of reasonableness than correctness. [54] The appellant’s theory as to obligations of fairness amounts to two separate arguments: (i)       it was unfair to the other proponents for the District to consider the Defiance proposal at all, as the Defiance proposal should have been disqualified from consideration, either for breaching secrecy, or for attempting to improperly influence the District, or because the proposal was non-compliant with respect to insurance; and (ii)      it was unfair to the other proponents for the District to take into account undisclosed criteria in scoring Defiance’s bid. [55] The reasonableness of what may be described as intermediate decisions on the path to the ultimate outcome was reviewed in detail by the judicial review judge. I agree with her conclusions that, subject to one matter that I will discuss, the decisions made in the review of the applications were not unreasonable. The requirement to afford procedural fairness is not an invitation for courts to second-guess the subjective assessments of a municipality as to the ability of a proponent to perform the requisite services. [56] This is so particularly here in light of the provision of the RFP that was clearly intended to allow the District to retain a discretion to consider proposals that were not compliant with the proposed information requirements: If a proposal fails in some way to comply with the requirements of this RFP, the District may nevertheless choose, at its discretion, to retain that proposal for consideration. [57] The single issue that gave the judicial review judge pause was the argument that Defiance had indirectly indicated its proposed price in Envelope #1, thereby compromising the purpose of the two-envelope procedure. This argument arises from the following passage that was included in the Defiance proposal: As a reminder we donate 3% of our Revenue back directly into our Community which would in effect cover most of your additional unforeseen work maintenance costs. 3% of the bid = approximately $4,600.00 returned back to Barriere so therefore, we could put these towards any of District of Barriere needs, for any Projected Projects. [58] To determine the proposed bid price, it would have been necessary to perform a simple calculation. The evidence was that the District employees had not made the calculation and were unaware of the Defiance price until they opened Envelope #2. [59] The chambers judge came to the following conclusion about this issue: [81]      Although it is necessary for a bidding process not only to be fair, but to be perceived to be fair, the disclosure by Defiance did not affect the duty of fairness to all bidders based on the manner in which the RFP was structured. I find that the District at this stage did not breach their duty of fairness to the other bidders as a result of the comments by Defiance. However, if I am wrong, I will comment later in these reasons about the remedy sought by the petitioner. Defiance should not have disclosed the amount it would have contributed to the community based on envelope #1. [60] In her comments later in her reasons, the judicial review judge explained why she would not have exercised her discretion to set aside the District’s decision even if she had concluded that consideration of the Defiance proposal breached the District’s obligations of procedural fairness to the other proponents. [61] I agree that Defiance should not have included in Envelope #1 the information that made it possible to calculate its proposed price. There are circumstances in which consideration of the Defiance proposal might well be considered procedurally unfair. For example, if the evidence was that the District employees had made the necessary calculation, thereby becoming aware of the Defiance proposed price before scoring their ability to do the work, a reviewing court could reach the conclusion that the process represented to be followed in the RFP was not in fact followed. Additionally, if fairness was being assessed in the context of contractual obligations, a term of a Contract A might be implied that would invalidate consideration of the Defiance proposal. Neither of these considerations apply in the case at bar. [62] On balance, I do not consider that this error by Defiance leads to the conclusion that the promised procedure was not followed, or that the proposals were not considered equally. There is nothing in the record to suggest that the scoring of Defiance’s proposal was enhanced by this “donation” disclosure. Defiance in fact scored third of the five proponents for their work plan (Purcha scored fourth). [63] I conclude that the District did not breach the duty of procedural fairness it owed to the appellant and the other proponents. Reasonableness of the Substantive Outcome [64] The final argument of the appellant was that the judicial review judge erred “in finding that Defiance’s scores were within a range of possible acceptable outcomes that are defendable in respect of the facts and law.” It is more accurate to frame the issue as whether the judge erred in finding that the District’s decision to award the contract to Defiance was within a range of possible acceptable outcomes that were defensible in respect of the facts and the law. It was not the responsibility of the judicial review judge to evaluate Defiance’s scores. The question for the judge on this issue was whether the decision under review met the reasonableness standard. [65] In my view, the District’s decision meets this standard of review. The District followed the process outlined in the RFP, applied the appropriate formula, and offered a contract to the proponent with the lowest adjusted price, as it said it would. Disposition [66] I am satisfied that the proponents were treated fairly in this process. The decision reached is supportable on the facts and the law. I would dismiss this appeal. “The Honourable Mr. Justice Hunter” I AGREE: “The Honourable Madam Justice Stromberg-Stein” I AGREE: “The Honourable Mr. Justice Savage”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: British Columbia Civil Liberties Association v. Canada (Attorney General), 2019 BCCA 5 Date: 20190107 Docket: CA45092 Between: British Columbia Civil Liberties Association and The John Howard Society of Canada Respondents (Plaintiffs) And Attorney General of Canada Appellant (Defendant) And Canadian Human Rights Commission, Canadian Prison Law Association Canadian Association of Elizabeth Fry Societies, Criminal Defence Advocacy Society. Native Women’s Association of Canada and West Coast Legal Education and Action Fund Intervenors Corrected Judgment:  The text of the judgment was corrected on the last page where changes were made on January 8, 2019 Before: The Honourable Mr. Justice Groberman The Honourable Mr. Justice Willcock The Honourable Mr. Justice Fitch On appeal from: An order of the Supreme Court of British Columbia, dated January 17, 2018 ( British Columbia Civil Liberties Association v. Canada (Attorney General) , 2018 BCSC 62, Vancouver Docket No. S150415). Counsel for the Appellant: M.R. Taylor, Q.C. B. Sokhansanj S.M. Currie F. Paradis Counsel for the Respondent: J.J. Arvay, Q.C. A. Latimer Counsel for the Canadian Human Rights Commission: F.W. Keith Counsel for the Canadian Prison Law Association: A. Nanda Counsel for the Canadian Association of Elizabeth Fry Societies: M.K. Gervin Counsel for the Criminal Defence Advocacy Society: T.M. Arbogast A. Ballantyne Counsel for the Native Women’s Association of Canada and West Coast Women’s Legal Education and Action Fund: E. Finestone R. Mangat Place and Date of Hearing: Vancouver, British Columbia November 13 and 14, 2018 Written Submissions Received: Nov. 28 and Dec. 5, 2018 Place and Date of Judgment: Vancouver, British Columbia January 7, 2019 Written Reasons of the Court Summary: A judge of the Supreme Court issued a declaration that the sections of the Corrections and Conditional Release Act that authorize the administrative segregation of inmates are unconstitutional. He suspended the declaration for one year to allow Parliament to enact replacement legislation. A government bill has been introduced in the House of Commons but has not yet been passed. At the same time, the Attorney General has appealed from the granting of the declaration unconstitutionality. The Attorney General applied for an extension of the suspension to July 31, 2019, to allow Parliament more time to enact new legislation. Held: suspension extended to June 17, 2019, or until further order of the Court, on conditions. The concerns that led to the suspension of the declaration continue to have considerable force, and public safety concerns strongly favour its extension. The Court imposes conditions on the extension in order to reduce or eliminate violations of inmates’ constitutional rights pending the enactment of new legislation. The Court also considers it appropriate to monitor progress and to consider implementing additional conditions as matters proceed. Reasons for Judgment of the Court: [1] This litigation concerns the constitutionality of the provisions of the Corrections and Conditional Release Act , S.C. 1992, c. 20 that authorize administrative segregation of inmates. On January 17, 2018, the trial judge held that ss. 31, 32, 33, and 37 of the Act violate ss. 7 and 15 of the Canadian Charter of Rights and Freedoms . He declared the impugned sections to be unconstitutional, but suspended the declaration for a period of one year. The Attorney General applies for an extension of the period of suspension to July 31, 2019. The respondents oppose the extension. [2] The circumstances of this application are unusual. The Attorney General has appealed the judge’s order, arguing that the existing legislation is capable of being interpreted and administered in a manner that conforms to constitutional norms. At the same time, she accepts that administrative practices engaged in by the Correctional Service of Canada have violated inmates’ constitutional rights in the past and need to be modified. [3] Although the Attorney General contends that the existing legislation is constitutional, the government has signalled an intention to replace it and to significantly reform the administrative segregation regime. On October 16, 2018, the Minister of Public Safety and Emergency Preparedness introduced a government bill in the House of Commons (Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act ) that will, if adopted, replace the provisions that the judge found to be unconstitutional. The bill has passed first and second reading in the House of Commons, and has been considered by its Standing Committee on Public Safety and National Security. That committee has reported back to the House, recommending amendments to the bill. With third reading in the Commons yet to come, and the legislative process in the Senate not yet commenced, the shape of the bill remains fluid. While it appears probable that legislation will be passed by the current Parliament, both the timing and final form of the legislation remain uncertain. The Application [4] This panel heard the appeal on November 13 and 14, 2018. The decision is under reserve and it may be some time until the Court pronounces judgment. At the conclusion of the hearing, we heard the application to extend the suspension of the declarations of invalidity. [5] The Attorney General took the position that the Court should grant an extension to July 31, 2019. She contended that there would be a “legislative vacuum” if the existing legislation ceases to have effect before Parliament puts a new statute in place. She emphasized that the Correctional Service of Canada needs to employ either administrative segregation or a replacement regime to ensure that penitentiaries are administered safely, both for inmates and for officers. [6] The respondents, on the other hand, suggest that the government has been dilatory in responding to concerns about administrative segregation, both before and after the judgment was pronounced by the trial judge. They note that serious concerns have been raised over the administrative segregation regime for many years, including in official government reports. Further, legislation was before Parliament (Bill C-56) before the trial commenced, but did not progress beyond first reading. The respondents argue strongly that it is inappropriate for legislation that has been found to be unconstitutional to remain in force any longer than is absolutely necessary. They say that the Federal government has had more than enough time to rectify the situation. Further, they argue (rather implausibly, in our view) that no safety concerns would result from an immediate striking down of the impugned legislative provisions. [7] At the hearing of the application, we indicated that if the suspension is to be extended, the Court would like to have some assurance that concrete progress is being made toward ameliorating the situation of inmates subject to administrative segregation. We invited written submissions from the Attorney General proposing interim measures that would provide such an assurance. We also asked the respondents to provide written submissions in response. [8] We have received the requested submissions. The Attorney General has, for the most part, outlined the current plans of the Correctional Service of Canada, without proposing concrete interim measures that the Court might order. The respondents’ submissions have also, for the most part, avoided discussion of specific interim measures that the Court might impose; instead, they have reiterated their opposition to any extension. [9] Parallel litigation is proceeding in Ontario. In Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen , 2017 ONSC 7491, a judge of Ontario’s Superior Court of Justice struck down the legislation, though on more limited grounds than the trial judge did in this case. The Ontario judge suspended his declaration of invalidity for twelve months, to December 18, 2018. On December 17, in a judgment indexed as Canadian Civil Liberties Association v. Canada (Attorney General) , 2018 ONCA 1038, the Ontario Court of Appeal extended the suspension unconditionally, but only to April 30, 2019. In doing so, it said: [12]      While Canada’s failure to address the concerns identified by the court is disappointing, we are satisfied that an extension of the declaration is necessary to enable the legislative process to be completed. Giving immediate effect to the declaration of invalidity, without any measures in place to protect those currently held in administrative segregation and Correctional Service of Canada personnel, would pose an unacceptable danger to such individuals and, ultimately, to the public. [10] We share the concerns of the Ontario Court of Appeal, both with respect to the slow progress made by the government of Canada in putting in place new legislation and with respect to the harm that might be occasioned if the suspension were not extended. The Granting of Suspensions of Invalidity [11] As the parties have pointed out, suspensions of declarations of constitutional invalidity are a court-created mechanism for ensuring that the striking down of legislation does not create a regulatory vacuum and result in chaos. The Supreme Court of Canada first granted a suspension of a declaration of invalidity in Re Manitoba Language Rights , [1985] 1 S.C.R. 721. In that case, the Court had determined that virtually all of Manitoba’s legislation was unconstitutional because it was enacted only in English. To preserve statutory law in Manitoba while the government undertook diligent efforts to translate statutes and to enact official French versions of legislation, the Court suspended the declaration of invalidity. The Court considered that unless the suspension was granted, Manitoba would face “chaos and anarchy.” [12] In Schachter v. Canada , [1992] 2 S.C.R. 679 the Court provided further guidance on the issue of when a suspension of a declaration of invalidity is appropriate. At 719, it discussed situations that will justify a temporary suspension of a declaration of invalidity: Temporarily suspending the declaration of invalidity to give Parliament or the provincial legislature in question an opportunity to bring the impugned legislation or legislative provision into line with its constitutional obligations will be warranted … if: A.    striking down the legislation without enacting something in its place would pose a danger to the public; B.    striking down the legislation without enacting something in its place would threaten the rule of law; or, C.    the legislation was deemed unconstitutional because of underinclusiveness rather than overbreadth, and therefore striking down the legislation would result in the deprivation of benefits from deserving persons without thereby benefitting the individual whose rights have been violated. [T]he above propositions are intended as guidelines to assist courts in determining what action under s. 52 is most appropriate in a given case, not as hard and fast rules to be applied regardless of factual context. [13] In Canada (Attorney General) v. Bedford , 2013 SCC 72, the Court granted a suspension of a declaration of invalidity, even though the guidelines set out in Schachter were, arguably, not met. At para. 167, the Court recognized that simply striking down legislation directed at prostitution would be undesirable, as it would leave an area that required some form of social control unregulated. It noted that such a situation “would be a matter of great concern to many Canadians”. The Court considered that Parliament should be granted a period of time to enact legislation to replace that which was found to be unconstitutional. [14] Re Manitoba Language Rights , Schachter , and Bedford were all cases that had been finally determined by the Supreme Court of Canada. In cases where legislation has been finally declared to be unconstitutional, either through a judgment of the Supreme Court of Canada or by virtue of the termination of litigation at a lower level, courts are reluctant to suspend their declarations and are careful not to allow suspensions to subsist longer than necessary. [15] Courts will not routinely suspend declarations of constitutional invalidity simply because the appeal process has not run its course. The fact that an appeal is pending or likely, however, will be a relevant consideration in deciding whether to suspend a declaration. Prudence dictates that courts exercise caution in choosing to immediately strike down legislation where its constitutionality remains legally contentious. Carter v. Canada (Attorney General) , 2012 BCCA 336 is an example of a case in which this Court extended a suspension of a declaration of invalidity pending determination of the appeal. Extending a Suspension [16] Where a court suspends a declaration of invalidity to allow a government to amend legislation, it does so in the expectation that the government will act with dispatch in correcting the situation. Suspensions of declarations of invalidity represent temporary reprieves. Out of respect for the rule of law, governments must ensure that unconstitutional legislation is not maintained for any longer than is necessary and give significant legislative priority to amending or replacing laws that have been declared unconstitutional. [17] Nonetheless, factors such as the complexity of regulation, political crises, and inevitable delays in democratic institutions mean that it is not always feasible to enact legislation within the period of an initial suspension. We have been directed to a number of cases in which extensions have been granted to suspensions of declarations of invalidity, including R. v. Feeney , [1997] 3 S.C.R. 1008; McIvor v. Canada (Registrar of Indian and Northern Affairs) , 2010 BCCA 168 and 2010 BCCA 338; Carter v. Canada (Attorney General), 2016 SCC 4; and Procureure générale du Canada c. Descheneaux , 2017 QCCA 1238. [18] In Carter , the Supreme Court of Canada indicated that suspensions of declarations of invalidity ought not to be extended without a strong rationale. It also suggested that extensions should be as short as is feasible: [2]        …. To suspend a declaration of the constitutional invalidity of a law is an extraordinary step, since its effect is to maintain an unconstitutional law in breach of the constitutional rights of members of Canadian society. To extend such a suspension is even more problematic. The appellants point to the severe harm caused to individuals by the extension. Extraordinary circumstances must be shown. The burden on the Attorney General who seeks an extension of a suspension of a declaration of constitutional invalidity is heavy. In this case, the length of the interruption of work on a legislative response to the Court’s decision due to a federal election constitutes such a circumstance. Parliament was dissolved on August 2, 2015 and officially resumed on December 3 of that year. This four-month delay justifies granting an extension of the suspension of the declaration of invalidity, but only for four months. [19] In Descheneaux , the trial judge refused to extend a suspension of a declaration of invalidity. The refusal was appealed to the Quebec Court of Appeal, which granted an extension. The Court identified factors to be considered: [39]      … [T]he four factors identified below can be drawn from the few judicial precedents on this question. These are not the only factors that may be considered. These factors are neither exhaustive nor cumulative; it is rather the weighing of these factors, taking into account the particular circumstances of each case, that will determine whether an extension is justified. Consequently, even if the application for an extension does not satisfy one of these factors, a court may still grant or dismiss the application after weighing all the factors. [40]      The first factor is whether or not a change in circumstances justifies the extension. In Carter , for example, the fact that Parliament had been dissolved for general elections was found by the Supreme Court of Canada to be a sufficient change in circumstances justifying the extension of the suspension of the declaration of the constitutional invalidity of paragraph 241(b) and section 14 of the Criminal Code . [41]      A second factor relates to the circumstances which led to the initial suspension of the declaration of invalidity to verify whether these still weigh in favour of the suspension. These circumstances may include the need to avoid threatening the rule of law, to avoid a potential danger for the public, or to otherwise mitigate the effects of the declaration on the public, notably where the law is deemed unconstitutional because it is under-inclusive and its invalidity would deprive deserving individuals of benefits without providing benefits to those whose rights have been violated. Indeed, as Chief Justice Lamer noted in Schachter , deciding whether it is appropriate to suspend a declaration of invalidity is largely dependent on the effect this declaration will have on the public. The same reasoning applies a fortiori to deciding whether the suspension should be extended. [42]      A third factor concerns the likelihood that remedial legislation will be adopted. Suspending a declaration of constitutional invalidity rests upon the fundamental premise that legislative bodies will necessarily adopt remedial legislation during the suspension period. Where they fail to act within the timeframe, it is necessary to verify whether or not that premise is still valid. Thus, it is necessary to ascertain whether it is reasonable to believe that legislative bodies will indeed adopt remedial legislation during the extension of the suspension. [43]      A fourth factor concerns the administration of justice. As the suspension of a declaration of constitutional invalidity allows unconstitutional legislation to have continued effect in violation of the Canadian Constitution, despite the contrary principle set out in subsection 52(1) of the Constitution Act, 1982 , an undue extension of the suspension could shake the public’s confidence in the administration of justice and in the ability of the courts to act as guardians of the Constitution. This is why such suspensions are generally short in duration and are only issued where they are justified by compelling circumstances. [20] We agree with this analysis, and would add only that the stage of the litigation is also a consideration in assessing the fourth factor. As we have indicated, reviewability is also a principle to be considered. Public confidence in the administration of justice will not necessarily be furthered where courts demand speedy government action when appellate processes have not yet been concluded. Should the Extension be Granted in this Case? [21] This is not a case in which the first factor in Descheneaux – a change in circumstances – provides a basis for extending the suspension. There have been no unexpected or unusual developments, either in the litigation or in the circumstances in Parliament that explain the failure of the government to introduce and pass new legislation. On the other hand, there have also been no developments that make striking down the legislation more exigent than it was when the suspension was granted. [22] The second factor – the continued existence of considerations favouring a suspension of the declaration – is important in this case. The trial judge, at para. 610, found that an immediate striking down of the legislation would “pose a potential danger to the public or threaten the rule of law.” The Ontario Court of Appeal, at para. 12 of its recent decision, found that immediately striking down the legislation in issue would “pose an unacceptable danger to [those currently held in administrative segregation] and, ultimately, to the public.” [23] The risk inherent in striking down the legislation before replacement provisions are in place remains as serious as it was when the judge originally suspended his declaration. We agree that the security of penitentiaries would be at risk if the legislation were immediately struck down. Administrative segregation or a more appropriate alternative regime must be in place to protect inmates who would be exposed to risk in the general population and to provide safety for persons who work in penitentiaries. In that respect, a suspension of the declaration is no less important today than it was when the judge made his original order. [24] The third factor – the expectation that new legislation will be enacted in a timely manner – also favours extending the suspension. While Parliament has not proceeded as quickly as it might have, the government has now introduced a bill in the House of Commons. There is no reason to doubt the government’s resolve or ability to have the legislation passed before Parliament rises for the summer break. [25] The fourth factor – confidence in the administration of justice and respect for the constitution – is, in this case, a neutral one. The government’s failure to respect the judge’s order by acting quickly may be seen as a challenge to the effectiveness of the courts as guardians of the constitution. On the other hand, the fact that the appeal is ongoing means that the constitutionality of the legislation remains a matter of debate. Reviewability of the lower court order is important and public confidence in the administration of justice may also be served by the courts refraining from acting precipitously in striking down legislation that may yet prove to be constitutionally sound. [26] In our view, the fact that the government appears to be acting in good faith to change the legislation, and the risk of serious harm if the legislation is immediately struck down, lead to the conclusion that the suspension of the declaration of invalidity ought to be extended. [27] We are not, however, convinced that the extension should be as long as the one sought by the Attorney General, nor are we convinced that it should be unconditional. [28] In terms of timing, we recognize that parliamentary procedures are critical to the functioning of a democracy and that they take time. We must allow sufficient time for the remaining steps in the passage of legislation to run their course. While the public is entitled to expect that correcting unconstitutional legislation will be treated as a priority by the government, Parliament should be afforded the discretion, within limits, to control its own agenda. [29] That said, Parliament must also take responsibility for correcting unconstitutional legislation. For that reason, we are of the view that the suspension period should end while Parliament is still sitting rather than during the Parliamentary recess. [30] We also note that, from a practical point of view, the parties ought to be able to reappear before this Court, if necessary, in the days before the suspension expires. While this Court sits in July, it may be difficult for the parties to appear before the panel during that month, due to the Court’s reduced rota. [31] For these reasons, the suspension will not be extended beyond June 17, 2019, without further order of the Court. We recognize that the Ontario declaration of invalidity has been suspended only until April 30, 2019, and that an extension of the British Columbia declaration beyond that date may be of little more than academic interest. Conditions of the Extension [32] While we are prepared to extend the suspension of the declaration of constitutional invalidity, that cannot be a justification for the federal government to maintain unchanged the conditions of inmates kept in administrative segregation. Without violating the existing legislation, the government must take steps to deal with constitutional concerns. [33] It is our view that the circumstances of this case are such that conditions ought to be placed on the extension of the suspension of the declaration. The Court recognizes that the formulation and implementation of detailed policies is ordinarily a matter to be left to the executive branch of government. However, the inordinate delays in this case justify the Court’s intervention. This is especially so, given that the Attorney General does not seriously dispute that current practices do not conform to constitutional requirements. [34] Based on the evidence before us, including the Attorney General’s written submissions regarding Canada’s plans, we are of the view that the following requirements are feasible and should be imposed: a) The daily visits of health care professionals with inmates in administrative segregation must include a visual observation of the inmate, unless, due to exceptional circumstances, such observation would jeopardize the safety of Correctional Service of Canada personnel. Section 70 of Commissioner’s Directive 709 will be interpreted as including the requirement for visual observation; b) Where a health care professional who has visited an inmate in administrative segregation is of the opinion that the inmate should be removed from administrative segregation or be subject to altered conditions of confinement, the health care professional must advise the institutional head, in writing, of that opinion and the basis upon which it has been reached. The health care professional must provide such advice as soon as reasonably practical and, in any event, not less than 24 hours after forming the opinion; c) Where an institutional head receives such an opinion from a health care professional, the institutional head must, without delay, implement the recommendation of the health care professional or provide a written explanation as to why the recommendation is not being implemented. Copies of the written explanation, along with the health care professional’s written advice, must be provided to the health care professional, the inmate, and, at the inmate’s direction, to counsel; d) Inmates in administrative segregation must be offered an additional 30 minutes of yard time each day. For clarity, s. 39(c) of Commissioner’s Directive 709 will be applied by the Correctional Service of Canada to ensure that all inmates in administrative segregation are provided with the opportunity to be out of their cells for a minimum of 2½ hours per day. Within that period, inmates must be given the opportunity to exercise outdoors for at least 1½ hours every day, unless the weather does not permit exercise to be taken outdoors, in which case the exercise opportunity will be provided indoors. These requirements will be met each day, including on weekends and holidays; e) The Correctional Service of Canada must i. Issue a Policy Bulletin, that will be distributed to all staff, directing staff to allow counsel to attend institutional segregation review board hearings to make submissions on behalf of the inmate whose case is reviewed; ii. Issue a Policy Bulletin confirming that inmates in administrative segregation are allowed to make calls to counsel in a private area outside of their cells; and iii. Distribute a memorandum to affected staff and Inmate Committees confirming the policy set out in s. 33 of Commissioner’s Directive 709 that upon admission to administrative segregation, an inmate will, without delay, be informed of their right to counsel and given a reasonable opportunity to retain and instruct counsel in private; f) The Correctional Service of Canada must take steps to have Indigenous Elders routinely visit segregation units and offer one-on-one counselling to Indigenous inmates. g) The Correctional Service of Canada must issue to all institutions a Case Management bulletin advising that Indigenous Elders will be asked to attend segregation units on their first day of work to get acquainted with inmates and, thereafter, to be available for a minimum of two hours per working day to provide services to inmates in administrative segregation; h) The Correctional Service of Canada must complete a review of current institutional standing orders and infrastructure and must provide written recommendations to the Commissioner about how Indigenous inmates being held in administrative segregation may be provided consistent access to smudging and, as circumstances permit, ceremonial and spiritual practices. i) The Correctional Service of Canada must begin opening units outside of administrative segregation for inmates who do not wish to integrate into the mainstream inmate population and for inmates who are assessed as being unable to integrate into the mainstream inmate population safely but who do not meet the legislated criteria for placement in administrative segregation; j) The Correctional Service of Canada must establish a system of review whereby no inmate will remain in administrative segregation for more than fifteen days without such continued detention being authorized by a senior official who is neither the institutional head of the institution where the inmate is incarcerated nor a person who is subordinate to that institutional head. [35] The requirements set out in subparagraphs a) to f) must be fulfilled as soon as possible, and, in any event, before January 18, 2019, the date when the suspension given by the trial judge expires. [36] The requirements in subparagraphs g) and h) must be met by May 1, 2019. [37] Canada must report its progress with respect to the requirements in subparagraphs g) through j) prior to February 28, 2019, by letter addressed to the Registrar to be brought to the attention of the panel. Counsel for the Attorney General should also provide a copy to counsel for the respondents. Upon receipt of the report, the Court reserves the power to impose additional conditions on the continuation of the suspension of the declaration. [38] These orders will continue in place for the duration of the suspension, or until further order of the Court. Disposition [39] The suspension of the declaration of invalidity is extended until June 17, 2019, or until further order of this Court, subject to the conditions set out in these reasons. “The Honourable Mr. Justice Groberman” “The Honourable Mr. Justice Willcock” “The Honourable Mr. Justice Fitch”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Chin v. Hegarty, 2019 BCCA 7 Date: 20190107 Dockets: CA44935; CA44987 Docket: CA44935 Between: Chuan Yeen Chin Appellant (Claimant) And Peter John Hegarty Respondent (Respondent) - and - Docket: CA44987 Between: Chuan Yeen Chin Appellant (Claimant) And Peter John Hegarty Respondent (Respondent) Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Dickson The Honourable Madam Justice Griffin Supplementary Reasons to Chin v. Hegarty , 2018 BCCA 451. Counsel for the Appellant: H.M. Dale The Respondent, appearing in person: P.J. Hegarty Place and Date of Hearing: Vancouver, British Columbia November 14, 2018 Place and Date of Judgment: Vancouver, British Columbia November 14, 2018 Written Submissions received: November 22, 2018 Date of Supplementary Judgment: January 7, 2019 Supplementary Reasons of the Court Summary: The appellant was successful in the appeals, resulting in an order setting aside three orders in the Supreme Court of British Columbia. Apart from costs of the appellant’s application to extend time to appeal which were ordered in favour of the respondent when the extension was granted, the appellant, having been successful, is entitled to costs of the appeals and of the applications giving rise to the orders appealed. Supplementary Reasons for Judgment of the Court: [1] These supplementary reasons address the costs issues arising from our order of November 14, 2018, whereby we set aside three orders made by Mr. Justice Dley: · an order pronounced October 14, 2016, which varied a consent order relating to the sale of a condominium and dismissed an application brought by Ms. Chin under s. 221 of the Family Law Act , S.B.C. 2011, c. 25, seeking to prohibit Mr. Hegarty from pursuing his attempts at variation; · an order pronounced November 18, 2016, which awarded fixed costs to Mr. Hegarty for the proceedings related to the October 14 th order; and · an order pronounced November 1, 2017, following Mr. Hegarty’s election to acquire the condominium, stipulating that Ms. Chin would be responsible for a portion of the applicable capital gains, budget repair levy and marketing costs. [2] Ms. Chin seeks both costs of the appeal and costs of the applications before Justice Dley that gave rise to the orders appealed. [3] Mr. Hegarty seeks costs related to Ms. Chin’s application for an extension of time to appeal, an application granted by Chief Justice Bauman. Mr. Hegarty otherwise seeks an order that the parties bear their own costs of the appeal and of the applications before Justice Dley. He contends that the parties could have avoided significant expenditures had Ms. Chin appealed the October 14 th order in a timely fashion. [4] As to the application for an extension of time to appeal, costs were awarded to Mr. Hegarty by the Chief Justice, and that order stands. On the other costs of the appeal, we see no reason to stray from the general rule that costs of an appeal are payable to the successful appellant: Catalyst Paper Corporation v. Companhia de Navegação Norsul , 2009 BCCA 16. Ms. Chin is accordingly entitled to costs of the appeal, with the exception of the costs already ordered in Mr. Hegarty’s favour determined by Chief Justice Bauman. [5] As to the proceedings in the Supreme Court of British Columbia, Ms. Chin is entitled to costs of the applications relating to the three orders mentioned above, on the premise that trial costs most usually follow the results of an appeal: Rick v. Brandsema , 2008 BCCA 96; Murphy v. Murphy , 2007 BCCA 591. Ms. Chin was successful on appeal in setting aside all of the orders in issue, with the result that the central application brought before Mr. Justice Dley has now been decided in her favour. [6] Mr. Hegarty contends that we should depart from the usual approach because Ms. Chin’s late filing of the appeal occasioned wasted expenditures concerning the sale of the property. The root cause of the expenditures, however, lies with the orders that were successfully appealed by Ms. Chin. It seems to us that Mr. Hegarty cannot complain of money spent under an order or orders made on his application that should not have been made in the first place. [7] In conclusion, Ms. Chin shall have her costs of the applications in the Supreme Court before Justice Dley and, with the exception of costs ordered by Chief Justice Bauman for the extension of time application, costs of the appeal. “The Honourable Madam Justice Saunders” “The Honourable Madam Justice Dickson” “The Honourable Madam Justice Griffin”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Gillespie, 2019 BCCA 8 Date: 20190108 Docket: CA43259 Between: Regina Respondent And Kenneth Wayne Gillespie 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 the complainant or a witness. This publication ban applies indefinitely unless otherwise ordered. Pursuant to s. 16(4) of the Sex Offender Information Registration Act (SOIRA) , 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 D. Smith The Honourable Mr. Justice Willcock The Honourable Madam Justice Fenlon On appeal from:  An order of the Supreme Court of British Columbia, dated May 31, 2012 (conviction) ( R. v. Gillespie , Nanaimo Docket 73705-2). Counsel for the Appellant: T.J. Russell Counsel for the Respondent: J. Dickie Place and Date of Hearing: Victoria, British Columbia October 18, 2018 Place and Date of Judgment: Vancouver, British Columbia January 8, 2019 Written Reasons by: The Honourable Madam Justice Fenlon Concurred in by: The Honourable Madam Justice D. Smith The Honourable Mr. Justice Willcock Summary: Appeal from conviction by jury of sexual assault. Appellant argues the trial judge made a number of errors in his charge to the jury that collectively justify quashing the conviction and ordering a new trial. Held: appeal dismissed. Although the trial judge erred by referring to sections of the Criminal Code not in issue, when read as a whole his charge on consent would not have misled the jury. Further, the Crown’s description of the complainant’s condition was a fair characterization of the evidence and was adopted by defence counsel in closing submissions. Regarding the complainant’s prior statement, it was open to the Crown to elicit the change in her evidence on direct examination, and the trial judge’s charge sufficiently instructed the jury on the use of that evidence. The post-offence conduct had probative value and did not require an instruction as the appellant contends. Lastly, although some inadmissible evidence was put before the jury, the trial judge did not err in his approach to dealing with such evidence. In light of the overwhelming evidence to support the jury’s verdict in this case, it is appropriate to rely on the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. Reasons for Judgment of the Honourable Madam Justice Fenlon: Introduction [1] Kenneth Wayne Gillespie was convicted by a jury of sexual assault and common assault. He appeals only the sexual assault conviction, contending the judge made a number of errors in his charge to the jury that collectively justify quashing the verdict and ordering a new trial. Background [2] The charges arose out of events that took place in Nanaimo, British Columbia in August 2011. Mr. Gillespie, then in his mid-60s, and the complainant, then in her mid-20s, met briefly at a bar in downtown Nanaimo when the complainant asked him for a cigarette. At about 11:00 pm, the complainant left the bar on her own and was seen walking unsteadily. She had consumed alcohol and marihuana over the course of the evening. As she waited at a bus stop, Mr. Gillespie approached and offered her a ride home in his minivan. She got into the passenger seat, and told Mr. Gillespie where she lived. After travelling some distance, Mr. Gillespie pulled over. At this point the versions of events diverge. [3] The complainant testified that Mr. Gillespie suddenly pulled down his pants, climbed over to her side of the van and on top of her, and had sexual intercourse with her which lasted about two minutes. She said she did not resist because she was drunk, in shock and scared; she felt disgusted as the sexual act was happening and after it was over was in shock, felt disgusted and afraid. According to the complainant, after the sexual contact Mr. Gillespie drove a bit further, then pulled over again. She got out of the van and ran to a nearby trailer park for help, with Mr. Gillespie pursuing her on foot. [4] Witnesses at the campground testified that Mr. Gillespie was trying to restrain the complainant, yanking on her arm and trying to pull her back to the van. They described the complainant breaking away and running down an embankment to a four-lane highway. They said Mr. Gillespie drove past them in his van, stopped, and reversed rapidly, veering onto the shoulder of the highway, and striking one of the men trying to help the complainant. When that same individual reached into the van to try to stop Mr. Gillespie, he gunned the engine and sped away, almost hitting the complainant and another witness. [5] Mr. Gillespie’s version of events was generally consistent with the complainant’s, except as to the consensual nature of the sexual act. He testified that the complainant did not seem particularly intoxicated, and described her as sitting in a revealing manner during the ride which led him to try touching her bare thigh. When she did not object, he moved his hand higher on her thigh and asked her if she liked it. He said she replied, “to the bush, to the bush, to the bush”, which he assumed was an invitation to sexual intercourse. He pulled over and asked the complainant if she “wanted him”, to which he says she replied in the affirmative. He said that the complainant put her seat back in the horizontal position, at which point he climbed on top of her and had brief, unprotected, sexual intercourse with her. Mr. Gillespie said that when the complainant ran from the car, he chased her because he was confused by her behaviour and wanted to give her a ride home. He also said he was “scared” that someone might think he had raped her. He grabbed her arm when he caught up with her because he wanted to find out what was wrong. When she continued to not make any sense, he says he decided to leave and return to his van. When he was driving past the campground, he saw the complainant on the highway and decided again to offer her a ride home, but felt threatened by one of the men helping her and left. He testified, and was the only witness to do so, that he took a particular route home to “avoid the police”. [6] The complainant was taken to hospital but was not examined until she returned the next day. A nurse observed minor injuries on the complainant’s body and collected various forensic samples. Those samples were found to contain semen matching Mr. Gillespie’s DNA. At trial [7] At trial the only issues related to consent: whether the complainant consented, whether she had the capacity to consent, and whether in any event Mr. Gillespie had a mistaken but reasonable belief that the complainant had consented. [8] The Crown’s theory was that Mr. Gillespie seized the chance to engage in sexual intercourse with a drunken young woman, and that the complainant had not consented to any sexual activity with Mr. Gillespie, or alternatively was unable to consent by virtue of intoxication. [9] The defence theory was that the complainant’s behaviour was consistent with someone who simply regretted having unprotected sexual intercourse with an older man. The defence stressed there was no evidence the complainant resisted Mr. Gillespie’s sexual advances, and disputed the level of her intoxication, noting that she was apparently able to run from the van and put up a fight. [10] The trial proceeded expeditiously. The Crown called the complainant and a number of witnesses who had observed the complainant at the bar and at the campground. Mr. Gillespie was the sole witness called for the defence. The judge charged the jury on the fourth day of trial. They convicted on both counts. Issues [11] The appellant identified nine issues on appeal which can be grouped into five grounds of appeal. He contends the judge erred in: 1.       his instructions on consent; 2.       failing to correct misstatements made by the Crown in opening and closing submissions; 3.       failing to instruct on the use of the complainant’s prior statement regarding a knife; 4.       failing to instruct on the limited use the jury could make of the accused’s conduct at the trailer park; and 5.       failing to instruct on the proper use of the complainant’s hearsay evidence and other lay opinion evidence. I will address each of these grounds of appeal in turn. 1.       Did the judge err in his instructions on consent? [12] Mr. Gillespie contends the judge made four errors in his charge to the jury relating to consent. First, he says the judge gave a confusing instruction when describing the “decision tree” on the consent issues: You must decide whether [the complainant] actually consented to sexual intercourse. If she did not consent, you must decide whether the consent was obtained where she was incapable of consenting because of her state of intoxication . It is not for Mr. Gillespie to prove this. The Crown must prove beyond a reasonable doubt that [the complainant] did not consent to sexual intercourse, or if she did, that this consent was obtained where she was incapable of so providing it. If you are left with a reasonable doubt on either point, you must give the benefit of the doubt to Mr. Gillespie and acquit him. [Emphasis added.] [13] The Crown agrees the judge misspoke, and that the second sentence above should have been “If she did consent …” rather than “If she did not consent …”. However, the instructions immediately following make it clear that the judge was addressing what the jury must do if they found the complainant had consented. Further, the judge correctly described the decision tree on the consent issues in two other parts of the charge. In my view, the jury would not have misunderstood the instructions because of the initial misstatement. [14] The second issue on consent relates to the judge’s use of prejudicial language in describing the Crown’s position. The passage of the charge complained of is set out below: As you can see, where a person consents to sexual intercourse where the person is incapable of consenting to it, the law considers that consent to be invalid. In law it is not consent. Thus, in such a case, the sexual intercourse occurred without consent. It is the Crown’s position that [the complainant] was incapable of consenting because of her state of intoxication, because of her use of marijuana and alcohol prior to the sexual intercourse occurring. And that it was Mr. Gillespie who preyed upon her condition . [Emphasis added.] [15] The appellant submits that, although it was not wrong for the judge to refer to the Crown’s position, he should not have used the expression “preyed upon”, because that language was not used by the Crown and was prejudicial. The appellant also argues that the judge’s instruction linked the Crown’s position on incapacity with its theory that the appellant was well aware that the complainant was seriously intoxicated. He submits that the placement of the phrase is a problem because it suggested to the jury that if the complainant was so intoxicated as to be incapable of consenting, that was enough to establish the necessary mens rea to prove the offence — without the need to consider whether Mr. Gillespie nonetheless had an honest but mistaken belief that she had consented. [16] I would not accede to this submission. When reviewing jury instructions an appellate court must examine the error alleged in the context of the entire charge and of the trial as a whole: R. v. Jaw , 2009 SCC 42 at para. 32. In the present case, the charge read as a whole fairly and thoroughly canvassed both the defence and Crown positions on the issue of consent and intoxication. After using the impugned phrase the judge discussed the applicable legal principles and fairly pointed out evidence that supported the defence theory that the complainant was not overly intoxicated. The judge also instructed the jury that the Crown had to prove beyond a reasonable doubt Mr. Gillespie knew the complainant was either not consenting or that she did not validly consent due to intoxication. In my view, the judge’s earlier reference to the Crown’s theory would not have caused an improper leap in logic in relation to the necessary mens rea . [17] Finally on this issue, although the Crown had not used the word “preyed”, that description of Mr. Gillespie’s conduct accurately captured the Crown’s position at trial. [18] The third error the appellant contends the judge made in relation to consent is a lack of balance in the charge. Mr. Gillespie says that occurred because the judge told the jury that a lack of resistance by the complainant did not equate to consent, but did not tell the jury that a failure to resist was also consistent with either actual consent or Mr. Gillespie’s honest but mistaken belief in consent. [19] The defence cross-examined the complainant extensively on her failure to resist. She admitted that she did not push Mr. Gillespie away and that she did not say a word during the sexual act. Mr. Gillespie, in his closing submissions, relied on the complainant’s lack of resistance to suggest to the jury that she had consented. After describing the complainant “putting up a heck of a fight” after she left the van, defence counsel submitted: This is not somebody who’s blackout drunk or stoned beyond belief. This is not somebody’s who is shocked and dumbfounded. This is someone who is absolutely capable of resisting. So what inference can you draw from that, ladies and gentleman? She didn’t resist. She was going along with it. She consented to the sexual activity . [Emphasis added.] [20] In my view, the judge properly instructed the jury that consent was not the absence of resistance, but rather an active state of mind. That instruction was necessary to ensure that the jury did not err in law by inferring consent only from a lack of resistance. An additional instruction suggesting that lack of resistance could support consent would have confused the jury. Further, in the circumstances of this brief trial, it was not in my view necessary for the judge to instruct the jury that the complainant’s lack of resistance supported Mr. Gillespie’s reasonable belief in consent. It would have been clear to the jury that Mr. Gillespie was relying on the complainant’s lack of resistance to support his understanding at the time that she had consented to the sexual act. [21] The fourth and final error contended for by the appellant on consent is more significant. He says the judge charged on irrelevant sections of the Criminal Code , R.S.C. 1985, c. C-46 which could have confused the jury, relying on R. v. Hebert , [1996] 2 S.C.R. 272. In the present case, the judge read to the jury the entirety of s. 265(3) when only s. 265(3)(a) was relevant: (3) For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (a) the application of force to the complainant or to a person other than the complainant ; (b) threats or fear of the application of force to the complainant or to a person other than the complainant; (c) fraud; or (d) the exercise of authority. [Emphasis added.] [22] The judge also recited the entirety of section 273.1 when only section 273.1(2)(b) was relevant: 273.1 (1) Subject to subsection (2) and subsection 265(3), consent means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. (2) No consent is obtained , for the purposes of sections 271, 272 and 273, where (a) the agreement is expressed by the words or conduct of a person other than the complainant; (b) the complainant is incapable of consenting to the activity ; (c) the accused induces the complainant to engage in the activity by abusing a position of trust, power or authority; (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity. (3) Nothing in subsection (2) shall be construed as limiting the circumstances in which no consent is obtained. [Emphasis added.] [23] I agree with the appellant that the judge erred by reading in sections of the Criminal Code that were not relevant to the issues before the jury. However, the judge emphasized that the Crown was only relying on s. 273.1(2)(b), and did not instruct on the irrelevant subsections of either s. 265(3) or s. 273.1.(2). The charge is thus distinguishable from Hebert in which full instructions were given for all the irrelevant sections. Further, in the present case the judge provided copies of the relevant provisions of the Code to the jury to take with them into the jury room during their deliberations. There is no suggestion that the unnecessary sections were included on that sheet or in the decision tree left with the jury. [24] Mr. Gillespie argues further that even s. 265(3)(a) should not have been left with the jury. But in my view, the complainant’s evidence that she was afraid, and the defence position that her failure to resist meant “she was going along with it [and] consented to the sexual activity” put the issue of why the complainant did not resist at issue. It was not an error for the judge to leave s. 265(3)(a) with the jury in these circumstances. [25] In summary on this fourth issue, I am of the view that, in the context of the charge as a whole, the single reference to the irrelevant subsections would not have distracted the jury from its task of determining whether the complainant had consented, whether she was too intoxicated to have the capacity to consent, and whether the accused could reasonably have had a mistaken belief as to her consent. I turn now to the next ground of appeal. 2.       Did the judge err in failing to correct misstatements in the Crown’s opening and closing submissions? [26] In its opening submissions, Crown counsel told the jury that the complainant would testify “that she was impaired, feeling like she was coming in and out of blackouts when [her assailant] crawled into the passenger side of the vehicle …”; and “that she froze, felt scared and did not say or do anything because she was afraid”. In closing submissions, Crown counsel told the jury that the complainant “testifie[d] to being in and out of it, drifting in and out of being blacked out” at the time of the alleged sexual assault. [27] Mr. Gillespie says that neither the complainant nor any other witness used the language of “blackouts” or “drifting in and out of consciousness”. He contends the judge erred by failing to tell the jury that the statements made by the Crown were not evidence and that they must free their minds of them: R. v. Clause , 2016 ONCA 859. Further, he says the judge exacerbated the error by repeating the same language in his description of the evidence when charging the jury. [28] The Crown acknowledges the complainant did not use the term “blackout” in her testimony, but says it accurately described the evidence. The complainant testified that she was “quite intoxicated” and “fairly inebriated”. She described the impact of her intoxication on her level of alertness during the ride in the van this way: A          I remember being in -- in the front seat of the vehicle and I don’t recall if we had smoked any drugs or -- like marihuana or anything like that. And then I just remember being in the front seat of the vehicle and just kind of -- just being intoxicated and on -- like high on marihuana. And I mean I was in a relatively good mood, like I said, like -- because I don’t -- I didn’t think of anything that was going to happen or go wrong. And like I just don’t -- like I just didn't at that -- I just feel like I just didn’t understand like what was going on at that point because like I was -- like really I was -- like I was intoxicated and -- Q         What happened, …? A          I recall looking over to the seat next to me and he was taking off his pants, and I just remember thinking of -- in my mind, like what’s happening, like what's going on. I don’t get it . And he had crawled over to the seat in front of me and like I was in such a state of shock that I just didn’t -- I couldn’t react to it . And -- Q         What happened? A          -- and that’s when he had put his penis inside of my vagina because I -- I was just in -- I was really drunk A Everything prior to the point of when he had put his penis inside of my vagina, I -- I wasn’t too aware of anything . But ever after – everything after that happened, I felt like I was just – I came out of this complete state of unknowing really and I was just completely aware of everything that was happening after that. And I just knew I just needed to get away and tried to -- try to anyways but I couldn’t. [Emphasis added.] [29] I would not accede to this ground of appeal. Although it would have been preferable for the Crown in its opening submission to use the same terminology as the complainant, the Crown’s characterization of the evidence was fair. The judge did not use the term during his charge. Rather, he said “… the Crown points to [the complainant’s] testimony of her level of consciousness in the car, that she was coming in and going out in terms of her consciousness, or level of awareness.” The trial judge also included the defence theory and its supporting evidence that the complainant was not as intoxicated as she claimed. He made it clear to the jury that they were the triers of fact. [30] In my view, the absence of prejudice to the accused arising from the Crown’s terminology is underscored by defence counsel at trial adopting the same words in his closing submissions to the jury. He told the jury that the complainant had testified that she was “blackout drunk”, coming out of “blackout”, or near “blackout”, in order to contrast that with her vigorous resistance and activity at the trailer park once she left the van. 3.       Did the judge fail to instruct on the complainant’s prior statement about a knife? [31] In an initial statement to police made on the night of the events, the complainant said her assailant had a knife in his hand during the assault. She retracted that allegation a few days later in her second interview with police. Crown counsel elicited this evidence from the complainant in direct examination. Mr. Gillespie submits there were two problems with this procedure. First, he says that it was not proper for Crown to lead this evidence because it amounted to oath helping — trying to establish that the witness was a truthful person, evident from the value laden description of the complainant “correcting” her evidence rather than “changing it”. Second, he says the Crown was not entitled to lead evidence of the complainant’s change of story in examination-in-chief. [32] The appellant submits that the evidence amounted to oath helping because it was evidence of a prior consistent statement — the complainant corrected her evidence on an earlier occasion, saying that a knife had not been used in the assault, and then repeated that testimony at trial. The appellant submits the judge should have given the jury a mid-trial instruction or at least canvassed that option with counsel, but also says the judge should have instructed the jury on the use of the prior inconsistent statement, i.e., that in assessing the complainant’s evidence they were to consider what, if any, explanation for the inconsistency she had offered. [33] The appellant’s submissions on this ground of appeal were not entirely consistent, characterizing the impugned evidence as both a prior consistent statement and a prior inconsistent statement. In my view, the complainant’s evidence is properly characterized as an admission that she had changed her story to police, i.e., that she had made a prior inconsistent statement. [34] The thrust of the appellant’s complaint is really the second one identified: the decision of the Crown to introduce a prior inconsistent statement in a strategic effort to rehabilitate its witness by bringing the statement and subsequent retraction out in chief rather than leaving it for the defence to introduce it on cross-examination. The appellant acknowledges that the evidence was admissible but submits the Crown should not have raised it until the defendant had cross-examined on it, i.e., in redirect and then only if the subsequent correction and reason for the change in story had not come out during cross. The appellant argues that by raising the retraction in direct examination, the Crown made a purely tactical decision designed to “steal the wind from the sails” of the defence in cross-examination. [35] In my view, there was nothing improper in the Crown anticipating cross-examination and raising the prior inconsistent statement as part of its own case. “Taking the wind out of the other side’s sails” is a permissible approach for both Crown and defence. For example, defence counsel routinely raises the accused’s criminal record in-chief rather than leaving it to the Crown to raise in cross-examination. [36] Mr. Gillespie relies on R. v. Pinkus (1999), 140 C.C.C. (3d) 309 (Ont. S.C.J.). In that case, the Crown sought to question a witness in direct about a prior inconsistent statement she had made and the reason for that change. The witness had initially told police her former partner was not involved in the murder in issue. She subsequently gave a statement identifying him as the murderer, explaining she had initially been afraid to implicate him. The court in Pinkus ruled that this evidence could not be introduced by Crown because its sole purpose was to bolster the witness’s credibility. [37] In my view, Pinkus is contrary to the weight of authority. It was distinguished by a judge of the same court in R. v. Durant , 2012 ONSC 6792. In that case the Crown sought leave to adduce a witness’s previous inconsistent statement on direct examination. The defence objected on the basis that if offended the rule against oath-helping. Ramsay J. considered the case law on oath-helping, noting the distinction between cases in which a party seeks to adduce evidence about the characteristics of a witness that tend to support their truthfulness, and cases where a party seeks to elicit a previous inconsistent statement of a witness on direct examination. He held that the latter type of cases did not constitute improper “oath-helping”. He granted the Crown’s application, reasoning: [8]        …. Asking a witness about recanting a previous inconsistent statement (or, for that matter, the fact of being charged as an accomplice) does not prove the truthfulness of the witness. The question is not asked for that purpose. It detracts from the truthfulness of the witness. Bringing it out in chief is simply designed to dispel any impression that the Crown was hoping that the jury would not find out. It is perfectly legitimate advocacy. It has nothing to do with the rule against oath-helping . Neither does s.12 of the Canada Evidence Act. As for the explanation, some of it is tied up with the evidence of the witness’s relationship with the accused and will inevitably come out in chief. At certain relevant times the witness was married to the accused. It is also conceded that certain letters sent by the accused to the witness are admissible. Beyond that, the explanation for the previous statements should wait for cross-examination and re-examination, in the usual course. [Emphasis added.] [38] The Ontario Court of Appeal adopted the same approach in R. v. Pollock , (2004), 187 C.C.C. (3d) 213 (O.N.C.A.), leave ref’d [2004] S.C.C.A. No. 405. In that case the accused’s former girlfriend, who had been living with him at the time of the killing, initially provided an alibi saying that the accused had been watching a movie with her at home during the time of the shooting. She maintained that story over several years, only changing it when she was seeking parole. Rosenberg J.A., writing for the court, noted that it was clear that counsel for the accused would attack the witness’s credibility over her “change of heart”. At para. 136, he said: Accordingly, it was open to Crown counsel to anticipate that line of attack by adducing evidence from [the witness] that she made the prior inconsistent statements out of fear of [the accused]. See R. v. Speid (1985), 20 C.C.C. (3d) 534 (Ont. C.A.) at 546-54 . It was also open to Crown counsel to lead evidence as to the basis for this fear. Thus, some of the evidence that Crown counsel and counsel for [the complainant] led from [the witness] of [the accused’s] violent disposition was properly admissible. [39] In my view, it is arguably to the advantage of an accused for the Crown to address a witness’s explanation for an inconsistent statement in chief, rather than raising it for the first time in re-examination. The latter course results in the trier of facts hearing the reason for the change of heart at the end of the witness’s testimony which may take the sting out of the inconsistency, rather than having the final note in the cross-examination emphasize the witness’s change of story — as unfolded in the present case. During cross-examination, counsel for Mr. Gillespie obtained the very concessions he sought: · The complainant agreed that she had lied to the police during her first statement; and · She agreed that she was sober enough to remember what she had said to police in spite of her memory problems about other matters. Mr. Gillespie also incorporated the inconsistency into his closing submissions, arguing that the complainant had uttered a “bald-faced lie”, and that her lie to the police was a reason to disbelieve all of her evidence. [40] The lack of prejudice to Mr. Gillespie in the Crown proceeding as it did is borne out by the absence of an objection by defence counsel at trial. To the contrary, counsel specifically stated that he had “no difficulty” with the Crown leading that evidence. [41] As to the description of the complainant “correcting herself,” both counsel used that language. In my view, the phrase was clearly appropriate in this case given that the use of a knife during the assault was not alleged by the Crown, and it was to the accused’s advantage to make it clear to the jury that there had never been a knife and that the complainant had lied about that. In short, both Crown and defence wanted the jury to understand that the correct and undisputed version of events did not involve a knife. [42] I turn now to the appellant’s submission that the judge should have charged more fully on the use to be made of the prior inconsistent statement. The appellant relies on cases in which this Court ordered a new trial because the judge failed to caution the jury that the out of court statements could not be used to corroborate the witness’ testimony: R. v. Ay (1994), 93 C.C.C. (3d) 456 (B.C.C.A); R. v. Dowding , 2004 BCCA 583; R. v. R.I.L. , 2005 BCCA 257. In my view, those cases do not assist the appellant. They involved prior statements by complainants consistent with the version of events given in court. The jury was then invited to “draw an inference concerning the truthfulness of [the complainant’s] evidence based on what [the complainant] had previously reported to third parties” ( Dowding at para. 26). In the present case, as noted, the complainant’s prior statement about a knife is properly characterized as an inconsistent statement. The truth of the statement about the knife was not in issue. [43] I turn next to the submission that the jury was given no real guidance on how to assess the inconsistency and the adequacy of the complainant’s explanation for the change when assessing her credibility. [44] In my view, the judge’s charge was sufficient. First, he explained to the jury the use that could be made of the prior statement: but an out of court statement made by a witness which is inconsistent with his or her testimony given under oath at the trial, may be admitted for the purpose of testing the credibility of the witness. You can only use an out of court statement by a witness to assess his or her credibility and not for the truth of what was said on the previous occasion, except to the extent it was adopted by her or him as true when that evidence was given at trial. Anything a witness tells you in this courtroom can be used as proof of the truth of what the witness says in his or her testimony. On the other hand where a witness does not admit an out of court statement is true, you can only use that out of court statement to assess his or her credibility. [45] The judge did not expressly tell the jury to consider the complainant’s explanation for the change in her version of events when assessing her credibility. That explanation follows: Q:        And out of -- out of fear, you say that you invented this story about the man having had a knife? A:         A knife, yes, nothing else though. Q:        Now, a couple of days later you said you remembered that you had said that to the police? A:         Yes. Q:        And you corrected that? A:         Yes. Q:        All right. And you corrected it because you knew there’d be some trouble for you if you didn’t? A:         I corrected it because I knew it was wrong that -- that I had said that. [46] In my view, in the circumstances of this case, the judge’s instructions were sufficient. The judge drew to the jury’s attention the change in the complainant’s story, her acknowledgement that she had been untruthful, and instructed them to be particularly careful when assessing the complainant’s testimony: In this case you heard [the complainant] testify about events alleged in the indictment. There is one instance where her evidence in court was inconsistent with what she told the police on the night in question, that is that the offender or Mr. Gillespie had a knife during the sexual assault. She later told the police that the presence of a knife was not true and she agrees that she had not been truthful and corrected that a few days after. In this case credibility and reliability are in issue, you need to be careful with respect to the testimony, and particularly [the complainant’s] testimony, and must be tested in the light of all the other evidence. 4.       Did the judge err in failing to give the jury a limiting instruction on the use of the evidence relating to what occurred at the trailer park? [47] The appellant submits the judge should have instructed the jury on the limited use they could make of the events at the trailer park following the sexual act. He contends the charge did not: (a)      address the lack of probative value in the post-offence conduct of the appellant; and (b)      include a limiting instruction to caution the jury against reasoning that the common assault, and bad character displayed at the trailer park, made it more likely that the appellant committed the sexual assault. (a)     Lack of probative value of appellant fleeing the scene [48] I begin by noting that post-offence conduct is circumstantial evidence which may, in some cases, be probative of guilt: R. v. White , 2011 SCC 13 at paras. 22, 38. In White , Rothstein J. said at para. 42: [42]      Thus, Arcangioli and White (1998) should be understood as a restatement, tailored to specific circumstances, of the established rule that circumstantial evidence must be relevant to the fact in issue. In any given case, that determination remains a fact-driven exercise. Whether or not a given instance of post-offence conduct has probative value with respect to the accused’s level of culpability depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial . There will undoubtedly be cases where, as a matter of logic and human experience, certain aspects of the accused’s post-offence conduct support an inference regarding his level of culpability. [Emphasis added.] [49] The appellant submits that evidence of his flight from the scene cannot be probative of the sexual assault charge because he had admitted to another offence which could equally explain that behaviour, relying on R. v. Arcangioli , [1994] 1 S.C.R. 129. [50] In Arcangioli the accused was charged with aggravated assault in connection with a stabbing which occurred during a fight. At trial, the accused admitted punching the victim several times but testified that he fled when he saw another person at the scene stab the victim in the back. The judge had instructed the jury that the evidence of the accused’s flight was circumstantial evidence of guilt. The Supreme Court of Canada held that the judge had failed to instruct the jury properly regarding the use that could be made of the evidence of the accused’s flight from the scene. The Court reasoned that, to be useful, flight must give rise to an inference of consciousness of guilt in relation to a specific offence: “where an accused’s conduct may be equally explained by reference to consciousness of guilt of two or more offences, and where an accused has admitted culpability in respect of one or more of these offences, a trial judge should instruct a jury that such evidence has no probative value with respect to any particular offence” (at 145). [51] I would not accede to this ground of appeal. First, Mr. Gillespie did not admit to common assault. While counsel for the appellant focused little attention on that charge and told the jury it was “not what this case is about,” he did not formally admit to committing the offence. As a result, the judge instructed the jury fully on the elements of common assault and left it with them to decide. Further, contrary to the appellant’s assertion on appeal, Mr. Gillespie offered an entirely innocent explanation for grabbing the complainant’s arm and trying to pull her back towards the van. He said he was bewildered by her behaviour and was trying to do the right thing by continuing to drive her home. [52] Second, as the appellant concedes, the evidence of what transpired at the trailer park was relevant to the narrative, and to the state of mind of the complainant. In my view, the events at the trailer park and on the parkway were also relevant to Mr. Gillespie’s state of mind. There was evidence that Mr. Gillespie: · persistently pursued the complainant when she ran away from him; · lied to a witness at the trailer park, pretending that he knew the complainant and that she “always act[ed] this way” when she was intoxicated; · tried to get the complainant back into his van when they were on the highway even though she clearly did not want to do so and other witnesses had intervened; and · sped towards her as he left, almost hitting her. In my view, the appellant’s action at the trailer park, and on the highway, including the way he left the scene, were relevant to the defence of honest but mistaken belief in consent and to his credibility. [53] In conclusion on this issue, the evidence of what transpired at the trailer park and on the highway had probative value. This is not a case like Arcangioli where the probative value of the accused’s post-offence conduct was negated because, having admitted to one of the two offences with which he was charged, the accused may have fled the scene out of consciousness of guilt of the admitted offence rather than out of consciousness of guilt of the remaining charge. In the present case, Mr. Gillespie’s post-offence conduct had probative value with respect to both charges. It was also relevant to his defence of honest but mistaken belief in consent. It follows that a limiting instruction about the use of that circumstantial evidence was not required. (b)      Cautioning against the use of bad character evidence and improper propensity reasoning [54] Mr. Gillespie submits the evidence of what happened at the trailer park amounted to bad character evidence. He contends it was highly prejudicial and required an instruction telling the jury not to use that evidence, or a conviction on the common assault charge, to assume that Mr. Gillespie was the kind of person who was likely to commit a sexual assault. He says the judge should have instructed the jury to keep the evidence and counts separate in their minds, and contends the non-direction in this regard amounted to an error in law. [55] An instruction cautioning the jury not to engage in propensity reasoning is generally required when an accused stands charged with multiple counts. But jury instructions must be tailored to the circumstances of the particular case. Where evidence does not relate to uncharged misconduct and is relevant to all counts in an indictment, the need for a limiting instruction is attenuated: R. v. Sandhu , 2009 ONCA 102 at paras. 13–15. [56] In this case, as Mr. Gillespie concedes, the evidence relevant to common assault — the grabbing of the complainant’s arm and attempts to pull her back towards the van — was also inextricably connected to the narrative in the immediate aftermath of the alleged sexual assault, and relevant to issues of consent relating to that offence. What transpired at the trailer park was probative of both Mr. Gillespie’s state of mind and the complainant’s. Although giving rise to two charges, the events of that evening involved a single incident. Telling the jury to consider the evidence of the common assault separately from the evidence of the sexual assault would have confused them, as they needed to assess the entirety of the evidence to resolve several of the live issues on the sexual assault count. [57] Further, Mr. Gillespie had offered a coherent theory of the incident as a whole. He said that he and the complainant had engaged in consensual sexual activity, that he was concerned about her well-being after she left the van, was trying to understand her erratic behaviour, and trying to ensure she got home. In other words, he described his conduct in positive terms. It would have been inconsistent with the defence theory of the case to suggest to the jury that the accused’s conduct at the trailer park amounted to evidence of bad character. It is therefore not surprising that defence counsel at trial did not ask for the limiting instruction now said to have been essential to the charge. In the circumstances of this case, it made little sense to do so. I would not accede to this ground of appeal. 5.       Did the judge fail to instruct on the proper use of the complainant’s hearsay evidence and the opinion evidence? [58] The appellant identified four instances in which inadmissible evidence made its way to the jury: (a)      the complainant’s hearsay evidence that she did not undergo a medical examination at the hospital on the night of the events because she was too intoxicated to consent; (b)      a lay witness’s opinion that, based on his experience as a drug and alcohol counsellor who had “seen it all,” the complainant appeared to be in the situation unwillingly; (c)      another lay witness’s opinion that the complainant had been “roofied” – common slang for having been given a drug unknowingly; and (d)      another witness’s opinion that the appellant appeared to be intoxicated and on some chemical substance. [59] Mr. Gillespie acknowledges that each of these pieces of evidence appears not to have been deliberately elicited by the Crown, but says nonetheless that the cumulative effect of the errors, in addition to those already addressed, warrants a new trial. I will consider each instance in turn. (a)      Complainant’s hearsay evidence [60] At the pre-charge conference, defence counsel raised a concern about the complainant’s testimony in chief concerning events at the hospital on the night in question. She said she had not been examined because she “couldn’t give her consent” because she “was too intoxicated”. He said it amounted to hearsay because it implied she had been assessed by hospital staff to be incapable of giving consent. The trial judge discounted this concern on the basis that the complainant had not said that hospital staff told her she was too intoxicated to consent. [61] The appellant says this evidence was hearsay, highly prejudicial and inadmissible. He submits it amounted to unqualified opinion evidence going to the ultimate issue — if the jury accepted the complainant’s evidence on this point, it could have been misled into inferring that if she was too drunk to consent to a medical examination she must have been too drunk to consent when she was in the van with the accused. [62] The appellant says a mid-trial and final instruction should have been given by the judge even in the absence of an objection or request from defence counsel. As noted, trial counsel did raise a concern about the evidence at the first pre-charge conference, but ultimately accepted that an instruction was unnecessary because the complainant had not said someone told her that she was too intoxicated to consent. In his closing submissions to the jury, defence counsel stressed that only the complainant had said she could not consent to the hospital examination, and that no one from the hospital had testified to corroborate that evidence. [63] In my view, the absence of a defence objection at trial, although not conclusive of the issue, demonstrates the lack of prejudice to the appellant arising from this evidence. As Bastarache, J. observed in R v. Daley , 2007 SCC 53 at para. 58: While not decisive, failure of counsel to object is a factor in appellate review. The failure to register a complaint about the aspect of the charge that later becomes the ground for the appeal may be indicative of the seriousness of the alleged violation. (b)      Complainant’s unwillingness to be in the situation [64] One witness at the trailer park offered his opinion that he had been a drug counsellor, had “seen it all”, and said: Everything was there that – that put signs up to me that she was not in this situation willingly. Bare feet, terror, running, and literally telling – screaming at the guy, “I don’t know you. Who are you? Stay away from me. I don’t want to go with you.” [65] In my view, this evidence was admissible as lay opinion evidence describing a person’s emotional or mental state: R. v. Graat , [1982] 2 S.C.R. 819 at 835, 837; R. v. Falkenberg (1995), 95 C.C.C. (3d) 307 at 309 (Alta. C.A.), leave ref’d [1995] S.C.C.A. No. 88. (c)      Evidence the complainant had been “boofied” [66] One of the witnesses from the trailer park testified that the complainant appeared to be “boofied”, saying “… it looked like she had been – was on or had been given something because that one time I had been boofied, and that’s what she looked like”. The witness apparently misspoke, and intended to use the word “roofied”. The evidence amounted to the witness saying the complainant appeared to have taken drugs or to have been given a drug. Defence counsel raised a concern at the first pre-charge conference about the use of the term which could suggest the appellant had given the complainant a drug without her knowledge, but the trial judge pointed out that the witness’s use of “boofied” likely had not been understood by the jury, and the matter was dropped. [67] In my view, the witness’s testimony went beyond permissible evidence as to a person’s appearance and emotional state, implying as it did that a drug had been given to the complainant without her consent. However, an instruction to the jury to ignore that evidence would have drawn the jury’s attention to it and, as the judge pointed out, it was not at all clear that the jury had understood that the word “boofied” could mean slipping a drug to someone. It is again apparent from the position of defence counsel at trial that he was content to let it be. I see no error in the judge acceding to that approach. (d)      Evidence about the appellant’s intoxication [68] One witness at the trailer park testified about his interactions with Mr. Gillespie when he was leaning into the van after Mr. Gillespie ran over his foot on the parkway. The witness said that it looked to him that Mr. Gillespie was on a drug because he was sweating profusely and had dilated pupils. The Crown redirected the witness to give evidence about his observations only. The judge provided a mid-trial instruction, telling the jury to ignore the evidence that the appellant appeared to be on a chemical substance. [69] Defence counsel did not seek a final instruction in the charge about this evidence, which is a significant indication that the mid-trial instruction was seen to be sufficient. Again, I see no error in this regard. (e)      The curative provision [70] In my view, even if the charge was deficient in some or all of the ways identified by the appellant, those deficiencies were insignificant in the context of the record as a whole. The evidence in this case overwhelmingly supported the jury’s verdict on the sexual assault count. I am of the view that the verdict would necessarily have been the same even if the failings in the charge had been corrected. I would therefore, in the alternative, rely on the curative proviso in s. 686(1)(b)(iii) of the Criminal Code . Disposition [71] The appeal should be dismissed. “The Honourable Madam Justice Fenlon” I AGREE: “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Polygon Metalworks Int’l Inc. v. Ellisdon Corporation, 2019 BCCA 20 Date: 20190110 Docket: CA45610 Between: Polygon Metalworks Int’l. Inc. Appellant (Plaintiff) And Ellisdon Corporation Respondent (Defendant) Before: The Honourable Madam Justice Saunders (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated August 28, 2018 ( Polygon Metalworks Int’l Inc. v. Ellisdon Corporation , 2018 BCSC 1448, Vancouver Docket S167197). Oral Reasons for Judgment The Appellant, appearing in person: H. Popa Counsel for the Respondent: K. Johanson S. Small, Articled Student Place and Date of Hearing: Vancouver, British Columbia January 10, 2019 Place and Date of Judgment: Vancouver, British Columbia January 10, 2019 Summary: The appellant was one day late in presenting the appeal record for filing. It missed the deadline due to technical problems in producing the binders. Held: the appellant’s application to extend the time for filing (opposed by the respondent), is granted. The respondent applied for an order security for costs of the appeal be posted. Held: application granted. Security set at $7,000. [1] SAUNDERS J.A. : There are two applications before me today, the appellant’s application to extend the time for filing the appeal record and the respondent’s application for an order the appellant post security for costs within 30 days and that the appeal be stayed pending the security being posted. The respondent proposes the amount to be posted as security for costs be $9,215. [2] Logically the application for an extension of time should be decided first because absent the extension the appeal cannot proceed. [3] The appeal is from a judgment in favour of the appellant in the amount of $2,033.55. The litigation arises from a dispute on a construction project in downtown Vancouver wherein the respondent subcontracted with the appellant to provide and install stainless steel for the project. The original letter of intent contemplated that the appellant would commence onsite work in September 2014. The parties further agreed that the appellant’s work would be completed by November 2015. [4] As it turned out, the appellant could not start working on the project until January 2015. It began installing stainless steel on site in or around March 2015. On November 3, 2015, the respondent purported to terminate the subcontract, citing the existence of outstanding work and claiming that the appellant had contravened the agreed-upon schedule. [5] The appellant commenced an action for an amount far in excess of the judgment it obtained. [6] The appellant filed a notice of appeal on September 26, 2018. The time for filing the appeal record and transcripts expired on November 26, 2018. Mr. Popa has appeared today as the principal of Polygon. He deposes he would have filed the appeal record on November 26, but could not because of problems with printing it and he did not have the pages available that day to have it compiled into the bound document in time to file it in the court registry. That all was done by November 27 but, he deposes, when he presented the appeal record to the registry November 27, the registry refused to allow it to be filed on the basis he was out of time. [7] The respondent, Don Ellis, opposes the extension of time saying that it is not evident on the material filed the appellant has continuously intended to appeal and that the appeal lacks merit. The respondent also says it is not in the interests of justice that the appeal continue. [8] The test for an extension of time is well-known and is set out in Davies v. C.I.B.C. (1987), 15 B.C.L.R. (2d) 256 (C.A.): 1.         Was there a bona fide intention to appeal? 2.         When were the respondents informed of the intention? 3.         Would the respondents be unduly prejudiced by an extension of time? 4.         Is there merit in the appeal? 5.         Is it in the interests of justice that an extension be granted? The overarching consideration is always the fifth point – is it in the interests of justice that an extension be granted? [9] The respondent’s submission relating to the appellant’s intention to appeal relies upon a lack of evidence that transcripts have been ordered, the fact that the filing of the transcripts is also out of time, and the absence of any reference to this in today’s application – the transcripts having been required to be filed at the same time as the appeal record. Mr. Popa says that the transcripts have been ordered, but the order for transcripts is not reflected in any affidavit. [10] On balance I am satisfied the appellant has had a bona fide intention to appeal throughout that intention is demonstrated by the filing of the notice of appeal in a timely way and the appellant’s attempt to file the appeal record, albeit a day late, on November 27. [11] The larger consideration is the merits of the case. Because the appeal is at such an early stage, it is difficult to discern the merits of the appeal. I understand that the appellant contends both that findings of fact are contrary to the documentary evidence and that the judge constricted his ability to cross-examine. Doing the best I can and on the basis of what I know, it seems that there is sufficient merit to warrant the extension of time. I will say that as an appeal progresses more may be known that persuades a judge the appeal is doomed to fail, but in this case I cannot say that now. It does seem to me, however, that the appeal is not strong. [12] I consider in the circumstances that an extension of time to file the appeal record is in the interests of justice. I would extend the time for filing the appeal record to today, January 10, 2019. [13] I note that Mr. Popa still has to receive the transcripts of the trial and that he will require an extension of time in order to file them, absent consent. No doubt the evidence of when the transcripts were ordered will be germane to such an application, and that will all be for a later date. [14] I turn to the application for security for costs. The test for security for costs is set out by Mr. Justice Lowry in Creative Salmon Company Ltd. v. Staniford , 2007 BCCA 285 as follows: [9]        The jurisdiction to order security for costs of an appeal is found in s. 24 of the Court of Appeal Act , R.S.B.C. 1996, c. 77. The appellant against which such an order is sought bears the onus of showing why security should not be required: Kedia v. Shandro Dixon Edgson , 2007 BCCA 57 at para. 4 (C.A. Chambers), Smith J.A. Generally, the considerations are the appellant's ability to post security and the likelihood of costs awarded being recovered from it, as well as the merits and the timeliness of the application: Southeast Toyota Distributors, Inc. v. Branch (1997), 45 B.C.L.R. (3d) 163 (C.A.); Milina v. Bartsch (1985), 5 C.P.C. (2d) 124 at 125 (B.C.C.A. Chambers), Seaton J.A.; and M.(M.) v. F.(R.) (1997), 43 B.C.L.R. (3d) 98 at 101 (C.A. Chambers), Esson J.A. The overarching concern is whether the order sought is in the interests of justice. [15] Here the respondent has demonstrated it could not locate exigible assets. The merits of the appeal are not strong. Mr. Popa says in an affidavit he has no assets but he does not say that the appellant has no assets; if he did say that, the statement would demonstrate that the costs will not be readily recoverable. Mr. Popa says that the appellant, which has been struck from the company register, is in the process of being reinstated, but there are, we know, judgments already registered against the company. [16] On balance, I consider that an order for security for costs should be made. I would set the amount of security at $7,000 to be posted within 30 days. This order is accompanied by a stay of the appeal until the security for costs is posted, except for the filing of the appeal record that I have allowed and must be completed today. [17] All of this means, Mr. Popa, that to file the transcripts needed to advance this appeal, you first must post the security for costs and you will need an order allowing you to file the transcripts in any event. [18] I have considered the respondent’s further request for leave to apply to augment the amount of the security for costs in the event unexpected applications or other court proceedings are required to push this appeal to conclusion. I have decided not to make such an order. The respondent, in that event, will have to simply rely upon our Rules for relief. “The Honourable Madam Justice Saunders”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Zora, 2019 BCCA 9 Date: 20190110 Docket: CA44946 Between: Regina Respondent And Chaycen Michael Zora Appellant Before: The Honourable Madam Justice Stromberg-Stein The Honourable Mr. Justice Willcock The Honourable Mr. Justice Savage The Honourable Madam Justice Fenlon The Honourable Madam Justice Fisher On appeal from:  An order of the Supreme Court of British Columbia, dated November 15, 2017 ( R. v. Zora , 2017 BCSC 2070 Courtenay Docket No. 38980). Counsel for the Appellant: S. Runyon G. Barriere Counsel for the Respondent: R.J. Carrier Place and Date of Hearing: Vancouver, British Columbia September 4, 2018 Place and Date of Judgment: Vancouver, British Columbia January 10, 2019 Written Reasons by: The Honourable Madam Justice Stromberg-Stein Concurred in by: The Honourable Mr. Justice Willcock The Honourable Mr. Justice Savage The Honourable Madam Justice Fisher Reasons Concurring in the Result by: The Honourable Madam Justice Fenlon (page 21, para. 70) Summary: Appeal from convictions for breaching a recognizance by failing to present self at door for curfew compliance checks. The sole issue is whether s. 145(3) of the Criminal Code imports an objective standard of mens rea. Held: appeal dismissed. Stromberg-Stein, Willcock, Savage, Fisher JJ.A.: The duty-based nature of s. 145(3), combined with the risk-based nature of bail provisions, support Parliament’s intention for the application of an objective fault standard having regard to the plain language, breadth, context and purpose of the offence. Fenlon J.A.: There is no basis in the context or language of s. 145(3) to displace the presumption of subjective intent. To prove the mental element of breach of a bail condition, the Crown must prove that the accused person knew their conduct would infringe a condition of release, was reckless, or was wilfully blind. However, the uncontested facts establish that Mr. Zora was reckless. Reasons for Judgment of the Honourable Madam Justice Stromberg-Stein: Overview [1] Chaycen Michael Zora appeals his convictions for breaching his recognizance by failing to present himself at his door for two curfew compliance checks contrary to s. 145(3) of the Criminal Code , R.S.C., 1985, c. C-46. The sole issue is whether s. 145(3) imports an objective standard of mens rea. [2] In my view, the duty-based nature of s. 145(3), combined with the risk-based nature of bail provisions, support Parliament’s intention for the application of an objective fault standard. This is consistent with the plain language, context and purpose of the offence. An objective fault standard requires proof of a marked departure from what a reasonable person in the same situation would do. If there is a reasonable doubt that a reasonably prudent person would not have foreseen or appreciated the risk or could have done something to prevent the breach, an acquittal must follow. This is sufficient to ensure only the morally blameworthy will be convicted. Facts [3] Mr. Zora was charged with a number of drug offences contrary to the Controlled Drugs and Substances Act , S.C. 1996, c. 19. He was released on a recognizance with one surety. His release was conditional on obeying a curfew and presenting himself at his front door within five minutes of a police officer or bail supervisor attending to confirm his compliance with these conditions. [4] On October 9, 2015, Friday of the Thanksgiving long weekend, a police officer went to Mr. Zora’s residence at 10:30 p.m., two-and-a-half hours after the commencement of his curfew. The officer rang the doorbell three times and knocked loudly on the front door with his fist. There was no response. He waited for more than five minutes. There was no activity at the residence, no lights were on, and he heard no dogs barking. [5] On October 11, 2015, another police officer went to Mr. Zora’s residence. He saw a sign on the door that read “use the doorbell,” which he did. He waited for more than five minutes and observed no activity at the residence. [6] Both officers had previously attended at the residence for similar checks and Mr. Zora responded appropriately. They denied there was a hand-made sign that read: “I am home can’t always hear you knock or door bell so please try all doors in garage if no answer at front door Thanks Chaycen Zora.” [7] With respect to the October 9 and 11 police attendances, Mr. Zora was charged with two counts of breaching his curfew and two counts of failing to comply with the condition that he present himself at the door. Mr. Zora was informed of these charges around October 27, 2015. [8] Mr. Zora, his mother, and his girlfriend testified that they were at the residence over the Thanksgiving weekend and celebrated Thanksgiving together on October 11, 2015. They confirmed that two dogs were usually at the residence and would bark when someone rang the doorbell or approached the residence. [9] Mr. Zora explained that he may have been sleeping during the two police checks. He said it was difficult, if not impossible, to hear the doorbell from where he slept. He was undergoing methadone treatment and withdrawal from his heroin addiction, which made him sleepy, so he often went to bed earlier than usual. [10] After learning of the breaches, Mr. Zora set up an audio-visual system to help alert him to future police checks and he changed where he slept in his residence. He had no further problems complying with his bail conditions. Provincial Court [11] The trial judge found no credibility issues with the evidence of the police witnesses, but he found credibility and reliability issues with respect to the evidence of Mr. Zora and his witnesses. [12] The judge likened compliance with the bail conditions to strict liability offences but effectively applied a standard of objective mens rea . He suggested it is not a defence to the charges to not answer the door because the accused person did not hear the doorbell, was passed out after drinking, or did not want to answer. The judge concluded that an accused person who wants the benefit of being released on bail ought to arrange their life in such a way as to comply with all bail conditions. He observed this was reflected in the additional steps Mr. Zora took after he breached his bail conditions. [13] The judge acquitted Mr. Zora of the curfew violations on the basis that the circumstantial evidence of non-compliance was inconclusive because there was no direct evidence Mr. Zora was outside his residence during the compliance checks. However, the judge concluded that although Mr. Zora had provided a possible explanation for not appearing at the door, it was not a legal defence. He found Mr. Zora guilty of two breaches for failing to appear at the door for curfew compliance checks and sentenced him to pay fines of $400 for each breach. Summary Conviction Appeal [14] Mr. Zora appealed his convictions arguing the trial judge erred in law by applying the wrong standard of fault to s. 145(3) of the Criminal Code . He did not challenge the judge’s factual findings. [15] The summary conviction appeal judge noted divergent authorities on the issue of mens rea for s. 145(3) but ultimately concluded he was bound by R. v. Ludlow , 1999 BCCA 365. He stated: [ 3 ]        The subsection is not clear as to what mens rea is required for a conviction. There is a line of cases, led by R. v. Legere (1995), 95 C.C.C. (3d) 89 (Ont. C.A.) , holding that s. 145(3) charges a true criminal offence and failure to take steps that a reasonable person would take to ensure that they are in a position to comply with the recognizance will not support a conviction. However, in R. v. Ludlow (1999), 136 C.C.C. (3d) 460 (B.C.C.A.) , Hall J.A., writing for himself and Cumming J.A., thoroughly considered the question and expressed the opinion, albeit in obiter , that the mens rea requirement is largely objective. Esson J.A. dissented, but not on this point. [5]        The appellant argues that the trial judge erred in law in applying the approach set out in Ludlow . The appellant did not put his case on the basis that the Ludlow holding was obiter . Rather, he argues that Ludlow ought not to be followed because: (1) In Ludlow the Court of Appeal did not refer to R. v. Docherty , [1989] 2 S.C.R. 941, which held that a similar Code provision (now 733.1(1)) dealing with non-compliance with probation orders constitutes a full mens rea offence; (2) Jurisprudence on s. 733.1(1) since Ludlow continues to cast doubt on the Ludlow reasoning; (3) There is ambiguity in the wording of s. 145(3) as evidenced by the various cases that interpret the mens rea requirement differently, and in these circumstances the principles of statutory interpretation obliged the trial judge to give the benefit of the doubt to the accused. [16] The judge concluded Ludlow should be followed unless reconsidered or overturned by this Court. Leave to Appeal to the Court of Appeal [17] Mr. Zora applied for leave to appeal pursuant to s. 839(1) of the Criminal Code . On March 9, 2018, a division of this Court granted leave to appeal on the question of whether the summary conviction appeal judge erred in finding s. 145(3) of the Criminal Code imports an objective standard of mens rea and ordered that a five-member division hear the appeal. Positions of the Parties [18] The parties agree that s. 145(3) is a truly criminal offence and not a strict liability offence. [19] Mr. Zora submits there is a presumption of subjective mens rea for true crimes and nothing in the wording of s. 145(3) supports the application of an objective fault standard for the following reasons: 1. The presence of a defence of lawful excuse has no impact on the mens rea analysis, as defences are distinct and separate from the elements of the offence; 2. Section 145(3) does not fit into any of the five types of objective mens rea offences identified in R. v. A.D.H. , 2013 SCC 28, which are dependent on a breach of a community standard of conduct that is not present in this case; 3. The individualized nature of bail conditions favours subjective mens rea and protects those with mental or physical challenges; 4. The consequences of a conviction, including both the penalty and the requirement to justify release in the future, suggest a subjective standard of fault; and 5. Section 733.1, a probation provision similar to s. 145(3), has been interpreted by the Supreme Court of Canada as requiring subjective mens rea . [20] The Crown acknowledges there is a statutory presumption of subjective mens rea but submits the presumption is rebutted for the following reasons: 1. Section 145(3) is a duty-based offence similar to s. 215 (failure to provide the necessities of life) as indicated by the plain language of the section; 2. The availability of a defence of lawful excuse; 3. The purpose of the section is to ensure those released from custody do not cause any of the dangers set out in s. 515(10) of the Criminal Code ; 4. The purpose of the section is to hold an accused person accountable when they do not abide by their conditions of release; 5. An objective standard ensures an accused person is held to a minimum community standard rather than setting an individual standard; 6. The customization of the bail conditions takes into account an accused person’s circumstances; and 7. Section 145(3) is not analogous to s. 733.1 due to its different language, consequences, and purpose. Analysis [21] Section 145(3) requires a two-stage analysis. A person commits an offence when they: 1. are subject to an undertaking, direction, or recognizance and breach its conditions by committing an act or omission ( actus reus ); and have the requisite fault element ( mens rea ); and 2. fail to provide a lawful excuse for the breach. [22] The second stage of the analysis arises only after the Crown proves all the required elements at the first stage. [23] The section is silent as to the requisite mens rea . Three appellate courts (and numerous lower courts) have commented on the mens rea required for ss. 145(2) and (3). These sections have been viewed as attracting the same fault element, but whether the fault element is subjective or objective has led to inconsistent answers in the case authorities. [24] In R. v. Legere (1995), 22 O.R. (3d) 89 (C.A.), Mr. Legere was released on the condition that he carry his bail papers with him and not communicate with any person under the age of 16. Soon after his release, two police officers observed him near two young boys and arrested him. He did not have his bail papers with him. The trial judge found Mr. Legere had “not taken proper or reasonable precautions” to ensure he had his papers with him and convicted him for breaching that condition: Legere at 95. [25] The Ontario Court of Appeal held that the judge erred in finding Mr. Legere guilty on the basis that he was negligent (at 100): The evidence in the present case does not support a finding that the appellant knowingly or recklessly failed to carry his bail papers or that he intentionally disposed of them. Accordingly, I would set aside the appellant’s conviction on the charge of failing to carry and produce his bail papers on request of the police, and enter an acquittal. [26] The Court applied a subjective mens rea requirement, which the Crown had conceded was the correct standard of fault. [27] This Court decided Ludlow in 1999. Mr. Ludlow was accused of domestic violence. He was released on condition that he appear in court on a certain date for trial. Mr. Ludlow’s partner, the alleged victim, decided she did not want to proceed with her complaint and told Mr. Ludlow she had contacted the police and the matter was “dropped”. Mr. Ludlow understood this to mean that he no longer was required to attend court so he did not appear for trial. He was charged with failing to appear contrary to s. 145(2) of the Criminal Code . [28] At trial, Mr. Ludlow admitted he failed to appear and the focus was on whether he had a lawful excuse. The trial judge did not address the issue of mens rea and convicted Mr. Ludlow on the basis that he did not exercise due diligence in confirming that he was no longer required to appear: Ludlow at para. 16. [29] Mr. Ludlow’s summary conviction appeal was dismissed on the basis that Mr. Ludlow’s failure to confirm whether his court date was cancelled was unreasonable: at para. 17. [30] In the Court of Appeal, Mr. Ludlow argued the offence of failing to appear was a true mens rea offence and the summary conviction appeal judge erred in upholding his conviction “on the basis of lack of due diligence or the application of an objective test”: at para. 18. [31] Mr. Justice Hall, writing for the majority, framed the question on appeal as whether Mr. Ludlow had a lawful excuse for not appearing or, more directly, whether he honestly and reasonably believed, based on the information from his partner, that the case would not proceed: at paras. 28-29. [32] Hall J.A. noted that ss. 145(2) and (3) had language that was “for all practical purposes indistinguishable” (at para. 31) and stated: [30]      As I interpret Code section 145(2), it provides that when the Crown establishes non-attendance by an accused contrary to an undertaking or recognizance, the accused should be found guilty unless he can point to some evidentiary basis supportive of a lawful excuse for his failure to appear. The section speaks of “the proof of which lies upon him”. [33] He considered Legere and suggested the authority of earlier cases that concluded negligent conduct was not a permissible basis for conviction “had been shaken by the trend of authorities in the Supreme Court of Canada and this court in the past decade”: at para. 34. He referred to R. v. Hundal , [1993] 1 S.C.R. 867; R. v. Finlay , [1993] 3 S.C.R. 103; and R. v. Creighton , [1993] 3 S.C.R. 3, to demonstrate that objective mens rea offences based on negligent conduct are constitutionally permissible as long as exculpatory defences are available. He cited comments of McLachlin J. (as she then was) in Creighton with respect to objective mens rea : [35]… In R. v. Creighton , [1993] 3 S.C.R. 3 (S.C.C.) at 58, 83 C.C.C. (3d) 346 (S.C.C.) at 382, McLachlin J. observed in upholding the constitutionality of unlawful act manslaughter observed as follows: Objective mens rea , on the other hand, is not concerned with what the accused intended or knew. Rather, the mental fault lies in failure to direct the mind to a risk which the reasonable person would have appreciated. Objective mens rea is not concerned with what was actually in the accused's mind, but with what should have been there, had the accused proceeded reasonably. It is now established that a person may be held criminally responsible for negligent conduct on the objective test, and that this alone does not violate the principle of fundamental justice that the moral fault of the accused must be commensurate with the gravity of the offence and its penalty: R. v. Hundal , [1993] 1 S.C.R. 867. [Emphasis in original]. [34] Hall J.A. concluded: [ 39 ]      It seems to me that it would be impossible to envisage every situation that could amount to a lawful excuse for failure to attend court. Sudden illness, a breakdown of transport and the like would seem to be clear instances of situations that could amount to a lawful excuse for failure to appear. Of course, any such defence would have to be based on evidence that the trier of fact believed. [ 40 ] It must not be overlooked that an obligation is imposed by statute on a person bound by an undertaking or recognizance to attend at court as required or directed by the terms of the operative document. Forgetting to appear seems to me a very marked departure from the requirement imposed on an accused at liberty on an undertaking or recognizance to faithfully observe the requirement to attend. Most people would and should recognize that a serious obligation concerning the proper administration of justice is thereby imposed on an accused and a failure to attend, absent a compelling reason, or as in the instant case, an honest and reasonably based belief that no attendance is required, should usually result in a finding of a breach of the section. I would say the fault or mens rea requirement for this class of offence has a large element of the objective about it. Conviction can be avoided if an accused establishes a lawful excuse by a showing of due diligence to satisfy the obligation, including an honest and reasonable belief in a state of facts that would excuse non-attendance. [Emphasis added]. [35] Hall J.A. found Mr. Ludlow established a lawful excuse for not appearing in court: a defence of mistake of fact that the proceedings had been discontinued. Thus, his comments regarding the mens rea of the offence could be considered obiter . [36] Mr. Justice Esson, dissenting on the legal application to the facts but not on the law, agreed with Hall J.A. that the fault element had “a large element of objective about it” and “[c]onviction can be avoided if an accused establishes lawful excuse by a showing of due diligence to satisfy the obligation, including an honest and reasonable belief in a state of facts that would excuse non-attendance”: at para. 45. [37] R. v. Custance , 2005 MBCA 23, addressed the standard of fault for s. 145(3). Mr. Custance was released on conditions that he reside with his sponsor, maintain a curfew, and present himself for curfew checks: at para. 3. He discovered that his sponsor did not yet have keys to the apartment. Mr. Custance knew if he did not get into the apartment he would be in breach of his conditions. Instead of turning himself in, he elected to stay in his car in the parking lot for several days. When the police realized Mr. Custance was not at the apartment, he was arrested, charged, and convicted for breaching his conditions: at paras. 5-6. [38] On appeal, Mr. Custance argued that the trial judge did not properly consider the mens rea element of the offence. The Manitoba Court of Appeal described the elements of the offence as follows (at para. 10): (1)     that the Crown must prove that the accused was bound by an undertaking or recognizance; (2)     that the accused committed an act which was prohibited by that undertaking or recognizance or that the accused failed to perform an act required to be performed by that undertaking or recognizance; and (3)     that the accused had the appropriate mens rea , which is to say that the accused knowingly and voluntarily performed or failed to perform the act or omission which constitutes the actus reus of the offence. [39] Relying on the commentary of Gary T. Trotter in his text The Law of Bail in Canada , 2d ed. (Scarborough, Ont: Carswell, 1999), the Court stated that the Crown need not prove that Mr. Custance intended to breach his recognizance but must prove he intended to commit the actus reus . While recklessness was sufficient, “mere carelessness or negligence” was not: Custance at para. 12. [40] The Court held the test for mens rea was “primarily subjective” and required the Court to look at “the facts as the accused believed them to be”: at para. 13. Mr. Custance knew about his conditions and knew that failing to reside at the apartment would breach the conditions. The question was whether his mistaken belief that he could comply with the recognizance by staying in his car was sufficient to exculpate him. The Court concluded Mr. Custance made a mistake of law rather than a mistake of fact and upheld the conviction. The Court noted that generally lawful excuses would entail circumstances in which compliance is virtually impossible, such as severe illness, but added that, based on Ludlow , due diligence could potentially constitute a lawful excuse: at paras. 25-26. [41] In addition to the three appellate cases, many courts have commented on the requisite mens rea for ss. 145(2) and (3) offences. The inconsistent decisions with respect to s. 145 offences are summarized in R. v. Loutitt , 2011 ABQB 545, by Mr. Justice A.W. Germain: [13]      A number of other judgments interpret the mens rea requirement for s. 145(5) and related offenses [subjectively]: · Criminal Code , s. 145(1): R. v. Manuel (2000), 182 N.S.R. (2d) 193 (N.S. S.C.) at para. 12, (2000), 74 C.R.R. (2d) 75 (N.S. S.C.); · Criminal Code , s. 145(2): R. v. Blazevic (1997), 31 O.T.C. 10, 34 W.C.B. (2d) 282 (Ont. Gen. Div.); R. v. Mullin , 2003 YKTC 26 (Y.T. Terr. Ct.) at para. 22, (2003), 13 C.R. (6th) 54 (Y.T. Terr. Ct.); · Criminal Code , s. 145(3): R. v. Custance , 2005 MBCA 23 (Man. C.A.) at para. 13, (2005), 192 Man. R. (2d) 69 (Man. C.A.), leave refused [2005] S.C.C.A. No. 156 (S.C.C.); R. v. Legere (1995), 22 O.R. (3d) 89, 77 O.A.C. 265 (Ont. C.A.); R. v. Smith , [2005] O.J. No. 1316 (Ont. S.C.J.) at para. 10, 64 W.C.B. (2d) 651 (Ont. S.C.J.)), reversed on other grounds 2008 ONCA 101, 233 O.A.C. 145 (Ont. C.A.); · Criminal Code , s. 145(5) (and its pre-1985 equivalent s. 133(5)): R. v. Bender (1976), 30 C.C.C. (2d) 496 (B.C. S.C.); R. v. Hutchinson (1994), 160 A.R. 58, 25 W.C.B. (2d) 51 (Alta. Prov. Ct.); R. v. Nedlin , 2005 NWTTC 11 (N.W.T. Terr. Ct.) at para. 43, (2005), 32 C.R. (6th) 361 (N.W.T. Terr. Ct.); R. v. Stuart (1981), 58 C.C.C. (2d) 203, 5 W.C.B. 506 (B.C. S.C.); R. v. Blazevic (1997), 31 O.T.C. 10, 34 W.C.B. (2d) 282 (Ont. Gen. Div.); R. v. Hurlbert , 2003 ABPC 54 (Alta. Prov. Ct.) at para. 14, (2003), 340 A.R. 192 (Alta. Prov. Ct.); R. v. Weishar , [2003] O.T.C. 719, 13 C.R. (6th) 59 (Ont. S.C.J.); R. v. Fitzgerald (1995), 129 Nfld. & P.E.I.R. 174, 27 W.C.B. (2d) 82 (Nfld. T.D.); R. v. Josephie at para. 30; · Criminal Code , s. 145(5.1): R. v. Brown , 2008 ABPC 128 (Alta. Prov. Ct.) at para. 30, (2008), 445 A.R. 211 (Alta. Prov. Ct.); and · Criminal Code , s. 733.1(1): R. v. Stanny , 2004 ABPC 149 (Alta. Prov. Ct.) at paras. 26-28; R. v. Eby . [14]      A separate set of cases has taken a more strict approach and conclude that negligence or the absence of 'due diligence' is a basis on which a court can convict: · Criminal Code , s. 145(2): R. v. Ludlow , 1999 BCCA 365 (B.C. C.A.) at paras. 37-38, (1999), 136 C.C.C. (3d) 460 (B.C. C.A.); R. v. Osmond , 2006 NSPC 52 (N.S. Prov. Ct.) at para. 40, (2006), 248 N.S.R. (2d) 221 (N.S. Prov. Ct.); R. v. Parent-Quinn , [1995] O.J. No. 4668 (Ont. Prov. Div.); · Criminal Code , s. 145(5) (and its pre-1985 equivalent s. 133(5)): R. v. Preshaw (1976), 31 C.C.C. (2d) 456, 35 C.R.N.S. 331 (Ont. Prov. Ct.); R. v. Postama , [1982] O.J. No. 682 (Ont. Prov. Ct.); and · Criminal Code , s. 732.1(5): R. v. Bremmer , 2006 ABPC 93 (Alta. Prov. Ct.) at paras. 6, 19, (2006), 79 W.C.B. (2d) 166 (Alta. Prov. Ct.). [42] Since Loutitt , I am aware that R. v. Hammoud , 2012 ABQB 110, applied objective mens rea to an offence contrary to s. 145(2): Hammoud at para. 21 . [43] Ultimately the Supreme Court of Canada may have to settle the conflicting law across Canada, although I note that some of the above-mentioned cases appear to conflate mens rea with lawful excuse. Principles of statutory interpretation [44] Criminal offences consist of proof of the actus reus , the prohibited conduct, and proof of m ens rea , the required fault element. This appeal considers whether the mens rea for s. 145(3) should be assessed subjectively or objectively. [45] If the requisite mens rea is subjective (what is actually in the mind of the accused person, or subjective foreseeability of consequences), the accused person must have committed the prohibited act intentionally or recklessly with knowledge of the facts constituting the prohibited act or with wilful blindness: R. v. Sault Ste. Marie , [1978] 2 S.C.R. 1299 at 1309. In other words, for breach of a condition of a recognizance, the Crown must prove that the accused person knew their conduct would infringe a condition of release or was reckless or wilfully blind. [46] If the requisite mens rea is objective, sometimes referred to as penal negligence (the absence of due care in the mind of the accused person), the question is whether a reasonable person in the circumstances would have seen the risk that the accused person’s conduct would infringe a condition of release and whether the conduct is a marked departure from what a reasonable person would have done in the circumstances: A.D.H. at para. 3. [47] In my view, determining the requisite mens rea in this case turns on the application of the principles of statutory interpretation described in A.D.H. , a case where the Supreme Court of Canada inferred a subjective fault element for s. 218 of the Criminal Code (child abandonment) when the fault element was not expressly set out in the language of the section. Since s. 145(3) does not expressly set out the requisite fault element, this Court must “infer the fault element” to discern parliamentary intent: A.D.H. at para. 20. [48] The starting point is the presumption that Parliament intends crimes to have a subjective fault element: A.D.H. at para. 23, citing Dickson J. in Sault Ste. Marie . This ensures the morally innocent are not punished. However, the presumption is a principle of statutory interpretation and not a rule: A.D.H . at paras. 25, 27. The presumption is rebuttable where there are “clear expressions of a different legislative intent”: at para 27. [49] Determining legislative intent requires “read[ing] the words of the statute in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the statute, its objective and the intention of Parliament”: A.D.H. at para 19. Indicators of legislative intent include the statutory text, breadth, context and purpose, along with a good dose of “common sense”: A.D.H. at paras. 39-72, 83. A. Statutory Text [50] In A.D.H. , Cromwell J. described “five main types of objective fault offences in the Code ”: at para. 56. These are dangerous conduct (such as dangerous driving); careless conduct (such as careless storage of a firearm); predicate offences (such as unlawful act manslaughter); criminal negligence; and duty-based offences : at paras. 57-63. Moldaver J., in dissent, noted that Professor Roach described a duty based-offence as “a failure to act … where an individual has a ‘specific legal duty to act’”. Likewise, Professor Roach described disobeying a court order as a duty-based offence: A.D.H. at para. 121 citing Kent Roach, Criminal Law , 5th ed (Toronto:  Irwin Law, 2012) at 115-16 . [51] A court order imposes upon the accused person a specific legal duty to act and falls within the description of a duty-based offence. Similarly, in my view, s. 145(3) fits within an objective fault duty-based offence as Parliament based s. 145(3) on a violation of a duty. [52] Section 145(3) falls under Part IV of the Criminal Code , Offences Against the Administration of Law and Justice, and provides: 145(3)  Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance … and who fails , without lawful excuse , the proof of which lies on them, to comply with the condition, direction or order is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction. [Emphasis added.] [53] The operative language of s. 145(3) in its ordinary and grammatical sense demonstrates Parliament’s intention to discharge the duties imposed with reference to uniform normative standards. For example: a) At large is to have escaped, which in practice means the accused is not imprisoned: The Oxford English Dictionary , 11th ed, sub verbo “large”. b) An undertaking is a formal pledge or promise that imposes a binding legal duty: The Oxford English Dictionary , 11th ed, sub verbo “undertaking”. c) A recognizance is a debt the accused person owes to the Crown that is acknowledged in court and places obligations on them the moment it is pronounced by a judge. d) Bound to comply is to impose a legal or contractual obligation to meet specific standards: The Oxford English Dictionary , 11th ed, sub verbo “bind”, “comply”. e) A condition requires that certain things exist before something else is possible ( i.e. being released): The Oxford English Dictionary , 11th ed, sub verbo “condition”. f) Fails indicates acting contrary to the agreed legal duty or obligation and being unable to meet set standards or expectations: The Oxford English Dictionary , 11th ed, sub verbo “fail”. g) Without lawful excuse defines the defence available to the accused person. The availability of the defence prevents punishing the morally innocent. [54] The offence is not framed with language identified in A.D.H. as requiring subjective intent, which is indicated by the use of language such as “willful”, “expose”, or “abandon” (for s. 218 of the Criminal Code ). Rather, the language of  s. 145(3) addresses discharging an obligation in objective terms similar to s. 215 of the Criminal Code (duty to provide necessaries of life) considered in R. v. Naglik , [1993] 3 S.C.R. 122: A.D.H. at paras. 43-49. Both ss. 215 and 145(3) identify a specific legal duty – it is expressed in s. 215 as “a legal duty” to provide necessaries of life and in s. 145(3) as being “bound to comply” with a condition of an undertaking or recognizance – and both sections frame the offence as “fails without lawful excuse, the proof of which lies on them” to discharge the obligation at issue. The Supreme Court of Canada has confirmed s. 215 is a duty-based offence attracting an objective fault standard: A.D.H. at paras. 63-72. Lamer C.J.C. commented in Naglik about the language in s. 215 of the Criminal Code : [42] … the failure to perform a “duty” suggests that the accused’s conduct in a particular circumstance is to be determined on an objective, or community, standard. The concept of a duty indicates a societal minimum which has been established for conduct: as in the law of civil negligence, a duty would be meaningless if every individual defined its content for him or herself according to his or her subjective beliefs and priorities. Therefore, the conduct of the accused should be measured against an objective, societal standard to give effect to the concept of “duty” employed by Parliament. [55] The plain meaning of the words in the text of s. 145(3) and the specific legal duty to act a certain way support the duty-based nature of the provision. B. Statutory Context and Purpose [56] R. v. Antic , 2017 SCC 27, establishes that every accused person has the right to reasonable bail and to be released on the least onerous conditions unless the Crown shows cause for detention or more onerous bail conditions. Terms and conditions of release are imposed only to the extent necessary to satisfy s. 515(10) of the Criminal Code , which sets out the primary, secondary, and tertiary grounds for detention: flight risk, public safety, and public confidence in the administration of justice. Having regard to the criteria in s. 515(10) and to the specific circumstances of the offence and offender, the bail judge is tasked with considering reasonable bail in each case. “The bail system is based on the promises to attend court made by accused persons and on their belief in the consequences that will follow if such promises are broken”: Antic at para. 54. Otherwise the bail system would be ineffective. [57] Section 145(3) is inherently linked to s. 515(10). It is duty-based and risk- based. It promotes the proper functioning of the bail system by providing an enforcement mechanism. At interest is not only protection of the public and maintaining confidence in the administration of justice but also enabling a court to control its own process thereby maintaining dignity, respect, and integrity of the justice system: R. v. Patko , 2005 BCCA 183 at para. 23. The purpose of the section is to mitigate the risks of releasing an accused person into the community by imposing a minimum uniform standard of conduct having regard to societal interests rather than personal standards of conduct. A failure to comply with court-imposed conditions of release, which under s. 515 (10) must be minimal, reasonable, and necessary, thwarts or defeats the bail system and public confidence in the administration of justice. [58] Ludlow recognized that conditions imposed on an accused person under a recognizance are “serious obligations concerning the proper administration of justice”: Ludlow at para. 40. In exchange for liberty, an accused person agrees to, and is expected to, fulfil the court-imposed obligations. [59] The statutory purpose of s. 145(3) supports the duty-based nature of the provision. C. Statutory Breadth [60] Applying an objective standard of mens rea does not render the scope of potential liability under s. 145(3) unduly broad, as criminal liability is restricted to the accused person named in the undertaking or recognizance who has secured their release by agreeing to abide by conditions a judge deemed as minimal, reasonable, and necessary with regard to s. 515(10). The obligations are limited in number, reduced to writing, and made explicitly known to and accepted by the accused person as a condition of their release. This can be contrasted with the wide range of persons and conduct falling within the scope of s. 218 : A.D.H. at paras. 40-41. [61] An objective fault standard does not punish the morally blameless. It does not punish acts of simple negligence. It requires proof of a marked departure from the standard of care that a reasonable person would observe in the circumstances. [62] McLachlin J. (as she then was) confirmed that objective fault requires a uniform standard that does not incorporate individualized characteristics such as age and experience: Creighton at 41, 60-74. To the extent that an accused person may have cognitive difficulties that could potentially impact their ability to comply with conditions of release, the bail judge would account for these in assessing the appropriate form of release. The ladder principle can accommodate such deficiencies by, for example, requiring a surety to supervise the accused to ensure compliance with the conditions of release: Antic at paras. 2, 4, Patko at para. 22. [63] Section 145(3) does not give rise to sufficient social stigma or penalty to require a subjective mens rea as evidenced by the maximum sentence of two years. [64] The statutory breadth of s. 145(3) supports the duty-based nature of the provision. The fault element of s. 733.1 of the Criminal Code [65] Mr. Zora submits that the fault element for s. 733.1 of the Criminal Code (breach of a probation order) is instructive in determining the fault element for s. 145(3). Mr. Zora relies on R. v. Docherty , [1989] 2 S.C.R. 941, which held that the mens rea for s. 733.1 is subjective. However, a probation order is not the functional equivalent of a recognizance or undertaking. The two are different offences, in different sections of the Criminal Code , with distinct language, legislative history, and consequences. Furthermore, I would question whether Docherty has been overtaken by changes in the legislation and subsequent decisions, but that is not an issue before this Court. Conclusion [66] In my view, the indicators of Parliament’s intent regarding the fault element demonstrate that s. 145(3) is a duty-based offence that attracts an objective standard of mens rea . Section 145(3) recognizes that persons who have been released are under a legal duty to comply with the conditions of their release; it therefore creates legal duties respecting particular persons in particular circumstances and is aimed at establishing a uniform minimum level of care undertaken by those to whom it applies. The duty imposed is a societal, and not a personal, standard of conduct. The section ensures that those granted judicial interim release by means of an undertaking or recognizance made to court will comply with the terms and conditions. This ensures proper functioning of the criminal justice system generally and the bail system specifically. [67] A review of the language, breadth, context and purpose of s. 145(3), as well as the gravity of the crime and social stigma attached, confirms the offence is duty-based, requiring objective mens rea to establish the fault element of the offence. [68] In my view, the trial judge’s findings of fact, which are not disputed, support the convictions in this case because Mr. Zora’s failure to present himself at his door for two curfew compliance checks demonstrates a marked departure from what a reasonable person would have done in the circumstances. A reasonably prudent person in the circumstances would have foreseen or appreciated the risk or could have done something to prevent the breach. His explanation does not amount to a lawful excuse for the breaches. [69] I would dismiss the appeal. “The Honourable Madam Justice Stromberg-Stein” I agree: “The Honourable Mr. Justice Willcock” I agree: “The Honourable Mr. Justice Savage” I agree: “The Honourable Madam Justice Fisher” Reasons for Judgment of the Honourable Madam Justice Fenlon : [70] I have had the benefit of reading the draft judgment of my colleague, Madam Justice Stromberg-Stein. I agree that Mr. Zora’s appeal from conviction should be dismissed, but respectfully disagree as to the mental element of the offence created by s. 145(3) of the Criminal Code . In my view, that section imports a subjective fault standard. My reasons for that conclusion follow. [71] Like my colleague, I begin with the presumption that Parliament intends crimes to have a subjective fault element. In Sault Ste. Marie , Dickson J. described the presumption this way (at 1303, 1309–10): In the case of true crimes there is a presumption that a person should not be held liable for the wrongfulness of his act if that act is without mens rea . Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Mere negligence is excluded from the concept of the mental element required for conviction. Within the context of a criminal prosecution a person who fails to make such enquiries as a reasonable and prudent person would make, or who fails to know facts he should have known, is innocent in the eyes of the law . [Emphasis added; citations omitted.] [72] Although the presumption must “give way to clear expressions of a different legislative intent” as Cromwell J. stated in A.D.H. (at para. 27), “Parliament must be understood to know that this presumption will likely be applied unless some contrary intention is evident in the legislation” (at para. 26). [73] In my view, neither the words used in s. 145(3), nor the design of the offence supports a clear legislative intent to displace the subjective fault element that is the foundational principle of our criminal law. [74] Many judges, including Mr. Justice Thompson in the court immediately below, have noted that s. 145 is not clear as to the mens rea required for conviction. That lack of clarity is evident in the conflicting views on the issue expressed in the cases cited by my colleague at paras. 41 and 42 of her judgment. In my view, the lack of clarity in s. 145 regarding the mens rea required for conviction weighs heavily in favour of giving effect to the presumption of subjective intent. As Cromwell J. observed in A.D.H. “to the extent that Parliament’s intent is unclear, the presumption of subjective fault ought to have its full operation….”. [75] There is nothing startling in the notion that Parliament would incorporate this standard of mental fault into the offence of breach of bail conditions. The offences created by s.145 carry a maximum two-year period of incarceration and therefore directly threaten the liberty interest of the accused. Further, as Trotter J.A. (writing extra-judicially) notes in the Law of Bail (at 12-2): Along with the possibility of imprisonment, an accused who is charged with one of these offences must discharge the onus of proof in respect of further release. [s. 515(6)(c).] Moreover, an accused person with one or more convictions for this type of offence will have a more difficult time obtaining release in the future. [76] Section 145(3) does not contain any of the language typically used by Parliament when it intends to create an offence involving objective or penal fault. That language was thoroughly reviewed by Cromwell J. in the following paragraphs of A.D.H. from which I quote at length: [57] We come first to offences defined in terms of dangerous conduct . In R. v. Hundal , [1993] 1 S.C.R. 867, the Court found that the fault element of the offence of dangerous driving was a manner of driving which constituted a “marked departure” from that expected of a reasonable person in the same circumstances . (See also, more recently, Beatty and R. v. Roy , 2012 SCC 26, [2012] 2 S.C.R. 60.) Several factors justified adopting an objective rather than a subjective fault requirement: driving is a regulated activity in which people choose to engage; driving is automatic and reflexive in nature; and the text of the offence focuses on the manner of driving, all of which suggest that the offence seeks to impose a minimum uniform standard of care. Cory J. noted, for example, that “[l]icensed drivers choose to engage in the regulated activity of driving. They place themselves in a position of responsibility to other members of the public who use the roads”: Hundal , at p. 884 (emphasis added). With respect to the text of the provision, Cory J. observed that it creates an offence of driving “in a manner that is dangerous to the public, having regard to all the circumstances” and this suggests an objective standard: “The ‘manner of driving’ can only be compared to a standard of reasonable conduct” (p. 885). So in the case of dangerous driving both the text and nature of the provision, as well as other factors, provided strong support for an objective fault element. None of those factors is present in the s. 218 offence. [58] Next, there are offences which are expressed in terms of careless conduct, such as the careless storage of firearms . In R. v. Finlay , [1993] 3 S.C.R. 103, the Court concluded that the carelessness targeted by the offence is not consistent with subjective fault. The provision required the Crown to establish that a firearm was used, carried, handled, shipped or stored “in a careless manner or without reasonable precautions for the safety of other persons”. The use of the word “careless” and the reference to “reasonable precautions” were clear markers of objectively assessed fault (pp. 114-15). There is no similar language in s. 218. [59] A third category relates to so-called predicate offences. These are offences such as unlawful act manslaughter and unlawfully causing bodily harm which require the commission of an underlying unlawful act. They have been found to require the mental element for the underlying offence but only objective foresight of harm flowing from it : see, e.g., R. v. DeSousa , [1992] 2 S.C.R. 944 (unlawfully causing bodily harm); R. v. Creighton , [1993] 3 S.C.R. 3 (unlawful act manslaughter). Without reiterating the detailed reasons given in those cases, I simply underline that these offences are ones in which the commission of the predicate or underlying offence has actual and serious consequences. As Sopinka J. said in DeSousa (at p. 967) and McLachlin J. repeated in Creighton (at p. 55): “The implicit rationale of the law in this area is that it is acceptable to distinguish between criminal responsibility for equally reprehensible acts on the basis of the harm that is actually caused.” This rationale has no application to s. 218; there is neither a predicate offence nor any need to show that actual harm resulted from the conduct in the child abandonment offence. [61] [Fourth] … criminal negligence requires a marked and substantial departure from the conduct of a reasonably prudent person in circumstances in which the accused either recognized and ran an obvious and serious risk or, alternatively, gave no thought to that risk: R. v. J.F. , 2008 SCC 60, [2008] 3 S.C.R. 215, at paras. 7-11. [Emphasis added.] [77] Other language indicative of an objective standard was reviewed by Professor Stuart in Canadian Criminal Law: A Treatise , 6th ed (Scarborough: Carswell, 2011) at 274: .The Criminal Code has long contained a wide variety of offences which expressly adopt an objective standard such as “ought to”, “reasonable care”, “good reason”, “reasonable ground”, “reasonably expected” or “reasonable steps”. [78] What of the word “fails” used in s. 145(3)? In my view it is a neutral one. “Fails” can connote neglect, but as my colleague notes, also means acting contrary to the agreed legal duty or obligation and being unable to meet set standards or expectations: The Oxford English Dictionary , 11 th ed, sub verbo “fail”. That definition is equally compatible with intentional conduct or inadvertence. [79] My colleague places considerable emphasis on the duty-based nature of s. 145(3) and the risk-based nature of bail provisions, relying on the “fifth category” of objective fault offence described at para. 63 of A.D.H. In my respectful view, however, s. 145(3) does not fit that category of offence for the following reasons. [80] First, the duty-based offences discussed in A.D.H. ----ss. 215, 216, 217, and 217.1---expressly include the word “duty”. Section 145(3) does not, and the omission is a significant one. In A.D.H. the majority concluded that s. 218 (child abandonment) imported a subjective standard and was distinguishable from the other objective fault offences noted above because s. 218 was not defined in terms of failure to perform specified legal duties: at paras. 66, 68. That was found to be so despite the nature of the offence which could be described as imposing a duty on caregivers to behave in a particular way — just as persons released on bail have a duty to comply with the conditions of their release. [81] More importantly, the objective fault offences addressed in A.D.H. impose duties that have to be given content by reference to an objective societal standard . Section 215 imposes a duty on persons in various relationships to provide necessaries of life, such as the duty owed by parents to their children. Section 216 imposes a duty on persons undertaking acts dangerous to the life of another person, such as medical procedures, to possess and use reasonable knowledge, skill and care in doing so. Section 217 imposes a general duty on persons to follow through with an act that they have undertaken to complete if omitting to do so would be dangerous to life; and section 217.1 imposes a duty on persons who undertake or have the authority to direct how others complete work or perform tasks in the workplace to take reasonable steps to prevent bodily harm arising from the work or task. [82] As Chief Justice Lamer observed in Naglik at 141: With respect to the wording of s. 215, while there is no language in s. 215 such as “ought to have known” indicating that Parliament intended an objective standard of fault, the language of s. 215 referring to the failure to perform a “duty” suggests that the accused’s conduct in a particular circumstance is to be determined on an objective, or community, standard. The concept of a duty indicates a societal minimum which has been established for conduct : as in the law of civil negligence, a duty would be meaningless if every individual defined its content for him or herself according to his or her subjective beliefs and priorities. Therefore, the conduct of the accused should be measured against an objective, societal standard to give effect to the concept of “duty” employed by Parliament . [Emphasis added.] [83] In contradistinction, when an accused is released on bail there is no need to import a societal minimum to define the content of expected conduct. Rather, as in the present case, detailed and particular expectations of conduct are imposed, such as being at a particular address between fixed hours, abstaining from illicit drugs, refraining from contacting identified persons, reporting to a bail supervisor, and so on. Even the more general requirement to keep the peace and be of good behaviour has a defined content: R. v. W. (L.T.) , 2004 N.J. No. 260. There is thus no need to import a societal standard against which the accused’s conduct should be objectively measured in order to give effect to the obligation imposed by s. 145(3). [84] Second, unlike my colleague, I do not view Professor Roach’s inclusion of “disobeying a court order” on his list of duty-based offences as supportive of the argument that s. 145(3) falls into the fifth category of duty-based offences described in A.D.H. The passage from Professor Roach’s text quoted by Moldaver J. in dissent addresses the distinction in law between acts of commission and acts of omission. Most penal provisions are directed at acts of commission — i.e., “Don’t do X”. Generally, an act of omission — doing nothing — will not constitute the actus reus of an offence. Thus it is necessary to impose a legal duty to act before a failure to act can be considered an offence. In the passage relied on by my colleague, Justice Moldaver provides that context, saying: [121]    Likewise, Professor Roach, at pp. 115-16 of his text, explains that although an omission will not generally constitute the actus reus of an offence, a failure to act will suffice where an individual has a “specific legal duty to act”. He then includes child abandonment in his list of duty-based offences: There is a duty to use reasonable care when providing medical treatment or other lawful acts that may endanger the life of others. This duty was breached by a person who donated blood that he knew was infected with HIV. It is also an offence not to use reasonable care in handling explosives; to disobey a court order; to fail to assist a peace officer when requested; to abandon a child; not to obtain assistance in child-birth; to fail to stop when your vehicle is involved in an accident; to neglect animals; and to fail to take steps to protect holes in ice or open excavations. [Footnotes omitted; emphasis in original omitted; p. 116.] It is in this particular context that compliance with a court order is described as a duty-based offence. [85] Further, I note that Professor Roach includes s. 218 in the list of duty-based offences---the duty not to abandon a child---which the majority in Naglik found to be a subjective fault offence. In other words, the fact that an offence may be described as duty-based does not lead to the inexorable conclusion that it imports an objective standard of fault. [86] Third, an objective standard of fault is often used to penalize conduct which, even though inadvertent, may have appalling consequences for others, such as dangerous driving or careless use or storage of a firearm. The duty-based offences described in the fifth category of A.D.H. are found in the Criminal Code under the heading “Duties tending to preservation of life”. In relation to conduct of this kind, Parliament has seen fit to impose a minimum uniform standard of care and to punish departures from that standard even in the absence of intentional conduct. In my view, bail conditions are not of that ilk. They are intended to minimize flight risk, maintain public confidence in the administration of justice, and protect the public, but a breach will not generally give rise to the same level of risk of direct and significant harm to persons or property. [87] In my view, there is much to recommend a subjective standard of fault in relation to breach of bail conditions. An objective standard of fault does not permit consideration of the inexperience, lack of education, youth, cultural experience, or any other circumstance of the accused: Creighton at 58–74 ( per McLachlin J.), 38–39 ( per La Forest J.); Naglik at 148 ( per McLachlin J.), 149 ( per L’Heureux-Dub é J.). Under an objective fault standard, only incapacity or virtual inability to comply with a bail condition — such as a severe illness or severe weather preventing travel — would prevent conviction. Some have argued that “[j]udging everyone by an inflexible standard of a monolithic reasonable person, where an accused could not have measured up” may in effect amount to absolute liability: see Stuart, Canadian Criminal Law at 280; see also Creighton at 26 ( per Lamer C.J.). Further, the addition of a defence of “lawful excuse” does not address all of the circumstances in which an objective standard could work an injustice — which in part explains, in my view, the reluctance of trial judges to adopt it. [88] R. v. Josephie , 2010 NUCJ 7, is one such example. In that case, Mr. Josephie was charged with failing to appear. He had forgotten to attend court. Kilpatrick J. described the circumstances of the offence as follows: [2]        Mr. Josephie was released by the RCMP Kimmirut detachment on a promise to appear dated May 15 th , 2009. This document compelled him to attend court in Kimmirut on October 13 th , 2009. [3]        In July, Mr. Josephie’s daughter became ill with the H1N1 virus. She was in the prime of her life and eight months pregnant when she passed away. The unborn child died with her. [4]        Mr. Josephie travelled from Kimmirut to Arviat for the funeral. On the return trip, he decided to relocate to Iqaluit. He did not go back to Kimmirut to pick up his belongings. The promise to appear was among the personal effects left behind in Kimmirut. [5]        Mr. Josephie was devastated by the loss of his daughter. He struggled to come to terms with the awful finality, and cruel circumstances of this untimely death. In the weeks following the funeral, he thought of little else. Mr. Josephie slumped into a depression. [6]        Mr. Josephie says that while he grieved he did not direct his mind to his coming court appearance. He says that he did not remember that he had court until he was told by the RCMP in January 2010 that a warrant had issued for his arrest. After being told that he had missed court, Mr. Josephie promptly attended the Court house in Iqaluit to clear the warrant. [7]        Mr. Josephie concedes that after leaving Kimmirut for the funeral he took no special steps to help him remember his court date. [89] The Crown argued in that case that once it had proved beyond a reasonable doubt that Mr. Josephie had failed to appear in court as required by law, the onus of proof shifted to him to establish a lawful excuse. Crown counsel argued that Mr. Josephie was objectively negligent because he took no steps to remind himself of his court date and there was no lawful excuse he could advance to explain his failure to appear. Kilpatrick J. observed that: [24]      The introduction of an objective fault standard might make for a more efficient criminal justice system, but such a system would not necessarily achieve greater justice. Such efficiency would undermine the philosophical underpinnings upon which the criminal justice system is built. It would confuse society’s rationale for the punishment of crime. [25] An objective mens rea requirement would criminalize the behaviour of a wide range of citizens who are challenged by mental disabilities and psychological and psychiatric disorders. The objective standard of reasonable diligence would cast its net broadly. Many disadvantaged individuals, including those afflicted by Fetal Alcohol Spectrum disorder, would not likely measure up to such a standard . [Emphasis added.] Ultimately he acquitted the accused saying: [29]      Mr. Josephie may have been negligent in not taking reasonable steps to remember his court date. However, this is not the test for criminal liability. His stated reasons for failing to attend court are not seriously challenged by the Crown. Mr. Josephie was not shaken in cross examination. The only evidence before me is that he did not address his mind to his court obligations at all in the wake of a profound personal tragedy. [90] To the extent that it might be argued that an objective standard makes for the more orderly administration of justice, that could be said of all Criminal Code offences, and yet the subjective standard remains presumptively and firmly in place. The fear that an accused will be able to avoid conviction for breach of a bail condition by simply asserting “I forgot the date”; or “I did not hear the police knocking” is in my opinion overstated. That fear underestimates the intelligence and common sense of triers of fact. As the Alberta Court of Queen’s bench observed in R. v. Loutitt at para. 17, “The sky will not fall if the Crown has to prove a mental element.” [91] In summary, I see no basis in the context or language of s. 145(3) to displace the presumption of subjective intent. It would follow that, to prove the mental element of breach of a bail condition, the Crown must prove that the accused person knew their conduct would infringe a condition of release, was reckless, or was wilfully blind. [92] I turn now to the application of that standard to the circumstances of the present case. [93] As noted above, subjective fault may be established where the accused intentionally commits the prohibited act, or does so recklessly with knowledge of the facts constituting the prohibited conduct, or is wilfully blind: Sault St. Marie at 1309. [94] In my view the uncontested facts establish that Mr. Zora was reckless. Mr. Zora testified that he often went to bed early, about 8 or 8:30 pm and slept heavily. He said he was aware that when in his bedroom he could not hear someone at the front door. In cross-examination, after acknowledging that the police had been checking in on him almost every day to ensure compliance with his curfew, this exchange took place: Q         Okay. And -- and where was your bedroom located at that time? A          At that time it was downstairs in the far side of the house in the -- basically we have a two-level house and it was in the bottom -- if you're looking at the house from the street, it was the very bottom right side. Q         Okay. A          There's actually an outside door that leads to the garage from there. Q         So it was at the -- the front of the house that's facing the street? A          Very front, yeah, front on the right side of the street. Q         Could you hear the doorbell from that bedroom? A          No. Q         So how is that you attended at the door on those earlier occasions? A          Well, I don't sit in my room all day, I was just out a bit -- we have a TV in the living room. Q         But the police were coming later at night. A          Well, they -- Q         To check on you. A          -- they've been coming at random times. Q         Okay. Was there ... A          He was just there at an earlier time, I just wasn't in my room at that point. Q         And when did you move upstairs? A          I moved upstairs after I found out I had the first breach after I got out of CDRC, I moved all my stuff upstairs and put cameras up and everything just to try to make sure I didn't get any more breaches. Q         So when did you put the cameras up? A          When I got out of CDRC. Q         When was that? Like what month? A          I -- I went in October, so November probably. Q         Okay. So after -- after these alleged offence dates you put the camera up? A          When he told me I had a breach and he said he was here and we got -- you know, I was like, "I've been here" and whatnot, I put cameras up to see -- so I could -- with video and audio so I can know when somebody is at the door when I'm upstairs just so I don't miss the door and I also now, like I said, sleep downstairs on the couch so I really don't miss the door. Q         And does that -- does that camera record -- A          No. Q         -- movement? A          It's a baby monitor basically. Q         Okay. A          It's a video baby monitor so I can hear everything that's going on outside the front door and see. [95] In my view, an accused who is required by his bail conditions to appear at the door when police attend, knows that he will not hear them ring or knock if he is in certain parts of his residence, and makes no effort to address that situation, displays recklessness consistent with a guilty mind. The problem Mr. Zora ignored was readily solved after he was charged with breach of the terms of his release: he began sleeping in a different bedroom and used a commonplace baby monitor. [96] In this case, the application of either a subjective or objective standard of fault leads to the same result, but that will not always be so. With great respect to those whose views may differ, I conclude that s. 145(3) requires the Crown to prove a subjective standard of mental fault. “The Honourable Madam Justice Fenlon”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Scofield, 2019 BCCA 3 Date: 20190111 Docket: CA45220 Between: Regina Appellant And Dylan William Scofield Respondent Restriction on Publication: A publication ban has been mandatorily imposed under s. 486(4.1) of the Criminal Code restricting the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness, referred to in this judgment by the initials L.N. and M.L. This publication ban applies indefinitely unless otherwise ordered. Section 16(4) of the Sex Offender Information and Registration Act : 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 Mr. Justice Harris The Honourable Mr. Justice Savage The Honourable Madam Justice Fisher On appeal from:  Orders of the Supreme Court of British Columbia, dated January 23, 2018 ( R. v. Scofield , 2018 BCSC 91, Vernon Registry 48854) and March 16, 2018 ( R. v. Scofield , 2018 BCSC 419, Vernon Registry 48854). Counsel for the Appellant: L.A. Ruzicka Counsel for the Respondent: J.R. Avis Place and Date of Hearing: Vancouver, British Columbia September 24, 2018 Place and Date of Judgment: Vancouver, British Columbia January 11, 2019 Written Reasons by: The Honourable Mr. Justice Harris Concurred in by: The Honourable Mr. Justice Savage Concurring Reasons (Dissenting in part) by: The Honourable Madam Justice Fisher (Page 33, para. 90) Summary: Crown appeal from imposition of conditional sentence of 6 months after guilty plea to two counts of sexual interference and declaration that mandatory minimum of one‑year imprisonment is unconstitutional. Held: appeal allowed to the extent that a conditional sentence of one year is substituted (Fisher J.A., dissenting in part would have imposed a 16‑month conditional sentence). Per the court, the mandatory minimum is unconstitutional. The judge erred in treating certain factors as mitigating. Per Harris and Savage JJ.A., deferring to the judge’s findings about moral culpability based in Mr. Scofield’s cognitive disabilities, a fit sentence would be a 12‑month CSO. Per Fisher J.A., the judge over emphasized Mr. Scofield’s disability in light of the seriousness of the offence and would have substituted a 16‑month CSO. Reasons for Judgment of the Honourable Mr. Justice Harris: Overview [1] The Crown appeals a six‑month conditional sentence order (“CSO”) imposed on Mr. Scofield after he pleaded guilty to two counts of sexual interference contrary to s. 151 of the Criminal Code , R.S.C. 1985, c. C‑46 [ Code ]. Section 151(a) of the Code provides for a one‑year mandatory minimum sentence where the Crown proceeds by indictment, as it did here. [2] This appeal was heard at the same time as the appeal of R. v. Horswill , indexed as 2019 BCCA 2, because both cases raised the issue of the constitutionality of the mandatory minimum sentence. These reasons analyze that common issue. The reasons in Horswill should be read in conjunction with these reasons. I am grateful to counsel in Horswill for their submissions on the common issue. [3] Mr. Scofield challenged the mandatory minimum sentence in s. 151(a). He sought an order declaring that the mandatory minimum infringes s. 12 of the Canadian Charter of Rights and Freedoms [ Charter ], is not saved by s. 1 of the Charter, and is of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982. [4] The judge concluded a six‑month CSO was a fit and proportionate sentence meeting the objectives of the Code after taking into account the gravity of the offence and Mr. Scofield’s personal circumstances. He then concluded: [128]    … the one‑year mandatory minimum sentence mandated by s. 151(a) requires me to impose a sentence that is not only excessive or disproportionate to what Mr. Scofield’s sentence should be, but grossly disproportionate to what is fit and proportionate. It is therefore inconsistent with and violates s. 12 of the Charter as amounting to cruel and unusual punishment . While I have not addressed the “reasonable hypothetical” case under the s. 12 analysis, I find that the facts of this offence constitute a strong “reasonable hypothetical” for why this mandatory minimum sentence can be grossly disproportionate when applied to a narrow range of offenders. [5] The Crown submits the judge erred in declaring the mandatory minimum sentence unconstitutional. Specifically, the judge erred in his application of the sentencing principles in two ways. First, he treated the absence of certain aggravating factors as mitigating factors. Second, he erred in fact and law when assessing Mr. Scofield’s cognitive deficits as they relate to his moral culpability. Both errors are alleged to have materially affected the sentence. As a result, this Court is not required to defer to the judge’s assessment of a fit sentence and must determine a fit sentence itself. The Crown contends the judge imposed a demonstrably unfit sentence. In light of plea arrangements, the Crown submits a sentence of one‑year imprisonment should be imposed. The Mandatory Minimum Sentence Regime for S. 151 of the Code [6] The framework for analyzing whether mandatory minimum sentences are unconstitutional was conveniently summarized by Madam Justice Bennett in R. v. Swaby , 2018 BCCA 416; a case declaring the mandatory minimum sentence of 90 days’ imprisonment for possession of child pornography unconstitutional: [55]      Since the introduction of the Charter , mandatory minimum sentences imposed by Parliament have been subject to the scrutiny of s. 12, which provides: Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [56]      In R. v. Smith , [1987] 1 S.C.R. 1045, the Supreme Court of Canada, for the first time, struck down a mandatory minimum sentence on the basis that it violated s. 12. While the majority found that the mandatory sentence of seven years’ imprisonment for importing drugs would not be “grossly disproportionate” in all cases, it held that such a sentence could constitute “cruel and unusual punishment” in a reasonable hypothetical factual matrix (at 1077‑78). [57]      Proportionality is an essential ingredient of a just sentence ( R. v. Nur , 2015 SCC 15 at para. 43). In Smith , the majority discussed the meaning of gross disproportionality at 1072‑73: The limitation at issue here is s. 12 of the Charter . In my view, the protection afforded by s. 12 governs the quality of the punishment and is concerned with the effect that the punishment may have on the person on whom it is imposed. I would agree with Laskin C.J. in Miller and Cockriell , [[1977] 2 S.C.R. 680], where he defined the phrase “cruel and unusual” as a “compendious expression of a norm”. The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. in Miller and Cockriell , supra , at p. 688, “whether the punishment prescribed is so excessive as to outrage standards of decency”. In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate. Section 12 will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate. In assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender. The other purposes which may be pursued by the imposition of punishment, in particular the deterrence of other potential offenders, are thus not relevant at this stage of the inquiry. This does not mean that the judge or the legislator can no longer consider general deterrence or other penological purposes that go beyond the particular offender in determining a sentence, but only that the resulting sentence must not be grossly disproportionate to what the offender deserves. If a grossly disproportionate sentence is “prescribed by law”, then the purpose which it seeks to attain will fall to be assessed under s. 1. Section 12 ensures that individual offenders receive punishments that are appropriate, or at least not grossly disproportionate, to their particular circumstances, while s. 1 permits this right to be overridden to achieve some important societal objective. [58]      The Supreme Court recently examined mandatory minimums in Nur and R. v. Lloyd , 2016 SCC 13 [ Lloyd SCC]. In Nur , the Court affirmed the Smith approach to gross disproportionality and identified the “high bar” for what constitutes “cruel and unusual punishment” under s. 12 of the Charter . The Court elaborated at para. 39: [39]      This Court has set a high bar for what constitutes “cruel and unusual…punishment” under s. 12 of the Charter . A sentence attacked on this ground must be grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: R. v. Smith , [1987] 1 S.C.R. 1045, at p. 1073. Lamer J. (as he then was) explained at p. 1072 that the test of gross disproportionality “is aimed at punishments that are more than merely excessive”. He added, “[w]e should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation”. A prescribed sentence may be grossly disproportionate as applied to the offender before the court or because it would have a grossly disproportionate impact on others, rendering the law unconstitutional. [62]      In Nur , the majority set out the analytical process to be followed when a mandatory minimum sentence is challenged. First, the court must determine what constitutes a proportionate sentence for the offence based on the objectives and principles of sentencing in the Code (para. 46). Second, it must decide, bearing the proportionate sentence in mind, whether applying the mandatory minimum would result in a grossly disproportionate sentence for the offender before the court (para. 46). Third, if the sentence is not grossly disproportionate for that offender, the court must then consider whether any “reasonably foreseeable applications” of the provision will result in grossly disproportionate sentences for other offenders (para. 77). If the answer to either of the latter two questions is yes, then the mandatory minimum sentence is inconsistent with s. 12 and “will fall unless justified under s. 1 of the Charter ” (paras. 46, 105‑106). [7] Section 151 of the Code , which I will refer to as “sexual interference”, is a hybrid offence: the Crown may elect to proceed by way of indictment or summary conviction. That section reads: 151 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 (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or (b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days. [8] Section 151.1(1) of the Code establishes that a person under the age of 16 years cannot legally consent. The section provides that de facto consent is not a defence to sexual interference: 150.1 (1) Subject to subsections (2) to (2.2), when an accused is charged with an offence under section 151 or 152 or subsection 153(1), 160(3) or 173(2) or is charged with an offence under section 271, 272 or 273 in respect of a complainant under the age of 16 years, it is not a defence that the complainant consented to the activity that forms the subject-matter of the charge. [9] However, the Code provides for a number of exceptions. For example, consent is a defence to sexual interference when the accused is less than five years older than a 14- or 15‑year‑old complainant. This is known as the ‘close-in-age’ exception. The section reads: 150.1 (2.1) If an accused is charged with an offence under section 151 or 152, subsection 173(2) or section 271 in respect of a complainant who is 14 years of age or more but under the age of 16 years, it is a defence that the complainant consented to the activity that forms the subject-matter of the charge if the accused (a) is less than five years older than the complainant; and (b) is not in a position of trust or authority towards the complainant, is not a person with whom the complainant is in a relationship of dependency and is not in a relationship with the complainant that is exploitative of the complainant. [10] A mandatory minimum sentence for sexual interference was first introduced late in 2005. Between November 1, 2005, and August 8, 2012, the mandatory minimum sentence was 45 days for an indictable offence and 14 days for a summary conviction offence. The section was amended in 2012 and the mandatory minimum sentence is now one year for an indictable offence and 90 days for a summary offence. The age of consent has also been amended, increasing from 14 to 16 years. Since July 17, 2015, the maximum term of imprisonment increased to 14 years. The close-in-age exception was first introduced in early 2003 with a two‑year age exception, which was amended to five years in 2008. [11] The one‑year mandatory minimum sentence in s. 151 has been declared constitutional twice in B.C.: R. v. E.M.Q. , 2015 BCSC 201, and R. v. [M.S.H.] , 2017 BCSC 35 (unreported). [12] The mandatory minimum has been declared unconstitutional in some other provinces: see e.g., R. v. M.L. , 2016 ONSC 7082 (also indexed as R. v. Laviolette ); R. v. B.J.T ., 2016 ONSC 6616 (Crown appeal pending; heard September 21, 2018); R. v. S.J.P. , 2016 NSPC 50; R. v. Hood , 2018 NSCA 18, aff’g 2016 NSPC 78; R. v. J.E.D. , 2018 MBCA 123, aff’g 2017 MBPC 33; Caron Barrette c. R. , 2018 QCCA 516; and R. v. Ford , 2017 ABQB 322 (breach ruling), 2017 ABQB 527 (s. 1 ruling) (Crown appeal pending). The Alberta Court of Appeal recently upheld the constitutionality of the one‑year mandatory minimum sentence for the related offence of sexual exploitation in s. 153 of the Code : R. v. E.J.B. , 2018 ABCA 239. This Court and the Ontario Court of Appeal recently found the mandatory minimum sentence for possession of child pornography infringed s. 12: Swaby ; R. v. John , 2018 ONCA 702, rev’g in part 2017 ONSC 810. Summary of the Offences [13] Mr. Scofield was 22 years old at the time of the offences. He is significantly cognitively impaired. [14] Mr. Scofield was charged on a six‑count indictment involving two 15‑year‑old girls, L.N. and M.L.: one count each under s. 151 (sexual interference), s. 152 (invitation to sexual touching), and s. 271 (sexual assault) of the Code . After the judge ruled his videotaped statement to the RCMP voluntary, Mr. Scofield pleaded guilty to two counts of sexual interference. As part of the plea arrangement, the Crown agreed not to seek a sentence longer than the one‑year mandatory minimum. [15] The offences occurred between June and October 2013. [16] The Crown and Mr. Scofield entered into an agreed statement of facts for sentencing. The relevant admissions are: a. L.N. was born January 25, 1998, and was 15 years of age from June to October 2013. b. M.L. was born March 29, 1998, and was 15 years of age from June to October 2013. c. Mr. Scofield was born June 11, 1991, and during the time of these offences was just turning 22 years of age. d. The difference in ages between Mr. Scofield and the two complainants was six years. e. Mr. Scofield was first introduced to L.N. through a Grade 9 school friend and Facebook contacts. The two messaged through Facebook. L.N. met him for the first time at her school during recess break in late May 2013. f. Mr. Scofield had a car and the two of them went for a drive; L.N. told him at that time she was 15 years old. g. Over the next two weeks and into June 2013, Mr. Scofield picked her up at school in his car and they drove around…. Mr. Scofield inserted his hand into L.N.’s pants under her underwear and rubbed her clitoris. L.N. performed fellatio on him. This was L.N.’s first sexual experience. h. At the end of June 2013, Mr. Scofield drove L.N. home in the early hours of the morning, and L.N. invited him into her bedroom where they had unprotected vaginal intercourse. i. L.N. was fearful that she might be pregnant and broke off her relationship with Mr. Scofield. j. Mr. Scofield next contacted L.N. on October 23, 2013. He asked her to hang out with him. L.N. agreed. They drove to a beach where they engaged in oral sex and unprotected vaginal intercourse. k. Mr. Scofield engaged in sexual activities with L.N. four or five times during this period. He then broke up with her. L.N. texted him stating that she had told her mother about the relationship and that her mother had gone to the police. l. L.N. attended at [a hospital] on October 28, 2013, and a sexual assault examination was conducted. There were no injuries noted during the physical examination. m. Mr. Scofield made contact with M.L. through an Internet relationship program called “MeetMe”. Mr. Scofield and M.L. texted each other in May 2013, but didn’t meet each other until October 2013, at a Tim Hortons. They went for a drive in Mr. Scofield’s car to a local lookout. M.L. told Mr. Scofield that she was 15 years old and he told her that he was 23 years of age. n. They next went to Mr. Scofield’s parents’ home and into his basement bedroom. o. M.L. performed fellatio on Mr. Scofield and he ejaculated into her mouth. p. The two met the following morning … where M.L. introduced Mr. Scofield to her mother. q. Later that day M.L. and her mother got into an argument, and M.L. texted Mr. Scofield asking him to pick her up. Mr. Scofield complied. r. They drove to a lookout where they had sexual intercourse in Mr. Scofield’s car. s. A few days later, Mr. Scofield dropped by M.L.’s house where they engaged in unprotected vaginal intercourse on the couch. t. M.L. later texted Mr. Scofield asking if he wished to continue the relationship, to which he replied “No”. u. Mr. Scofield deleted his text messages every night to ensure his parents wouldn’t find out about his relationships with L.N. and M.L. Reasons for Sentence [17] The reasons for sentence are indexed as 2018 BCSC 91 (constitutional declaration and sentence), and 2018 BCSC 419 (supplementary reasons). [18] The judge outlined the aggravating and mitigating factors as follows: [79]      The aggravating factors are that: a.   the incidents involved two females under the age of 16. This is a statutorily aggravating factor; b.   Mr. Scofield’s involvement with L.N. and M.L. were not isolated acts or moments of loss of control as a result of impulsivity; c.   Mr. Scofield was aware that L.N. and M.L. were each 15 years old and in Grade 9; d.   Mr. Scofield had unprotected vaginal intercourse with both L.N. and M.L.; e.   Mr. Scofield admits to engaging in sexual activities four to five times with L.N. and on at least two occasions with M.L.; and f.    the offences continue to have a significant emotional impact on L.N. [80]      The mitigating factors are that: a.   Mr. Scofield entered guilty pleas on counts 1 and 4 of the indictment on the third day of trial which is an indication of some acceptance of responsibility; b.   the two young complainants were spared the necessity of testifying at trial which would no doubt have been a difficult experience for them; c.   Mr. Scofield has no criminal record; d.   Mr. Scofield has a supportive mother and continues to live in a stable environment in a suite in his mother’s home; e.   Mr. Scofield has a severely diminished level of cognitive and executive decision-making abilities. He has an IQ of 59; f.    Mr. Scofield has been assessed as low to moderate risk for reoffending without ongoing support and supervision; g.   Mr. Scofield exhibited no predatory behaviour and was not in a position of trust or authority over either L.N. or M.L.; and h.   there is no evidence before me of deception, coercion, manipulation, threats, or violence on the part of Mr. Scofield towards either complainant and each relationship appeared to be one of willing participants. [19] The parties agree the judge identified the correct principles of sentencing and the proper analytical framework to assess the constitutionality of s. 151(a). The judge recognized: [56]      The primary objectives of sentencing are deterrence and denunciation, in particular when the offences involve harm to children. This is both recognized under the Code (s. 718.01) and by the Supreme Court of Canada which recently confirmed that sexual crimes are disproportionately committed against vulnerable populations, particularly against youth: R. v. George , 2017 SCC 38 at para. 2. It is important that sentences serve as a deterrent to the offender subject to the overriding principle that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility or moral blameworthiness of the offender. [57]      Section 718.01 of the Code requires me to give primary consideration to the objectives of denunciation and deterrence when sentencing for an offence involving abuse of a person under the age of 18 years. [58]      Imposing a proportionate sentence is a highly individualized exercise. Considerations include the objective of denunciation, promoting justice for victims, ensuring public confidence in the justice system, but I must also ensure it does not exceed what is appropriate in the circumstances. In other words, the sentence must be one that the offender deserves. [59]      When the Crown proceeds by way of indictment, as it has here, an offence under s. 151 of the Code carries a maximum term of imprisonment of 14 years and a mandatory minimum term of imprisonment of one year, though at the time these offences were committed, the maximum term of imprisonment was 10 years (R.S. 2012, c. 1, s. 11). [60]      As the Court stated at para. 44 of R. v. Nur , 2015 SCC 15: [44]      Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing. [20] The judge emphasized the seriousness of the offences and that Mr. Scofield’s conduct caused significant harm to each of the victims. Indeed, L.N. submitted victim impact statements attesting to her ongoing mental and physical distress from Mr. Scofield’s conduct. [21] The judge was also alive to the purpose underlying these offences; namely, the pressing need to protect vulnerable youth from sexual exploitation and victimization by older persons. Accordingly, his analysis started by acknowledging that he was required to give primary consideration to denunciation and deterrence. [22] Applying these sentencing principles to his analysis of case law, the judge concluded that the sentencing range for sexual interference is imprisonment between 9 and 18 months: at paras. 91, 95, 113. He accepted the possibility that even first-time offenders with good prospects of rehabilitation might attract a sentence of three years for this very serious offence: at paras. 83, 86, 88 referring to R. v. G.R.L. , 2016 BCSC 293; R. v. Florence , 2010 BCSC 1010; R. v. Aimee , 2010 BCSC 1463. [23] However, the judge observed that many of the cases supporting the 9- to 18‑month range involved abuse of authority or trust; coercion; repeat offenders; a stark difference in age between the accused and the complainant; or evidence of exploitation, violence, or threats: at para. 92. [24] The judge decided a proportionate sentence fell below that range because those factors were absent from Mr. Scofield’s particular circumstances: [93]      Here, there was no violence, threats, coercion, inducements or predatory behaviour on Mr. Scofield’s part. The element of exploitation that exists in the cases cited by the Crown distinguishes them from this case. Further, Mr. Scofield had the psychological capacity and maturity of someone much younger than his chronological age of twenty‑two. [25] Additionally, the judge, at para. 94, cited R. v. Lacasse , 2015 SCC 64 at para. 58, for the proposition that while parity in sentencing is important, each crime is committed in unique circumstances sometimes calling for a sentence outside the range in exceptional circumstances because, in part, “[t]he determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation”. In doing so, he accepted the sentencing range was 9 to 18 months but concluded that “ the unique and exceptional circumstances of both the offender and the offence in this case, in my view, suggest that the fit and appropriate sentence should be below the typical range”: at para. 95. [26] Since key elements of the judge’s analysis are criticized on appeal, it is useful to quote directly from his reasons and emphasize the sentences that are material to Mr. Scofield’s moral blameworthiness: [96]      Dr. Joneja suggests it is possible that, upon Mr. Scofield learning L.N. and M.L. were 15 years old, he did not know what to do with that information or what the significance or implications of them being 15 were . This is very important. She comments that someone who experiences deficits with abstract thinking and metacognitive skills might require a specific response such as “no” before understanding he or she must refrain from behaving in a particular manner. This is important when assessing the moral blameworthiness of Mr. Scofield . [97]      On first blush, Mr. Scofield’s Statement suggests that his answers to the RCMP interviewer show that despite his intellectual challenges, he knew that both L.N. and M.L. were aged 15 at the time and that having sex with them might be problematic. It triggered an internet inquiry that for reasons that are unclear, did not help his quandary. Given his intellectual deficits, I am not satisfied that he would have been able to understand his acts were potentially harmful to L.N. and M.L. as under-aged girls . The fact that M.L. introduced him to her mother would not have helped with him understanding that what he was engaged in was wrong. [98]      Without deciding the point one way or the other, I note that Mr. Scofield’s diminished mental capacity could arguably have fit the “close in age exception” under s. 150.1(2.1) and has been a defence to the s. 151 charges because, as I understand it, the consent provisions in the Code allow for the kind of sexual experimentation that is normal among teenage persons who are exploring their sexuality, but condemn exploitive situations where significantly older persons take advantage of someone who is sexually immature and who is vulnerable to harm from sexual relations. [99] I conclude that Mr. Scofield’s cognitive disabilities and impaired executive decision-making brought his maturity and reasoning to that of a much younger person well within the five-year age exception in s. 150.1(2.1) and diminishes his moral blameworthiness . These circumstances would not warrant the same period of custody as someone who, for example, abused a six‑year‑old relative. [100]    I am also guided by the factors for consideration in sentencing for sexual offences: the nature and intrinsic gravity of the offences (in particular the use of threats, violence, psychological threats and manipulation, etc.), the frequency of the offences, any abuse of trust and authority, any disorders underlying the commission of the offence, the offender’s behaviour after the commission of the offences, the time between the commission of the offences and the guilty verdict as mitigating factors depending upon the offender’s behaviour, and the victim: R. v. B.S.B. , 2008 BCSC 1526 at para. 36. [101] I have found this a difficult case. On the one hand Mr. Scofield, who albeit had the chronological age of 22 at the time of the offences but was intellectually much younger, had multiple sessions of sexual relations with two 15-year-old girls over a period of some six months. On the other hand, he is intellectually challenged, clearly has psychological and cognitive issues, and has the same or even less mental maturity as the complainants. Furthermore, there is no violence or threat of violence; he pleaded guilty; he has no criminal record; there was no predatory behaviour; he was not in a position of trust or authority over the complainants, and he now understands that what he did was wrong. [102]    I am satisfied that Mr. Scofield has learned his lesson and specific deterrence is not required. [103]    That leaves denunciation and general deterrence as the primary sentencing considerations. [104]    While his acts are deserving of condemnation, his sentence must be proportional to his moral blameworthiness in committing the offences. [105]    I have already set out the particular and peculiar circumstances of the offences and Mr. Scofield’s unique and exceptional circumstances that result in his moral culpability for the offences being reduced. Accordingly, this case calls for a highly individualized sentence and one that cannot, in my view, be accomplished with a term of imprisonment which would neither be fit nor proportionate. [106]    Mr. Scofield would not do well in an institutional setting and it would likely inhibit his rehabilitative potential. It would be difficult and disruptive for him and he would likely be subjected to hostility from other inmates. I must balance the impact of a period of incarceration against the impact of keeping him in a stable, supportive environment where he is under the supervision of his mother and partner and in a role that requires him to take on some parenting responsibilities. [107]    I have also taken into account the principles of sentencing set out in s. 718 of the Code , including the requirement to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct, and to deter the offender and other persons from committing offences, as well as s. 718.01, summarized earlier. [108]    Mr. Scofield is a first time offender with no prior criminal history who suffers from significant cognitive deficits which loom large. He has been subject to restrictive bail conditions since December 2013, without incident or breaches. The Crown does not suggest his behaviour has been anything but appropriate. I am satisfied that he is unlikely to offend again. [109]    A conditional sentence is a form of incarceration: Proulx at para. 40. The purpose of a conditional sentence is to reduce the reliance on incarceration as a sanction and increase restorative justice objectives: Proulx at para. 127. A conditional sentence includes both punitive and rehabilitative aspects, and is therefore distinguishable from probationary measures, which primarily serve as a rehabilitative sentencing tool: Proulx at para. 127. [Emphasis added.] [27] After examining the principles governing the availability of conditional sentence orders, the judge concluded: [111]    I do not believe that a sentence in the community would endanger the safety of either the complainants or the community. I accept Dr. Joneja’s opinion that Mr. Scofield demonstrated no predilection for underage girls. His risk of re‑offending is low. Furthermore, he comes before me with no criminal record, and is not accused of breaching his bail conditions, which suggests to me that he is a suitable candidate for a sentence in the community. [112]    I have also found that a conditional sentence is consistent with the fundamental purpose and principles of sentencing. That is because both the nature of this offence and the surrounding circumstances, the cognitive difficulties faced by Mr. Scofield, and the pre-sentence report prepared by Dr. Joneja, strongly suggest that specific deterrence is not as required as general denunciation for this offender. Moreover, a conditional sentence can provide a significant amount of denunciation if certain conditions are imposed as part of the order. [113]    Due to the exceptional circumstances of this case, I have concluded that Mr. Scofield’s sentence must fall far below the range of 9 to 18 months that would otherwise be the case. I have found that specific deterrence is not as important a consideration as in comparable sexual interference cases, and that given Mr. Scofield’s highly diminished cognitive skills, a sentence of six months to be served in the community, in other words, a conditional sentence with conditions, would be a fit and proportionate sentence and would meet the sentencing objectives of the Code . It would take into account the gravity of the offences and Mr. Scofield’s personal circumstances. [28] Finally, the judge considered whether the one‑year mandatory minimum sentence amounted to cruel and unusual punishment. He held that it did. [29] In doing so, the judge accepted the goals of the sentencing regime were to protect children from sexual exploitation and abuse. He agreed that any touching of a child for a sexual purpose involved harming the child. [30] He also acknowledged that cases result in incarceration of at least nine months if they involve the typical evil the offence is intended to deter and punish. He reasoned, however: [125]    … in front of me I have an offender who has been assessed at a low risk to reoffend, who has no predilection or affinity for underage girls, and at the time of the offence, was likely unable to make the mental connection that there was something inherently wrong or harmful about his relations with L.N. and M.L. [31] Taking into account all of the relevant principles applied to the facts, the judge concluded that “a reasonably informed member of the public, aware of all the circumstances of this case, would agree that sending Mr. Scofield to prison for one year would be ‘so excessive as to outrage standards of decency’”. This was even more so “as the public is becoming more informed about the impact that mental health issues and cognitive challenges can play in the criminal justice system”: at para. 129. Given his findings on the facts, the judge did not rely on reasonable hypotheticals to support his analysis. [32] The judge deferred passing sentence to allow the Crown to make further submissions on the remedy and on whether the mandatory minimum could be justified under s. 1 of the Charter . Those submissions became the subject of the supplementary submissions resulting in the declaration of unconstitutionality and the imposition of sentence, but they are not relevant to the issues on this appeal. Analysis [33] This appeal involves two issues: first, whether the judge erred in ways leading to a demonstrably unfit sentence; and second, whether the mandatory minimum sentence is unconstitutional. I will address the questions in that order. [34] First, the Crown contends the judge erred in principle in two ways:  by treating the absence of aggravating factors as mitigating factors, and in assessing how Mr. Scofield’s cognitive impairment affected his moral culpability. The Crown argues these errors led to the imposition of a demonstrably unfit sentence and tainted the judge’s analysis of the constitutional issue. While the Crown suggests a sentence in the range of 24 to 36 months would have been fit, it seeks the imposition of the one-year mandatory minimum because of the plea arrangement at sentencing. [35] The first alleged error is treating the lack of non‑sexual violence, coercion, psychological threats or manipulation, and the presence of de facto consent as mitigating factors when they are properly considered as the absence of aggravating factors. Since this error affected the sentence, the Court must examine the fitness of the sentence without deference to the judge: Lacasse at paras. 44‑46; R. v. Agin , 2018 BCCA 133 at paras. 56‑57. [36] The judge expressly referred to the lack of violence, threats and manipulation, and de facto consent as mitigating factors. I agree that none are mitigating factors; each is the absence of an otherwise aggravating factor and, therefore, is not a basis on which to reduce a sentence from what is otherwise appropriate. This proposition is illustrated by the Manitoba Court of Appeal decision in R. v. S.J.B. , 2018 MBCA 62: [20]      The sentencing judge cannot, however, use the absence of an aggravating factor as mitigating or the absence of a mitigating factor as aggravating; to take either path is an error in principle. The absence of a mitigating or aggravating factor is neutral to the determination of sentence. [23]      The judge erred when he characterised the lack of coercion, threat or pressure on the complainant to participate in sexual intercourse as a mitigating circumstance of the commission of the offence. The mere fact the complainant said “sure” to the proposition of the accused to having sexual intercourse does not reduce his moral blameworthiness. [24]      Ostensible consent by a person under age 18, who cannot legally consent to the sexual contact in question, is not a mitigating factor for the determination of the offender’s sentence (see R v Norton , 2016 MBCA 79 at para 42). Given the views of the Supreme Court of Canada in Audet about the irrelevance of consent to criminal liability for the offence of sexual exploitation, it is inappropriate for a sentencing judge to mitigate a sentence because of the young person’s willingness to participate in sexual touching without the exertion or threat of non-sexual violence (see R v JBS , 2009 ABCA 347 at para 4; and R v Hajar , 2016 ABCA 222 at paras 84‑103). [37] The rationale underlying s. 151 is that Parliament deems persons under 16 years of age to be incapable of consenting to sexual activity with an adult, unless they fall within the close-in-age exception. De facto consent does not make the sexual activity less serious, less exploitative, or reduce the moral culpability of the offender. [38] In this case, the judge explicitly treated the lack of violence, coercion, exploitation, and the presence of de facto consent as mitigating factors. In doing so, he erred in principle. Treating them as mitigating factors affected the sentence, reducing it below what it otherwise would have been: see paras. 100‑08, 113. As a result, this Court must determine a fit sentence without deference to the trial judge’s sentence to the extent it was contaminated by the error. This does not mean, however, that this Court should not show deference to any finding of fact or the judge’s reasoning that is not contaminated by this error: Agin at para. 55. [39] Moreover, the Crown conceded that while a lack of violence, coercion, exploitation, and the presence of de facto consent are not mitigating factors, they are, nevertheless, facts that are relevant to the determination of a fit sentence. Had violence or threats occurred or had Mr. Scofield been in a position of trust, for example, a fit sentence would be higher than if those facts were absent. [40] I turn now to the second alleged error, since it too is said to have led to a demonstrably unfit sentence. [41] The Crown accepts that Mr. Scofield has a cognitive disability. The Crown also accepts that key issues on sentencing were the extent of Mr. Scofield’s disability, whether there was a causal connection between his disability and the commission of the offence, and the extent to which his disability affected his moral blameworthiness. The Crown argues the judge committed palpable and overriding errors relating to these issues. [42] The Crown points to evidence establishing that Mr. Scofield was able to function well in society despite his cognitive deficits: he attended high school through grade 12 and obtained a “Leaving School Certificate”; he attended one semester at Okanagan College; he lived independently with his former common-law partner with whom he was in a relationship for several years; he parented his child, with assistance; he set up his own Internet dating profile; he had, by his own account, multiple sexual partners and dated five or six women; he drives a motor vehicle; and he has had some short-term employment positions. [43] The Crown also points to evidence indicating Mr. Scofield knew the ages of both complainants, knew his conduct was wrong, undertook Internet searches to ascertain the age of consent, and deleted text messages so his parents would not learn of his conduct. More generally, the Crown submits that the judge’s findings are irreconcilable with Mr. Scofield’s comments from his RCMP interview. [44] The Crown further argues the expert evidence did not establish that Mr. Scofield’s conduct was the direct result of his disability. While the Crown acknowledges Dr. Joneja testified that Mr. Scofield’s “cognitive deficits influenced his behaviour and were a causal factor to him committing the offences”, the Crown points out that Dr. Joneja also testified that Mr. Scofield’s lack of knowledge that his conduct was illegal was not because of his disability but because he did not have that knowledge as a fact. [45] The Crown acknowledges that an accused’s mental illness or cognitive deficits are relevant factors in sentencing but argues they are only mitigating factors when an established link between them and the offending conduct exists.  It must be demonstrated, not just assumed, that the cognitive deficits have attenuated or diminished the moral blameworthiness of the offender: R. v. Okemow , 2017 MBCA 59 at paras. 72‑73. [46] Additionally, the Crown argues the judge made inconsistent findings of fact regarding Mr. Scofield’s cognitive disability. For example, the judge found that Mr. Scofield recognizes that what he did was wrong (at para. 10) but the judge was not satisfied that Mr. Scofield knew his acts were potentially harmful to L.N. and M.L. (at para. 97) and “at the time of the offence, was likely unable to make the mental connection that there was something inherently wrong or harmful about his relations with L.N. and M.L.”: at para. 125. [47] Finally, the Crown argues that the judge’s findings with respect to intent and cognitive capacity are irreconcilable with Mr. Scofield’s actual conduct during the two offences. The Crown questions how Mr. Scofield could have entered, or the Court could have accepted, a guilty plea to the essential elements of the offence if he had such significant cognitive deficits that he did not understand his conduct was wrong. [48] I am unable to accede to the Crown submission. I do not think the judge made irreconcilable or inconsistent findings of fact, and the judge had sufficient evidence to support his findings about Mr. Scofield’s moral blameworthiness. That evidence was relevant to the level and nature of Mr. Scofield’s cognitive impairment, its relationship to his offending conduct, and to his moral understanding of the offending conduct. [49] I do not think that the facts the judge found undermine the guilty plea, which was taken well after the offending conduct and in circumstances in which the immorality of his conduct was brought to his attention. Moreover, it is not apparent to me that the judge misapprehended the evidence on which the Crown relies. Rather, the judge drew different inferences from the evidence and reached different conclusions on the ultimate question of Mr. Scofield’s moral blameworthiness. In my opinion, we should defer to the judge’s findings on this issue. [50] The reasons for sentence demonstrate that the judge appreciated the evidentiary nuances concerning Mr. Scofield’s insight into his own conduct. The evidence required evaluation, assessment, and interpretation. It needed to be considered in the context of all of the evidence to reach a thoughtful decision on what inferences he could draw from the evidence. The judge was especially alive to the initial impression created by Mr. Scofield’s statements in his police interview. But the judge was equally concerned about how much weight should be placed on the statements; he had to decide whether they could be taken at face value in light of the way the interview was conducted and other evidence about Mr. Scofield’s cognitive disabilities. The judge, who watched Mr. Scofield’s videotaped police interview, was in the best position to engage in that analysis and we should defer to it, unless the judge’s conclusions are so obviously wrong that they amount to palpable and overriding error. [51] In my view, in relation to his factual findings, the issue for the judge was less about whether Mr. Scofield had some understanding that what he did was wrong than about the extent and reality of Mr. Scofield’s understanding of the moral quality of his conduct. This reflects the judge’s concern about the degree of Mr. Scofield’s moral culpability. [52] The judge accepted expert evidence supporting the conclusion that Mr. Scofield did not know what to do with the information about, or understand the significance of, the complainants’ age. The judge found Mr. Scofield’s “cognitive disabilities and impaired executive decision-making brought his maturity and reasoning to that of a much younger person well within the five‑year age exception in s. 150.1(2.1) and diminishe[d] his moral blameworthiness”: at para. 99. The judge found Mr. Scofield was intellectually much younger than his chronological age, was intellectually challenged, had psychological and cognitive issues, and was mentally and emotionally immature. [53] In doing so, the judge pointed to evidence suggesting Mr. Scofield has Fetal Alcohol Spectrum Disorder (though not confirmed) and evidence that his cognitive abilities were in the extremely low (mild mental retardation) to borderline range in intellectual functioning, placing him in the second percentile. The evidence indicated that Mr. Scofield met all three DSM‑IV‑TR criteria for a diagnosis of mental retardation: at para. 34 (see American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders ), revised 4th ed. (Arlington VA, American Psychiatric Association, 2000). Mr. Scofield placed in the bottom 0.3rd percentile and has an IQ of 59. An assessment of his brain function indicated significant impairment in cognition, core academic skills, executive functioning, memory, communication, adaptive function, and attention and activity level. It also disclosed that he may have mild neurological abnormality in sensory and motor movement and incomplete brain development: para. 35. [54] The judge also referred to other opinions: [36]      A report from Mr. Scofield’s family doctor, Dr. Arnold, dated June 16, 2015, is referred to in the pre‑sentence report and was filed as an exhibit on sentencing. Dr. Arnold states: “… [Mr. Scofield] has significant cognitive and behavior limitations which affect his judgement, impulse control and understanding of his world. Indeed, his IQ is quite low…” “… [Mr. Scofield’s] judgement, insight, ability to understand complex issues and social cues is very limited and the repercussions of some of his actions and behaviours are also not understood. It would be my contention that some of the issues that occurred with [Mr. Scofield] inappropriately using online dating and not understanding the implications of what he was doing to a large extent could be understood in his limited cognitive function and his significant development delay.... I believe he did not appreciate or understand a lot of what he was doing.” [55] Finally, the judge also took into account a report from Dr. Joneja, a registered psychologist: [48]      It is Dr. Joneja’s opinion that Mr. Scofield’s cognitive deficits influenced his behavior and were a causal factor to him committing the offences . During her interview and testing, Mr. Scofield appeared psychologically naïve and emotionally immature for his age. He has difficulty associating with others and maintaining relationships either at work or with intimate partners. She felt that although he has an intellectual disability, his offending behaviour was not a direct result of that disability. His disability probably influenced his offending behaviour to some degree, but she was unable to opine on the extent of that link. [Emphasis added.] [56] As the Crown acknowledged, mental illness or cognitive deficits are mitigating factors in sentencing when there is an established link between them and the offending conduct. In my opinion, it was open to the judge on the evidence to conclude that that link was established. [57] Having reviewed the record, I am not persuaded the judge made a palpable and overriding error in his assessment of the evidence. A One-Year CSO is a Fit and Proportionate Sentence [58] Given the judge’s error in principle regarding mitigating factors, this Court must determine a fit sentence. [59] The judge identified a range of 9 to 18 months’ imprisonment and accepted the range could go as high as three years’ imprisonment. In relation to sexual assault involving intercourse under s. 271 of the Code , this Court identified a range of two to six years’ imprisonment: R. v. Akumu & Boima , 2017 BCSC 1051 at para. 50, citing R. v. Pouce Coupe , 2014 BCCA 255. In this case, for this offence, the Crown suggests a range of two to three years. [60] I do not dissent from the 9- to 18‑month range the judge identified, but I note that the cases at the lower end of the range tend to involve less egregious forms of sexual touching than this case. In any event, the choice of a sentencing range, or of a category within a range, is within the sentencing judge’s discretion and does not itself constitute a reviewable error: Lacasse at para. 51. [61] I do not think it is necessary to offer a definitive range for sexual interference in similar circumstances of the offence. Having reviewed the cases, I am satisfied that multiple acts of sexual intercourse between a person in their early twenties and victims approaching 16 years old will normally attract a prison sentence of more than one year. [62] Sentences are increasing as courts more fully appreciate the damage that sexual exploitation by adults causes to vulnerable, young victims: see R. v. Vautour , 2016 BCCA 497 at paras. 52‑54. I am also aware that some courts in other provinces have identified a higher starting point for the range than the ranges in B.C.: see e.g., R. v. W.B.S. (1992), 127 A.R. 65 (C.A.), setting the four‑year starting point in Alberta. The range may well be wider, at both ends, depending on the nature of the sexual contact and the relationship between the parties: see e.g., R. v. J.G. , 2017 ONCJ 881 (one year probation for sexual intercourse over two months between individuals in a relationship that was 35 days from the close-in-age exception); R. v. D.G.P. , 2009 BCPC 171 (14 days’ imprisonment served intermittently, based on applicable mandatory minimum, in circumstances with a seven‑year age difference, an open romantic relationship, and an offender misinformed about the age of consent). [63] Absent the exceptional circumstances the judge relied on, I accept that this case would call for a sentence of more than one year. I would have imposed a sentence of 15 months’ imprisonment taking into account the mitigating factors (but not exceptional circumstances the judge determined took this case out of the normal range). A sentence of this length would be necessary to give proper effect to denunciation and deterrence in light of the seriousness of the offence. [64] In this case, the judge placed considerable weight on Mr. Scofield’s personal circumstances; principally, Mr. Scofield’s reduced moral culpability in light of his cognitive impairment. It is important to stress that the judge decided that this case was an exceptional case because of those considerations. This analysis accords with the view expressed by Madam Justice Steel of the Manitoba Court of Appeal in R. v. J.E.D. , 2018 MBCA 123, with which I agree: [75]      There is no question that an offender’s mental disability can be a significant mitigating factor and relevant to sentencing principles and objectives (see R v Adamo , 2013 MBQB 225 at para 68; Okemow at para 107; and R v Ford , 2017 ABQB 322 at paras 47‑48). When sentencing individuals with cognitive limitations, deterrence and punishment assume less importance. [76]      This decreased emphasis on punishment and deterrence in these circumstances is consistent with the proportionality principle in section 718.1 of the Code . A sentence must be proportionate to not only the gravity of the offence, but also the degree of responsibility of the offender [65] Personal circumstances of the offender are considered separately from the seriousness of the offence; they do not lessen its seriousness. Personal circumstances, where applicable, are considered independently to determine a proportionate sentence in light of the seriousness of the offence. [66] In respect of a CSO for Mr. Scofield, the judge found: [111]    I do not believe that a sentence in the community would endanger the safety of either the complainants or the community. I accept Dr. Joneja’s opinion that Mr. Scofield demonstrated no predilection for underage girls. His risk of re-offending is low. Furthermore, he comes before me with no criminal record, and is not accused of breaching his bail conditions, which suggests to me that he is a suitable candidate for a sentence in the community. [112]    I have also found that a conditional sentence is consistent with the fundamental purpose and principles of sentencing. That is because both the nature of this offence and the surrounding circumstances, the cognitive difficulties faced by Mr. Scofield, and the pre-sentence report prepared by Dr. Joneja, strongly suggest that specific deterrence is not as required as general denunciation for this offender. Moreover, a conditional sentence can provide a significant amount of denunciation if certain conditions are imposed as part of the order. [67] The judge also found that incarceration would likely be harmful to Mr. Scofield given his impairments, lack of maturity, and vulnerability: [106]      Mr. Scofield would not do well in an institutional setting and it would likely inhibit his rehabilitative potential. It would be difficult and disruptive for him and he would likely be subjected to hostility from other inmates. I must balance the impact of a period of incarceration against the impact of keeping him in a stable, supportive environment where he is under the supervision of his mother and partner and in a role that requires him to take on some parenting responsibilities. [68] In my view, multiple factors played a role in the judge’s decision to impose a CSO rather than imprisonment, including his view that the absence of non‑sexual violence, exploitation, or breach of authority were mitigating factors. However, the extent to which his error in principle affected his decision was relatively minor considering the number of additional factors the judge considered. I view the judge’s error in principle as primarily affecting the length of the CSO rather than whether to impose one. More significant factors in his decision to impose a CSO were his assessment of Mr. Scofield’s moral culpability, the harm prison would cause Mr. Scofield, the lack of a need for specific deterrence, and his view that the principles of deterrence and denunciation could be met by a CSO. [69] Allowing for the judge’s error in principle, I do not think the judge was wrong to conclude that a CSO would be fit in this case. I note that Mr. Scofield’s personal circumstances, both as they relate to moral culpability and vulnerability, are similar to the offender’s circumstances in Swaby . In that case, this Court upheld a CSO in relation to possession of child pornography offences. I quote: [72]      Assessing Mr. Swaby’s moral culpability is complicated as he is not a “typical” offender. Mr. Swaby was 23 years old at the time of the offence. He is now 28 years old. His background is discussed above. At the time of the offence, Mr. Swaby lived with significant cognitive and intellectual impairment, as well as other mental health problems, including auditory hallucinations. [73]      The circumstances of his offence were undeniably serious. His collection was extensive, and portrayed children, including very young children, in violent and horrific circumstances. [74]      Mr. Swaby understood that what he was doing was wrong. But, as Galati P.C.J. found, he did not know “how wrong it was”. Mr. Swaby likened the experience of watching the videos to watching a video of a person breaking their leg. That is obviously not an accurate reflection of the blameworthiness or harm of the offence. [75]      Both Galati P.C.J. and Marchand J. concluded that Mr. Swaby had a highly reduced level of moral culpability based on his personal circumstances. That reduced level of culpability supported their findings that a fit and proportionate sentence would be a CSO. [76]      In order to justify a non‑custodial sentence, it is necessary to appreciate the seriousness and significance of Mr. Swaby’s impairments—particularly given that the difference is between a 90-day sentence, which could cause significant harm to Mr. Swaby, and a CSO, which is a sentence of imprisonment served in the community rather than the harmful prison setting. [77]      In R. v. Proulx , 2000 SCC 5 at para. 22, the Court concluded that a CSO is “ also a punitive sanction capable of achieving the objectives of denunciation and deterrence ”. [Emphasis in original.] [70] I acknowledge that conditional sentences will rarely satisfy the primary sentencing objectives of deterrence and denunciation in cases involving sexual touching of vulnerable children, especially where abuse of trust or authority is involved: see R. v. Safaee , 2009 BCCA 367. But as Swaby demonstrates, there are situations in which a CSO can satisfy those principles. Given the findings of the sentencing judge, I accept that this is a rare case in which a CSO can satisfy the principles of sentencing. Indeed as this Court has reiterated in R. v. A.E.S ., 2018 BCCA 478 at para. 66: This Court has said a number of times that a CSO is not usually a fit sentence for an offender who has sexually abused children, particularly as here, by a parent or person in trust or authority. See R. v. Safaee , 2009 BCCA 367 at para. 26. On the other hand, this Court has upheld CSOs in such cases, including in R. v. Chen , 2017 BCCA 426. Indeed, in R. v. L.F.W ., 2000 SCC 6 at paras. 20‑21, a companion case to R. v. Proulx , 2000 SCC 5, the Supreme Court upheld a CSO for an indecent assault involving forced masturbation and fellatio with a child who was then between the ages of 6 and 12 years old, stating that a CSO was within the acceptable range and could provide sufficient denunciation and deterrence. (That case involved a 4‑4 split on the issue, as Cory J. did not participate. Thus, the appeal was dismissed, upholding the sentence.) [71] A CSO can be appropriate in circumstances when there is a delay between the guilty plea and sentencing. In this case, Mr. Scofield has served part of his CSO and has been on bail for a considerable time without incident. While the circumstances surrounding the delay were not explained to us, the delay is concerning. In R. v. Bosley (1992), 59 O.A.C. 161 at para. 44 (C.A.), Doherty J.A. commented that excessive delay causing prolonged uncertainty can be taken into account as a mitigating factor in sentencing. The Court may also be reluctant to impose a custodial sentence on a young person on appeal where considerable time has passed between the commission of the crime, sentencing, and appeal, and the offender has served the bulk of the sentence. In R. v. Lai , 2006 BCCA 368, the Crown’s appeals from conditional sentence orders were dismissed on this basis, despite the fact that the seriousness of the offences would have otherwise required jail time. The Court, per Ryan J.A., held that the fact that the offenders were close to completing their sentences was a consideration in determining whether to intervene: at paras. 104‑05. Both considerations, delay and partial completion of the sentence, support not imposing a sentence of incarceration in this case. [72] Considering all the relevant factors, paying respectful attention to the judge’s reasoning (untainted by the error), and considering factually-similar cases, I conclude that a one‑year CSO is a fit and proportionate sentence. The Mandatory Minimum is Grossly Disproportionate for Mr. Scofield [73] As Bennett J.A. made clear in Swaby , where a CSO is the fit and proportionate sentence, a period of incarceration can, in the right circumstances, be grossly disproportionate to that sentence: para. 84. This is because a CSO is a different kind of sentence of imprisonment. Bennett J.A. put it this way: [84]      … As the Supreme Court recognized in Proulx , there “is a very significant difference between being behind bars and functioning within society” under a CSO (para. 40, quoting R. v. Shropshire , [1995] 4 S.C.R. 227 at para. 21). [85]      Although recent s. 12 cases have focused on durations of mandatory minimum sentences, s. 12 of the Charter has its origins in protection against punishments of a particular nature or kind: Smith at 1109, per Wilson J. As Lamer J. (as he then was) wrote in Smith , the gross disproportionality of a sentence is ultimately a multi‑factored question (at 1073): The effect of the sentence is often a composite of many factors and is not limited to the quantum or duration of the sentence but includes its nature and the conditions under which it is applied. Sometimes by its length alone or by its very nature will the sentence be grossly disproportionate to the purpose sought. Sometimes it will be the result of the combination of factors which, when considered in isolation, would not in and of themselves amount to gross disproportionality. For example, twenty years for a first offence against property would be grossly disproportionate, but so would three months of imprisonment if the prison authorities decide it should be served in solitary confinement. [86]      It is precisely because a CSO and a jail term are sentences with different natures that their durations cannot be directly compared. The Court explained clearly in Proulx that a conditional sentence “will usually be a more lenient sentence than a jail term of equivalent duration” (para. 44). [87]      Judge Galati properly concluded that a carceral sentence would be grossly disproportionate to the CSO that he ultimately imposed on Mr. Swaby. Although Mr. Swaby’s offending was extremely serious, it was ameliorated by his personal circumstances. In his unusual circumstances, I agree with Galati P.C.J. and Marchand J. that the mandatory minimum sentence is grossly disproportionate, and that sending Mr. Swaby to prison, even to serve an intermittent sentence, would outrage the standards of decency of most informed Canadians. [74] I find these comments applicable to Mr. Scofield. Although his offences were extremely serious and normally attract a term of imprisonment in excess of the one‑year mandatory minimum, sending Mr. Scofield to prison for one year, given his significant cognitive deficits, would outrage the standards of most informed Canadians. The Mandatory Minimum Sentence is Grossly Disproportionate on a Reasonable Hypothetical [75] In most circumstances, a s. 151 offence will lead to incarceration. Indeed, very often the term of imprisonment will exceed the mandatory minimum. In many respects, the mandatory minimum is unnecessary as courts already impose considerably longer sentences in circumstances where young children are sexually exploited by adults in positions of trust or authority. [76] Lengthy sentences reflect courts’ appreciation of the inherent harm to young and vulnerable victims from improper sexual contact with adults. Many cases involve abuse of trust, repeated sexual misconduct, and a significant age difference between victim and perpetrator. Many victims are prepubescent. Their lives can be irretrievably damaged or destroyed by the abuse. As Moldaver J.A. (as he then was) said in R. v. D.(D.) (2002), 58 O.R. (3d) 788 (C.A.): [34]      The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718(a), (b) and (c) of the Criminal Code , commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing. [35]      We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, needless of the dire consequences that can and often do follow. [36]      In this respect, while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known. [77] There can be no doubt of the vital public purpose behind s. 151. Courts impose sentences intended to vindicate that purpose in light of the sentencing objectives set out in the Code . But the offence can be committed through conduct that is significantly removed from the evil to which it is directed. The difficulty with the mandatory minimum sentence in this case was described by McLachlin C.J.C. in R. v. Lloyd , 2016 SCC 13: [3]        As this Court’s decision in R. v. Nur , 2015 SCC 15, [2015] 1 S.C.R. 773, illustrates, the reality is that mandatory minimum sentences for offences that can be committed in many ways and under many different circumstances by a wide range of people are constitutionally vulnerable because they will almost inevitably catch situations where the prescribed mandatory minimum would require an unconstitutional sentence. [78] It follows that the offence may capture conduct different from what it principally targets. For this reason, the constitutionality of mandatory sentences are tested against reasonable hypotheticals to which they apply. As made clear in R. v. Nur , 2015 SCC 15, the test is not confined to situations that are likely to arise in general day-to-day application of the law. Rather, the test targets circumstances foreseeably captured by the minimum conduct to commit the offence and takes into account personal circumstances of people who may be caught by the mandatory minimum: Nur at paras. 68, 76. [79] In approaching the issue of reasonable hypotheticals, I note that Parliament contemplates that the s. 151 offence can be committed in various ways, some of which are punishable by a mandatory minimum sentence of 90 days’ imprisonment. Section 151(b) provides for such a sentence where the Crown proceeds summarily (even though the elements of the offence are exactly the same as proceeding by indictment). [80] The Supreme Court of Canada has made it clear that the constitutionality of a mandatory minimum sentence does not depend on the Crown electing to proceed by indictment or summarily: Nur at paras. 85‑95. Nonetheless, the fact Parliament provides for such an election suggests Parliament contemplated either that the offence could be committed in ways that would justify only a 90‑day mandatory minimum or that the circumstances of the offender might justify the Crown proceeding summarily to attract the lesser sentence. [81] I find it difficult to understand how a mandatory minimum of one year is not grossly disproportionate to circumstances that can attract only a 90‑day sentence if the Crown elected to proceed summarily. Parliament has, it seems, contemplated the possible existence of circumstances that demonstrate that the one‑year mandatory minimum is cruel and unusual punishment. [82] Apart from this, the mandatory minimum must fail the reasonable hypothetical test. Consider a case in which two young people meet at a party attended by other young people. One is almost 16 years old. The other turned 21 years old a few months earlier. The close-in-age exception is inapplicable by a few months and certainly less than one year. The two people drink alcohol and smoke marihuana. They are not drunk but their inhibitions are reduced. Finding that they are attracted to each other, they find a private bedroom. They engage in some kissing and brief sexual touching over their clothing, but they do not undress or have intercourse. After approximately ten minutes, they return to the party. During their time together, they act willingly, knowing each other’s ages. Neither person has a criminal record. This is the only occasion where either one engages in this kind of conduct with each other. [83] In my opinion, imposing a one‑year mandatory minimum sentence in those circumstances is grossly disproportionate, would shock the conscience of Canadians, and would be cruel and unusual punishment. A proportionate sentence would not attract imprisonment or even necessarily a CSO. The result does not turn on the gender of the participants or any other details about the personal circumstances of the older person. Other reasonably relevant factors about the offender that heighten the disproportionate character of the sentence can be added to the hypothetical. As in this case, the offender might have disabilities that reduce moral culpability. Alternatively, the judge might be obliged to consider significant Gladue factors in sentencing. [84] In Hood , the Nova Scotia Court of Appeal declared this mandatory minimum to be unconstitutional on the basis of a hypothetical related to the facts in issue in that case. The Court set out its hypothetical: [150]    [A] first-year high school teacher in her late 20’s with no criminal record. She suffers the same mental health challenges as Ms. Hood. One evening, she texts her 15‑year‑old student ostensibly to inquire about a school assignment. Feeling manic, she directs the conversation from casual to sexual. They agree to meet that same evening in a private location where they fondle each other. That was their one and only sexual encounter. Consider further a guilty plea, coupled with the teacher’s sincere remorse. [85] The Court concluded that these facts would unlikely lead to a sentence of imprisonment or, at most, only a short sentence. [86] Caron Barrette c. R. , 2018 QCCA 516, involved facts more similar to the instant case. There, a 23‑year‑old offender engaged in a romantic relationship with a 14‑year‑old girl with her parents’ consent. Neither party was aware their conduct was illegal. The Court of Appeal determined that a sentence of 90 days’ imprisonment served intermittently was proportionate but also grossly disproportionate to the mandatory minimum. While not necessary to consider reasonable hypotheticals, the Court concluded that those relied on by the sentencing judge were appropriate and supported the finding that the mandatory minimum was grossly disproportionate: see paras. 103‑04. The hypotheticals were: 1. A romantic relationship similar to that which existed between the offender and the victim, but for a period of several days, which only involved kissing and touching; 2. An isolated caress, over the clothes, on the thigh or buttocks, by a person who is not an authority figure, and without consequences for the victim; and 3. A romantic relationship in which the victim is 15 ½ years old and legally unable to consent at the beginning of the relationship, and the relationship continues after she reaches 16 years old. [87] In J.E.D. , the Manitoba Court of Appeal described the analysis of reasonable hypotheticals in Hood and Caron Barrette compelling and, accordingly, found the mandatory minimum sentence grossly disproportionate to what would have been appropriate: at para. 107. I agree. [88] The Crown did not attempt to justify s. 151(a) under s. 1 of the Charter . Nor did the Crown seek any remedy other than a declaration that s. 151(a) is of no force and effect if the mandatory minimum sentence breached s. 12 of the Charter . Conclusion [89] I would declare that the mandatory minimum sentence in s. 151(a) of the Code is unconstitutional and of no force or effect. I would allow the appeal and set aside the sentence only to the extent of substituting a CSO of one year in place of the original sentence imposed. “The Honourable Mr. Justice Harris” I agree: “The Honourable Mr. Justice Savage” Reasons for Judgment of the Honourable Madam Justice Fisher: [90] I have had the opportunity to review in draft the reasons for judgment of Mr. Justice Harris. I am grateful to him for his clear description of the factual background and the issues before us. I agree with his ultimate conclusion that the mandatory minimum sentence in s. 151(a) of the Criminal Code is unconstitutional and that the appeal should be allowed to the extent of substituting a conditional sentence order (CSO) for a longer term than the six months imposed by the court below. However, I would impose a CSO of 16 months given the seriousness of the offences. 1.       Errors that impacted the sentence [91] While this Court must give deference to trial judges on sentencing decisions, it may intervene where there has been a material error that has impacted the sentence or where a sentence is demonstrably unfit. A material error includes an error in principle, a failure to consider a relevant factor, or an erroneous consideration of aggravating or mitigating factors: R. v. Lacasse , 2015 SCC 64 at paras. 11 , 39, 43 ‒ 44; R. v. Agin , 2018 BCCA 133 at paras. 56 ‒ 57 . [92] In my view, the sentencing judge erred in two material ways that impacted the sentence. [93] The first error, as described by Harris J.A., was his treatment of the lack of certain aggravating factors and the presence of de facto consent as mitigating factors. The judge explicitly listed the following as mitigating factors: [80] … g. Mr. Scofield exhibited no predatory behaviour and was not in a position of trust or authority over either [complainant]; and h. there is no evidence before me of deception, coercion, manipulation, threats, or violence on the part of Mr. Scofield towards either complainant and each relationship appeared to me one of willing participants. [94] It is clear that a sentencing judge can use neither the absence of an aggravating factor, nor ostensible consent by a person who cannot legally consent, as mitigating factors: see R. v. S.J.B ., 2018 MBCA 62 at para. 24; R. v. Hajar , 2016 ABCA 222 at paras. 84–103. This error permeated the judge’s assessment of the seriousness of the offences, as demonstrated throughout the reasons for judgment. For example: [93] Mr. Scofield and the complainants seemed to regard each other as being in a “relationship”, loosely defined . This dynamic is analyzed by Justice Code of the Superior Court of Justice in R. v. Hussein , 2017 ONSC 4202 at paras. 36-42 , where he ultimately declares the mandatory minimum sentence in s. 151 (a) of the Code to be of no force and effect. Here, there was no violence, threats, coercion, inducements or predatory behaviour on Mr. Scofield’s part. The element of exploitation that exists in the cases cited by the Crown distinguishes them from this case . [101] I have found this a difficult case. On the one hand Mr. Scofield, who albeit had the chronological age of 22 at the time of the offences but was intellectually much younger, had multiple sessions of sexual relations with two 15‑year-old girls over a period of some six months. On the other hand, he is intellectually challenged, clearly has psychological and cognitive issues, and has the same or even less mental maturity as the complainants. Furthermore, there is no violence or threat of violence ; he pleaded guilty; he has no criminal record; there was no predatory behaviour; he was not in a position of trust or authority over the complainants , and he now understands that what he did was wrong. [122] I accept that touching a child for a sexual purpose, in and of itself, involves “actual harm”. I also accept that it cannot be said that any conduct captured under this provision does not involve some harm. Where I depart – but mainly based on factual differences between this case and E.M.Q. – is that the harm is militated by Mr. Scofield’s diminished mental capabilities at the time of the offences, the nature of the relationships he had with L.N. and M.L ., the six-year age difference, and the lack of any violence, threats, intimidation or exploitation . [126] With no evidence that he treated either complainant in a malicious, abusive, or otherwise harmful way , I struggle to see how Mr. Scofield remains any threat to society. [Emphasis added.] [95] This error demonstrates a failure to recognize the vulnerability of y oung people under 16 years of age to sexual exploitation, whether or not there is coercive conduct on the part of the offender or sexually provocative behaviour on the part of the complainant. Although these facts are relevant to a determination of a fit sentence, the judge here placed so much emphasis on them that he failed to properly assess the seriousness of the offences. [96] The second error is related to the first. While I agree that the judge made no error in concluding that Mr. Scofield’s cognitive impairment reduced his moral culpability, his assessment of that reduction was skewed by two things: (i) giving undue emphasis to the willingness of the complainants and the absence of exploitive or coercive conduct; and (ii) placing unreasonable weight on the cognitive impairment. As a result, it is my view that the judge failed to properly assess the extent to which the cognitive impairment influenced Mr. Scofield’s criminal behaviour and imposed a sentence that was not properly proportionate to the gravity of the offence and the degree of responsibility of Mr. Scofield. [97] It is important to note that these offences were serious. They involved repeated acts of oral sex and unprotected intercourse with two 15-year-old complainants over a five-month period. Mr. Scofield was in a common law relationship that was not going well. He sought out the first complainant, L.N., through Facebook and the second, M.L., on an Internet program known as “MeetMe”, and he communicated with both of them by text message. He was aware that they were both 15 years old and in grade 9. He picked each of them up in his car and drove to various places where the sexual activity took place. He deleted his text messages with each of the complainants every night to ensure that his parents did not find out about these relationships. These circumstances demonstrate deliberate conduct with an awareness that it was wrongful at least in some way. [98] The judge found that Mr. Scofield was “likely unable to make the connection” that he had done something wrong or harmful to the complainants. He concluded that the harm caused was militated in part by Mr. Scofield’s “diminished mental capabilities at the time of the offences”. However, the evidence does not support such a conclusion in light of the serious and deliberative nature of Mr. Scofield’s conduct and the victim impact statement of L.N., who described emotional impacts that included serious depression and anxiety, self harming, dropping out of school, and difficulties relating to family and friends. [99] There is no question that Mr. Scofield is intellectually impaired, but the impact of this factor on his moral culpability required full consideration of his psychological profile in the context of his offending conduct. Mr. Scofield’s cognitive abilities were tested at various times between 2001 and 2015. His “full scale IQ” varied from 70 in 2011 to 59 in 2015, both in the “extremely low” range. The 2015 assessment, prepared by the Assante Centre, used an updated adult test, resulting in a lower score, but confirmed that the results were consistent with the previous assessment that Mr. Scofield had “a mild intellectual impairment”. As Harris J.A. noted, this assessment also indicated significant impairment in various aspects of Mr. Scofield’s intellectual function. Dr. Melanie Joneja, a clinical psychologist who prepared a pre-sentence psychological report, also tested Mr. Scofield in 2015, using various instruments. [100] Dr. Joneja’s report indicated a fairly complex “clinical picture” that included an IQ in the “low average” range and characteristics associated with a narcissistic personality disorder. The results of one test of cognitive ability (the Shipley Institute of Living Scale) were in the “Below Average” range and were “somewhat better” than the previous test results. She found that Mr. Scofield was able to sustain attention and concentration, meaning that he was able to focus on a task and able to complete it, either when it was required of him or where he was motivated. It was her opinion that Mr. Scofield’s conduct was influenced by a number of factors, not just his cognitive impairment. These included “behavioural disinhibition” and his personality characteristics. As the judge noted, Dr. Joneja was of the view that Mr. Scofield’s conduct was not a direct result of his cognitive impairment but was “probably influenced” by it. Although she agreed that it would have been a causal factor, she was unable to say with certainty the extent of that link. Importantly, Dr. Joneja assessed Mr. Scofield at a low to moderate risk of re‑offending without ongoing support and supervision. [101] In addition to Dr. Joneja’s evidence, there was evidence demonstrating that Mr. Scofield was able to function reasonably well despite his cognitive limitations, and was aware that his conduct with the complainants was wrong: he obtained a “Leaving School Certificate” after grade 12; he attended a semester at college; he was able to sustain short term employment; he dated and had multiple sexual partners; he lived independently with his former common-law partner and parented a child (with assistance); he drove a motor vehicle; he set up a dating profile on the Internet; he knew that the complainants were each 15 years old; he searched the Internet to ascertain the age of consent; and he deleted his text messages with the complainants to hide his behaviour from his parents. [102] It was clearly open to the sentencing judge to conclude that Mr. Scofield’s cognitive disabilities reduced his maturity level to that of a younger person and diminished his moral blameworthiness. However, the reasons for sentence demonstrate that the judge’s real concern was that Mr. Scofield’s “diminished mental capacity” could arguably have fit the “close in age exception” in s. 150.1(2.1), which is a defence to a charge under s. 151: [98]      … because, as I understand it, the consent provisions in the Code allow for the kind of sexual experimentation that is normal among teenage persons who are exploring their sexuality, but condemn exploitive situations where significantly older persons take advantage of someone who is sexually immature and who is vulnerable to harm from sexual relations. [103] I appreciate the judge’s concerns here, but it is my opinion that these concerns caused the judge to reduce Mr. Scofield’s level of moral blameworthiness to a point far below what was evident from his offending behaviour. Moreover, these concerns echo the judge’s emphasis on the absence of exploitive or coercive conduct. They also fail to take into account the expert evidence regarding the extent of Mr. Scofield’s cognitive impairment as a causal factor. [104] I agree with the principles enunciated by the Manitoba Court of Appeal in R. v. Okemow , 2017 MBCA 59, and more recently in R. v. J.E.D ., 2018 MBCA 123, that an offender’s moral blameworthiness may be reduced where there is a connection between a mental condition and the offence. That connection need not be the only causative factor, but it is important that the sentencing judge assess the extent to which such a mental condition played a role in the criminal conduct. As the court said in Okemow : [72] A reduction of moral blameworthiness for the purposes of sentencing, either for an adult or a young person, due to a recognized and properly diagnosed mental illness or other condition where the functioning of the human mind is impaired, is a “fact-specific” case-by-case determination as opposed to an automatic rule that the mental illness or cognitive limitation necessarily impacted the commission of the offence in question [Citations omitted.] [105] It then suggested that sentencing judges properly assess the following questions (at para. 73): 1.         Is there cogent evidence that the offender suffers from a recognized mental illness or some other cognitive limitation? 2.         Is there evidence as to the nature and severity of the offender’s mental circumstances such that an informed decision can be made as to the relationship, if any, between those circumstances and the criminal conduct? 3.         Assuming the record is adequate, the sentencing judge must decide the offender’s degree of responsibility for the offence taking into account whether and, if so, to what degree his or her mental illness or cognitive limitation played a role in the criminal conduct . [Emphasis added.] [106] The evidence of Dr. Joneja established a connection between Mr. Scofield’s offending behaviour and his cognitive impairment. However, her evidence also established a connection between his offending behaviour and other factors, the most significant being his personality characteristics. Her assessment included a fairly comprehensive discussion of Mr. Scofield’s “mental health and personality disorder” that included the results of cognitive testing as well as a number of observations. For example: Mr. Scofield presented as psychologically naïve; however, no evidence of disorganized thought or reality distortion was observed Throughout the interview Mr. Scofield demonstrated a capacity for sustained attention and concentration items endorsed by Mr. Scofield on the MCMI‑III [Million Multiaxial Inventory-III] suggest a preponderance of characteristics associated with narcissistic personality disorder along with dependent personality traits and passive-aggressive tendencies According to self-report, Mr. Scofield may be preoccupied with immature and self glorifying fantasies of success, beauty and love. He is minimally constrained by objective reality and has a tendency to take liberties with facts and often lies to reinforce his boastful self-illusions. He is inclined to exaggerate his power, transform his failures into successes and create elaborate stories to inflate his self-esteem. Mr. Scofield’s responses on the MCMI‑III also revealed that he is unlikely to admit personal responsibility for personal failures or interpersonal conflict, and may readily project blame onto others. He is likely to be self-indulgent and insistent on getting his way. He may be fearful that others perceive him as weak and indecisive. Therefore, he presents a façade of arrogant confidence and bravado, likely concealing strong feelings of inadequacy It may be possible that under increased duress and lowered self-esteem Mr. Scofield may be more inclined to seek comfort and solace in inappropriate ways, thereby placing him and others at risk. [107] A conclusion of diminished moral culpability is to be made after due consideration of all relevant circumstances, which include the nature and extent of the cognitive impairment, other relevant factors, and the particulars of the offence: see R. v. Peyachew , 2016 SKCA 21 at para. 44. No doubt Mr. Scofield’s cognitive impairment was significant, but the judge erred in principle by placing undue weight on this factor and failing to consider these other influential factors and the circumstances of the offences. As a result, he failed to properly assess the degree to which the cognitive impairment played a role in Mr. Scofield’s criminal conduct. [108] Given these errors, it is this Court’s function to assess the fitness of the sentence by conducting its own sentencing analysis: Agin at para. 56. 2.       The mandatory mini mum is grossly disproportionate [109] Under s. 742.1(b) of the Criminal Code , a CSO is not available where the offence in issue—here sexual interference—has a mandatory minimum sentence. Therefore, a court may only consider a CSO for Mr. Scofield [1] if it determines that the mandatory minimum is inconsistent with s. 12 of the Canadian Charter of Rights and Freedoms , either because is it grossly disproportionate for the offender or for other offenders based on a reasonable hypothetical: R. v. Nur , 2015 SCC 15. [110] A sentence will be inconsistent with s. 12 where it is “so unfit having regard to the offence and the offender as to be grossly disproportionate”. This is a high bar, as it is aimed at punishments that are more than “merely excessive”: R. v. Smith , [1987] 1 S.C.R. 1045 at 1072. [111] In order to determine whether a mandatory minimum sentence is grossly disproportionate, a sentencing judge must first assess what constitutes a proportionate sentence based on the objectives and principles of sentencing in the Criminal Code . In doing so, the judge generally focuses on the duration of the mandatory minimum. However, this Court held in R. v. Swaby , 2018 BCCA 416, that a minimum sentence may “in the right circumstances” be grossly disproportionate where a CSO is unavailable. This is because a CSO is a sentence of a different kind and “s. 12 of the Charter has its origins in protection against punishments of a particular kind or nature”: Swaby at para. 85. [112] I agree with Harris J.A. that the circumstances of these offences, which involve multiple acts of sexual intercourse between a person in his early twenties and complainants approaching the age of 16, will normally attract a prison sentence of more than one year . I also agree that the appropriate range of sentence in this case, given Mr. Scofield’s circumstances, would be between 9- and 18‑months’ imprisonment. That range, in itself, would not be inconsistent with s. 12 of the Charter . [113] However, this case raises a question regarding the availability of a CSO in an assessment of whether a mandatory minimum sentence is grossly disproportionate. [114] In his assessment, Harris J.A. accepts that the sentencing judge’s decision to impose a CSO on Mr. Scofield – other than its length – was minimally affected by his error in considering the lack of aggravating factors to be mitigating. I respectfully disagree. It is my view that the judge’s errors in principle materially affected his assessment of a fit sentence generally. He concluded that Mr. Scofield’s sentence “must fall far below the range of 9 to 18 months” and that a six‑month CSO would meet the sentencing objectives of the Criminal Code . I do not consider a sentence below 9 months or a six‑month CSO to be fit and proportionate sentences. [115] Harris J.A. also equated Mr. Scofield’s personal circumstances relating to moral culpability and vulnerability to the offender’s circumstances in Swaby . I do not disagree that there are similarities, but it is important, in my view, to remain focused on the particular circumstances of Mr. Scofield when assessing gross proportionality in relation to a CSO. [116] Swaby involved an offender who pleaded guilty to one count of possession of child pornography (charged summarily) and was sentenced to a four-month CSO. In addition to a significant cognitive impairment, the offender had other mental health problems that included a history of suicidal behaviour and ideation, chronic sleep disturbance, auditory hallucinations and depressed mood. There was expert evidence that he did not have a paedophilic disorder, was at a relatively low risk of reoffending, and would not be able to tolerate incarceration. Mitigating factors included the offender’s youth and relative isolation at the time of the offence, his lack of a criminal record, his cooperation with authorities, his expression of remorse and early guilty plea, and his willingness to be assessed and treated. [117] In Mr. Scofield’s case, there is an absence of comparable mental health issues but rather a complex profile of both cognitive and personality dysfunction. There was no expert evidence regarding his tolerance for incarceration, but the judge concluded that he would not do well in prison: [106]    Mr. Scofield would not do well in an institutional setting and it would likely inhibit his rehabilitative potential. It would be difficult and disruptive for him and he would likely be subjected to hostility from other inmates. I must balance the impact of a period of incarceration against the impact of keeping him in a stable, supportive environment where he is under the supervision of his mother and partner and in a role that require shim to take on some parenting responsibilities. [118] It is important to note that a mandatory minimum sentence will not be grossly disproportionate simply because a CSO is unavailable. As this Court held in Swaby , “the gross proportionality of a sentence is ultimately a multi-factored question” (at para. 85). To be grossly disproportionate, a case must be exceptional to the point that a carceral sentence would outrage our society’s standards of decency. That was the conclusion in Swaby , where this Court accepted the sentencing judge’s assessment that the case was exceptional and that a carceral sentence would be grossly disproportionate to a CSO (there, of four months’ duration). In my opinion, such a conclusion should be made only in rare and exceptional cases. [119] Despite my concerns about the sentencing judge’s assessment of the seriousness of the offences, I agree with Harris J.A. that he was not wrong in concluding that a sentence served in the community would be fit and appropriate for Mr. Scofield. The judge was in the best position to determine this and to assess the impact of incarceration on Mr. Scofield, and his reasons are supported by the expert evidence regarding Mr. Scofield’s risk of re‑offending. In these exceptional circumstances, I agree that a carceral sentence for this offender would be more than merely excessive and, therefore, grossly disproportionate to these offences for this offender. In any event, I also agree that the mandatory one‑year minimum sentence is grossly disproportionate on a reasonable hypothetical. 3.       A fit sentence [120] To be consistent with the fundamental purposes and principles of sentencing in ss. 718 and 718.2 of the Criminal Code , a CSO in this case must properly reflect the principles of denunciation and deterrence in light of the serious nature of the offences. As the court made clear in R. v. Proulx, 2000 SCC 5 , a CSO is more lenient than a jail term of equivalent duration, but a CSO with onerous conditions that extend longer than a sentence of incarceration can still provide a significant amount of denunciation and deterrence. [121] Given that the appropriate range of sentence for Mr. Scofield would be between 9 and 18 months, it is my opinion that a CSO of 16 months would meet the necessary objectives. [122] As the Crown made no submissions on the conditions imposed by the sentencing judge, I would allow the appeal in a similar manner to that set out by Harris J.A. except that I would set aside the sentence to the extent of substituting a CSO of 16 months in place of the six‑month CSO. “The Honourable Madam Justice Fisher” [1] A CSO is no longer available for an offence under s. 151(a) regardless of the mandatory minimum because the maximum sentence under that section has, since Mr. Scofield’s offence, been increased to 14 years; s. 742.1(c) of the Criminal Code prohibits the imposition of a CSO where the offence, when prosecuted by way of indictment, has a maximum term of imprisonment of 14 years or life.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Almasri v. Saska, 2019 BCCA 10 Date: 20190114 Docket: CA45059 Between: Badia Almasri Respondent (Claimant) And Laszlo Saska, Terezia Rehak and 0774925 BC Ltd. Appellants (Respondents) Corrected Judgment:  The text of the judgment was amended at paragraphs 1 and 8 on February 15, 2019. Before: The Honourable Chief Justice Bauman The Honourable Madam Justice MacKenzie The Honourable Mr. Justice Hunter Supplementary Reasons to Almasri v. Saska, 2018 BCCA 351 The Appellant appearing in person: L. Saska Counsel for the Respondent: K.J. Hauer Place and Date of Hearing: Victoria, British Columbia September 11, 2018 Place and Date of Judgment: Vancouver, British Columbia September 12, 2018 Written Submissions received: December 5 and 12, 2018 Date of Supplementary Judgment: January 14, 2019 Summary: The appellant sought leave to appeal a costs order but the application was dismissed. An application to review the leave judgment was also dismissed. The respondent applies for costs. Held: The respondent is entitled to costs of both the unsuccessful leave application and the review application. Supplementary Reasons of the Court [1] On June 11, 2018, Justice Savage, sitting as a single judge in chambers, heard and dismissed an application by Laszlo Saska and Terezia Rehak for leave to appeal an order for costs made in the Supreme Court of British Columbia. Mr. Saska and Ms. Rehak applied pursuant to s. 9(6) of the Court of Appeal Act, R.S.B.C. 1996, c. 77, for an order discharging or varying the order of Justice Savage. That application was heard by this division on September 11, 2018 and dismissed on September 12, 2018. [2] In keeping with the usual practice of this Court, neither the judgment of Savage J.A. nor the review judgment of this Court addressed the question of costs. The respondent now applies for costs of both applications. [3] Costs in this Court are normally governed by s. 23 of the Court of Appeal Act , which states that: Unless the court or a justice otherwise orders, the party who is successful on an appeal is entitled to costs of the appeal including the costs of all applications made in the appeal. [4] In this case, however, the appeal was never properly brought, because leave to appeal was required and was denied. Although Mr. Saska is identified as the appellant in the style of cause, it would be more accurate to characterize him as an applicant. As the appeal was not perfected, there are no costs of the appeal to allocate. What is left are the costs of two applications, the leave application before Savage J.A. and the review application before this division. [5] The usual rule is that an unsuccessful applicant for leave to appeal will be required to pay the costs of the application. That rule applies unless there is good reason to depart from it: Cosgrove v. L & C Canada Coastal Aviation Inc ., 2009 BCCA 397 at para. 3. We can see no reason to depart from the usual rule in this case. Although the order of Savage J.A. was entered without a reference to costs, this Court has the jurisdiction under s. 9(6) of the Court of Appeal Act to vary the order of Savage J.A. in relation to costs, and we consider it appropriate do so: Pearlman v. Atlantic Trading Company Ltd ., 2011 BCCA 183. The respondent should have her costs of the unsuccessful leave application. [6] In our view, the same principle should apply to the costs of an unsuccessful application to review an order dismissing an application for leave to appeal. Costs should be awarded to the successful respondent unless there is good reason to make some other order. In this case, we see no reason to depart from the usual rule. [7] Submissions were made to us concerning other applications made prior to the order made by this division, but we do not consider it appropriate for this division to deal with costs of those applications. [8] For these reasons, we order that costs of the application before Savage J.A. and the review application before this division be paid by Mr. Saska and Ms. Rehak to the respondent at Scale 1. “The Honourable Chief Justice Bauman” “The Honourable Madam Justice MacKenzie “The Honourable Mr. Justice Hunter”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Danjou, 2019 BCCA 16 Date: 20190115 Docket: CA45782 Between: Regina Respondent And Tejwant Danjou Applicant Restriction on publication:  A publication ban has been mandatorily imposed under s. 517(1) of the Criminal Code restricting the publication, broadcasting or transmission in any way of the evidence taken, the information given, or the representations made and the reasons, if any, given or to be given by the justice presiding over the application for judicial interim release (bail). Direction of the Chief Justice on an Application for Review Pursuant to Section 680 of the Criminal Code of Canada . Counsel for the Applicant: D. Turko, Q.C. S.L. Dawson Counsel for the Respondent: M. Lefebure S. McCallum Written Submissions of the Applicant Filed: December 13, 2018 and January 7, 2019 Written Submissions of the Respondent Filed: January 4, 2019 Place and Date of Judgment: Vancouver, British Columbia January 15, 2019 Summary: The applicant is charged with second degree murder in relation to the death of his common-law partner. He applied for release pending trial and his application was dismissed. He now applies for a direction from the Chief Justice that the decision be reviewed by a division of this Court. Held: Application dismissed. It is not arguable that the chambers judge committed material errors of fact or law, or that the decision was clearly unwarranted. Reasons for Judgment of the Honourable Chief Justice Bauman: [1] Tejwant Danjou seeks an order under s. 680 of the Criminal Code , R.S.C. 1985, c. C-46 to direct the Court of Appeal to review a bail decision made by Beames J. on 27 September 2018. [2] For the following reasons, I find that the bail judge did not arguably commit any material errors of fact or law. Nor is it arguable that the decision was clearly unwarranted in the circumstances. As a result I dismiss the application. [3] A publication ban applies to this case under s. 517 of the Code . The s. 517 ban prohibits the publication, broadcast or transmission in any way of the evidence, information and representations at the bail hearing and the bail judge’s reasons. The ban will expire when the trial ends. Until then, reasons for judgment on this review application and any subsequent review decision should not be published. Background [4] Mr. Danjou is charged with the second-degree murder of Rama Gauravarapu, with whom he had been in a common-law relationship since 2015. The Crown alleges that Mr. Danjou and the victim had been on a winery tour, got in an argument, then returned separately to the hotel. The Crown alleges Mr. Danjou beat the victim, then fled. The victim was pronounced dead at the scene and Mr. Danjou was found shortly thereafter in a dumpster. [5] At trial Mr. Danjou expects to raise defences including intoxication, diminished capacity, provocation, and non-insane automatism. Judgment on appeal [6] The bail judge denied the application for bail pending trial. [7] The bail judge summarized the events surrounding the offences as follows: [2]        The victim was killed on July 22, 2018, at the Best Western Hotel in West Kelowna. On autopsy, she was found to have suffered over 50 injuries, including multiple blows to the head, a cut jugular vein, and defensive wounds on her hands. There was extensive blood splatter in the room in which she was killed, on the floor and the walls and small amounts on the ceiling. Some of the blood splatter was observed to contain human tissue. [3]        Crown counsel has provided a detailed review of the circumstances alleged by Crown which I will not set out in full. Suffice it to say that there is evidence that the accused and the victim had been on a winery visit earlier in the day, that is on July 22, 2018. They were, according to Crown's submissions, seen to have an argument or arguments of some sort and left the winery in separate cabs. On return to the hotel which they had checked into the previous day, the accused checked into a second room. He then left the hotel to get cigarettes and apparently to visit the Greyhound bus depot to make inquiries about taking a bus to the Lower Mainland. [4]        He returned to the hotel and was seen on surveillance video to enter the room then occupied by the victim. A short while later, guests in the room immediately below the victim's room reported hearing loud noises and a staff member went to the door of the room. She thought she heard a fight happening inside the room and so, concerned about her safety, she went to get extra help. When she found her co-worker was busy, she returned to the room and knocked. A male inside initially refused to open the door, rejecting any assistance on her part, but when she persisted, the door was opened and she was able to see a woman, lying on the floor, with swollen eyes, in what appeared to be a lot of blood. The woman appeared to be having difficulty breathing and asked the staff person to call the police. The man inside the room said, "Don't call the police. She doesn't need help". [5]        The employee, according to the statement she has provided to this point in time, backed out of the room, returned to the lobby and called 9-1-1. By the time the police attended, the man had fled. He was found, with the assistance of a police dog, in a dumpster a relatively short distance from the hotel. The accused was assisted from the dumpster, arrested and transported to the hospital. By this time, the paramedics had responded to the victim and had pronounced the victim to be dead. [8] The bail judge acknowledged that because Mr. Danjou was accused of second degree murder, the burden lay on Mr. Danjou to show why his detention was not justified: Code , s. 522(2). [9] The bail judge concluded Mr. Danjou had met his burden in respect to the primary and secondary grounds for detention. The bail judge concluded Mr. Danjou’s ties to the community meant he was not a risk of failing to attend court. The bail judge also concluded that detention was not required to protect the public or prevent Mr. Danjou from committing further offences. [10] The bail judge thus focused on the tertiary ground: whether further detention was “necessary to maintain confidence in the administration of justice”: Code , s. 515(10)(c). The bail judge considered this provision in light of the Supreme Court of Canada’s guidance in R. v. St-Cloud , 2015 SCC 27. The section provides that detention is justified: (c)        if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (i)         the apparent strength of the prosecution’s case, (ii)        the gravity of the offence, (iii)       the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv)       the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [11] The bail judge considered the four factors outlined in s. 515(10)(c) and concluded that the Crown’s case was “very strong” despite the defences Mr. Danjou purported to raise, that the offence is “very grave”, that the offence was “violent” and that if convicted, Mr. Danjou could face life imprisonment. The bail judge acknowledged that these four factors are not exhaustive, and at para. 15 of her reasons, the bail judge considered that the ultimate question was whether detention is necessary to maintain confidence in the administration of justice from the perspective of a reasonable person properly informed who is not a legal expert and not necessarily able to appreciate the subtleties of the various defences available to the accused. [12] This paragraph echoed St-Cloud ’s guidance that s. 515(10)(c) requires considering whether a reasonable member of the public would continue to have confidence in the administration of justice: [ 79 ]      Thus, a reasonable member of the public is familiar with the basics of the rule of law in our country and with the fundamental values of our criminal law, including those that are protected by the Charter. Such a person is undoubtedly aware of the importance of the presumption of innocence and the right to liberty in our society and knows that these are fundamental rights guaranteed by our Constitution. He or she also expects that someone charged with a crime will be tried within a reasonable period of time, and is aware of the adage that “justice delayed is justice denied”: R. v. Trout , 2006 MBCA 96, 205 Man. R. (2d) 277, at para. 15. Finally, a reasonable member of the public knows that a criminal offence requires proof of culpable intent ( mens rea ) and that the purpose of certain defences is to show the absence of such intent. A well-known example of this type of defence is the mental disorder defence. The person contemplated by s. 515(10)(c) Cr. C . therefore understands that such a defence, once established, will enable an accused to avoid criminal responsibility. However, it would be going too far to expect the person in question to master all the subtleties of complex defences, especially where there is overwhelming evidence of the crime, the circumstances of the crime are heinous and the accused admits committing it. [ 80 ]      In short, the person in question in s. 515(10)(c) Cr. C. is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of a case is inaccurate or who disagrees with our society’s fundamental values. But he or she is not a legal expert familiar with all the basic principles of the criminal justice system, the elements of criminal offences or the subtleties of criminal intent and of the defences that are available to accused persons. [13] The bail judge concluded that Mr. Danjou had not met his burden and so declined to order his release. Positions of the parties [14] Mr. Danjou submits that the bail judge erred in principle by improperly considering what the perspective of a reasonable person properly informed per St-Cloud must be. Mr. Danjou submits that the public would be sympathetic to individuals who may have had a break with reality or have diminished capacity. Mr. Danjou further submits that the bail judge erred by finding the expected defences were too complicated for the public to understand. Mr. Danjou also submits that the tertiary ground is reserved for cases that “shock the community” and that the four factors in s. 515(10)(c) do not reach “their highest levels” in his case. [15] The Crown submits the bail judge made no errors, and that the impugned language from the bail judge reflects St-Cloud . The Crown also submits, as it submitted at the bail hearing, that there is no evidence to support the defences raised by Mr. Danjou. Finally, the Crown submits that Mr. Danjou mistakes the scope of the tertiary ground and that St-Cloud necessitates a far more liberal reading. Analysis [16] Section 680(1) of the Code reads: 680 (1) A decision made by a judge under section 522 or subsection 524(4) or (5) or a decision made by a judge of the court of appeal under section 261 or 679 may, on the direction of the chief justice or acting chief justice of the court of appeal, be reviewed by that court and that court may, if it does not confirm the decision, (a)        vary the decision; or (b)        substitute such other decision as, in its opinion, should have been made. [17] The Supreme Court of Canada interpreted s. 680 in the context of bail pending appeal in R. v. Oland , 2017 SCC 17. Oland describes that the threshold for directing a review is whether it is arguable that the bail judge committed material errors of fact or law, or whether the impugned decision was clearly unwarranted in the circumstances. The parties have not argued that Oland applies differently in the context of bail pending trial, as is the case here, so I will proceed with the analysis on the basis that Oland applies in the same manner to bail pending trial as bail pending appeal. [18] I do not find it arguable that the bail judge committed material errors of fact or law and do not see the bail judge’s decision as clearly unwarranted. The bail judge correctly identified the offence as grave and correctly assessed the potentially lengthy incarceration facing Mr. Danjou. Mr. Danjou has not shown that the bail judge misconstrued his likelihood of success at trial, nor has Mr. Danjou pointed to any error in the bail judge’s assessment of the evidence. [19] I do not view the bail judge as resting her decision on whether a reasonable member of the public could not understand the subtleties of the defence; rather, the bail judge was simply reiterating the St-Cloud test. The bail judge assessed the expected defences as overly weak, not as overly subtle. Mr. Danjou does not assert that the bail judge fundamentally misunderstood or underestimated the strength of the defences he sought to raise, and I have been given no reason to question the bail judge’s assessment of the probability of conviction. [20] As for the submission that the tertiary ground is limited to cases that would shock the community, it is simply incorrect. As St-Cloud explains at para. 87: · Section 515(10)(c) Cr. C. does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused. · Section 515(10)(c) Cr. C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes. [21] The bail judge made no arguable error of fact or law in her consideration s. 515(10)(c). [22] I take Mr. Danjou’s submission that the four factors of s. 515(10)(c) do not reach the “highest levels” to argue that even if the bail judge had properly considered the law, Mr. Danjou’s detention was “clearly unwarranted” under Oland . Under Oland , for the bail judge’s decision to be clearly unwarranted, it must be a decision that no reasonable bail judge could have made: R. v. Poony , 2017 BCCA 447 at para. 29. I do not see the bail judge’s overall exercise of discretion to reach this high standard. Disposition [23] For these reasons, I dismiss Mr. Danjou’s application to direct a review. “The Honourable Chief Justice Bauman”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Lloyd, 2019 BCCA 25 Date: 20190115 Docket: CA45046 Between: Regina Respondent And Joseph Ryan Lloyd Appellant Before: The Honourable Mr. Justice Harris The Honourable Madam Justice Stromberg-Stein The Honourable Madam Justice Fenlon On appeal from:  An order of the Provincial Court of British Columbia, dated September 18, 2017 (conviction) and January 5, 2018 (sentence) ( R. v. Lloyd , Vancouver Registry 233735-2-C). Oral Reasons for Judgment Counsel for the Appellant: D.N. Fai Counsel for the Respondent: J.N. Walker Place and Date of Hearing: Vancouver, British Columbia January 15, 2019 Place and Date of Judgment: Vancouver, British Columbia January 15, 2019 Summary: Appeal of convictions on basis that an arrest search incidental to arrest that produced evidence on which some of the convictions depended was unlawful and the search unreasonable. Appeal dismissed; the judge did not misapprehend the evidence critical to her conclusion that the arrest was lawful, the search was reasonable, and the evidence was admissible. [1] HARRIS J.A. : Mr. Lloyd appeals his conviction of multiple counts of possession of controlled substances for the purposes of trafficking, carrying a concealed weapon (a knife), possession of a weapon for a purpose dangerous to the public peace, obstructing a peace officer, and assaulting a peace officer with a weapon. [2] Critical to his convictions was the result of a voir dire held to determine the admissibility of evidence seized in a search incidental to his arrest. Mr. Lloyd contended that his arrest was unlawful and accordingly the search was unreasonable. [3] It is not necessary to recount the facts in detail. In short, Mr. Lloyd was approached by two plain clothes police officers as he sat with another man outside a coffee shop. The judge accepted that the officers advised the men that they were police officers investigating a bylaw infraction for smoking within six metres of a doorway. They advised them that they were not free to leave. They asked for their names and dates of birth. The accused was uncooperative but eventually gave his name. One of the officers queried both names on the computer in the police car. Before the process was complete, the other officer noticed a bulge in the accused’s clothing that he suspected to be a weapon. He called a warning to the police officer in the vehicle, who returned to the scene. [4] The officers were concerned that the accused was about to run. They advised him again that he was not free to go and warned him of the offence of obstructing police. One officer attempted to grab his arm. A fight ensued and the accused attempted to draw a knife. The police knocked it out of his hand and a bystander retrieved it. The fight was intense. The accused was arrested and searched while handcuffed, lying on the ground, and still struggling. He was found to be carrying a leather purse under his shirt which contained 25.7 grams of cocaine, 56.59 grams of methamphetamine, and 51.29 grams of heroin and fentanyl in combination. The drugs were in small plastic bags. The accused was also carrying a digital scale, two knives, and $1,780 in cash. [5] The defence argued that the evidence should be excluded because the whole police interaction was a ruse for the purposes of interacting with the accused. Alternatively, the defence argued that the arrest for obstruction was unlawful, because the officers had already completed the identification of the accused: they had learned his name and one of them recognized the name. Therefore there was no further reason to detain him, the arrest was unlawful, and the ensuing search violated s. 8 of the Charter . The defence also argued that the police tried to conceal, in their initial report to Crown counsel, the original purpose for their surveillance, and that this should cast doubt on all their evidence. [6] The judge concluded that the arrest was lawful, the search was reasonable, and the evidence was admissible. She found that the police did not try to conceal the initial purpose of their investigation. She found the facts as I have set them out above. In so doing, she rejected the position on the facts taken by Mr. Lloyd’s counsel. She accepted that the police had not completed their confirmation of Mr. Lloyd’s identity. The officers were still engaged in the execution of their duty to identify the accused at the time of the obstructive conduct. She concluded that the arrest was lawful. The search conducted incidental to that arrest did not violate s. 8 of the Charter . There was justification for a safety search, as the officers had reason to believe the accused was carrying a weapon and was backing away while blading his body away from the officer. [7] The evidence from the voir dire was admitted as evidence at trial. The findings of fact made in the voir dire reasons formed the foundation of the reasons for conviction. Mr. Lloyd contends that the judge made multiple errors in the conclusions she reached, but, in my view, they boil down to the proposition that the judge misapprehended the evidence in ways that contaminated her critical finding that the arrest was lawful. [8] As is well known, this Court shows deference to the findings of fact made by a trial judge in the absence of demonstrable error. In this particular case, I do not think the appeal can succeed unless Mr. Lloyd can demonstrate that the judge committed palpable and overriding errors of fact through misapprehending critical evidence. If the facts, as found by the trial judge are accepted, there is, in my view, not other basis to interfere with the convictions. [9] I do not think that Mr. Lloyd has done more than reargue his case at trial. He has not demonstrated any reversible error in the judge’s findings or reasoning. What he has done is attempt to persuade us that the judge ought to have reached different conclusions, for example, by taking a different view of the credibility of the officers or in her assessment of whether subjective and objective grounds existed for the arrest. I am satisfied that the judge did not misapprehend the evidence in the manner required to justify appellate intervention. All of the material findings of fact made by the judge were open to her on, and well-supported by, the evidence. On that basis, I would dismiss the appeal substantially for the reasons given by the judge. [10] STROMBERG-STEIN J.A. : I agree. [11] FENLON J.A. : I agree. [12] HARRIS J.A. : The appeal is dismissed. “The Honourable Mr. Justice Harris”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Ahmed v. Canna Clinic Medicinal Society, 2019 BCCA 44 Date: 20190116 Docket: CA45263 Between: Jutta Ahmed Appellant (Plaintiff) And Canna Clinic Medicinal Society Respondent (Defendant) Before: The Honourable Mr. Justice Harris The Honourable Madam Justice Stromberg-Stein The Honourable Madam Justice Fenlon On appeal from:  An order of the Supreme Court of British Columbia, dated April 6, 2018 ( Ahmed v. Cannaclinic Medicinal Society , Vancouver Docket S182842). Oral Reasons for Judgment The Appellant, appearing in person: J. Ahmed with M. Ahmed Counsel for the Respondent: A. Sodagar Place and Date of Hearing: Vancouver, British Columbia January 16, 2019 Place and Date of Judgment: Vancouver, British Columbia January 16, 2019 Summary: Ms. Ahmed appeals an order dismissing her petition for judicial review of a Provincial Court decision and awarding special costs against her. Held: appeal allowed in part. The chambers judge did not err by exercising his discretion to dismiss Ms. Ahmed’s petition for judicial review based on her delay and the repetition of issues raised and decided in previous court proceedings. However, the judge’s order awarding special costs against Ms. Ahmed is not supported by the reasons for judgment, and accordingly must be set aside. [1] FENLON J.A. : Ms. Ahmed is self-represented, although her husband, Mohamed Ahmed, speaks on her behalf in court proceedings as he did today. Ms. Ahmed says that the judge’s decision not to allow her to proceed with a judicial review of the Small Claims Court decision and ordering special costs against her shows he was not exercising his discretion reasonably, and did not understand that there is no time limit on a judicial review. [2] The dispute between Ms. Ahmed and the respondent Canna Clinic Medicinal Society (“Canna Clinic”) has been long and fractious. Canna Clinic leased premises Ms. Ahmed owns on Granville Street in Vancouver. The leases started in March and September 2014 for three-year terms. Things got off to a rocky start immediately as the landlord understood the tenant would be operating a clothing store when in fact it was selling marihuana, apparently without first obtaining city permits. [3] Canna Clinic left the premises in July 2015 because, in its view, Ms. Ahmed breached her obligations to provide quiet enjoyment. Ms. Ahmed commenced two separate actions. The first was commenced in Small Claims Court. She sought approximately $25,000 in damages for damage to the property. That action was dismissed at a trial conference on April 19, 2017, because Ms. Ahmed had failed to comply with orders made by the Small Claims Court to file and serve a trial statement and to produce certain documents. On November 21, 2017, Madam Justice Iyer of the Supreme Court of British Columbia dismissed Ms. Ahmed’s appeal from that decision. This Court declared Ms. Ahmed’s notice of appeal from Madam Justice Iyer’s decision a nullity in reasons indexed as 2018 BCCA 114, because there is no right of appeal to this Court from a small claims order. [4] Ms. Ahmed then commenced a second action in B.C. Supreme Court, again seeking damages for damage to the rental property left, she says, by Canna Clinic and, in addition, $268,000 in unpaid rent to the end of the lease term. Canna Clinic applied to dismiss the second action on the basis of cause of action estoppel. On May 23, 2017, Mr. Justice Steeves made that order. His decision was upheld by this Court in reasons indexed as 2018 BCCA 319. Put simply, this Court found that Ms. Ahmed had made a strategic decision to start in Small Claims Court and, having failed there, could not simply start over in a different court, even if additional breaches of the lease were being pursued. [5] In the meantime, before this Court heard the appeal from Mr. Justice Steeve’s order, Ms. Ahmed applied to the Supreme Court for judicial review of the April 2017 Provincial Court decision dismissing her action for $25,000 in damages. This amounted to the third time that she had attempted to litigate the breaches of the lease she says Canna Clinic engaged in. The judge dismissed Ms. Ahmed’s petition for judicial review. Ms. Ahmed now appeals. [6] In my view, the judge did not make a mistake in the way he exercised his discretion. He was aware that there is no time limit for starting a judicial review proceeding, saying so expressly at para. 5 of his reasons for judgment. He decided that too much time had gone by and that was a decision open to him. [7] The judge also refused judicial review because the issues raised had already been dealt with in other court proceedings and could not be challenged again. That is the same reason this Court gave in dismissing Ms. Ahmed’s appeal to this Court last year: Ahmed v. Canna Clinic, 2018 BCCA 319. The judge made no error in his reasoning on this point. [8] I see no merit in this part of the appeal. [9] I turn now to Ms. Ahmed’s submission that the judge made a mistake in ordering special costs against her. I agree with that submission. [10] The judge considered Canna Clinic’s request for special costs and then said: [9]        THE COURT:  Mr. Ahmed, I am not able to agree with you and I hope you can take some lesson away from this, or your wife can, or you both can. The courts are here to serve a function, which is to do justice, but the courts are to do justice according to law, and the legal process in this case has to come to an end, and that is where it ought to be now. [10]      I normally do what I properly can to not award special costs against people who are unrepresented, particularly when there is a lawyer on the other side, but I am ordering special costs here, and I am doing it in accordance with these two cases that have been cited. In both of them, you were the plaintiff. One was decided by Madam Justice Fisher, as she then was, and the other by Mr. Justice Willcock, as he then was. Your insults against the courts, the court registries, and the judges cannot be accepted, and have to be punished with a special costs order against you. [11] It is clear from his reasons that the judge ordered special costs against Mr. Ahmed, and yet the order provides that the petitioner, Ms. Ahmed, is to pay special costs to Canna Clinic. This is a careless and troubling mistake given that counsel obtained an order dispensing with Ms. Ahmed’s signature. Counsel in that position has a particular responsibility to submit an order that accurately reflects the court’s decision. It is also unfortunate that the order was accepted and entered in the registry in a form that was not consistent with the reasons. [12] An appeal is from the order entered, and this order is not supported by the judge’s reasons for judgment and must be set aside. If the judge intended to order that Mr. Ahmed pay special costs personally, he did not address the considerations applicable to a costs order against a non-party. While such an order could have been made, it appears the judge assumed Mr. Ahmed was a party as he had been in the two previous cases to which the judge referred. In these circumstances I would therefore set aside the order for special costs and replace it with an order that Ms. Ahmed, as the unsuccessful party in the court below, is to pay ordinary costs at Scale B to Canna Clinic. [13] As for the costs of this appeal, success has been divided. In my view, each party should bear their own costs. [14] HARRIS J.A. : I agree. [15] STROMBERG-STEIN J.A. : I agree. [16] HARRIS J.A. : The appeal is allowed to the extent that the order of special costs is set aside and replaced with an order on the terms described in Madam Justice Fenlon’s reasons for judgment. Each party will bear their own costs in this Court. [Discussion with Mr. Ahmed re: seeking clarification] [17] HARRIS J.A. : The reasons will be transcribed and made available to you. You will then be able to understand clearly what it is we have ordered. To summarize, we have ordered that each party will bear their own costs for this appeal, so you do not have to pay anything in respect of that. Secondly, insofar as the issue involving costs below from Mr. Justice Macintosh, the order of special costs against Ms. Ahmed has been set aside. What she owes are costs on the Party and Party Scale. “The Honourable Madam Justice Fenlon”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Randhawa , 2019 BCCA 15 Date:  20190116 Docket:  CA45077 Between: Regina Respondent And Gursher Singh Randhawa Appellant Before: The Honourable Mr. Justice Tysoe The Honourable Mr. Justice Harris The Honourable Madam Justice Griffin On appeal from:  An order of the Supreme Court of British Columbia, dated October 13, 2017 ( R. v. Randhawa , Vancouver Docket No. 27071). Counsel for the Appellant: P.J. Wilson, Q.C. Counsel for the Respondent: M.A. Street Place and Date of Hearing: Vancouver, British Columbia December 14, 2018 Place and Date of Judgment: Vancouver, British Columbia January 16, 2019 Written Reasons by: The Honourable Madam Justice Griffin Concurred in by: The Honourable Mr. Justice Tysoe The Honourable Mr. Justice Harris Summary: The appellant challenges his conviction for aggravated assault and possession of a weapon for a dangerous purpose. He argues the trial judge erred in instructing the jury on self-defence, and says that the charge properly should have required juror unanimity on each element of the defence of self-defence. Held: Appeal dismissed. The Crown’s burden of proof in disproving the defence of self-defence only requires it to prove that one of the three elements of the defence does not apply. The trial judge properly instructed the jury that unanimity was required only on the ultimate conclusion that the defence did not apply. In any event, a functional approach demonstrates that the instruction was clear that on the facts of this case, jury unanimity was required to determine that the defence failed on its third element, whether his actions were reasonable in the circumstances. Reasons for Judgment of the Honourable Madam Justice Griffin: Introduction [1] The appellant, Mr. Randhawa, was involved in a bar brawl on May 25, 2014, that led to him brandishing a knife and stabbing six people. [2] On October 13, 2017, a jury found Mr. Randhawa guilty of five counts of aggravated assault contrary to s. 268(2) of the Criminal Code , R.S.C. 1985, c. C-46, and one count of possession of a weapon for a dangerous purpose contrary to s. 88(1) of the Code . [3] The sixth person stabbed by Mr. Randhawa did not testify and Mr. Randhawa was acquitted in relation to that charge. [4] At trial, Mr. Randhawa did not contest the underlying conduct establishing the elements of the offences. Instead, he relied on the defence of self-defence. [5] Mr. Randhawa challenges his conviction on the basis that the trial judge erred in instructing the jury on self-defence. [6] The portion of the trial judge’s charge at issue was based on model jury instructions produced by the Canadian Judicial Council. Those instructions treat the three constituent elements of the defence of self-defence as not requiring juror unanimity, so long as the jury is unanimous in agreeing that the Crown has proven at least one of the three required elements of the defence does not apply and that the defence has therefore failed. The Crown submits that this is a proper charge. [7] Mr. Randhawa argues that the charge properly should have required juror unanimity on which element of the defence of self-defence the Crown had proven did not apply. Background [8] The bar brawl began after Mr. Randhawa attempted to take a photograph of two women on the dance floor and a man was in his way. They argued and a fight ensued, with a number of men joining in. [9] The room was dark with flashing strobe lights and loud music. There were inconsistencies in the witnesses’ evidence at trial as to what exactly happened. There was evidence that Mr. Randhawa was in the fight, ended up at the bottom of a pile of men, fought his way up and pulled out a knife waving it around him, slashing or stabbing people. Mr. Randhawa was seen the next day with black eyes, a bruised, puffy and scratched face, and walking with a limp. [10] Mr. Randhawa testified that he felt that there were bodies swarming around him, he was punched in the face and upper body, and bodies were hurled on top of him. His knee was bent awkwardly. He felt there were ten to twelve hands punching him during parts of the fight, five or six men beating him. He testified in direct as follows: Q         Various people said that you used a knife; is that true? A          Yes, sir. I pulled a knife out of my pocket and started swinging at people. Q         When did you do that? A          After I’d already been on the ground once. The beating wasn’t stopping. People were still trying to get at me, while I was on the ground there, and I figured I had to -- I had to use one, just to get out of there. Q         Why did you pull the knife out? A          To be honest, I was scared. I was getting beaten up really badly. I was outnumbered by, like I said, a huge, huge amount of people. And I just really wanted to get out of there. Like, I didn’t know what was going to happen to me. Q         Why were you scared? A          To me, at the time, it felt a little bit confusing. Like, I didn’t understand why there was such a severe sort of fight happening in that situation. There was -- like, you would think after you hit the ground once people would stop. Like, just some punches were exchanged, but you would think the fight would end, and it wasn’t. And I was a brown guy in a club with five or six other brown guys. I don’t know if any of you’ve been to a nightclub but the script sort of -- you know, I’ve seen it before where, you know, people get jumped and stuff. You hear stories about brain damage and all sorts of things like that. And for all I knew these guys were gangsters. I didn’t know what they were. Q         And why did you strike out with a knife? A          I just didn’t see any other way of getting out of the situation. You know, fighting back with punches wasn’t getting me anywhere and I just sort of wanted to get people away from me. I really wasn’t trying to hurt anyone. Like, I didn’t try to hit anyone in the face, or anything like that. I just wanted to get out of there. [11] Mr. Randhawa was 26 years old at the time of the offence. He was just under six feet tall and weighed approximately 180 pounds. [12] Mr. Randhawa was cross-examined about his recollection of events and the sequence of the fight, as well as the manner in which he pulled the knife out of his pocket, opened it and swung it around him. He admitted to stabbing one of the victims in the stomach and stabbing a bouncer in the arm. He admitted to inflicting serious wounds on six people that night. [13] In addition to witness testimony about the fight, the jury was shown videotape of the events towards the end of the fight. Submissions at trial [14] Both the defence and Crown counsel agreed that the issue at trial was whether the Crown had proven beyond a reasonable doubt that Mr. Randhawa was not acting in self-defence. [15] The parties agreed that s. 34 of the Code governed the defence. It provides: 34  (1)   A person is not guilty of an offence if (a)   they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (b)   the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (c)   the act committed is reasonable in the circumstances. (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (a)   the nature of the force or threat; (b)   the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (c)   the person's role in the incident; (d)   whether any party to the incident used or threatened to use a weapon; (e)   the size, age, gender and physical capabilities of the parties to the incident; (f)    the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (g)   the nature and proportionality of the person’s response to the use or threat of force; and (h)   whether the act committed was in response to a use or threat of force that the person knew was lawful. [16] In closing statements to the jury, both the defence and the Crown emphasized the jury should not have much difficulty determining the first two questions required by s. 34 of the Code . Instead, their focus would be on the third question: was Mr. Randhawa’s conduct reasonable in the circumstances of the case? The defence described this to the jury as the “critical question”; the Crown described it as the “focus [of their] entire deliberation” and the “nub of the case”. Jury Charge [17] The trial judge provided the jury with a written charge, which he then read out to them. He supplemented the written charge with an oral review of the evidence. [18] The trial judge reviewed the basic information required for most criminal juries, including the importance of impartiality, the presumption of innocence and the burden of proof on the Crown to prove guilt beyond a reasonable doubt. [19] The trial judge outlined the essential elements of the offences and advised the jury that the position of the Crown and defence was that these were not seriously in dispute. He instructed the jury that he expected they would have little difficulty in finding that the Crown had established the essential elements, given Mr. Randhawa’s acknowledgement that he stabbed each of the complainants. The trial judge instructed the jury that “the central issue for you to decide is whether Mr. Randhawa acted in self defence” (at para. 69). [20] The trial judge explained how the jury should approach the issue of self-defence as follows: [73]      Mr. Randhawa does not have to prove that he acted in self defence. It is for the Crown to prove beyond a reasonable doubt that he did not. [74]      To decide whether the Crown has proved beyond a reasonable doubt that Mr. Randhawa did not act in self defence, you will have to consider three questions: 1.         Has the Crown proved beyond a reasonable doubt that Mr. Randhawa did not believe on reasonable grounds that force was being used against him? 2.         Has the Crown proved beyond a reasonable doubt that Mr. Randhawa did not commit the act for the purpose of defending or protecting himself from the use of force? 3.         Has the Crown proved beyond a reasonable doubt that Mr. Randhawa’s act was not reasonable in the circumstances? [75] If you find that the answer to one or more of these questions is “yes”, the defence of self defence fails. It does not matter if you do not all agree on which of these questions is answered “yes”. [76]      If you all agree that the answer to all three questions is “no”, the conditions for self defence are present and you must acquit Mr. Randhawa. [Emphasis added.] [21] Mr. Randhawa submits the trial judge erred in the above para. 75 of the charge. [22] At paras. 80 – 93 of the charge, the trial judge reviewed in detail the evidence on each of these three questions relating to self-defence. [23] In describing the evidence in relation to the first two questions, the trial judge told the jury that, in the circumstances, they would have little difficulty in concluding that the answer was “no”. [24] In respect of the third question, the trial judge described the jury’s task this way: Has the Crown proved beyond a reasonable doubt that Mr. Randhawa’s act was not reasonable in the circumstances? [90]      This question relates to Mr. Randhawa’s conduct and requires you to decide whether that conduct was reasonable in the circumstances as Mr. Randhawa knew or believed them to be. [91]      Anyone who defends or protects himself or another person cannot be expected to know exactly how to respond or to deal with the situation or to know how much force to use to achieve his purpose. What is reasonable may include several alternatives. This issue here is not whether Mr. Randhawa believed on reasonable grounds that he had no other course of action available to him, but rather whether what Mr. Randhawa did was a reasonable thing to do in the circumstances as he knew or reasonably believed them to be. [92]      In determining whether the act committed was reasonable in the circumstances, you must consider all of the circumstances, including but not limited to: · The nature of the force or threat; · The extent to which the use of force was imminent and whether there were other means available to respond to the use or potential use of force; · Mr. Randhawa’s role in the incident; · Whether any of the other people involved used or threatened to use a weapon; · The size, age, gender and physical capabilities of those involved in the incident; · The nature, duration and history of any relationship among the people involved in the incident, including any prior use or threat of force, and the nature of that force or threat; · Any history of interaction or communication among the people involved in the incident; · The nature and proportionality of Mr. Randhawa’s response to the use or threat of force; and · Whether Mr. Randhawa’s act was in response to a use of threat of force that Mr. Randhawa knew was lawful. [93]      Both Mr. Wilson on behalf of Mr. Randhawa and Mr. MacFarlane for the Crown submitted that this is the critical issue that you will have to decide. Was Mr. Randhawa’s use of a knife reasonable in the circumstances? You have heard evidence from a number of people about what happened at the bar in the late evening of May 24 and the early morning of May 25, 2014. As both counsel noted, no clear story emerges which may not be surprising given the setting, the conditions in the bar, the fact that most of the people involved had been drinking and the passage of time. It is for you to decide based on all of the evidence that you heard, whether Mr. Randhawa acted reasonably in the circumstances. Use your common sense, life experience and knowledge of human nature in your assessment of the evidence to answer this question. [25] After he had just explained, as set out above, that the “critical issue” for resolution would be whether “Mr. Randhawa’s use of a knife [was] reasonable in the circumstances”, the trial judge then reviewed the positions of the parties for the jury. In so doing, he focussed on each party’s position regarding this third component of self-defence. [26] The trial judge also explained the concept of jury unanimity: [ 100]    A verdict, whether one of guilty or not guilty, is the unanimous decision of the jury. To return a verdict requires that all of you agree on your verdict. While your verdict on the offences with which Mr. Randhawa has been charged must be unanimous, your route to the verdict need not be. You could all be satisfied of Mr. Randhawa’s guilt beyond a reasonable doubt even though individually you have different views of the evidence. Similarly, you could all have a reasonable doubt about Mr. Randhawa’s guilt, but not agree why. It matters not, provided that your verdicts on the offences of assault with a weapon and aggravated assault are unanimous. [103]    If you cannot reach a unanimous verdict, you should notify the sheriff in writing. He or she will bring me your message. [107]    Any verdict you reach must be unanimous. Unless you are unanimous in finding Mr. Randhawa guilty, you cannot convict him. Nor can you return a verdict of not guilty unless you agree unanimously that he is not guilty. [108]    Each of you must make your own decision whether Mr. Randhawa is guilty or not guilty of each count. You should reach your decision only after consideration of the evidence with your fellow jurors. Your duty is to try to reach a unanimous verdict. However, you are entitled to disagree if you cannot reach a unanimous verdict after a sincere consideration of the facts and the law and an honest discussion with your fellow jurors. [27] After the judge finished delivering the charge, the defence objected to para. 75 of the charge, submitting that unanimity was required with respect to a “yes” answer on the three components of self-defence because these were elements of the offence. The Crown disagreed. The trial judge declined to make a correction to his charge in this regard. After discussion with the parties, the trial judge did make some additional comments to the jury on other matters. [28] During deliberations, the jury sent a question to the court regarding the correct approach to determine whether Mr. Randhawa’s conduct was reasonable. The question was: When we the jury are determining whether or not Mr. Randhawa’s conduct was reasonable in the circumstances, is that reasonableness based on our thoughts now, looking at the circumstances, or as Mr. Randhawa knew or believed them to be at the time? [29] After hearing submissions from counsel, the trial judge provided the jury with a response to the question. The response is not challenged on this appeal, and included the following explanation: Reasonableness is an objective standard. It requires you as the jury and the judges of fact to consider Mr. Randhawa’s actions through the eyes of the reasonable person. Now one definition of a reasonable person is as follows. The reasonable person is a person of the same age, gender, physical capabilities as well as past interactions and communications with the complainants as Mr. Randhawa. A reasonable person cannot be expected to know exactly what course of conduct or how much force is necessary in self-defence. While reasonableness is an objective standard, Mr. Randhawa’s subjective belief about the circumstances facing him is a relevant consideration, but it is not determinative. That subjective belief must be based on reasonable grounds. In other words, Mr. Randhawa’s understanding or belief of the circumstances must be reasonable. Issue on Appeal [30] Mr. Randhawa agrees that the only real issue for the jury to decide in this case was the third question in the defence of self-defence: whether the Crown had proven that the use of force was not reasonable. Mr. Randhawa submits that the trial judge needed to instruct the jury of the need for unanimity in answering that question. [31] Mr. Randhawa submits that the instruction that told the jury “[i]t does not matter if you do not all agree on which of these questions is answered ‘yes’” (at para. 75), opened up the possibility that the jury could have rejected the defence of self-defence even though they were not unanimous about whether the Crown proved that Mr. Randhawa’s conduct was “not reasonable”. [32] The Crown submits that so long as it proved to each juror that one element of the defence of self-defence did not apply, such that all members of the jury agreed the defence did not apply, the jury did not need to be unanimous on which question they answered “yes”. Analysis [33] For ease of reference I will repeat the criteria in s. 34(1) of the Code : 34  (1) A person is not guilty of an offence if (a)  they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (b)  the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (c)  the act committed is reasonable in the circumstances. [34] Mr. Randhawa accepts that once there is an air of reality to the defence, the Crown need only prove beyond a reasonable doubt one of the three elements of self-defence set out in s. 34(1) of the Code does not apply: R. v. Borden, 2017 NSCA 45 at para. 91; R. v. Cormier , 2017 NBCA 10 at para. 40. This is because all three criteria in s. 34(1) must be present for the defence to be available. [35] Mr. Randhawa argues that it flows from this premise, logically, that the jury must be unanimous in concluding that the Crown has disproved one of the three elements of the defence. More precisely, Mr. Randhawa submits that the jury must be unanimous on which of the three elements of the defence the Crown has disproved. [36] Mr. Randhawa submits that if the jury was not unanimous on the third element of self-defence, which was the only real issue for the jury to decide in this case, then he was entitled to an acquittal. [37] There is little authority on this issue. [38] In R. v. Dagenais, 2012 SKCA 103, the Saskatchewan Court of Appeal considered the argument that the jury should have a unanimous view about each element of the defence to run contrary to common sense: [32 ]      The final argument advanced by Mr. Dagenais concerns the defence of self-defence. He takes issue with the trial judge's instructions to the jury to the effect that jurors were not required to be unanimous in their individual assessments of the elements of self-defence so long as they were unanimous with respect to the bottom-line, i.e. as long as they were unanimous about whether or not the defence had been made out. Mr. Dagenais says this was wrong in principle. In his view, the trial judge should have instructed the jurors that they were required to have a unanimous view about each element of the defence. [33 ]      We are not prepared to accept this argument. Counsel for Mr. Dagenais acknowledges that he has no legal authority for it. We are not inclined to break new ground on this front. [34] Simply put, Mr. Dagenais’ submission on this point runs counter to common sense in that, if accepted, it could result in an accused person being acquitted even though each of the jurors agreed that he or she had no defence. Further, it also runs counter to the basic principle, reflected in cases such as R. v. Thatcher , [1987] 1 S.C.R. 652 , to the effect that the members of a jury are required to agree only on the ultimate verdict , not on the precise path to that verdict. [39] The Appeals Court of Massachusetts recently reached a similar conclusion, noting that, “it is ‘the absence of self-defense,’ and not the theory thereof, that is subject to the reasonable doubt standard”: Commonwealth v. Humphries, 91 Mass. App. Ct. 1101 (2017), citing Commonwealth v. Rodriguez, 370 Mass. 684 at 689 (Sup. Ct. 1976). In Humphries, the court held there was no requirement that the jury be unanimous as to how the absence of self-defence was proved. [40] Case law out of the Court of Appeals of Texas is consistent with this approach. That court described the defence of self-defence as analogous to “the ‘manner and means’ by which the specific actus reus element [of the offence charged] was committed and on which the jury is not required to unanimously agree”: Harrod v. State , 203 S.W.3d 622 at 627 (Tex. App. Ct., 5th Dist. 2006). [41] Mr. Randhawa submits that this Court should not follow Dagenais as it misconstrues the case it relies on, R. v.Thatcher , [1987] 1 S.C.R. 652, and is incorrect. [42] Mr. Randhawa submits that Thatcher merely stands for the proposition that jurors need not be unanimous on the factual pathway each relies on to reach a conclusion that the Crown has proven or disproven an element of an offence or defence, respectively. However, they still need to be unanimous that the Crown has proven an essential element of an offence, or negated an essential element of a defence, beyond a reasonable doubt. [43] The trouble I have with Mr. Randhawa’s argument is that it equates the application of the Crown’s burden of proof in disproving the defence of self-defence with the Crown’s burden of proof on elements of an offence. The application of these burdens of proof are not analogous. In order to meet its overall burden of proof, the Crown has to satisfy the trier of fact that it has proved each element of an offence beyond a reasonable doubt. In contrast, the Crown only has to satisfy the trier of fact that it has disproved one element of the defence of self-defence beyond a reasonable doubt. [44] As such, juror unanimity is required only on the ultimate conclusion: whether the Crown proved beyond a reasonable doubt that the accused did not act in self-defence. This is precisely how the trial judge instructed the jury in this case. [45] I agree with the logic identified in Dagenais . If this Court were to accept Mr. Randhawa’s argument, it could lead to the strange result that an accused would be acquitted because the Crown failed to disprove the defence of self-defence, even though each juror unanimously agreed, but in their own ways, that they were satisfied beyond a reasonable doubt that the defence did not apply. [46] Regardless of the above analysis, I am also satisfied that in the present case there could be no question in the juror’s minds that the only issue for them to decide was the third element of self-defence. Taking a functional approach to the whole of the jury instruction, the instruction made it clear that: there was no basis for concluding the Crown had established that the defence failed on either of its first two elements; the Crown had to establish that the defence failed on its third element; and jury unanimity was required to determine that the defence failed on its third element. [47] Additionally, the jury’s question to the court made it clear that the third element of the defence was the jury’s focus. The trial judge’s response was that reasonableness required “you as the jury … to consider Mr. Randhawa’s actions through the eyes of the reasonable person”. The jury could not be confused that the one issue they had to decide was, on the facts of this case, something that they had to all agree on: that Mr. Randhawa’s conduct was not reasonable in the circumstances. Conclusion [48] I would therefore dismiss the appeal. “The Honourable Madam Justice Griffin” I AGREE: “The Honourable Mr. Justice Tysoe” I AGREE: “The Honourable Mr. Justice Harris”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Vancouver Coastal Health Authority v. Moscipan, 2019 BCCA 17 Date: 20190116 Docket: CA45044 Between: Vancouver Coastal Health Authority Respondent (Plaintiff) And Miroslaw Moscipan Appellant (Defendant) Before: The Honourable Mr. Justice Goepel The Honourable Mr. Justice Savage The Honourable Madam Justice Fisher On appeal from:  An order of the Supreme Court of British Columbia, dated December 19, 2017 ( Vancouver Coastal Health Authority v. Moscipan , 2017 BCSC 2339, Vancouver Docket S121908). Counsel for the Appellant: C. Cheng G. Hooper Counsel for the Respondent: S.F. Lee N. Anand Place and Date of Hearing: Vancouver, British Columbia September 26, 2018 Place and Date of Judgment: Vancouver, British Columbia January 16, 2019 Written Reasons by: The Honourable Mr. Justice Goepel Concurred in by: The Honourable Mr. Justice Savage The Honourable Madam Justice Fisher Summary: The appellant was found liable for knowingly receiving $246,073.23 of proceeds of his deceased wife’s conversion and fraud against her employer, the respondent Vancouver Coastal Health Authority. The trial judge also held that the transfer of the family home into joint tenancy by the appellant’s late wife was a fraudulent conveyance, declaring it void and setting it aside. On appeal, the appellant submits that the trial judge erred on the knowledge and receipt requirements of knowing receipt, and in setting aside the transfer of the family home as a fraudulent conveyance. Held: appeal allowed in part. The trial judge did not err on the knowledge requirement of knowing receipt. However, he erred in finding that the appellant received $246,073.23 of proceeds of his wife’s fraud on the basis that they were spent on family expenses. On the evidentiary record, the proper quantum of restitution in knowing receipt that the appellant must pay to the respondent is $130,295.74. The trial judge did not err in finding that the transfer of the family home into joint tenancy with the appellant was a fraudulent conveyance, as it was done for the purpose of delaying and hindering the creditors of the appellant’s late wife. However, he erred in declaring the transfer void and setting it aside. The correct form of order is to leave the transfer intact, but declare it void only as against the creditors of the grantor. Reasons for Judgment of the Honourable Mr. Justice Goepel: INTRODUCTION [1] Between 2003 and 2011 Wanda Moscipan misappropriated from her employer, the respondent Vancouver Coastal Health Authority (VCHA), more than $500,000. On October 29, 2010, she was diagnosed with a terminal illness. On March 3, 2011, she transferred a half interest in the family home, which had been for many years registered only in her own name, into the names of herself and her husband, the appellant Miroslaw Moscipan, as joint tenants. Ms. Moscipan passed away in July 2012. On August 8, 2012, Ms. Moscipan’s remaining half interest in the family home was transferred to Mr. Moscipan as the surviving joint tenant. [2] In March 2012, VCHA commenced proceedings against Ms. and Mr. Moscipan and their son, Brian. Ms. Moscipan did not file a response to the civil claim before she passed away. Her estate did not defend the claim. Prior to trial, VCHA discontinued its action against Brian. Mr. Moscipan defended himself at trial. [3] The trial judge, in reasons indexed at 2017 BCSC 2339 (the “Reasons”), granted VCHA judgment against the estate of Ms. Moscipan in the amount of $574,646.51 plus prejudgment interest. He found the transfer of Ms. Moscipan’s one-half interest in the family home to be a fraudulent conveyance and held that the conveyance was void and set it aside. He granted judgment against Miroslaw Moscipan in the sum of $246,073.23 on the grounds that he knowingly received the benefit of his wife’s conversion and fraud. [4] Mr. Moscipan now appeals. He submits that he was at all times the beneficial owner of one-half of the family home and the transfer of legal title to a beneficial owner cannot be a fraudulent conveyance. He submits that the tort of knowing receipt only applies to funds that a person actually receives for his or her own use and benefit. He submits the trial judge erred in finding him liable for amounts he did not receive. BACKGROUND [5] Ms. Moscipan was a long-term and trusted employee of VCHA and the Faculty of Medicine at the University of British Columbia (UBC). She worked as an administrator in the Department of Obstetrics & Gynaecology at both. VCHA was responsible for 80% of her salary and UBC was responsible for 20% of her salary. Prior to the discovery of her theft and fraud, both VCHA and UBC considered her an indispensable employee, particularly regarding financial matters. [6] Mr. Moscipan was born in Poland in 1956 and immigrated to Canada in 1974. He met Ms. Moscipan shortly thereafter and they began dating in 1975. They married in 1979 and had three children together. [7] Ms. Moscipan joined the Department of Obstetrics & Gynaecology at UBC as a junior assistant in 1974. She took some time off when the children were young, but worked her way up through various secretarial and administrative positions before her appointment in 1997 as Senior Administrator. [8] Mr. Moscipan had worked as an auto mechanic from 1975 to 1987. He then purchased and drove a “semi” from 1987 to 1991. After that he dabbled, without great success, in home construction, but was primarily a stay-at-home parent. The Moscipans purchased their family home on Tennyson Crescent in North Vancouver in 1984 (the “Tennyson Property”). The Tennyson Property was originally registered in the name of both Mr. and Ms. Moscipan. By 1992, the Tennyson Property was mortgage free. [9] The Moscipans remortgaged the Tennyson Property in 1992, and purchased a lot on Citadel Court in North Vancouver in 1994 (“Citadel Property”). They then took out a $400,000 construction loan which was secured against both the Citadel Property and the Tennyson Property. Mr. Moscipan began constructing a house on the Citadel Property in 1995, doing much of the work himself. He drew down $200,000 on the construction loan in order to get the house to the framing stage. [10] Ultimately, the credit union refused to advance any more money to the Moscipans, and in 2000 the credit union commenced foreclosure proceedings. Mr. Moscipan still wanted to complete the Citadel project and secured further financing from Capital Direct. Capital Direct ultimately foreclosed on the Citadel Property. The foreclosure sale proceeds were inadequate to pay all of the Moscipan’s indebtedness, so the Moscipans were forced to take out a $200,000 mortgage on the Tennyson Property in 2001. [11] Mr. Moscipan testified that he felt guilty about jeopardizing the family’s security and worried that if the Tennyson Property remained in his name, he might be tempted to remortgage the property to pursue another venture. To ensure that did not happen, he says he transferred his half interest in the Tennyson Property to his wife. He says he told her she could do anything she wanted with the property including “kick [him] out”. The transfer was made at or about the time the Tennyson Property was remortgaged for $200,000. [12] Ms. Moscipan made all the regular scheduled payments on the mortgage, and various lump sum payments. Specifically, Ms. Moscipan made a $40,000 lump sum payment on the mortgage both in 2002 and 2008, and then paid out the balance of the mortgage with a further lump sum payment of nearly $68,000 in January 2011. There is no dispute that all of the money used for the lump sum payments came from Ms. Moscipan’s father, or his estate. [13] Between 2003 and 2011, Ms. Moscipan stole and/or defrauded over $500,000 from VCHA, primarily by having busy physicians sign blank cheque requisitions. Ms. Moscipan then completed the cheque requisitions and directed the requested cheques to an account she controlled. The account was known as the Gynaecological Professional Staff Fund (the “GPSF Account”). Ms. Moscipan then wrote cheques from the GPSF Account to pay for various personal and family expenses, including Mr. Moscipan’s Visa, on which she paid $145,369.28. [14] In or about March 2010, one of the doctors questioned Ms. Moscipan when he noticed that one of the department’s research funds was short approximately $250,000. Ms. Moscipan explained that the department head had approved an alternate use of the funds. As it was not uncommon for money to be moved between accounts on the understanding it would ultimately be returned to the proper account, the doctor accepted Ms. Moscipan’s explanation, but did tell her the funds would have to be returned in the coming months. This event appears to have concerned Ms. Moscipan as she did not requisition any funds from VCHA to the GPSF Account between January 20, 2010 and September 20, 2010. [15] In May 2010, Ms. Moscipan began feeling unwell. She began seeking medical treatment in July and by September believed she was dying. In September, the Moscipans met with a notary public. As a result of that appointment, Mr. Moscipan says he and his wife decided to transfer a half interest in the Tennyson Property to Mr. Moscipan and take certain other steps as estate planning measures. [16] On September 16, 2010, Ms. Moscipan made Mr. Moscipan the joint account holder on the personal account she had maintained at TD Canada Trust since 2001. On September 30, 2010, Ms. Moscipan executed a new will. Mr. Moscipan says the Moscipans were advised to transfer the half interest in the Tennyson Property after the mortgage was cleared from the title. [17] On October 29, 2010, Ms. Moscipan learned that she was terminally ill with cancer. [18] Dr. Cundiff was appointed to be department head at both UBC and VCHA in November 2010. On the day he was appointed, Ms. Moscipan informed him of her illness and that she would be taking a medical leave. Ms. Moscipan also asked, however, to continue to work evenings. [19] Over the next several months, Dr. Cundiff became suspicious of Ms. Moscipan. He believed she was trying to hide something. Eventually, he went to the Dean of Medicine at UBC in February 2011 to ask for an audit of his department. [20] On March 3, 2011, Ms. Moscipan transferred a half interest in the Tennyson Property to Mr. Moscipan as joint tenants. [21] The initial audit uncovered bookkeeping and accounting irregularities. In August 2011, Dr. Cundiff relieved Ms. Moscipan of her role in managing the finances of the department at UBC. [22] As a result of the initial audit, Dr. Cundiff became even more suspicious and asked the Dean of Medicine to do a more detailed investigation. At or about this time, a new staff person who had been given full access to the department’s financial records discovered that Ms. Moscipan was being paid as a full-time employee of UBC while also being paid 80% of the salary of a full-time employee of the VCHA. On November 15, 2011, Dr. Cundiff confronted Ms. Moscipan with the information he had learned, that she was being paid 180% salary of a full-time employee, and UBC terminated her employment. [23] Ms. Moscipan’s fraudulent use of the GPSF Account did not come to light until March 2012. On March 2, 2012 VCHA terminated her employment. [24] VCHA and UBC commenced separate claims against the Moscipans. The VCHA claim was based on the transfer of VCHA”s funds into the GPSF Account. The UBC claim was more broadly based. The bulk of UBC’s claim was to recover the amounts that it had overpaid by way of salary. In addition, UBC claimed that $59,195 of its funds had been improperly transferred into the GPSF Account, that Ms. Moscipan had submitted false merit increases to UBC, that she had purported to hire her son as an employee without proper authorization and that she had directed an unearned tuition benefit to him. UBC claimed in total $677,478.97. [25] An application to have the matters tried together, which Mr. Moscipan opposed, was dismissed (2015 BCSC 1162). The UBC action remains outstanding and as of the hearing of this appeal had not been set for trial. THE TRIAL REASONS [26] Ms. Moscipan had died prior to trial. Her estate was not represented at trial. Answers she had given at an examination for discovery in the UBC action were however admitted into evidence. The trial judge found Ms. Moscipan liable to VCHA in conversion and fraud in the total amount of $574,646.51. Mr. Moscipan did not contest these amounts and they are not in issue on appeal. [27] The main issues contested at trial were whether Mr. Moscipan was liable to VCHA for actively participating in or knowingly receiving the benefit of his wife’s conversion and fraud, and whether the transfer of the Tennyson Property was a fraudulent conveyance. [28] The trial judge analyzed the claims against Mr. Moscipan for actively participating in or knowingly receiving the benefit of his wife’s fraud (Reasons at paras. 56–79). He began his analysis by noting that there is no doubt that Ms. Moscipan held a position of trust within VCHA and that she breached that trust. The question for determination was whether Mr. Moscipan, who was a stranger to the trust, could also be held liable to VCHA. [29] The trial judge referenced the decision in Citadel General Assurance Co. v. Lloyds Bank Canada , [1997] 3 S.C.R. 805, where Mr. Justice La Forest described the different knowledge requirements to establish the liability of strangers to a trust in knowing assistance compared to knowing receipt. Liability in knowing assistance requires a defendant to have actual knowledge of, or to be reckless or willfuly blind to, their assisting in a breach of trust. On the other hand, a lower threshold of knowledge is sufficient in cases of knowing receipt. In knowing receipt cases, a stranger to the trust need not have actual knowledge that they are receiving funds in breach of trust, but only constructive knowledge. That is, a defendant must have knowledge of circumstances which would put a reasonable person on notice or inquiry. [30] The trial judge found that there was no direct evidence that Mr. Moscipan was actually aware of or participated in his wife’s actions, and that the extent of Mr. Moscipan’s knowledge must be derived exclusively from circumstantial evidence. He noted that VCHA did not seriously press for a finding that Mr. Moscipan actively participated, or knowingly assisted, in his wife’s illegal activity. Rather, the submission of VCHA at trial was that Mr. Moscipan was liable in knowing receipt because the circumstances were such that a reasonable person in his position would have been put on notice or inquiry. [31] The trial judge reviewed the evidence in some detail. He noted that Ms. Moscipan was the sole source of income for the Moscipan family. The trial judge found that Mr. Moscipan was aware that she was making over $100,000 per year from her two jobs. He further found that the evidence gave him no reason to believe that Mr. Moscipan was, or ought to have been aware, that Ms. Moscipan had arranged to overpay herself from UBC. [32] The trial judge reviewed accounting evidence and agreed with VCHA that the funds available to Ms. Moscipan as a result of her conversion and fraud effectively doubled what Mr. Moscipan understood his wife’s net income to be. He found there was evidence that the Moscipan family was leading a richer lifestyle than a typical family of four or five with the Moscipan’s net family income. [33] He noted that the best evidence that Mr. Moscipan was put on notice was his own evidence that he was suspicious. During his examination for discovery, Mr. Moscipan had admitted that Ms. Moscipan was very secretive about the family’s finances. He was suspicious that she was receiving money from her father “because she never complained that she was short of money”. During his cross-examination, he admitted having suspicions regarding how Ms. Moscipan could afford annual vacations with the children. [34] The trial judge found that Ms. Moscipan was adept at fooling people close to her regarding financial matters. In that regard, he noted that she had fooled her colleagues at UBC and VCHA for many years, to the point that it took several audits conducted over a year or more for UBC and VCHA to uncover the full extent of her conversion and fraud. He found, given Ms. Moscipan’s obvious skill at deceit, that she had also fooled Mr. Moscipan. Having reached that conclusion he then went on to consider whether Mr. Moscipan’s subjective belief that his wife had legitimate alternative sources of income was objectively reasonable. [35] He found it was not. He concluded it was not reasonable for Mr. Moscipan to believe that Ms. Moscipan’s father was the main source of all the additional income that had raised Mr. Moscipan’s own suspicions. After carefully considering all of the evidence, he concluded that Mr. Moscipan was liable to VCHA for his knowing receipt of the proceeds of Ms. Moscipan’s conversion and fraud. His finding was based on Mr. Moscipan’s constructive rather than actual knowledge of her actions. [36] The trial judge then had to consider the difficult issue of the quantum of restitution owed by Mr. Moscipan to VCHA arising from his knowing receipt. VCHA submitted that he should be held responsible for virtually all of the funds that Ms. Moscipan misappropriated, other than those clearly spent on her alone or which he clearly did not personally enjoy. VCHA relied on Mr. Moscipan’s child support obligation under s. 147 of the Family Law Act , S.B.C. 2011, c. 25 [ FLA ] to buttress its submission. [37] The trial judge found that VCHA’s submissions ignored the fact that Ms. Moscipan shared the responsibility to support the children, and that only one of the children by virtue of age alone, was a child eligible for support throughout Ms. Moscipan’s conversion and fraud. He stated that the courts in Treaty Group Inc. v. Simpson , [2001] O.J. No. 725 (S.C.J.) and Cambrian Excavators Ltd. v. Taferner , 2006 MBQB 64, two cases with closely analogous facts, had held a spouse liable for knowing receipt in the following amounts (Reasons at para. 82): (1)        50% liable for all funds attributable to “family expenses” i.e., those expenses for which both spouses were responsible and/or received a benefit; (2)        100% liable for funds solely attributable to the expenses of the receiving spouse alone; and (3)        0% liable for any funds not attributable to these categories. [38] The trial judge noted that while neither Treaty Group nor Cambrian Excavators involved minor children, expenses related to children eligible for support were, in his view, properly characterized as “family expenses” and ought to be shared equally between the spouses. [39] The trial judge then turned to quantifying the amounts for which Mr. Moscipan was to be held liable (Reasons at paras. 88–99). He noted that it was impossible to determine on the evidence precisely which expenses were family expenses, which expenses benefited exclusively Mr. Moscipan, which expenses benefited exclusively Ms. Moscipan and which expenses benefited the children after they were no longer eligible for support. He indicated, however, that he must do the best he could on the evidence before him. [40] The trial judge then undertook a minute examination of the accounting evidence. He summarized his conclusions at para. 99, and held that Mr. Moscipan must make restitution of $246,073.26. He reasoned as follows: [99]      Based on all of these calculations, throughout the course of her theft from and fraud against the VCHA, a total of $82,500 was of exclusive benefit to other family members. That means, of the $574,646.51 obtained by Ms. Moscipan by theft from and fraud against the VCHA, $492,146.51 is properly characterized as a family expense. Applying the authorities I have cited, Mr. Moscipan must pay restitution of half this amount, or $246,073.26, to the VCHA. [41] The trial judge next went on to consider the question as to whether Mr. Moscipan should be ordered to pay punitive damages to VCHA, and if so, in what amount. In rejecting this claim, the trial judge noted that Mr. Moscipan did not actively participate in his wife’s fraud and he reiterated his finding that she fooled him just as she had fooled VCHA. In the circumstances he held there was no justification to make a punitive damages award against Mr. Moscipan. No appeal has been brought from this finding. [42] The trial judge then turned to the question as to whether the half interest in the family home was fraudulently conveyed to Mr. Moscipan such that the conveyance must be set aside (Reasons at paras. 107–139). [43] The trial judge first reviewed the legal principles relevant to determining whether a disposition was intended to delay, hinder or defraud creditors. He noted the non-exhaustive list of badges of fraud which had been adopted by this Court in Banton v. Westcoast Landfill Diversion Corp ., 2004 BCCA 293 at para. 5. Those badges include: (1)      The state of the debtor’s financial affairs at the time of the transaction, including [their] income, assets and debts; (2)      The relationship between the parties to [the] transfer; (3)      The effect of the disposition on the assets of the debtor, i.e. whether the transfer effectively divests the debtor of a substantial portion or all of [their] assets; (4)      Evidence of haste in making the disposition; (5)      The timing of the transfer relative to notice of debts or claims against the debtor; (6)      Whether the transferee gave valuable consideration [for] the transfer. [44] The trial judge next considered the individual badges of fraud and made the following findings. [45] In regard to the state of the debtor’s financial affairs at the time of the transaction, he noted that Ms. Moscipan was in good financial health, but only because of her conversion and fraud. He noted that while the transfer of the Tennyson Property made sense from an estate planning perspective, it also made sense from the perspective of Ms. Moscipan’s attempt to insulate her family from the consequences of her illegal activity. [46] As to the relationship between the parties of the transfer, he noted that they could not have been closer. Ms. Moscipan transferred the half interest in the Tennyson Property to her husband. [47] As to the effect of the disposition on the assets of the debtor, the transfer constituted one half of, by far, Ms. Moscipan’s most valuable asset. While Ms. Moscipan only transferred a one-half interest in the family home, that interest was registered in joint tenancy such that the other half of the Tennyson Property was transferred to Mr. Moscipan by operation of law on Ms. Moscipan’s death. He found that Ms. Moscipan knew full well, given her diagnosis, that she was in reality transferring her entire interest in her most valuable asset to Mr. Moscipan. [48] In relation to the question of haste in making the disposition, the trial judge noted that while the transfer was not made as soon as Ms. Moscipan became aware of UBC’s concerns about her activities, it was completed as soon as title to the property was free and clear. Concerning the question of the timing of the transfer relative to notices of claims against her, the trial judge found that as early as the spring of 2010 when questions were asked concerning certain monies that were missing from one of the research accounts, that Ms. Moscipan had notice that her employers may soon discover her conversion and fraud. [49] In the fall of 2010, Ms. Moscipan knew, because of her failing health, that her conversion and fraud would likely be detected when she no longer unilaterally controlled the books. He also found it telling that immediately after the Moscipans met with the notary public and put a plan in place that included transferring the half interest in the Tennyson Property to Mr. Moscipan, knowing the other half would be transferred to him on her death, Ms. Moscipan resumed her theft and fraud against VCHA. He found that at the time of the transfer of the half interest on March 3, 2011, Ms. Moscipan must have known the jig would soon be up. [50] As to the question of whether the transfer was for valuable consideration, the trial judge suggested that Mr. Moscipan likely had some interest in the Tennyson Property at the time of the transfer on March 3, 2011. In that regard he noted the property was purchased during the marriage, and therefore likely fell within the definition of family property in the FLA and its predecessor legislation. However, citing Bayerische Landesbank v. Sieber , 2015 ONSC 27, he held that it was possible to fraudulently convey legal title to a person who already held the beneficial interest. [51] In the circumstances of this case he concluded that Mr. Moscipan did not give good consideration for the transfer. He found that all of the badges of fraud identified in Banton were present such that a presumption of fraud arose. He found that because Mr. Moscipan did not provide valuable consideration for the transfer, the fact that he subjectively believed the transfer to be for estate purposes was irrelevant. He held that the fact that Ms. Moscipan may have had a coincident legitimate estate planning objective did not rebut the presumption of fraud. In the circumstances, he set aside the March 3, 2011 transfer of the Tennyson Property from Ms. Moscipan to Mr. Moscipan. Having set aside this transfer, the subsequent transfer of the remaining half interest in the Tennyson Property on August 8, 2012 to Mr. Moscipan as the surviving joint tenant also fell. [52] He did hold that Mr. Moscipan could raise his family law interest in the Tennyson Property if the home was subsequently sold to satisfy the judgment. ON APPEAL [53] On appeal Mr. Moscipan challenges the trial judge’s conclusions on both the knowing receipt and fraudulent conveyance issues. On the knowing receipt issue he submits the trial judge erred with respect to: a)       the knowledge requirement, by conflating knowledge about excess money with knowledge of fraud; and b)       the receipt requirement, by failing to set the quantum of restitution as equal to the amount Mr. Moscipan actually received for his own use and benefit. [54] In regard to the first ground Mr. Moscipan submits that the trial judge having found that Mr. Moscipan had been fooled by his wife, erred in then finding that his subjective belief that his wife had legitimate alternative sources of income was not objectively reasonable. [55] On the fraudulent conveyance issue, Mr. Moscipan submits that the trial judge erred by: a) finding a fraudulent conveyance when the conveyance was a transfer of legal title to the beneficial owner; and b) alternatively, failing to exempt the beneficial owner’s interest from the portion of the property that creditors could attach. DISCUSSION A. Standard of Review [56] Conclusions on issues of law are reviewed on the standard of correctness: Housen v. Nikolaisen , 2002 SCC 33 at para. 8. Findings of fact, including inferences drawn from facts, are reviewed for palpable and overriding error: Housen at paras. 10, 23. Questions of mixed fact and law lie along a spectrum. Where a decision results more from a consideration of the evidence as a whole, a deferential standard is appropriate. However, where there is an extricable question of law such as the failure to consider a requirement element of a legal test, a correctness standard can be applied: Housen at paras. 33, 36. B. Knowing Receipt [57] The decisions in Citadel and Gold v. Rosenberg , [1997] 3 S.C.R. 767, which were released concurrently, remain the seminal decisions on knowing receipt. In Gold , Mr. Justice Iacobucci described the essence of a knowing receipt claim at paras. 41, 46 and 49: The essence of a knowing receipt claim is that, by receiving the trust property, the defendant has been enriched. Because the property was subject to a trust in favour of the plaintiff, the defendant’s enrichment was at the plaintiff’s expense. The claim, accordingly, falls within the law of restitution. As Denning J. said in Nelson v. Larholt , [1948] 1 K.B. 339, at p. 343: The right here is not peculiar to equity or contract or tort, but falls naturally within the important category of cases where the court orders restitution.... A stranger in receipt of trust property is unjustly enriched at the expense of the trust beneficiary. Participation in a fraudulent breach is irrelevant to the plaintiff’s claim. Liability essentially turns on whether or not the defendant has taken property subject to an equity in favour of the plaintiff. The jurisprudence has long held that, in order to take subject to an equity, a person need not have actual knowledge of the equity; notice will suffice. In my view, the same standard applies to cases of knowing receipt. Rather, the cause of action in knowing receipt arises simply because the defendant has improperly received property which belongs to the plaintiff. The plaintiff’s claim amounts to nothing more than, “You unjustly have my property. Give it back.” Unlike knowing assistance, there is no finding of fault, no legal wrong done by the defendant and no claim for damages. It is, at base, simply a question of who has a better claim to the disputed property. [58] Iacobucci J. concluded his discussion by setting out what a plaintiff must prove in order to recover the disputed property at para. 53: Therefore, to conclude my discussion of the applicable legal principles, in order to recover the disputed property, the plaintiff must prove the following: (1)      That the property was subject to a trust in favour of the plaintiff; (2)      That the property, which the defendant received, was taken from the plaintiff in breach of trust; and (3)      That the defendant did not take the property as a bona fide purchaser for value without notice. The defendant will be taken to have notice if the circumstances were such as to put a reasonable person on inquiry, and the defendant made none, or if the defendant was put off by an answer which would not have satisfied a reasonable person. [59] While Iacobucci J. was writing in dissent in Gold , in Citadel , La Forest J., writing for the Court on this issue, noted that he had read the reasons of Iacobucci J. in Gold and generally agreed with his approach which he considered similar to his own (at para. 13). Given the fundamental distinction between the nature of liability in knowing assistance and knowing receipt cases, La Forest J. held that it made sense to require a different threshold of knowledge for each category of liability. In particular, there should be a lower threshold of knowledge required in cases of knowing receipt as opposed to knowing assistance. In this regard, at para. 48 he reasoned: However, in “knowing receipt” cases, which are concerned with the receipt of trust property for one’s own benefit, there should be a lower threshold of knowledge required of the stranger to the trust. More is expected of the recipient, who, unlike the accessory, is necessarily enriched at the plaintiff’s expense. Because the recipient is held to this higher standard, constructive knowledge (that is, knowledge of facts sufficient to put a reasonable person on notice or inquiry) will suffice as the basis for restitutionary liability. Iacobucci J. reaches the same conclusion in Gold , supra , where he finds, at para. 46, that a stranger in receipt of trust property “need not have actual knowledge of the equity [in favour of the plaintiff]; notice will suffice”. [60] In the course of his analysis La Forest J. reviewed in some detail the authorities that had formulated the test for constructive knowledge including the decision of this Court in Groves-Raffin Construction Ltd. v. Bank of Nova Scotia (1975), 64 D.L.R. (3d) 78 (B.C.C.A) where Robertson J.A. set out the test at p. 138: Under what I think is the proper test no necessity to take care arises until either it is clear that a breach of trust is being, or is intended to be, committed, or until there has come to the attention of the person something that should arouse suspicion in an honest, reasonable man and put him on inquiry. The person, for his own protection, in the first event should have nothing to do with the improper transaction, and in the second event should not continue to be involved in the suspected transaction until his inquiry shows him - or, more correctly, would show a reasonable man - that the suspicion is unfounded . [61] Mr. Moscipan submits that constructive knowledge requires knowledge of the breach of trust and that VCHA failed to show that he was presented with sufficient facts such as to create a duty of inquiry about the potential misapplication of VCHA’s funds. [62] I do not agree. Mr. Moscipan does not challenge the trial judge’s finding that he was, objectively, put on inquiry that his wife had additional funds over and above her employment income. The trial judge found that Mr. Moscipan was suspicious of his wife’s spending and questioned her about it. The trial judge was unable to find, however, that it was reasonable for him to believe her explanation that her father was the main source of the additional income. To track the language of Iacobucci J. in Gold , the trial judge found that Mr. Moscipan “was put off by an answer which would not have satisfied a reasonable person” (at para. 53). No doubt Mr. Moscipan was in a difficult position, but the trial judge’s finding absent palpable and overriding error is entitled to deference. No such error has been shown. [63] The trial judge did not err in law by conflating knowledge of excess money with knowledge of fraud, as he found that Mr. Moscipan had constructive knowledge of his wife’s illegal activities. That is sufficient to meet the knowledge requirement of knowing receipt. I would not accede to this ground of appeal. [64] The question of receipt, however, raises a more difficult issue. Mr. Moscipan submits he cannot be liable under knowing receipt for any portion of the funds he did not personally receive. He submits the trial judge’s family expenses approach should be rejected, as it ignores the requisite receipt element of knowing receipt. [65] The receipt requirement requires actual receipt for one’s personal use and benefit. In Gold , Mr. Justice Sopinka writing for the majority said as follows at para. 71: In the context of knowing receipt cases, I would say that to receive trust property means, at a minimum, to take the trust property into one’s possession. Possession here does not imply any form of ownership. It implies only physical control. [66] In Citadel , La Forest J. similarly stated at para. 25: Liability on the basis of “knowing receipt” requires that strangers to the trust receive or apply trust property for their own use and benefit; see Agip (Africa) Ltd. v. Jackson , [1990] 1 Ch. 265, aff’d [1992] 4 All E.R. 451 (C.A.); Halsbury’s Laws of England , supra, at paras. 595-96; Pettit, supra , at p. 168. As Iacobucci J. wrote in Air Canada v. M & L Travel Ltd. , supra , at pp. 810-11, the “knowing receipt” category of liability “requires the stranger to the trust to have received trust property in his or her personal capacity, rather than as an agent of the trustees”. [67] In Donovan WM Waters ed, Waters’ Law of Trusts in Canada , 4th ed (Toronto: Carswell, 2012) at 519, the proposition is stated as follows: “The requirement of receipt means there is no liability unless the defendant receives beneficially.” [68] The trial judge assessed the quantum of restitution that Mr. Moscipan must make to VCHA based on an examination of family expenses. He defined family expenses as “expenses for which both spouses were responsible for and/or received a benefit” (at para. 82). Relying on the obligation on parents to support their children (s. 147 of the FLA ), he held that expenses for the benefit of minor children were also family expenses and ought to be shared equally between the spouses. He proceeded on the basis that Mr. Moscipan was 50% liable for any funds that were spent on family expenses. [69] The trial judge relied on Treaty Group and Cambrian Excavators to support his family expenses approach . He characterized the outcome of Treaty Group and Cambrian Excavators as having held the receiving spouse 50% liable for all funds attributable to family expenses, thus positing that these cases supported his approach to assessing the quantum of restitution that Mr. Moscipan must make. [70] With respect, the trial judge’s family expenses analysis overlooks the first and second elements of the test for liability in knowing receipt as set out by Iacobucci J. in Gold . The trial judge did not avert to the first element (that the funds were subject to a trust), and thereby erred in law by failing to consider a required element of a legal test. The trial judge also erred by inferring that Mr. Moscipan received VCHA’s funds based on evidence showing that the Moscipan family benefited from those funds. This lies closer along the spectrum to an extricable question of law, as it goes to the legal test for establishing a defendant’s receipt in cases of knowing receipt. [71] On the first element of liability in knowing receipt, the trial judge’s family expenses analysis fails to take into account that the family had three separate sources of income. The first was the salary being paid to Ms. Moscipan by UBC and VCHA. The second was monies allegedly stolen from UBC, while the third was monies stolen from VCHA. VCHA’s knowing receipt claim against Mr. Moscipan is limited to funds in the third category — those that were impressed with a trust in favour of VCHA. [72] By relying on the evidence of the Moscipan family’s spending to quantify Mr. Moscipan’s receipt of VCHA’s funds without accounting for the family’s multiple sources of income, the trial judge overlooked the requirement that the funds be impressed with a trust in favour of the plaintiff. Since the family spending evidence was not limited to VCHA’s funds, the monies that the trial judge attributed to Mr. Moscipan’s receipt were not impressed solely or entirely with a trust in favour of VCHA. It was therefore incorrect for the trial judge to rely on the family spending evidence in the way that he did to quantify the value of VCHA’s funds that Mr. Moscipan received. [73] The trial judge also erred with respect to the receipt element of liability in knowing receipt. A defendant must receive and benefit from trust funds to be liable in knowing receipt: Citadel at para. 27. Here, the trial judge inferred that Mr. Moscipan received VCHA’s funds for his own use and benefit based on evidence that showed the family as a whole led a richer lifestyle than it otherwise could have as a result of VCHA’s funds. Respectfully, this approach overlooks the requirement that Mr. Moscipan receive VCHA’s funds in his personal capacity. As a result, the trial judge held Mr. Moscipan liable for knowing receipt in an amount that exceeded the value of VCHA’s funds that he in fact received. [74] This distinction was highlighted in Cambrian Excavators . In Cambrian Excavators , the main defendant, a bookkeeper, defrauded her employer of approximately $500,000 over the course of six years. The judge held her husband liable for one-half of the stolen funds that were traceable to bank accounts and credit cards that he held jointly with his wife (the “traceable proceeds”). In total, there was evidence that $387,507.67 of his wife’s fraud was directly traceable to their jointly held accounts. The husband had thus received the traceable proceeds, as they were paid into or toward accounts in which he had an interest. The issue was, therefore, whether there was also evidence showing that the husband had benefited from the traceable proceeds. [75] In Cambrian Excavators , the master found that the husband benefited generally from the traceable proceeds. First, his wife applied the stolen funds and traceable proceeds towards purchasing the family home, which appears to have been jointly owned. As a result of the wife’s fraud, the family was able to afford a much nicer home than they otherwise could have. The husband had thus materially benefited from this spending. The husband also participated in family vacations. Finally, there was no evidence that the wife spent the traceable proceeds for her exclusive benefit. In the result, the master concluded that there was “no evidence that the money was used for anything but family expenses such as mortgage and utility payments, food and so on, from which the whole family, including [the husband] benefited” (at para. 53). He held the husband liable for one-half of the value of the traceable proceeds. [76] Significantly, however, the master refused to hold the husband liable for the remaining portion of the stolen funds that were not traceable proceeds, because the plaintiffs had not adduced sufficient evidence to establish he had received those funds for his own use and benefit. In the case at bar, the trial judge appears to have overlooked the fact that in Cambrian Excavators , the master’s reasoning with respect to family expenses was limited to the traceable proceeds, and not the entire amount of the stolen funds. The master did not use the concept of family expenses to infer the husband’s receipt of the stolen funds, but rather to infer the husband had benefited from the traceable proceeds that he had received. [77] I would further say, in my respectful view, that the decision in Treaty Group appears to be inconsistent with the law as set out in Citadel and Gold . In Treaty Group the main defendant, a bookkeeper, defrauded her employer of about $260,000 over the course of two years. The judge held her husband liable for knowing receipt of one-half the value of his wife’s fraud. The judge assessed the quantum of restitution owing by the husband based on his benefit from, rather than receipt of, trust funds. This is similar to the trial judge’s family expenses approach in the case at bar. [78] I should note that in Treaty Group , the judge found that the husband was wilfully blind to his wife’s activities. Such a finding could properly have led the court to impose liability on the basis of knowing assistance. In cases where a stranger to a trust is willfully blind to their assisting in a breach of trust, equity will impose liability through knowing assistance notwithstanding the defendant did not actually receive the proceeds of the breach of trust for their own use and benefit. This is because liability in knowing assistance is concerned with the furtherance of fraud, while liability in knowing receipt is based on restitution: Citadel at para. 48; Gold at paras. 48–49 (Iacobucci J., dissenting). [79] At trial the onus was on VCHA to establish that Mr. Moscipan received and benefited from VCHA’s funds. Having reviewed the transcript evidence, the trial judge’s findings of fact and the schedule of disbursements from the GPSF Account, I find that this Court can quantify an award in knowing receipt against Mr. Moscipan. [80] The evidence at trial shows that up until October 2009 the only monies deposited into the GPSF Account were the monies stolen from VCHA. Therefore, up to October 2009, the funds in the GPSF Account were impressed with a trust solely in favour of VCHA. Between February 2005 and October 2009, Ms. Moscipan paid $110,557.40 on Mr. Moscipan’s Visa from cheques drawn on the GPSF Account. Mr. Moscipan testified there was nobody else who used his Visa card, he knew what he was spending on his Visa and that Ms. Moscipan paid down his Visa every month. The evidence thus establishes that the $110,557.40 paid towards Mr. Moscipan’s Visa was impressed with a trust in favour of VCHA, and that he received those funds for his own use and benefit. It is a specific sum of money traceable directly to Mr. Moscipan, and in my view, satisfies the principles regarding receipt as set out in Citadel and Gold . [81] The evidence further indicates that subsequent to October 2009, an additional $34,811.89 was paid from the GPSF Account on Mr. Moscipan’s Visa. An examination of the GPSF Account shows that as of October 2, 2009, the balance of the GPSF Account was $23.39. Commencing on October 2, 2009, Ms. Moscipan deposited into the GPSF Account $56,436.95 stolen from UBC, and $66,956 stolen from VCHA. The VCHA funds therefore constituted 56.7% of the funds in the GPSF Account when the additional payments were made on Mr. Moscipan’s Visa after October 2009. I would award VCHA an additional $19,738.34, representing 56.7% of the remaining funds paid on Mr. Moscipan’s Visa after October 2009. [82] In the result, therefore, I would set aside the award against Mr. Moscipan in the amount of $246,073.23, and substitute an award of $130,295.74. [83] I will leave to counsel to calculate the prejudgment interest award which follows from this finding. B.       The Fraudulent Conveyance [84] The Fraudulent Conveyance Act , R.S.B.C. 1996, c. 163 [ FCA ] is a model of brevity. The statute consists of but two sections: Fraudulent conveyance to avoid debt or duty by others 1 If made to delay, hinder or defraud creditors and others of their just and lawful remedies (a) a disposition of property, by writing or otherwise, (b) a bond, (c) a proceeding, or (d) an order is void and of no effect against a person or the person’s assignee or personal representative whose rights and obligations are or might be disturbed, hindered, delayed or defrauded, despite a pretence or other matter to the contrary . Application of Act 2 This Act does not apply to a disposition of property for good consideration and in good faith lawfully transferred to a person who, at the time of the transfer, has no notice or knowledge of collusion or fraud. [85] In Royal Bank of Canada v. North American Life Assurance Co ., [1996] 1 S.C.R. 325, Mr. Justice Gonthier described the purpose and nature of provincial fraudulent conveyance acts at para. 59: However, the other provincial statutes all refer to some sort of “conveyance” or “disposition” of “property” with the “intent to defeat” creditors’ claims. All the provincial fraud provisions are clearly remedial in nature, and their purpose is to ensure that creditors may set aside a broad range of transactions involving a broad range of property interests, where such transactions were effected for the purpose of defeating the legitimate claims of creditors. Therefore, the statutes should be given the fair, large and liberal construction and interpretation that best ensures the attainment of their objects, as required by provincial statutory interpretation legislation (see, for example, The Interpretation Act , 1993, S.S. 1993, c. I-11.1, s. 10). I agree with the following observation by Professor Dunlop in Creditor-Debtor Law in Canada (2nd ed. 1995), at p. 598, that the purpose of fraudulent conveyance legislation: ... is to strike down all conveyances of property made with the intention of delaying, hindering or defrauding creditors and others except for conveyances made for good consideration and bona fide to persons not having notice of such fraud. The legislation is couched in very general terms and should be interpreted liberally . [Emphasis added.] [86] While the comments of Gonthier J. were obiter , this Court subsequently adopted and applied them in Sykes (Re) (1998), 48 B.C.L.R. (3d) 169 at para. 68 (C.A.). [87] Mr. Moscipan’s attack on the finding of a fraudulent conveyance is centred on his submission that the transfer of the Tennyson Property could not be a fraudulent conveyance because Mr. Moscipan was at the time of the transfer the beneficial owner of one-half of the Tennyson Property. He submits the conveyance simply transferred to him the legal interest of which he was already a beneficial owner. He submits that Ms. Moscipan had no beneficial interest in his half of the property, and the conveyance accordingly did not offend the FCA because it did not delay, hinder or defraud her creditors. [88] Mr. Moscipan further submits that the trial judge erred in law in finding that it was possible to fraudulently convey legal title to a person who already held the beneficial interest. He says that the decision in Bayerische Landesbank upon which the trial judge relied does not stand for that proposition and indeed states that transferring title to a beneficial owner is not a fraudulent conveyance. He notes that at trial, neither party relied on that decision or provided submissions on it. He submits the trial judge misinterpreted the decision. [89] In Bayerische Landesbank , the debtor, Mr. Sieber, conveyed a property that was in his name to a trust. The beneficiaries of the trust were his children. Mr. Sieber then argued this could not be a fraudulent conveyance, as he always held the title as a trustee and he was simply conveying legal title, not beneficial title. The trial judge in that case found that if Mr. Sieber’s evidence was accepted, and he always had just held the legal title, then the conveyance would not impact his creditors. He summarized the issue at para. 13: [13] The heart of the controversy is whether Mr. Sieber was the beneficial owner of the Property all along, or was the trustee of the Property which was owned beneficially by his wife and children as Sieber Farms shareholders. If he were trustee only then the conveyance of the Property would not impact on the Plaintiff as his creditor, whereas if he were beneficial owner the conveyance of the Property would have to be analyzed to determine if it was done to defeat or defraud the Plaintiff as creditor. [90] I agree with Mr. Moscipan that the trial judge’s finding that legal title may be fraudulently conveyed to a person who already holds the beneficial interest in the property is an error of law and cannot stand. The reason is that such a transfer would not delay, hinder or defraud any creditors. In such circumstances the creditors would have no claim against the property. [91] That finding is however not sufficient to resolve the issues raised on this appeal. I say so for two reasons. The first is that the trial judge did not determine whether in fact Mr. Moscipan at time of the transfer was the beneficial owner of a one-half interest in the Tennyson Property. The second is that regardless of whether Mr. Moscipan was the beneficial owner of a half interest in the Tennyson Property at the time of the transfer, it is still necessary to determine whether the act of Ms. Moscipan transferring her interest in the property into joint tenancy, whatever that interest might be, was, in and of itself, a fraudulent conveyance. [92] While the trial judge did not determine whether Mr. Moscipan was at time of the transfer the beneficial owner of a one-half interest in the Tennyson Property, he did suggest that Mr. Moscipan likely had some beneficial interest in the Tennyson Property because it was purchased during the marriage and likely fell within the definition of “family property” in the FLA and its predecessor legislation. However, the authorities cited by the trial judge, Blackman v. Davison (1987), 12 B.C.L.R. (2d) 24 (C.A.) at para. 5, and Newton v. Crouch , 2016 BCCA 115 at paras. 44–45, do not support that finding. Both make clear that a party’s interest in family property only arises on separation. To similar effect is this Court’s recent decision in Gibbons v. Livingstone , 2018 BCCA 443 at paras. 24, 74. [93] Sections 81 and 84 of the FLA provide: Equal entitlement and responsibility 81 Subject to an agreement or order that provides otherwise and except as set out in this Part and Part 6 [Pension Division] , (a) spouses are both entitled to family property and responsible for family debt, regardless of their respective use or contribution, and (b) on separation, each spouse has a right to an undivided half interest in all family property as a tenant in common, and is equally responsible for family debt. Family property 84 (1) Subject to section 85 [excluded property] , family property is all real property and personal property as follows: (a) on the date the spouses separate, (i) property that is owned by at least one spouse, or (ii) a beneficial interest of at least one spouse in property; [94] Any family law interest that Mr. Moscipan may have in the Tennyson Property would only arise on separation. In this case, the Moscipans were not separated either at the time of the transfer of the Tennyson Property or at the date of Ms. Moscipan’s death. The trial judge’s suggestion that Mr. Moscipan held a beneficial interest in the Tennyson Property because of the operation of the FLA cannot be supported. [95] On appeal, Mr. Moscipan did not suggest that his interest arose under family law principles. Rather, he relies on the presumption of resulting trust. He says when he transferred his interest in the Tennyson Property to Ms. Moscipan, it was not done by way of a gift. He submits that Ms. Moscipan thereafter, notwithstanding that the Tennyson Property was registered in her name alone, held a half interest in the property in trust for him: Pecore v. Pecore , 2007 SCC 17. [96] The trial judge, given his conclusion that the transfer of the legal interest to the beneficial owner would still constitute a fraudulent conveyance, did not make any findings as to whether in fact Mr. Moscipan held a beneficial interest in the Tennyson Property. He suggested that this was a matter that could be resolved in subsequent proceedings that might be brought by Ms. Moscipan’s creditors. In doing so, he followed a course chartered in B.(L.A.) v. M.(L.), 2004 BCSC 512. [97] For the reasons that follow I am satisfied that this appeal can be determined without finalizing the question of what interest, if any, Mr. Moscipan may have in the Tennyson Property. [98] The purpose of the FCA is to strike down all conveyances of property made with the intention of delaying, hindering or defrauding creditors. The legislation is to be given a fair, large and liberal construction and interpretation. [99] The trial judge found that Ms. Moscipan intended to transfer her entire interest in the Tennyson Property to Mr. Moscipan. She did so by way of a conveyance which transferred the property into joint tenancy. At the time of the transfer, she had received a terminal diagnosis. At that time, Ms. Moscipan was the beneficial and legal owner of at least one-half of the Tennyson Property. If she had transferred her one-half interest directly to Mr. Moscipan, rather than through a joint tenancy, there could be no question that it would be considered a fraudulent conveyance. By transferring her interest by way of joint tenancy at a time when she knew she was dying, she was attempting to do indirectly what she knew she could not do directly. Her intent was to put her interest in the property outside the reach of her creditors. As noted by Gonthier J. in Royal Bank of Canada , the purpose of the fraudulent conveyancing statute is to ensure that creditors may set aside a broad range of transactions when such transactions are effected for the purpose of defeating the legitimate claims of creditors. [100] I agree with the trial judge that the purpose of the conveyance into joint tenancy was to defeat the legitimate claims of Ms. Moscipan’s creditors, and is captured by the provisions of the FCA . The transfer of the Tennyson Property is void and of no effect as against her creditors. [101] There is, however, an error in the formal order that was entered after trial. That order reads: 3.         The transfer of a one-half interest in the property located [on] Tennyson Crescent, North Vancouver, British Columbia, legally known land described as lot 13, district lot 2003, plan 14014 (PID 007-959-338) from Wanda Moscipan to Miroslaw Moscipan is void and set aside. [102] In Guthrie v. Abakahn & Associates Inc ., 2017 BCCA 102, this Court resolved a long outstanding question as to the proper order that follows upon a finding of a fraudulent conveyance. The question was whether upon a declaration of a fraudulent conveyance, the conveyance was to be considered void and the property returned to the grantor, or whether it was only void as against creditors that were impacted by the conveyance. This required consideration of the rule that a fraudulent conveyance remained valid as between the parties to the conveyance: Elford v. Elfor d (1922), 64 S.C.R. 125. [103] In Guthrie , this Court concluded at para. 26 that once a conveyance is found to infringe the FCA, the conveyance itself is not void, but is ineffective as against all creditors of the grantor who may be hindered or delayed: Once a conveyance has been found to infringe the Act, it remains fraudulent, and is ineffective as against all creditors who may be hindered or delayed. As counsel for the appellant suggested, it would be “contrary to logic” as well as to authority (and in this case would be placing form over substance) to require that a creditor who wishes to enforce more than one judgment return to court to have the same transaction declared void “time and time again”. Similarly, it would offend the purpose of the Act to require that creditor after creditor prove in court that the same transfer was intended to avoid the just claims of creditors. [104] In the result, the conveyance remains valid, but all the grantor’s creditors may execute against the subject property notwithstanding the conveyance. In the case at bar, by setting aside the conveyance, the trial judge erred in law. I should note that it does not appear that Guthrie was brought to the attention of the trial judge. [105] Accordingly, in the circumstances of this case, Ms. Moscipan’s transfer of the Tennyson Property to herself and Mr. Moscipan as joint tenants and the subsequent transfer to him alone on Ms. Moscipan’s passing, are not to be set aside. Mr. Moscipan remains the registered owner of the property. He, however, holds the property subject to whatever claims which might be forthcoming from Ms. Moscipan’s creditors. They are entitled to attach her interest in the property as if the conveyances had not taken place. [106] VCHA will be entitled to bring execution proceedings against the Tennyson Property. In those proceedings the trial court will need to determine whether Mr. Moscipan at the time of the original transfer of the Tennyson Property in March 2011 in fact owned a beneficial interest in the property. Ms. Moscipan’s creditors are, of course, not entitled to execute against property other than that which was owned legally and beneficially by Ms. Moscipan. [107] In the result, therefore, I would set aside the award against Mr. Moscipan in the amount of $246,073.23 and substitute for that a judgment of $130,295.74. I would set aside para. 3 of the order which held that the transfer of the Tennyson Property was void, and replace it with a declaration that the March 3, 2011 transfer of the Tennyson Property from Ms. Moscipan to Mr. Moscipan was a fraudulent conveyance and that the creditors of Ms. Moscipan are entitled to execute against the interest that Ms. Moscipan had in the Tennyson Property immediately prior to that conveyance. [108] Given the mixed results on the appeal, I would order that each side pay their own costs. “The Honourable Mr. Justice Goepel” I AGREE: “The Honourable Mr. Justice Savage” I AGREE: “The Honourable Madam Justice Fisher”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Wright v. Sun Life Assurance Company of Canada, 2019 BCCA 18 Date: 20190116 Docket: CA42856 Between: Dr. Robert S. Wright Appellant Respondent on Cross Appeal (Plaintiff) And Sun Life Assurance Company of Canada and The Prudential Group Assurance Company of England (Canada) Respondents Appellants on Cross Appeal (Defendants) Corrected Judgment:  The judgment was corrected on the front page on January 18, 2019. Before: The Honourable Mr. Justice Willcock The Honourable Mr. Justice Goepel The Honourable Madam Justice Dickson On appeal from:  Orders of the Supreme Court of British Columbia, dated May 13, 2015 ( Wright v. Sun Life Assurance Company of Canada , 2015 BCSC 776, Vancouver Registry C983515); and dated September 28, 2015 ( Wright v. Sun Life Assurance Company of Canada, 2015 BCSC 1899, Vancouver Registry C983515). Counsel for the Appellant: T. Dickson Counsel for the Respondents: A.M. Gunn, Q.C. A.K. Foord Place and Date of Hearing: Vancouver, British Columbia November 8 and 9, 2018 Place and Date of Judgment: Vancouver, British Columbia January 16, 2019 Written Reasons by: The Honourable Mr. Justice Willcock Concurred in by: The Honourable Mr. Justice Goepel The Honourable Madam Justice Dickson Summary: The appellant was injured in a ski accident and he commenced a claim against the respondents, seeking damages for breach of his group disability insurance policy. In their defence, the respondents said they ended the appellant’s disability payments because he was practicing his profession and was not under the regular care of a physician. The respondents, by counterclaim, sought to recover monies paid on the policy for a period when the appellant was not disabled. The claim and counterclaim were dismissed. On appeal, the appellant seeks a re‑trial on the ground that cumulative effect of several rulings made the trial unfair. The appellant further says the judge erred in her consideration of the respondents’ offer to settle in her costs order. On cross appeal, the respondents claim the judge erroneously found the counterclaim to be founded only on the appellant’s misrepresentation of his capacity to work. Held: appeal and cross appeal dismissed. Errors in addressing evidentiary questions were not material to the outcome. None of the excluded evidence would have established that the appellant was under the regular care of a physician. On the counterclaim, the trial judge made no errors in her reading of the pleadings. On the costs order, the judge made no errors in principle in her assessment of the costs and the costs order is not plainly wrong. Reasons for Judgment of the Honourable Mr. Justice Willcock: Background [1] The appellant, a dentist, commenced a claim in July 1998 seeking damages from the respondents for breach of a group disability insurance policy. The relevant policy of insurance, issued by Prudential Group Assurance Company of England (Canada) (“Prudential”), was in effect from January 1, 1992 to January 1, 1996. Prudential’s liability under the policy was later assumed by Sun Life Assurance Company of Canada (“Sun Life”). The policy provided income replacement benefits for periods during which insureds became disabled as defined by the policy. [2] From 1978 until March 1995 the appellant practised dentistry. He suffered injuries on December 18, 1993 while skiing, including a concussion, a fracture of his left humerus; hyperextension injury to his cervical spine; and exacerbation of pre‑existing lower back pain. He alleged his injuries caused chronic pain that progressively worsened to the extent that, by March 24, 1995, he was unable to perform the essential duties of his occupation as a dentist and remained disabled thereafter. [3] He purported to exercise an option under the insurance policy that permitted him to increase the amount of coverage in force by 25% on November 27, 1996. The respondents have refused to give effect to the election. [4] In January 1998, the appellant was advised the respondents approved his application for income replacement benefits, effective July 24, 1996, and they considered him to be partially disabled from December 18, 1993 to March 24, 1995, and totally disabled thereafter. Despite those admissions, the appellant claimed the respondents had not paid him the full benefits to which he was entitled. [5] Over the course of the years between the commencement of the action and its dismissal in May 2015, the pleadings were periodically amended as benefit payments were made by the respondents, the appellant modified his work, and the nature of the dispute evolved. [6] By an amended statement of claim filed in March 2004, the appellant acknowledged he had been paid some of the benefits sought in the initial pleadings but alleged he had not yet been paid interest on late payments, increases in the benefits pursuant to the option he had exercised, and incremental increases thereafter. He further alleged he was entitled to, but had not received credit for, a waiver of premiums under the policy during periods for which he was totally disabled. [7] In their defence, filed in 2005, the respondents acknowledged the existence of the policies and the assumption of Prudential’s liability by Sun Life. They asserted Sun Life had paid long-term disability benefits to the plaintiff under the policy from December 18, 1993 to September 30, 2001, but argued the appellant was not entitled to the payment of any further long-term disability benefits after September 30, 2001. [8] The respondents alleged the appellant had misrepresented his condition to his physicians and to Sun Life and the misrepresentation vitiated coverage under the policy. [9] Further, the respondents denied the appellant was entitled to benefits, arguing he was neither Totally Disabled nor Residually Disabled, as defined by the Policy. In particular, the respondents submit the appellant was not under the regular care of a physician during the applicable time period. [10] The policy provided: TOTAL DISABILITY PAYMENTS If a Participant becomes Totally Disabled, the Company will make income replacement payments in accordance with the following conditions and provisions: (a)  Total Disability must commence while insurance … is in force …; (b)  Total Disability must exist for not less than the applicable Elimination Period ...; and (c)  during the Total Disability the participant must be under the continuing care of a Physician. And RESIDUAL DISABILITY PAYMENTS If immediately following an applicable Elimination Period during which a Participant is Totally and/or Residually Disabled, or immediately following a period during which a Participant receives Total Disability benefits, the Participant continues to be Residually Disabled, is under the continuing care of a Physician and as a result suffers a loss of Earned Income of at least 20% of his/her Average Monthly Earned Income, the Company will make monthly payments [11] The Policy defined Total Disability as follows: A Participant whose regular occupation is the Practice of Dentistry … is Totally Disabled for the purposes of this policy when, as a result of Sickness or Injury, he is unable to perform substantially the whole of the duties of his Regular Occupation, is under the regular care of a physician and is not engaged in any other gainful occupation. [12] The policy provides “Residual Disability” and “Residually Disabled” mean: the Participant is not Totally Disabled but that as a result of Sickness or Injury he/she is under the regular care of a Physician and has a loss of Earned Income of at least 20% of his/her Average Monthly Earned Income [13] In the alternative, the respondents argued the appellant had failed to mitigate his damages by failing to rehabilitate himself. [14] The respondents argued the appellant was ineligible to apply for the future insurance guarantee option which he purported to exercise. They denied the appellant was entitled to interest on past benefits paid or recalculation of benefits, because delay in payment was a result of delay on the appellant’s part in providing financial and other information. [15] The respondents commenced a counterclaim in 2005 seeking repayment of all long-term disability benefits paid from March 1, 2000 to September 30, 2001, on the basis the appellant was not entitled to benefits as he did not have a total disability during that time and those payments were made because he actively concealed his employment activities from them. [16] By amended statement of defence and counterclaim filed on January 31, 2014, the respondents alleged that from December 18, 1993 to March 23, 1995, the plaintiff had not provided sufficient materials to quantify any amount of residual benefits that might be payable and he was carrying on the duties of a general dentist and was practising dentistry from on or about March 1, 2000 onward. [17] The case was tried over the course of three weeks in March 2015. The appellant’s claim and the respondents’ counterclaim were both dismissed. [18] On September 28, 2015, for reasons indexed as 2015 BCSC 1899, the judge ordered the appellant to pay the respondents’ costs and disbursements incurred in the action until November 13, 2014, and double costs thereafter. She ordered the respondents to pay the appellant’s costs and disbursements incurred in the counterclaim until November 14, 2014, and no costs thereafter. Procedural History [19] To address the issues raised by the appellant in this Court, we must review the complicated history of these proceedings. Appellant’s Counsel and Adjournments [20] There was a lengthy delay in initially setting the case down for trial. A trial date was first set for December 7, 2009. The trial was adjourned by consent because the respondents’ counsel was undergoing surgery. A second trial date was then set for April 23, 2012. The appellant applied for an adjournment from that date, and the trial was adjourned because he was without counsel. It was set for trial the third time, for September 9, 2013, but was again adjourned by consent because the appellant’s second counsel had withdrawn from the record on May 10, 2013. [21] Madam Justice Adair was appointed as case management judge in June 2013. At a case management conference on September 17, 2013, she set the fourth trial date for July 28, 2014. [22] The appellant’s third counsel was retained in the fall of 2013 but withdrew from the record on January 29, 2014. [23] On July 9, 2014, the case management judge heard the appellant’s application to adjourn the trial again. The appellant sought additional time to retain counsel and obtain expert reports. Counsel, Thomas Harding, appeared and advised the judge he was willing to undertake the appellant’s case but was not available for the July 28 trial date. [24] The trial management judge indicated she was available to hear the trial for 15 days beginning January 5, 2015. However, the respondents’ lead trial counsel was not speaking to the application so the matter was stood down until later that day after counsel could be consulted. [25] When the court reconvened in the afternoon, the judge began by saying she wished to confirm Mr. Harding was available for a 15‑day trial beginning March 9, 2015, having received confirmation the respondents’ trial counsel was available. Mr. Harding advised he was not available. The judge nevertheless set the case for trial on March 9, 2015, on a peremptory basis, for reasons indexed as 2014 BCSC 2621. [26] The appellant did not retain Mr. Harding because he was not available on the date peremptorily set for trial. The appellant was unrepresented until January 8, 2015. He retained counsel briefly at that time but that counsel withdrew from the retainer on January 29, 2015. Expert Reports [27] On July 11, 2014, the trial management judge ordered the appellant to deliver his expert witness reports 114 days before trial, rather than the usual 84 days. This was intended to avoid late delivery of reports by the appellant and to avoid a further adjournment of the trial. [28] On November 10, 2014, four days before the appellant’s deadline to deliver expert reports, Dr. Vanhegan, an orthopaedic surgeon, advised the appellant he had suffered an injury and could not provide a report. The appellant contacted Dr. Frobb, a physician at a chronic back pain clinic, on November 11, 2014. Dr. Frobb examined the appellant and prepared an expert report. The report was delivered to the respondents on December 12, 2014, 86 days before trial. This was after the early deadline the trial management judge had set but earlier than the deadline established in the Supreme Court Rules . [29] The respondents objected to the report on the basis it was served out of time and on the basis it did not meet form and content requirements. The respondents nevertheless obtained and served two rebuttal reports. [30] The appellant sought leave to file an expert report from Dr. Larsen. This report was essentially a medical report which had been served on the respondents in February 2014, modified to meet the requirements of Rule 11‑6 of the Supreme Court Civil Rules . The appellant also applied for an extension of the time within which to serve Dr. Frobb’s report to the date it had been delivered. At a pretrial conference on February 2 and 5, 2015, the trial management judge denied both applications. [31] In support of his application to extend the time for service, the appellant relied on two affidavits, his 14th and 15th in the proceedings. The appellant deposed counsel he had previously retained had not instructed or retained expert witnesses. He deposed he had retained Dr. Vanhegan as an expert consultant and Dr. Vanhegan had agreed to provide him with a report by November 12, 2014. He appended a copy of an email from Dr. Vanhegan dated November 10, 2014, describing his November 2 injury, acknowledging the November 14 deadline and advising the appellant “I am unable to complete the report you require within the time scale”. [32] The appellant further deposed he had earlier spoken with Dr. Frobb about obtaining an expert report and he contacted Dr. Frobb again on November 11, the day after he learned of Dr. Vanhegan’s injury. [33] The appellant deposed Dr. Frobb’s report was delivered to the respondents on December 12, 2014 and the respondents had obtained two expert reports in response, one from Dr. Keith Christian and one from Dr. Ian Connell. [34] In reasons indexed as 2015 BCSC 1191 , the case management judge concluded the evidence before her on the application was insufficient to justify extending the deadline from November 14, 2014 to December 12, 2014. She held: [10]      Dr. Wright attempts to justify the need for an extension on the basis that his expert, Dr. Vanhegan, had been involved in an unfortunate accident which meant that he could not deliver a report by the deadline, and Dr. Wright was left scrambling at the last minute. However, and critically, Dr. Wright does not say when he approached Dr. Vanhegan to provide the report, and Dr. Vanhegan’s e‑mail message (and there is a copy of it attached as exhibit 4 to Dr. Wright’s affidavit number 14, the e‑mail is dated November 10, 2014), … implies that it was not until early November 2014 that he was contacted. [11]      This issue about when Dr. Wright contacted Dr. Vanhegan for the purpose of providing an expert report in view of the November 14, 2014 deadline was raised as a gap in the evidence in the defendant’s application response. But, notwithstanding that Dr. Wright swore a lengthy further affidavit (his affidavit number 15), he does not deal with that particular gap in the evidence at all. So I am still left without any evidence to tell me when Dr. Wright gave the instructions to Dr. Vanhegan to prepare the report and told him about the November 14th deadline. If it was not until November, Dr. Vanhegan’s unfortunate accident may have had no impact on his inability to provide a report. [12]      Dr. Wright, in his two affidavits, also does not explain why he let the November 14 deadline pass without informing defence counsel of the state of affairs, and defence counsel, I say quite naturally, assumed that any expert reports on which Dr. Wright intended to rely had been delivered by the deadline of November 14, 2014. Dr. Wright did nothing to advise them that, in fact, as far as he was concerned, that was not the case. [13]      In my opinion, the defendants are prejudiced by the delivery of Dr. Frobb’s report in December, after the November 14 deadline, and by the contents of the report (for example, the broad scope of the diagnoses and Dr. Frobb’s reliance on documents that were not disclosed apparently until last week). Since there is a peremptory trial date, that prejudice to the defendants cannot be remedied by a further adjournment of the trial. [14]      The court’s discretion under Rule 11‑7(6) is to be exercised sparingly. The court also has a discretion with respect to the extension of time under Rule 22‑4(2). But, in my view, based on the evidence that he has provided me, Dr. Wright has not made out a basis for me to exercise my discretion in his favour, and the application is therefore dismissed. [35] At the same case management conference the judge considered amended pleadings drafted by the appellant. These included a claim of bad faith and punitive damages. Because no application had been brought to amend pleadings, the trial judge indicated the trial would proceed on the basis of the existing pleadings. [36] The appellant was self-represented at trial. He had no medical legal opinions, other than assessments written in 2000 or earlier, upon which to rely in support of his claim. Medical Records [37] An issue arose at trial with respect to the use the appellant could make of medical records. After testifying in chief with respect to his treatment, the appellant advised the court he had seen “an extensive number” of doctors since his injury, and he had obtained their records and wished to have them admitted into evidence to show how much medical care he had had over the 20 years preceding the trial. When advised that was what the appellant intended to do, the trial judge said: “You wish to rely on the records to prove the truth of facts stated in the records, and they’re not admissible for that purpose through you.” [38] The appellant responded: “This trial would take months if I had to bring every doctor here who’s ever examined me over the course of 20 years, and just the cost and the time involved in doing this, but I have – – I have seen all these doctors. And this is not a complete set of records.” [39] In response, the judge said: “Well, you have given oral testimony, though, about your visits to doctors.” The discussion concluded with the following ruling by the trial judge: The Court:  So [the respondents’ counsel] has made an objection. There is a blanket objection at the moment to the stack of documents that you’ve got in front of you, which I understand are – – they’re medical and clinical records? [Mr. Wright]:  Yes The Court:  All right. I’m sustaining her objection. You haven’t provided me with a proper legal basis to have them admitted into evidence for the reason that you wish to have them admitted into evidence. Judgment at Trial The Claim [40] After describing the terms of the income replacement benefit provisions of the policy cited above, the trial judge set out in detail the long chronology of the appellant’s December 18, 1993 injury, his treatment and his claim. From the time of his injury until mid‑1995 the appellant lived in Abbotsford. He then sold his dental practice and moved to Thousand Oaks, California, where he lived until 2003. He then moved to England and lived in the London area until 2011, when he moved to Sacramento, California. Finally, in 2013 he moved to Saskatoon to join the faculty of the University of Saskatchewan College Of Dentistry. [41] The appellant’s record of medical treatment over this extended period was of particular relevance. In summary, he saw the following health practitioners over the years: British Columbia December 22, 29 and 30, 1993: March 1994 and December1994: his G.P., Dr. Henderson a chiropractor, Dr. Turner California 1995: 1995-2001: June-August1996: December 12, 2000: a G.P., Dr. Napolitano; an orthopaedic surgeon, Dr. Gross a chiropractor, Dr. Cassar an orthopaedic surgeon, Dr. Larsen Dr. Larsen England 2003-2011: medical clinics; an orthopaedic surgeon, Dr. Vanhegan Saskatchewan 2013-date: a G.P., Dr. Helfrich [42] The appellant obtained limited medical evidence in support of his claim. Dr. Henderson provided a report for provision to the insurers, entered into evidence, describing his observations as follows: The above patient attended me at my office . . . December 22, 1993 with a history of having been involved in a skiing accident four days previously in which he collided with another skier, landing on his left side follow[ing] which he had a lot of discomfort around his left shoulder and arm. Examination showed a lot of bruising to be present.  He was tender over the left lateral clavicle as well as shoulder.  X‑rays showed longitudinal fracture through the base of the greater tuberosity.  The patient was encouraged to use [a] sling and take some time off work and use analgesics that he had available.  However, the patient indicated that he had decided to try [to] continue working with the sling.  He was advised to return in one week with follow up x‑rays. The patient returned December 29, 1993 with x‑rays showing no change in position and he was advised to start attending [physiotherapy] in five days time and to return in after a further two to three weeks.  The patient returned the following day concerned about excessive bruising tracking down the arm but also had become aware of tender area in the left elbow.  An x‑ray was carried out to make sure he had no injury to radial head.  The x‑ray was reported as normal. . . . At the time of his last visit as above this patient should be considered as having a partial disability from his skiing accident with subsequent difficulties performing his normal duties as an operative dentist. [43] Dr. Larsen completed an “Attending Physician’s Statement of Continuing Disability” in December 2000, after seeing the appellant for the first time in three years. The trial judge found if Sun Life had not requested a Supplementary Statement of Disability from the appellant in 2000, he would not have gone to see Dr. Larsen at all. She described Dr. Larsen’s opinion contained in this report as follows: [96] Dr. Larsen’s stated diagnosis was the same as in the “Attending Physician’s Statement of Continued Disability,” namely C5‑6 and C6‑7 disc herniation and thoracolumbar strain.  Dr. Larsen expressed his opinion that Dr. Wright would not be able to practice dentistry in a private setting because he did not believe Dr. Wright would be able to be productive enough to meet his overhead.  However, Sun Life took particular note of a statement in Dr. Larsen’s more complete report that Dr. Wright was working “approximately one day per week.”  Such information could only have come from Dr. Wright, and I find that this statement was Sun Life’s first indication that Dr. Wright had returned to work practicing dentistry.  Sun Life considered the statement in Dr. Larsen’s report inconsistent with what Dr. Wright had stated in the Supplementary Statement of Disability, that he had been unable to do any work since April 1995. [44] The trial judge’s assessment of the appellant’s credibility began with the following passage : [119] The Accident occurred over 20 years ago.  With respect to Dr. Wright’s injuries from the Accident, there is very little objective evidence.  The medical evidence (from Dr. Henderson and Dr. Keith Christian, one of Sun Life’s experts) strongly suggests that Dr. Wright ought to have recovered from the fracture to his left humerus within a period of months.  The medical opinions (for example, Dr. Larsen’s reports to Sun Life) on which claims decisions were made were based at least in part on Dr. Wright’s subjective reporting of pain and discomfort.  With respect to Dr. Wright’s pre‑Accident income (an important issue in relation to his claim for Residual Disability benefits), there is no reliable, contemporaneous, independent evidence: no income tax returns, no notices of assessment.  From the time Dr. Wright submitted the Preliminary Statement of Claim, Sun Life asked for this information.  It was never produced.  The Hedden Chong income statements sent to Sun Life under cover of Mr. McFee’s July 10, 1998 letter were unaudited and based on information from Dr. Wright.  Dr. Wright is the only person who testified about what he was doing at Crown, the Newport Centre and American Dentistry in London, and the only person who testified about why the Newport Centre and the London clinic were not successful.  Dr. Wright firmly believes the reason lies in the injuries he suffered in the Accident. [45] It ended with the trial judge concluding, at para. 123, “that Dr. Wright is neither a credible nor a reliable witness.” That conclusion caused the trial judge to treat the appellant’s evidence of his medical treatment and his medical records with caution. [46] She turned to the relevant provisions of the policy, particularly the definition of “Total Disability” and “Totally Disabled”. As noted above, the policy provides for the payment of a benefit where the insured is unable to perform substantially the whole of the duties of his regular occupation and is under the regular care of a physician. She referred to the leading authorities in this province in relation to this type of policy wording, Rose v. Paul Revere Life Insurance Co. (1991), 62 B.C.L.R. (2d) 48 (C.A.), and Andreychuk v. RBC Life Insurance Company , 2008 BCCA 492, and adopted Taylor J.A.’s description of the effect of the similar wording at issue at paras. 8 and 11 of his judgment in Rose: [8]        The case is one which turns, in my view, very much on the wording of the policy.  It is not, in my view, a disability policy in the broadest sense of the term, but one which protects the insured from income loss during the treatment phase of a sickness causing total disability and in the event the insured suffers one of four forms of permanent disability. [11]      So the policy protects the insured against income loss due to disability caused by sickness for so long only as the insured is “under the regular and personal attendance of a Physician” ... and provided that the sickness “ requires the regular and personal attendance of a licensed physician” ... (my emphasis), unless the sickness results in the loss of speech, hearing, sight or the use of two limbs, in which case benefits are payable without continuing attendance of a physician.  It is of obvious importance in this case that the policy does not cover loss of income due to inability to work resulting from sickness not under regular treatment by a physician except when it results in loss of speech, hearing, sight or the use of two limbs.  Except in those defined cases, benefits cease when the treatment phase of a sickness ends. [47] She concluded: [166] In my opinion, Mr. Justice Taylor’s comments apply here.  The Policy is one that protects the insured from income loss during the treatment phase of an Injury causing “Total Disability” (as defined), and in the event the insured suffers from one of five forms of permanent disability (described in the Policy as “Presumed Total Disability”).  In the latter case, the insured is not required to be under the regular care of a physician.  However, other than in cases of “Presumed Total Disability,” the Policy does not cover loss of income due to inability “to perform the essential duties of [the insured’s] Regular Occupation” resulting from Injury that is not under “the regular care of a physician.” [48] She rejected the appellant’s submission his disability was not amenable to treatment, he should not be obliged to comply with an unnecessary requirement and the policy should be liberally interpreted so as to afford benefits in the circumstances. She considered that argument to have been rejected by this Court in Andreychuk: [177]    In my opinion, the analysis and conclusions in Andreychuk must apply here, given the similarity in the policy wording. [178]    As in Andreychuk , the definition of “Total Disability” and “Totally Disabled” in the “Own Occupation Option” section of the Policy contains a provision concerning “regular care of a physician.”  As in Andreychuk , the provision therefore defines the reach or scope of coverage and the risk accepted by the insurer.  It is not concerned with obligations imposed on the insured.  The language of the Policy is not ambiguous.  Rather, the words are plain and unambiguous in their ordinary meaning.  Unless the insured can show that “as a result of ... Injury,” he or she is “under the regular care of a physician,” the insured will not satisfy the burden on him to prove “Total Disability” and “Totally Disabled” under the Policy and will have failed to prove he is entitled to coverage under the Policy. [49] The decision that followed turned on the inadequacies in the appellant’s evidence of his treatment: [179] After Sun Life terminated benefits in October 2001, was Dr. Wright “as a result of” any Injury suffered in the Accident “under the regular care of a physician”?  Dr. Wright has the onus of proof to show this, on a balance of probabilities.  In my opinion, the evidence does not support the conclusion that Dr. Wright was “under the regular care of a physician,” as required for coverage under the Policy. [180] While still in California (until 2003), Dr. Wright attended the Student medical clinic occasionally.  But, accepting Dr. Wright’s evidence at face value, the visits were not “as a result of” any Injury suffered in the Accident. [181] After moving to the U.K. in 2003, his visits to medical doctors and clinics were, generally speaking, of the same type, to deal with occasional conditions or for routine matters (for example, immunizations).  He was not there seeking treatment for any Injury suffered in the Accident.  Between 2003 and 2011 (when he moved back to California), Dr. Wright saw an orthopaedic surgeon, Dr. John Vanhegan, twice, once in 2006 and again in 2009.  (Whether Dr. Wright saw Dr. Vanhegan a third time, and if so for what, is quite unclear on the evidence.)  Dr. Wright made one of the visits because he thought he might be developing carpal tunnel syndrome.  … In my opinion, the evidence is inconclusive concerning whether Dr. Vanhegan provided any treatment to Dr. Wright on any visit, and also inconclusive (at best) concerning whether the purpose of a visit was “as a result of” any Injury suffered in the Accident.  In any event, two (or even three) visits over this period cannot qualify as “regular care,” and I find that Dr. Wright was not under the regular care of Dr. Vanhegan. [182] Dr. Wright testified that he “consulted with” Dr. Vanhegan in 2013 about having him prepare a report in connection with an earlier trial date in this action.  However, such a consultation cannot qualify as “regular care of a physician” as set out in the Policy. [183] After he returned to the U.S. in 2011, Dr. Wright’s sporadic visits to medical practitioners cannot qualify as “regular care of a physician,” as required by the Policy.  Once Dr. Wright moved to Saskatchewan, according to his evidence, he again had a regular doctor (which he appears not to have had since leaving B.C. in 1995).  However, in view of my concerns (described above) about Dr. Wright’s credibility and reliability, I am not prepared to draw conclusions favourable to Dr. Wright based on his evidence alone.  I have no independent evidence about whether, during Dr. Wright’s time in Saskatchewan, he has been receiving medical care from a physician in relation to any Injury that he suffered as a result of the Accident.  Dr. Wright’s firm belief that his current problems have their origins in the Accident is insufficient without some independent corroboration, which is altogether lacking.  The reason is because Dr. Wright is not a credible or reliable witness. [184] I find, therefore, that Dr. Wright has not met his burden to show that, since October 2001, he has been “under the regular care of a physician” as a result of an Injury suffered in the Accident.  Rather, the evidence supports the conclusion that Dr. Wright has not been under the regular care of a physician.  As a result, Dr. Wright has failed to meet the burden on him to prove that he is “Totally Disabled” as that term is defined in the Policy, and therefore he has failed to prove that he is entitled to coverage under the Policy for income replacement benefits for the period beginning November 2001 to date. [185] My conclusion that Dr. Wright has not met his burden to show that he has been “under the regular care of a physician” is sufficient to dispose of Dr. Wright’s claim for benefits for the period beginning November 2001, on the basis that he has failed to show that he was “Totally Disabled” within the terms of the Policy. [50] The trial judge went on to consider whether the appellant could prove he was unable to perform the essential duties of his regular occupation as a result of injury, the second aspect of the definition of “Total Disability” in the policy. That analysis, focused on the appellant’s apparent ability to practice as a prosthodontist and the nature of the skills required to engage in that practice, is irrelevant for our purposes. The Counterclaim [51] The trial judge addressed the respondents’ counterclaim on the basis it was founded solely upon the allegation that, from March 1, 2000 to October 31, 2001, the appellant was practicing general dentistry but had concealed his activities and knowingly misrepresented facts to Sun Life. She noted: [236] Sun Life does not rely on other grounds (for example, that Dr. Wright was not under the regular care of a physician) to say that, during this period, Dr. Wright was not entitled to any benefits because he was not Totally Disabled.  Rather, its position is that Dr. Wright was not, as a result of Injury, unable to perform the essential duties of his Regular Occupation.  Or, to put it another way, Sun Life’s position is that, from March 2000 to October 2001, Dr. Wright was able to perform the essential duties of his Regular Occupation, was in fact doing so, and was deliberately concealing his activities so that he could continue to receive benefits.  In this context, Sun Life has the onus of proof. [52] She carefully considered the evidence to this effect and found it wanting. The finding such a misrepresentation was not established at trial is not challenged on appeal. Costs Decision [53] Following the judgment on the merits, the trial judge was advised the respondents had made offers to settle the appellant’s claims before trial. The first was made on November 4, 2014. It provided if the appellant would consent to dismiss the action, the respondents would pay him $75,000 plus costs to the date of acceptance of the offer and would abandon the counterclaim and waive any costs associated with it. The trial judge found the appellant ought reasonably to have accepted this offer, given the substantial risks he should have recognized in proceeding to trial. The judge found the terms of the offer were better than the results the appellant achieved at trial. She concluded the respondents did not use their financial resources in a way that distorted the litigation process or created unnecessary costs. She found the financial circumstances of the parties was a neutral factor. Finally, she found the appellant did not act in a way that recognized the cost consequences of his conduct. She held: [26] In my opinion, having regard to the factors under Rule 9‑1(6), it is appropriate to give effect to the November 4, 2014 offer to settle, by ordering double costs to the defendants (pursuant to Rule 9‑1(5)(b)) and depriving Dr. Wright of the costs and disbursements on the counterclaim pursuant to (Rule 9‑1(5)(a)) from and after November 13, 2014.  Had the November 2014 offer been accepted, a great deal of additional and mostly unproductive procedural wrangling would have been avoided.  Additional discoveries would have been avoided.  Court time, including two trial management conferences and the application to extend the November 14 deadline [for expert reports], not to mention proceedings in the B.C. Court of Appeal, would have been saved, in addition to the three weeks of trial. Grounds of Appeal [54] The appellant says the trial judge erred: a) by setting the action for trial on a peremptory date when the appellant would not be represented and thereafter denying a request for an adjournment to permit the appellant to retain counsel; b) by ordering the appellant to serve expert reports 114 days before trial, rather than 84 days, and thereafter denying his application to extend the deadline to permit a report to be filed 84 days before trial; and c) by denying an application to amend the statement of claim to include a claim for punitive damages. [55] The appellant says the collective effect of these errors was to deny him a fair trial. [56] Further, the appellant says the trial judge erred in law by ruling the appellant’s medical records were inadmissible hearsay for all purposes, including for the purpose of demonstrating the dates of the appellant’s attendance for medical care. [57] Finally, the appellant appeals the costs order on the ground the judge erred in considering the settlement offer in light of information not known to the appellant when the offer was made. Grounds of Cross Appeal [58] The respondents say the trial judge erred in misapprehending the basis for the counterclaim. They argue the judge analyzed the claim on the premise it was founded on a single, narrow argument: that Dr. Wright concealed his activities and knowingly misrepresented facts to Sun Life. Analysis: The Claim Appellate Review of Discretionary and Trial Management Orders [59] This appeal requires us to consider the trial judge’s decisions with respect to trial management, admission of evidence, and allocation of costs. All of these are discretionary decisions. We will not interfere with the exercise of such discretion except where there has been an error in principle in identifying appropriate criteria, a failure to consider evidence, or a clear misapprehension of the evidence. [60] The respondents point out that discretionary orders are entitled to significant deference on appeal. In Burnaby (City) v. Oh , 2011 BCCA 222, Groberman J.A. wrote: [ 31 ] Whether to grant an adjournment is a discretionary decision with which this Court will only interfere when the refusal of the adjournment would result in a miscarriage of justice.  In this case, the appellant has not shown that any miscarriage of justice was occasioned by the refusal of her application to adjourn. [61] Concerning trial fairness, the respondents say the question is whether a reasonable observer, fully informed of what took place in the court below, “would be apprehensive that the appellant did not receive a fair hearing”: Mazur v. Lucas , 2014 BCCA 19 at para. 85. Here, they say, the trial judge treated the self-represented litigant fairly, attempting to accommodate his unfamiliarity with the process while at the same time respecting the respondents’ rights. This is the balancing of interests reflected in Burnaby (City) : [ 35 ] What has been said in the case authorities on trial fairness and the obligations placed on trial judges when there is an unrepresented litigant is of assistance in considering the appellant’s arguments.  In Davids v. Davids, [1999] O.J. No. 3930 , 125 O.A.C. 375 at para. 36 , the Ontario Court of Appeal said the following under the heading “Was the trial so unfair as to result in a miscarriage of justice?”: [ 36 ]      ... The fairness of this trial is not measured by comparing the appellant’s conduct of his own case with the conduct of that case by a competent lawyer. If that were the measure of fairness, trial judges could only require persons to proceed to trial without counsel in those rare cases where an unrepresented person could present his or her case as effectively as counsel. Fairness does not demand that the unrepresented litigant be able to present his case as effectively as a competent lawyer. Rather, it demands that he have a fair opportunity to present his case to the best of his ability. Nor does fairness dictate that the unrepresented litigant have a lawyer’s familiarity with procedures and forensic tactics. It does require that the trial judge treat the litigant fairly and attempt to accommodate unrepresented litigants’ unfamiliarity with the process so as to permit them to present their case. In doing so, the trial judge must, of course, respect the rights of the other party. [36] In Ridout v. Ridout , 2006 MBCA 59 , leave to appeal ref’d [2007] 1 S.C.R. xiv, the Manitoba Court of Appeal noted, at para. 12, that self-represented litigants do not have “some kind of special status”.  At para. 13, the Court said: The trial judge cannot become the advocate for the unrepresented litigant, nor can the judge provide legal advice. However, the judge’s challenge is to take pains to ensure that a party’s lack of legal training does not unduly prejudice his or her ability to participate meaningfully in the proceeding. [62] Insofar as the trial management generally is concerned, we must ask the question posed in these cases: “ Was the trial so unfair as to result in a miscarriage of justice?” The Amendment of Pleadings [63] The appellant claims, but did not press in argument before us, that the trial judge erred by not allowing him to amend the pleadings to include a claim for punitive damages during the February 2015 pretrial conference. The appellant contends this prejudiced his ability to put forward his full case on the merits as his submissions and the evidence he sought to elicit through cross-examination at trial went toward his argument Sun Life had acted in bad faith. [64] In my view, there is no merit to this complaint. The trial management judge cannot be faulted for insisting the case proceed on the basis of existing pleadings, particularly in the absence of a motion to amend, the very long delay in getting the case to trial, and the imminence of the March 2015 trial date. [65] I agree with the respondents that, even if the appellant had successfully amended his pleadings to seek punitive damages, they would likely have obtained an order to sever those claims and the amendment would not have allowed a broader version of the case to be brought forward at trial. The Adjournment Order [66] The appellant says the case management judge’s decision to set the peremptory trial date to a time counsel willing to represent the appellant, Mr. Harding, was not available denied him choice of counsel without good cause. He says this was the only reason he did not have counsel at trial. The appellant argues the judge should have been as concerned about the availability of his counsel as the availability of counsel for the respondents when adjourning the trial in 2014. [67] The appellant says a litigant should not be deprived of counsel of their choice without good cause: MacDonald Estate v. Martin , [1990] 3 S.C.R. 1235. He points to Westcoast Landfill Diversion Corp. v. Cowichan Valley Regional District et al. , 2006 BCSC 273, as an instance where it was recognized setting a case for trial when counsel was not available “might result in the issues not being fairly tried” or the merits not being adequately determined (para. 11). He argues, citing New Brunswick (Minister of Health and Community Services) v. G. (J.) , [1999] 3 S.C.R. 46, the court should keep in mind the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the litigant when considering whether a litigant will achieve a fair hearing without counsel. [68] The respondents say the trial judge properly exercised her discretion when setting the trial date. The appellant had been represented by counsel for all but two of the 17 years in the interval between his injury and his trial, he had retained many counsel, and, more than once, he had sought an adjournment of the trial after dismissing his counsel. The respondents say: In the circumstances, it was not unreasonable to expect that within nine months Mr. Harding’s schedule could change or Dr. Wright could find alternative representation. Indeed Dr. Wright did find and retain alternative counsel but they parted ways before trial. [69] In my view, the trial should not have been adjourned from the July 28, 2014 trial date to March 9, 2015, when Mr. Harding, whom the appellant wished to retain, was not available. There appears to have been no attempt to accommodate Mr. Harding’s schedule. Doing so may have assisted the appellant in retaining counsel for trial without prejudicing the respondents. [70] However, I am not prepared to say setting the peremptory trial date to March 9, 2015 worked an injustice upon the appellant. The adjournment was sought, in part, to permit the appellant to retain experts and properly prepare for trial, and it had that effect. The appellant had not yet retained Mr. Harding. He was not thereby deprived of counsel of record who had invested time and effort in the case. Nor was he deprived of the opportunity to retain counsel because he had more than seven months from the date of the adjournment to the start of the trial to find and retain counsel. As the respondents note, the appellant was able to and did retain other counsel, yet ultimately represented himself when that retainer fell apart. Service of Expert Reports [71] Regarding the application for leave to serve and rely upon Dr. Frobb’s report, the appellant’s counsel says: a) the failures on the part of the appellant’s prior lawyers to take appropriate or timely steps to retain experts should not have been visited upon the appellant; b) there would be no prejudice to the defendants if Dr. Frobb’s report were admitted; and c) the exclusion of Dr. Frobb’s report caused very significant prejudice to the appellant, no attempt was made by the trial judge to ensure the appellant was on an equal footing with the respondents. [72] The respondents say the trial judge exercised her discretion on this issue judicially because, given the peremptory trial date and the concerns she expressed with respect to the timing and content of Dr. Frobb’s report, the respondents would suffer non‑compensable prejudice as a result of the late service. [73] The judge appears to have based her decision to refuse to extend the time to serve Dr. Frobb’s expert report on: the appellant’s delay in retaining Dr. Vanhegan, questions with respect to the admissibility of Dr. Frobb’s report, and concerns about prejudice to the respondents. [74] The appellant’s affidavit evidence speaks to his submission that, but for injury, Dr. Vanhegan would have been able to prepare a report in time to permit the appellant to meet the early, court-imposed deadline. There is no suggestion to the contrary in Dr. Vanhegan’s correspondence. His email indicates he had the medical records in his possession and was aware of the deadline. We now know, from disclosure of correspondence between the appellant and Dr. Vanhegan in the course of the assessment of costs, Dr. Vanhegan was corresponding with the appellant for some time before his fall. Even in the absence of that later-disclosed evidence, I can see no basis in the material before the case management judge which justifies the inference the expert was retained at the last minute or after his injury. [75] In any event, that question appears to play a disproportionate role in the trial judge’s assessment of the merits of the application. Whether or not the appellant had been slow to retain an expert, the undisputed evidence was he had retained an expert and would have been in a position to deliver a report if the expert had not been injured. [76] The initial order had been made to ensure the trial would not be adjourned. Even after the delay occasioned by the injury to the appellant’s expert, by the time the application was heard the appellant had retained Dr. Frobb, been examined by him, and served a report on the respondent’s counsel. Further, the respondents had retained experts and served response reports upon the appellant. [77] The issue before the trial management judge was whether leave should be granted to extend the period within which an expert report could be served. Granting leave would not have precluded the respondents from raising any objection to the form or content of the report on grounds that would be open to them had the report been served in a timely way. In her decision on the application, the case management judge does not appear to have considered the substance of the respondents’ objections to the content of Dr. Frobb’s report. [78] It is difficult to see in the circumstances how the respondents can be said to have been prejudiced. These reports had been exchanged on a schedule at least as favourable to the respondents as the default schedule established by the Supreme Court Civil Rules . [79] On the other hand, as the trial judge later indicated when she dealt with the merits of the case, expert reports are vital in a case such as this. The appellant’s case was bound to fail without the support of expert opinion and the effect of the trial management’s decision was to deprive the appellant of any expert opinion evidence at trial. [80] I cannot see how, balancing the interests of the effective management of the trial and fairness to the parties, it can be said it was a reasonable exercise of the trial judge’s discretion in this case to refuse to extend the time within which the appellant could serve Dr. Frobb’s report. In the words of Davids v. Davids, [1999] O.J. No. 3930 , cited by this Court with approval in Burnaby (City) , the order sought would have permitted the appellant to present his case while respecting the respondents’ rights. The trial judge should have engaged in that balancing of interests. Exclusion of Medical Records [81] The appellant’s counsel says the medical records could have been admitted into evidence as business records in the manner and for the purpose described by the Supreme Court of Canada in Ares v. Venner , [1970] S.C.R. 608. He says the records were not admitted simply because the appellant was unfamiliar with the manner in which he might have been able to prove the authenticity of the records without calling the author of each note in the records. Further, he says the trial judge did not appreciate the limited purpose for which he sought to have the records admitted: to prove he attended at physicians with a view toward receiving treatment for his ongoing disability. [82] The respondents say if the appellant had tendered the records as business records at common law or under statute they would have had very limited use and the respondents would have sought to exclude any opinions recorded in the records. [83] When advised the appellant wished to prove facts recorded in his medical records by putting his records into evidence, the trial judge advised him: “… they are not admissible for that purpose through you”. [84] She later said: “You haven’t provided me with the proper legal basis to have them admitted into evidence for the reason that you wish to have them admitted into evidence.” [85] In my view, the trial judge’s ruling on the admissibility of the records is unclear and might have misled an unrepresented litigant. As the Supreme Court of Canada concluded in Ares v. Venner , the business records exception to the hearsay rule permits a party to introduce medical records into evidence as prima facie proof of the truth of the facts recorded by the maker of the record. In order to introduce that document into evidence it is only necessary to call a witness to testify to the authenticity of the record, the manner in which it is made, and the duty to record the facts set out therein. The trial judge appears to have excluded the appellant’s medical records because of concerns with respect to the manner in which the appellant intended to introduce them. But the exchange that occurred appeared to relate to the use that might be made of the record once admitted, rather than the means of proving the record. [86] In my view, the trial judge should have advised the appellant if he wished to have medical records admitted into evidence he would have to call someone to testify with respect to the manner in which the record was created or produce an affidavit from the record keeper. He should also have been advised once the record was entered into evidence it could stand as some proof of the facts recorded therein. He appears to have been under a misapprehension, which was not dispelled, as to how the records might be admitted into evidence when he stated the trial would take months if he had to bring every doctor who had examined him over the course of 20 years to testify in order to adduce evidence of his treatment. That misapprehension does not appear to have been dispelled. When it was clear he might have been labouring under the misapprehension he would have to call the author of each note in the records, he should have been advised the records could be admitted into evidence by calling some evidence with respect to the manner in which the records were made and kept. [87] He may also have been under a misapprehension with respect to whether the records, once proven, could stand as proof of the facts recorded. To this extent, in my view, the trial judge was obliged to ensure the appellant’s lack of legal training did not unduly prejudice his ability to participate meaningfully in the proceeding. [88] However, three facts mitigate the effect of any misapprehension. First, the appellant did testify about the nature and extent of the treatment he had received from physicians over the years. The admission of medical records in this case would have added little to his testimony. Second, while the medical records would have been admissible for the truth of the facts recorded, they could not be used to prove the opinions recorded. The records alone, without more, could not be used to establish a relationship between the symptoms recorded and the appellant’s 1993 ski accident. Last, we were advised by counsel the respondents were concerned with respect to the completeness and accuracy of the copy of the records produced by the appellant; it is unlikely the medical records he produced would have been introduced by consent or as a result of an admission, as their authenticity was in dispute. [89] As the trial judge noted, the appellant testified to his medical care and described the full course of the treatment he had received. The introduction of medical records would have buttressed the appellant’s evidence but there would nevertheless have remained a critical gap in the appellant’s treatment. The admission of his complete medical records would not have been any assistance in bridging that gap, which is addressed in the reasons that follow. Effect of the Errors Established [90] The appellant’s counsel says the cumulative effect of the pretrial and trial decisions in this case made it impossible for the appellant to put his case forward properly or adequately. [91] The respondents say none of the alleged errors relate to the central factual issue on which the appellant’s case foundered: “his failure to be under the regular care of a physician during the claim period”. The respondents say: Given the strength of the Defendants’ “regular care of a physician” defence and given that Dr. Wright tendered no evidence at trial or fresh evidence on appeal to cast doubt on Adair J’s disposition of that defence, Dr. Wright has not established any substantial injustice from any errors alleged. In the circumstances it would be contrary to the interests of justice to order a new trial. [92] In my view, the respondents are correct and this case turns upon the fact none of the errors made out by the appellant assist him in overcoming this fundamental weakness in his case. [93] The appellant does not allege, nor, in my view, could he establish, any error by the trial judge when she concluded the appellant’s policy protected him from income loss resulting either from severe injuries causing permanent disability (defined in the policy as “presumed total disability”) or from income loss during the “ treatment phase ” of an injury causing total disability. The appellant does not allege a presumed total disability. That being the case, to demonstrate he was totally disabled under the policy, the appellant had to establish not only that he continued to suffer from injury which precluded him from engaging in the essential duties of his regular occupation but also that he was under the regular care of a physician for the injury. [94] It is important to note despite her rejection of the appellant’s evidence generally, the trial judge addressed the question of whether the appellant was under the regular care of a physician by considering whether, on his own evidence, the appellant could meet the test established by the policy of insurance. None of the evidence the appellant sought to adduce at trial would have assisted in overcoming the trial judge’s finding the appellant’s own evidence of his medical treatment only showed his “visits to medical doctors and clinics were, generally speaking, … to deal with occasional conditions or for routine matters,” and “two (or even three) visits over [a period of years] cannot qualify as ‘regular care…’” (para. 181). The appellant’s own evidence established he made two or three visits to an orthopaedic surgeon between 2003 and 2011. [95] Even if the judge had permitted the appellant to introduce Dr. Frobb’s report into evidence and relied upon the opinion set out in it and permitted him to introduce the medical records to substantiate his evidence with respect to his attendance at physicians’ offices, the appellant would still not establish he was under the regular care of a physician. [96] The trial judge considered the appellant’s evidence with respect to the nature and extent of the medical assistance he sought while he lived in California and while he lived in England to be insufficient to meet the burden upon him. For that reason I am of the view neither admission of the report of Dr. Frobb nor admission and appropriate reliance upon the medical records would have affected the outcome. [97] For those reasons I would dismiss the appeal. Analysis: The Counterclaim [98] On cross appeal, the respondents do not pursue the claim they advanced in the Supreme Court for punitive damages. They do say it was an error to consider the counterclaim to be based solely upon their allegation of misrepresentation as to his employment activities. The counterclaim should equally have succeeded, in their submission, on the basis the appellant was not under the regular care of a physician between March 1, 2000 and October 31, 2001 and was therefore not entitled to receive benefits during that period. They say their plea, in support of their counterclaim, that the appellant was not disabled within the meaning of the policy during the relevant period should be read together with their statement of defence (to which the counterclaim refers), which makes it clear their allegation regarding regular care of a physician was a basis for the counterclaim as well. [99] In response to the cross appeal, the appellant says the trial judge did not err in characterizing the counterclaim. He says Sun Life’s communications with him, its trial briefs, its pleadings, and the arguments at trial do not support the respondents’ position the counterclaim was founded on any allegation other than the “bad faith” misrepresentation proposition which the trial judge rejected and from which Sun Life does not appeal. [100] I would not interfere with the trial judge’s conclusion in this regard. I accept the appellant’s submission careful review of the documents in this case substantiates the trial judge’s conclusion the respondents’ concern in the relevant period was always about whether the appellant was functionally capable of and was in fact practising dentistry. The trial judge in this case was keenly aware of the nature of the dispute and the evidence adduced in relation to the dispute at trial. [101] The appellant further responds to the counterclaim by arguing the respondents are estopped from relying on the “regular care of a physician” provision as a basis for recovering benefits already paid. While I would not accede to that submission on the record on appeal, it is my view this defence may have been made out by the appellant at trial if the pleadings had more clearly described the basis of the counterclaim. For that reason, the trial judge correctly placed some emphasis upon the manner in which the counterclaim was pleaded and argued. The trial judge’s dismissal of the counterclaim was not founded upon a technical defect in the pleading but, rather, on an assessment of the manner in which the pleadings affected the way in which the case was presented at trial. [102] For these reasons, I would dismiss the cross appeal from the dismissal of the counterclaim. Analysis: Costs [103] I would adopt the respondents’ description of the standard of review of a costs order. The order should be set aside “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. [104] The appellant says the trial judge erred in addressing the claim for costs by looking at the respondents’ settlement offer retrospectively, rather than considering the position of the parties on the date the offer was served. On the date of the offer, the appellant did not know and might not have foreseen he would not be permitted to adduce expert opinion evidence or rely on medical records at the trial. The appellant further says his conduct of the case was inextricably tied to his lack of legal counsel and, therefore, it was an error for the judge to find this conduct weighed against him both by making the financial disparity between the parties a neutral factor and as an independent factor weighing against him. Finally, the appellant says there was no basis for refusing to award him costs in relation to the counterclaim up to and including the trial. [105] While it is correct to say, in describing the factors that led to the costs order, the trial judge placed some weight upon the fact the appellant was unable to obtain expert evidence in support of his claim and that fact was not known to him at the time a settlement offer was made, there was still a persuasive case the appellant ought to have accepted the settlement offer when it was made. In my view, the trial judge did not err in principle in concluding the settlement offer key to the costs award ought to have been accepted. I cannot say the costs order was plainly wrong. I would dismiss the appeal from the costs order. Conclusion [106] The appeal from the order on the main claim is dismissed. Although the trial management judge should not have adjourned the trial to a date that the appellant’s choice of counsel was not available, should have extended the time for the appellant to submit expert reports, and should have made the process for admittance and use of medical records more clear to the self-represented appellant, the effect of these errors did not change the outcome at trial because none of the excluded evidence would have established the appellant was under the regular care of a physician during the applicable time period. [107] The appeal from the order on the counterclaim is dismissed. The trial judge made no errors in her reading of the pleadings on the counterclaim. [108] The appeal from the order on costs is dismissed. The trial judge made no errors in principle in her assessment of the costs and the costs order is not plainly wrong. “The Honourable Mr. Justice Willcock” I agree: “The Honourable Mr. Justice Goepel” I agree: “The Honourable Madam Justice Dickson”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Baryla v. Baryla, 2019 BCCA 22 Date: 20190118 Docket: CA44857 Between: Lorraine Marie Baryla Respondent (Claimant) And Gordon Paul Baryla Appellant (Respondent) Before: The Honourable Madam Justice Bennett The Honourable Mr. Justice Savage The Honourable Mr. Justice Butler On appeal from:  An order of the Supreme Court of British Columbia, dated September 29, 2017 ( Baryla v. Baryla , 2017 BCSC 1759, Vernon Registry 51304). Counsel for the Appellant: N. Davies Counsel for the Respondent: R.S. Tretiak, Q.C. B.D. Hastings Place and Date of Hearing: Vancouver, British Columbia October 29, 2018 Place and Date of Judgment: Vancouver, British Columbia January 18, 2019 Written Reasons by: The Honourable Mr. Justice Savage Concurred in by: The Honourable Madam Justice Bennett The Honourable Mr. Justice Butler Summary: The appellant challenged the amount of a compensation payment, the failure to deal with distributive taxes, and the awarding of spousal support after an equal division of assets. Held, appeal allowed, new trial ordered. It was necessary for the court below to determine whether the registration of title in joint tenancy was an inter vivos gift to the husband, and to account for distributive taxes upon division of the assets. The question of spousal support after an equal division of assets must consider whether an award would amount to “double dipping”. Reasons for Judgment of the Honourable Mr. Justice Savage: [1] This appeal arises out of a family proceeding in which the appellant, Gordon Paul Baryla, was ordered to pay a compensation payment and spousal support to the respondent, Lorraine Marie Baryla. [2] Mr. Baryla challenges the amount of the compensation payment and the order for spousal support. He says the compensation payment should be reduced by the value of his mother’s interest in a property that he received by right of survivorship. He also says the trial judge erred by failing to consider the tax consequences of disposing of certain family assets. After the family assets were divided equally, Mr. Baryla says there was no basis for the judge’s order that he pay spousal support, or for the particular quantum ordered by the judge. Ms. Baryla supports the trial judgment. [3] For the reasons that follow, I would allow the appeal in part, and direct a new trial. I.         Background [4] In December 2014 the parties agreed to end their marriage of nearly 40 years. The parties were financially successful, having been able to retire in their mid-40s and thereafter live off their investments, which were managed by Mr. Baryla. [5] On January 1, 2015, the parties entered into a letter of intent agreement to dissolve their marriage and split their assets (the “Letter Agreement”). Among other things, Mr. Baryla agreed to transfer a house (the “1513 Property”) into Ms. Baryla’s name. The 1513 Property had originally belonged to Mr. Baryla and his late mother in joint tenancy, but Mr. Baryla had acquired full title through the right of survivorship upon her death. [6] The parties only partially performed the Letter Agreement. On June 29, 2015, Ms. Baryla brought the underlying action, claiming, inter alia , spousal support and an equal division of family property. The matter proceeded to trial in September 2016. During closing argument, the parties raised several technical tax issues. A.       1513 Property [7] The basic facts concerning the 1513 Property are not in dispute. In 2004 Mr. Baryla’s mother, Helen Baryla, sold her home and purchased, as joint tenants with Mr. Baryla, the 1513 Property for $242,000. The 1513 Property was next door to the parties’ family home (the “1511 Property”). [8] Mr. Baryla says the judge misapprehended one aspect of the evidence. The judge held that Mr. and Ms. Baryla contributed $169,605 of their own funds towards the purchase price of the 1513 Property since Helen Baryla had insufficient funds from the sale of her home. Mr. Baryla says the opposite is true: that most of the purchase price ($169,605) came from the sale of Helen Baryla’s former home and the balance came from the parties’ funds. [9] Helen Baryla died in 2013. Upon her death, Mr. Baryla became the sole owner on title of the 1513 Property by right of survivorship. After signing the Letter Agreement in January 2015, Mr. Baryla transferred title to the 1513 Property into Ms. Baryla’s name. The parties also agreed that Ms. Baryla would retain a cabin at Mabel Lake (the “Mabel Lake Property”). [10] As I have said, the Letter Agreement was never fully implemented. Mr. Baryla claims, as he did at trial, that part of the 1513 Property should be excluded from property division. B.       Tax Issues at Trial [11] During submissions at trial, the mechanics of property division and the tax issues relating to property division were raised by counsel and the judge. [12] The judge requested that the parties retain a joint expert to address tax issues. Although the parties duly retained an expert (Cheryl Schmidt of KPMG) who prepared seven reports dated February 6, March 3, 13, 24, April 5, 17 and May 23, 2017, the expert’s reports were not formally entered as exhibits at trial. [13] On September 18, 2017, the judge ordered the parties to disclose their 2016 tax returns and notices of assessment. [14] The judge released her reasons, indexed as 2017 BCSC 1759 (“RFJ”), on September 29, 2017. The reasons were released before the parties had submitted their 2016 tax information. The judge received and reviewed the seven expert reports, which were not formally entered into evidence, but rejected them all because they did not comply with the requirements of the Supreme Court Family Rules , they went beyond the scope of an expert report, and they included some unproven assumptions. [15] The judge ordered an equal division of family property to be effected by a compensation payment from Mr. Baryla to Ms. Baryla. Having rejected the expert reports, the judge said, “I confess not to know the answer to the tax issues that the parties raised in closing argument” (RFJ at para. 106). Apart from two exceptions, she found that she was “not in a position to make any allowances for taxes” (RFJ at para. 114). [16] The exceptions were for the sale of the 1511 Property (the family home) and the sale of the Mabel Lake Property. The judge ordered that “the parties equally share in the tax cost of each of them disposing of, or selling their respective interest in [the 1511 Property] and the cabin at Mabel Lake” (RFJ at para. 112). [17] The 1511 Property was the parties’ principal residence and its sale would not attract tax. Ms. Baryla sought and received the Mabel Lake Property in the division of family assets and does not intend to sell it. On the other hand, the 1513 Property was not the parties’ principal residence and it would attract tax consequences on disposition. The same applies to a property the parties acquired in Arizona (the “Arizona Property”), which Mr. Baryla retained in the property division. C.       Property Division and Spousal Support [18] The judge ordered an equal division of family property with a total net value of $5,015,728.44 and a compensation payment of $641,772.54 (increased to $828,829.38 after correction of a calculation error) to accomplish equal division. Ms. Baryla also sought spousal support. [19] Neither party has had employment for many years. The parties retired in 1999 when Mr. Baryla was 46 years old and thereafter lived off income from their investments. Mr. Baryla managed the financial assets during the parties’ marriage. At the time of trial Mr. Baryla was 63 years old and Ms. Baryla was 62. [20] After ordering the equal division of family property, the judge noted that Mr. Baryla “will continue to have the income earning capacity to make investments and profit from his capacity to do so” (RFJ at para. 101). On the other hand, she found that Ms. Baryla does not have that capacity. [21] The judge ordered that Mr. Baryla pay spousal support to Ms. Baryla at $2,650 per month for ten years, after which there would be a review. II.        Issues [22] The parties raise the following issues on appeal: (1) Did the judge err in law in calculating the compensation payment by: (a) failing to find that a portion of Mr. Baryla’s interest in the 1513 Property was excluded property; and (b) failing to consider the tax implications of disposing of family property? (2) Did the judge err in law in ordering Mr. Baryla to pay spousal support, or alternatively in ordering the particular quantum of spousal support, by: (a) failing to provide adequate reasons; (b) failing to consider the respective incomes of the parties after property division; and (c) failing to consider the current income of the parties, especially after ordering disclosure of their 2016 incomes? III.       Discussion and Analysis A. Did the Judge Err in Determining the Compensation Payment? [23] The two issues concerning the compensation payment are whether the judge erred in her treatment of the 1513 Property and whether tax implications beyond those addressed by the judge should have been considered. With respect to the treatment of the 1513 Property, Mr. Baryla says the judge erred in failing to find that part of the property was excluded property as a gift or inheritance. He says the judge also erred in her alternative findings that the 1513 Property ceased to be excluded property when Mr. Baryla transferred it to Ms. Baryla and that its exclusion from property division would be significantly unfair. i.         1513 Property [24] Mr. Baryla agrees that Ms. Baryla has a part interest in the 1513 Property, since family funds contributed to the purchase. Mr. Baryla says, however, that his mother’s half-interest, which he obtained by right of survivorship, is excluded property under s. 85 of the Family Law Act , S.B.C. 2011, c. 25 [ FLA ] as a gift or inheritance. [25] Section 85 reads as follows: 85 (1) The following is excluded from family property: (a) property acquired by a spouse before the relationship between the spouses began; (b) inheritances to a spouse; (b.1) gifts to a spouse from a third party; (c) a settlement or an award of damages to a spouse as compensation for injury or loss, unless the settlement or award represents compensation for (i) loss to both spouses, or (ii) lost income of a spouse; (d) money paid or payable under an insurance policy, other than a policy respecting property, except any portion that represents compensation for (i) loss to both spouses, or (ii) lost income of a spouse; (e) property referred to in any of paragraphs (a) to (d) that is held in trust for the benefit of a spouse; (f) a spouse's beneficial interest in property held in a discretionary trust (i) to which the spouse did not contribute, and (ii) that is settled by a person other than the spouse; (g) property derived from property or the disposition of property referred to in any of paragraphs (a) to (f). (2) A spouse claiming that property is excluded property is responsible for demonstrating that the property is excluded property. [Emphasis added.] [26] Joint tenancy and tenancy in common constitute the main forms of co-ownership in Canadian law. A defining characteristic of joint tenancy is the right of survivorship , whereby when a joint tenant dies, his or her interest in the property is extinguished, and the surviving joint tenant obtains the full interest to the property: Zeligs v. Janes , 2016 BCCA 280 at para. 41. [27] The right of survivorship in a joint tenancy is discussed in D.W.M. Waters, M.R. Gillen & L.D. Smith, eds., Waters’ Law of Trusts in Canada , 4th ed. (Toronto: Carswell, 2012) at 404–405: When property is bought by one person and title taken in joint names, a joint tenancy will arise, which confers upon each party an equal entitlement to the property, which includes a so-called right of survivorship . This right, which is not a separate right but merely an incident of joint tenancy, will cause the whole property to vest in the survivor. The reason is that in a joint tenancy, if one joint tenant dies, his interest simply disappears and nothing passes to his estate. The result is that the interest of the surviving joint tenant is effectively converted into sole ownership. It is this effect which is often described as a right of survivorship . If A supplies the purchase money and conveyance is taken in the joint names of A and B, B during the joint lives will hold his interest for A; B will also hold his right of survivorship — again by way of a resulting trust — for A's estate, because that right is merely one aspect of B's interest. In other words, the starting point is that B holds all of his interest on resulting trust for A, or A's estate. However, evidence may show that, while A intended B to hold his interest for A during the joint lives, it was also A's intention that, should he (A) predecease, B should take the benefit of the property. The presumption of resulting trust would then be partially rebutted, in relation to the situation that has arisen, so that B would not hold his interest (now a sole interest and not a joint tenancy) on resulting trust. He would hold it for his own benefit. [Emphasis added.] [28] In Pecore v. Pecore, 2007 SCC 17, the Supreme Court of Canada considered the nature of rights of survivorship in the context of joint bank accounts. The Court concluded that since the right of survivorship vests when a joint account is opened, the right of survivorship is an inter vivos gift, rather than a testamentary gift. Justice Rothstein explained: 48        … the rights of survivorship, both legal and equitable, vest when the joint account is opened and the gift of those rights is therefore inter vivos in nature. This has also been the conclusion of the weight of judicial opinion in recent times: see e.g. Mordo v. Nitting , [2006] B.C.J. No. 3081 (QL), 2006 BCSC 1761 , at paras. 233-38; Shaw v. MacKenzie Estate (1994), 4 E.T.R. (2d) 306 (N.S.S.C.), at para. 49; and Reber v. Reber (1988), 48 D.L.R. (4th) 376 (B.C.S.C.); see also Waters' Law of Trusts , at p. 406. 50        Some judges have found that a gift of survivorship cannot be a complete and perfect inter vivos gift because of the ability of the transferor to drain a joint account prior to his or her death: see e.g. Hodgins J.A.’s dissent in Re Reid . Like the Ontario Court of Appeal in Re Reid , at p. 608, and Edwards v. Bradley , at p. 234, I would reject this view. The nature of a joint account is that the balance will fluctuate over time. The gift in these circumstances is the transferee’s survivorship interest in the account balance — whatever it may be — at the time of the transferor’s death, not to any particular amount. [29] This Court reviewed Pecore and the earlier authorities on the characterization of the right of survivorship in Bergen v. Bergen , 2013 BCCA 492. Madam Justice Newbury summarized that “all of these cases in my view turned on the donor's intention to make a gift of the ‘right of survivorship’ — which I understand to mean an immediate gift of a joint interest consisting of whatever balance exists in the account on the transferor's death, assuming he or she dies first” (at para. 37, emphasis in original). [30] The Court in Bergen endorses the proposition that: [41]      … “The gift of a joint interest in real property is an inter vivos rather than a testamentary gift and cannot be retracted by the donor. It is a 'complete and perfect inter vivos gift' ..." [citation omitted]. The Court explained, however, that “[a]t the same time, in cases where the property was provided by the transferor, the transferee must still prove that a gift was intended − i.e., he or she must rebut the presumption of resulting trust” (at para. 41). [31] Applying this reasoning to the 1513 Property, by registering the property in the joint names of Mr. Baryla and Helen Baryla, Helen Baryla gifted the right of survivorship—but to whom? If Helen Baryla made the gift to Mr. Baryla, then on its face it would qualify as excluded property under s. 85(1)(b.1) of the FLA as “gifts to a spouse from a third party”. However, arguably it is not clear to whom Helen Baryla gifted the right of survivorship. Was the gift to Mr. Baryla alone, or to both Mr. Baryla and Ms. Baryla as both had contributed to the purchase price? The judge did not undertake the analysis necessary to dispose of this issue. [32] The next question that arises is whether the transfer of the 1513 Property to Ms. Baryla extinguished Mr. Baryla’s excluded property claim. If it did then the question of to whom the inter vivos gift was made would be academic. In my view, it did not. [33] The FLA does not eliminate common law and equitable concepts relating to property but rather builds on those principles, preserving concepts such as gifts and trusts, and evidentiary presumptions such as the presumption of advancement. Thus, excluded property, or the proceeds thereof, that is gratuitously transferred between spouses during the course of a relationship may lose excluded status unless the presumption of advancement is rebutted: V.J.F. v. S.K.W. , 2016 BCCA 186 at para. 74. [34] The trial judge relied on V.J.F. and held that the 1513 Property was not excluded property because Mr. Baryla had voluntarily transferred it to Ms. Baryla (RFJ at para. 63). In my view, however, the presumption of advancement does not apply in this case. The parties were separated at the time of the transfer. The transfer of the 1513 Property to Ms. Baryla by Mr. Baryla was not a gift between spouses; it was in partial fulfillment of the terms of the Letter Agreement. That said, after the fact conduct may be relevant to the parties’ understanding of the intent behind Helen Baryla’s gift. [35] Mr. Baryla also challenges the judge’s alternative holding that it would be significantly unfair to exclude the value of the 1513 Property from property division since a significant portion of the purchase price came from the parties’ joint funds. In my view, this argument cannot be considered until the parties’ actual contributions to the purchase price are ascertained. ii.        Tax Costs of the Disposition of Assets [36] The parties brought tax information to the judge by filing with the court seven tax opinions of an accountant, which sought to address questions raised by the parties and the judge. The judge found that information unhelpful for various reasons, as mentioned, and inadmissible for technical reasons. [37] The judge then made an order limiting the sharing of tax burdens to an asset not subject to tax on disposition (the 1511 Property, the parties’ principal residence) and an asset that was not intended to be sold (the Mabel Lake Property, a recreational property). The judge did not determine the tax issues on which professional opinions had been sought. There is no explanation for the judge’s failure to consider tax implications associated with the 1513 Property, the Arizona Property or the parties’ investment accounts. [38] This Court has held that corporate and distributive taxes can and should be taken into account where there is appropriate evidence: Maguire v. Maguire , 2016 BCCA 431 at paras. 38­–39; Sinai v. Mahmoud , 2017 BCCA 155 at paras. 31–35. Simply put, if some assets have inherent tax liabilities and others do not, it could be unfair to allocate the assets “equally”, without taking into account the tax liabilities. [39] In this case the parties made significant efforts to bring before the judge the necessary information to take tax considerations into account. While the judge may have had justification for rejecting some of the opinions before her, in my view there was not justification for substantially abandoning the effort to take tax consequences into account, on which both parties made submissions. [40] Although Mr. Baryla would have this Court make orders to facilitate property division by asset class to address some of these concerns, those are matters for the trial court to determine on receipt of appropriate evidence. The same would apply to his related submission that the court place a temporal limit on any obligation to share in the tax consequences of the disposition of property.  That too is a matter for the trial court. B.       Did the Judge Err in Ordering Spousal Support? [41] The judge ordered that Mr. Baryla pay Ms. Baryla spousal support of $2,650 per month for ten years. She also made the order for spousal support retroactive to January 1, 2015. [42] As mentioned, the order for spousal support was in addition to the order for a substantial compensation payment to effect equal property division. The family assets included typical things a family acquires: a home, chattels and investments. Investments formed a large part of their asset base. In this case the family had lived for many years on their investment income. [43] I would not interfere with the order for spousal support pending the new trial. I have agreed with Mr. Baryla that the judge was obliged to consider the tax implications of property division. Determining whether spousal support is payable does not only involve determining whether there is a significant disparity in income but also: (1) whether in principle, having divided assets equally, there should be an order for spousal support at all, and (2) how the fact that Mr. Baryla has the capacity to manage financial assets himself should impact the amount, if any, of spousal support payable. [44] That would comport with this Court’s decision in Puiu v. Puiu , 2011 BCCA 480, where Mr. Justice Groberman cautioned against awarding spousal support pursuant to the Spousal Support Advisory Guidelines in cases where the parties’ income was derived from assets, and those assets had already been divided. The Court held that such a practice would improperly facilitate “double dipping” on family assets. Groberman J.A. explained: [15] Neither of the parties, then, has any income other than from their accumulated assets. Those assets were divided by consent in a manner fully consistent with the provisions of the Family Relations Act , R.S.B.C. 1996, c. 128. [16] Ms. Puiu has received her share of family assets. To allow her now to seek a share of the income from Mr. Puiu’s assets would be to allow the sort of “double dipping” that was found to be improper in Boston v. Boston, 2001 SCC 43. In the circumstances, allowing Ms. Puiu’s claim for ongoing support would be tantamount to re-dividing assets that have already been divided. [17] Caution must be exercised in applying the formulas set out in the Spousal Support Advisory Guidelines to a case such as the present, where the sole source of income for the parties is income from assets that have been divided under the Family Relations Act . Section 12.6.3 of the Guidelines provides as follows: 12.6.3 Boston v. Boston ... [T]he Advisory Guidelines on amount and duration do not change the law from Boston v. Boston governing double-dipping, mostly from pensions. That law remains in place, as a possible constraint upon the amount of support, determining if some portion of income should be excluded from the formula because it has been previously shared under property division. [Bold in original.] [45] In Boston v. Boston , 2001 SCC 43, Justice Major described “double dipping” as follows: 1          "Double recovery" or "double dipping" are terms that have come to describe the situation where, after an equal division of assets on marriage breakdown, one spouse claims continued support from the previously divided or equalized assets of the other spouse. [46] In my view, in this case, it was incumbent on the trial judge to address the issue of “double dipping”, which she failed to do. The judge noted that Mr. Baryla had skill in managing financial assets whereas Ms. Baryla did not. However, it does not follow from that observation that ten years of spousal support is payable, rather than, say, an allowance for a management fee. By that, however, I am not suggesting any particular outcome to this issue. [47] As I have found that the judge erred in failing to consider the effect of property division on Ms. Baryla’s claim for spousal support, I find it unnecessary to consider Mr. Baryla’s remaining two arguments that the judge erred in providing inadequate reasons and in failing to consider the parties’ current income in awarding spousal support. [48] I would vary the order for spousal support to make spousal support in the amount determined by the judge payable until the new trial. IV.      Conclusion [49] In my view, the judge erred in her analysis of whether the 1513 Property was excluded property, in failing to properly consider and apply the tax implications of property division, and in ordering ongoing spousal support, for the reasons I have given. I would allow the appeal in part and direct a new trial. [50] I would not interfere with the order that family property be divided equally or that spousal support as determined be payable from January 1, 2015, but only until the new trial. “The Honourable Mr. Justice Savage” I agree: “The Honourable Madam Justice Bennett” I agree: “The Honourable Mr. Justice Butler”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Ma v. Vansanten, 2019 BCCA 19 Date: 20190118 Dockets: CA44387; CA44388; CA44389 Docket: CA44387 Between: Yin Yin Ma Appellant (Plaintiff) And James R. Vansanten Respondent (Defendant) - and - Docket: CA44388 Between: Hla Shwe Maung Appellant (Plaintiff) And Bryan Terry Hales and James Vansanten Respondents (Defendants) - and - Docket: CA44389 Between: Yin Yin Ma Appellant (Plaintiff) And Maria Haniak, William Haniak and Terry Hales Respondents (Defendants) Before: The Honourable Madam Justice Newbury (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated March 31, 2017 ( Ma v. Haniak , 2017 BCSC 549, New Westminster Dockets M122025; M133802; M132800). The Appellants, appearing in person: Y. Ma H. Maung Counsel for the Respondents: J.R. Bradbury Place and Date of Hearing: Vancouver, British Columbia December 21, 2018 Place and Date of Judgment: Vancouver, British Columbia January 18, 2019 Written Reasons by: The Honourable Madam Justice Newbury Summary: Application for order removing three appeals from inactive list refused. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] The three appeals that are the subject of this application for removal from the inactive list pursuant to s. 25 of the Court of Appeal Act , R.S.B.C. 1996, c. 77, were brought by the appellants Yin Yin Ma (“Ma”) and her brother Mr. Maung from an order pronounced after trial by Mr. Justice Armstrong in the Supreme Court of British Columbia on March 31, 2017. The trial occupied 13 days in early 2016 and concerned three motor vehicle accidents in which the appellants had been injured and in respect of which they claimed to have suffered “incapacitating and permanent” injuries. Liability was admitted in all three cases. For lengthy and detailed reasons indexed as 2017 BCSC 549, the trial judge made adverse findings of credibility against both plaintiffs and made awards that were considerably lower than those they had sought. The plaintiffs were not represented by counsel at trial. [2] The plaintiffs filed notices of appeal, without the participation of counsel, on April 13, 2017. The notices state simply that the trial judgment contained “errors and mistakes” that negatively affected the outcome of the case. [3] It is unclear whether the plaintiffs were receiving the advice of legal counsel in the spring of 2017; but on June 16, 2017, they were in chambers in person before Madam Justice Garson seeking both an extension of time for the filing of the appeal record, transcripts and factum, and an order permitting the number of pages in their factum to be increased to 70. Madam Justice Garson adjourned the applications for extensions of time and dismissed the application to increase the length of the factum. In doing so, she expressed some concern that the plaintiffs were wishing to have the case retried in this court. She impressed upon them that the standard of review for findings of fact, including findings of credibility, is that of “palpable and overriding” error. [4] Immediately upon receiving Madam Justice Garson’s reasons, the plaintiffs filed an application for the variation of her order. The parties (the plaintiffs in person and the defendants represented by Mr. Bradbury) appeared in chambers before Mr. Justice Harris on June 22, 2017. He ordered that the time for filing the appeal record and the transcripts of oral evidence be extended to July 14, 2017; that the time for filing the plaintiffs’ factum be extended to 30 days following the disposition of the application to vary Madam Justice Garson’s order; and that that application be set for hearing “no later than October of 2017 on a date convenient to counsel” for the defendants. [5] Notwithstanding the latter part of the order, the application to vary was not heard until December 7, 2017, when the plaintiffs again appeared in person and Mr. Bradbury appeared on behalf of the defendants before a division of this court. The Chief Justice gave oral reasons for judgment on the same date, stating in part: While the trial judgment is long, and consolidates three matters, the appellants do not point to more specific reasons as to why the issues on appeal would be so complex as to take it outside the normal rule. The fact that the judgment below was lengthy will not mean a lengthy factum is required on appeal: Sga’nism at para. 11. The current limit already takes into account that appeals may be reasonably complex. Nor did the appellants provide a draft factum which would help this Court see why an increase to the page limit should be granted. While such a draft factum is not required, it is often useful to provide one: Sga’nism at para. 5. I add, the beginnings of a draft factum were handed up by Ms. Ma in oral submissions to us and we have had a chance to review that while we stood down. It really does underline the concerns expressed by Justice Garson and confirms her view of what is, indeed, prompting the requested length of the factum in this case, and that is the desire to retry every issue of fact that was tried before Justice Armstrong. I will say more of this after I have completed my reasons. The chambers judge also properly conceived the facts on the application. Her reasons indicate she was familiar with the materials presented and the nature of the underlying appeal. While she may have described the dispute as arising from a single motor vehicle accident, a single sentence does not take away from the entirety of her reasons which demonstrate she was aware of the factual and legal complexities of the appeal. [At paras. 14-15.] In the result, the plaintiffs’ application was dismissed. This meant that in accordance with the order of Mr. Justice Harris, the factum was required to be filed no later than 30 days from December 7, 2017. That deadline came and went without any such filing. [6] From affidavit material filed on the present application, it appears that at some time in March 2018, the plaintiffs retained Mr. P. Cote for advice, although it is not clear whether that advice was limited to a review of the plaintiffs’ appeal or also encompassed making all filings and appearances in the Court on their behalf. (On November 20, 2017, another lawyer who had carried out some filings for the plaintiffs in November 2017 filed a notice that he was ceasing to act.) [7] On April 17, 2018, the Registrar wrote to the plaintiffs informing them that their appeals had been placed on the inactive appeal list in accordance with s. 25(1) of the Court of Appeal Act . If no steps were taken, the notices of appeal would stand dismissed as abandoned effective October 12, 2018. [8] On October 11, 2018, Mr. Cote filed a notice of motion applying for an order that the plaintiffs’ three appeals be removed from the inactive list. The hearing of this application was rescheduled from November 15, 2018 to December 21, 2018 by a “requisition” filed by the plaintiffs personally. The plaintiffs wrote “by consent” in the requisition form, but as I understand it, Mr. Bradbury consented only to the rescheduling and not to the granting of the actual application to be made in chambers. [9] Mr. Cote did not appear in chambers and Ms. Ma advised me that he had ceased acting for the plaintiffs because he was “too busy” and that the plaintiffs would be seeking another lawyer in the new year, 2019. The plaintiffs handed up to me an affidavit in which they describe their difficulties dealing with various counsel during the past two years. It is their view that both Mr. Cote and his predecessor “wasted significant amount[s] of our time and our extremely limited financial resource[s]” and that they have faced and continue to face “obstruction of justice since our access to justice has been blocked since our basic human rights to legal assistance and legal representation as Canadian citizens in face of serious legal matter have been repeatedly denied throughout this [these] legal proceedings” in both courts. [10] The plaintiffs further claim to have been overwhelmed and “traumatized” by the legal proceedings. They contend they did not receive a fair trial and were “not allowed” to obtain legal assistance and representation at trial. Further, they observe that the trial and other hearings had to be rescheduled due to the death of their father in November 2014 from “so-called cancer” and the death of their mother in February 2017 due to “so-called pneumonia”. They depose: Obviously, we do strongly believe that these incidents could not be happening coincidentally. It is no doubt that they are rather conspiracies and coincidences in order to block our access to justice regarding our three MVAs cases. We do believe that we have been facing surprise attacks (which absolutely cannot be strange coincidences) by the deaths of our beloved father and mother each and every time we have to go to the Court regarding our MVAs cases. [11] The plaintiffs say they continue to face deliberate obstruction in the form of the willful destruction of evidence from the trial, the trial transcripts are missing, and again that they were “not allowed” to have legal assistance at trial. They say they will not be able to write an effective factum or represent themselves on their appeals without such assistance, and request an extension of seven months in order to retain a lawyer who will prepare and file a factum and appeal books. I have briefly reviewed Mr. Justice Armstrong’s reasons and must say that I see nothing on their face to suggest that the plaintiffs were disadvantaged or mistreated by reason of the fact they were unrepresented. The judge appears to have carefully considered their arguments and evidence as he would have if they had been provided by counsel at trial. [12] When I questioned Ms. Ma about the grounds of appeal that would be advanced in their factum, she emphasized the conspiracy she alleges concerning the coincidence of her parents’ respective deaths and scheduled court dates. Given her answers to my questions, I believe it is reasonable to infer that neither the plaintiffs nor any counsel retained by them has identified any possible error of law or principle in the trial judge’s findings. Nor have they pointed to any particular error of fact that they wish to challenge. They do not go beyond the simple assertion in their notice of appeal that the trial judgment “includes errors and mistakes.” Analysis [13] It is well-known that the orders sought by the plaintiffs are discretionary. The onus is on the applicants to show why the appeals should be removed from the inactive list and that further time should be granted for the filing of their factum and appeal record. The onus under s. 25 has been said to be more onerous than the onus on an applicant for a simple extension of time: see Perren v. Lalari , 2009 BCCA 564. It seems to me that in this case, the relevant factors to be considered include the possible merits of the appeal, the length of delay that has occurred thus far and any likely future delays, any prejudice to the defendants, and ultimately and most importantly, whether the interests of justice support the granting of the order sought. [14] In my view, they do not. It is now 21 months since the trial judge’s order was pronounced and despite their efforts, the plaintiffs have been unable to retain counsel who is willing to assist them in any substantive way. The plaintiffs themselves acknowledge that they require counsel, but the affidavit material suggests that they are unable to retain one, for whatever reason. Many people represent themselves on appeals and do so successfully, but it would be extremely difficult for the plaintiffs to succeed on their appeals, given the highly factual nature of the trial judge’s reasons and his findings of credibility. The plaintiffs have not provided this court with any evidence that would demonstrate the incorrectness of any of those findings. Indeed, the plaintiffs’ new allegations concerning a connection between the deaths of their parents and some conspiracy on the part of the defendants indicate to me that the plaintiffs are desperately seeking grounds of appeal where there are none. Put another way, the appeals appear to be without merit. [15] As noted earlier, Madam Justice Garson informed the plaintiffs about the nature of an appeal and what they must do and what they should have done in 2017 to get their appeal back on track. This did not happen. Although lawyers have been retained, it appears none has lasted more than a few weeks. It is unrealistic to believe that the plaintiffs will now be able to find another lawyer who is ready, willing and able to act in accordance with the plaintiffs’ instructions. The defendants have not shown any particular prejudice that would result from the orders sought, but the wasting of judicial resources on meritless appeals is detrimental to the administration of justice. [16] In all the circumstances, I am not convinced that the interests of justice support the removal of the plaintiffs’ appeals from the inactive list. I would therefore dismiss the application. “The Honourable Madam Justice Newbury”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Krewson , 2019 BCCA 34 Date: 20190118 Docket: CA44731 Between: Regina Respondent And Howard Everett Krewson Appellant Corrected Judgment:  Paragraphs 53-55 of the Oral Reasons for Judgment were inserted on January 30, 2019. Before: The Honourable Mr. Justice Harris The Honourable Madam Justice Stromberg-Stein The Honourable Madam Justice Fenlon On appeal from:  An order of the Supreme Court of British Columbia, dated September 23, 2016 ( R. v. Krewson , Vernon Docket 49281-2). Oral Reasons for Judgment Counsel for the Appellant: D.M. Turko, Q.C. Counsel for the Respondent: S.E. Elliott Place and Date of Hearing: Vancouver, British Columbia January 18, 2019 Place and Date of Judgment: Vancouver, British Columbia January 18, 2019 Summary: Mr. Krewson appeals his conviction of second-degree murder on the basis that (1) the judge erred by not charging the jury on the defence of involuntary intoxication; (2) the judge’s charge to the jury on the defence of intoxication was incomplete; (3) the judge misstated evidence; (4) the judge erred in his charge on post-offence conduct; and (5) the judge wrongly permitted the Crown to lead hearsay evidence of bad character. Held: Appeal dismissed. (1) There was no evidential foundation reasonably capable of being left with the jury in support of the issue of involuntary intoxication; (2) the judge properly instructed the jury on the defence of intoxication explicitly following all the relevant sections of CRIMJI and reviewed the relevant evidence; (3) the judge did not misapprehend evidence that would impact the verdict; (4) the post-offence conduct instruction was correct and agreed to by counsel; and (5) counsel’s questions to a witness are not hearsay evidence and the judge’s instruction was correct and agreed to by counsel. Background [1] STROMBERG-STEIN J.A.: Howard Everett Krewson, the appellant, lived with Linda Marie Stewart on her farm in Lumby, British Columbia, for about six months. At trial, Mr. Krewson admitted that on June 19, 2014, he shot Ms. Stewart with a firearm causing her death. He maintained that, at the time, he was so intoxicated that he lacked any intention to cause her death. The key issue at trial was his intention at the time of the shooting. [2] On September 23, 2016, Mr. Krewson, was convicted of second-degree murder following a seven-day jury trial. He appeals on the basis that: (1) the judge erred by not charging the jury on involuntary intoxication; (2) the judge’s charge to the jury on the defence of intoxication was incomplete; (3) the judge misstated evidence; (4) the judge erred in his charge on post-offence conduct; and (5) the judge wrongly permitted the Crown to lead hearsay evidence of bad character. [3] In my view, there is no merit to any of the grounds of appeal and I would dismiss the appeal. Facts [4] Ms. Stewart was attempting to flee from Mr. Krewson, reversing her car out of her garage, when he shot her in the back with a handgun at close range through the driver’s side window. At the time, Ms. Stewart was on the telephone with her friend, Judith Laird, and Ms. Laird’s husband was on the telephone with 9-1-1 (the call was made at 6:12 p.m.). [5] Ms. Laird first spoke to Ms. Stewart at 6:00 a.m. to inform her that her brother-in-law, a close friend of Ms. Stewart’s, had passed away from cancer. Ms. Laird next spoke to Ms. Stewart at 11:00 a.m. to see how she was doing. Around 5:00 p.m. to 5:30 p.m., Ms. Laird received a call from Ms. Stewart’s telephone but could only hear muffled noises before the line went dead. She tried to call back a number of times and finally Mr. Krewson answered. He asked if the telephone was okay and then passed it to Ms. Stewart. Ms. Laird asked Ms. Stewart if everything was alright and Ms. Stewart said, “[N]o, Howard threw the phone.” Ms. Laird asked, “Are you okay?” and Ms. Stewart said, “No, yes, no.” She said Howard was trying to hurt the dogs, throwing marihuana at the dogs, and “he’s knocked stuff all over the kitchen.” She sounded upset but was speaking calmly. [6] Ms. Laird could hear Mr. Krewson talking loudly in the background and the sound of clanging pots and pans. Ms. Stewart refused Ms. Laird’s offer to come over and said she thought she could “get this under control.” She told Ms. Laird that she would call her back at 6:00 p.m. Ms. Laird called her back before 6:00 p.m. because she was concerned. At that point, Ms. Stewart told her, “I just want Howard to leave.” Mr. Krewson started yelling and swearing, saying he was not going to leave and “it was his f’ing house.” Ms. Laird could hear things being thrown. She testified, “I could tell he got more agitated and was really getting more angry and things were getting more violent”. Ms. Stewart expressed concern for the welfare of the dogs. She said she was going to the bedroom and Ms. Laird could hear Mr. Krewson walking behind her and “talking in her ear”. Ms. Stewart told him, “Howard, if you don’t calm down, Judy’s going to call the police.” Mr. Krewson started yelling, “Go ahead and call the police. Then you’ll see what’ll happen.” Ms. Laird could hear Ms. Stewart ask him what he would do. [7] Ms. Stewart then told Ms. Laird, “Oh, great, he’s threatening to kill himself”; “I’m just going to leave.” Ms. Laird could hear her head towards the kitchen with the dogs followed by Mr. Krewson who was asking her what she was going to do. As she got to the breezeway, she told Ms. Laird “there’s poison everywhere for the dogs.” Ms. Laird heard her go to the garage and try to get into the car and heard a bottle fall out and break. Ms. Stewart told her she had to move the beer bottle. She heard the door to the garage open and Howard asking what she was doing. Ms. Stewart told him, “I’m just trying to get the dogs into the car.” He asked her why and she told him, “Just help me get them in the car.” She said a number of times, “Howard, close the door.” She got into the car and started it and said, “Howard’s locked me in” and then “Howard’s gone into the house.” In answer to a question relayed from Ms. Laird’s husband, Ms. Stewart told Ms. Laird “we have guns.” She told Ms. Laird, “I’m going to run and open the door.” Next she said, “I got the door open and I’m going to leave.” She said she was backing up and then said, “Oh, God, Howard’s behind me”; “Oh, God, he’s got a gun”; “Judy, he’s going to shoot me.” Ms. Stewart sounded desperate. Ms. Laird heard the window implode, a dog panting, and then the phone went dead. [8] In her statement to the police, Ms. Laird indicated Howard was acting really “bizarre” but said that was not a word Ms. Stewart used, nor did she say he was not acting normally. Ms. Stewart told Ms. Laird she was clear-headed but Mr. Krewson was “drunk on drugs”; she thought he was drunk on some kind of pills. She said she gave him half a pill from her prescribed antidepressants, and she thought he took another. Ms. Laird could not tell if he was drunk but said he was “very angry” and she had never seen him behave like this or intoxicated before. [9] The police were dispatched at 6:15 p.m. or 6:20 p.m. and arrived at the farm around 6:30 p.m. The first officer on scene found Mr. Krewson inside the house, moaning and laying face down on a couch bleeding from a gunshot wound to the face. When the officer asked if he shot himself, Mr. Krewson responded, “Yes, I shot myself in the face.” When asked where Linda was, he said, “She’s in the car, I think.” The officer located Ms. Stewart slumped across the front seat of a still-running vehicle, phone in hand. When the officer shut the car off it moved. When he asked Mr. Krewson if he shot her, Mr. Krewson said, “Yes. Yes, I did. We were drinking and took some pills. Sleeping pills, I think. I did. I didn’t mean to. Could I get some cold water, please?” The officer said he had no difficulty understanding him and his responses to questions were reasonable and rational. [10] The paramedics arrived at 6:34 p.m. At 6:47 p.m., Mr. Krewson’s Glasgow Coma Score was 15, the maximum score, indicating he was fully orientated, conscious, and aware of time and place. Paramedic Parkes said Mr. Krewson answered her questions coherently and correctly. She had no concerns about his mental capabilities. He provided his first name and date of birth. He followed directions to feel his teeth with his tongue to see if his teeth were intact. When paramedic Wilkerson said Ms. Stewart was deceased, Mr. Krewson repeatedly said he was sorry. When asked who the lady in the car was, he responded, “My wife. I shot her.” [11] The firearm was Mr. Krewson’s .44 calibre Ruger revolver. Two shots were fired into the car and one into Mr. Krewson’s face. It was a single action firearm that, in order to operate, required grasping the hammer, pulling it to the rear, and then pulling the trigger to release the hammer. This would have to be repeated in order to chamber a bullet and fire another shot. [12] Christine Dagenais was qualified as an expert in forensic toxicology. She analyzed a sample of Mr. Krewson’s blood taken at 9:06 p.m. She found a blood alcohol concentration of 71 milligrams percent. Extrapolating back to 6:20 p.m., she estimated his blood alcohol content would have been 99 to 126 milligrams percent. At this level, Mr. Krewson’s level of intoxication would have been mild to moderate. She detected carboxy THC in Mr. Krewson’s blood, which has no psychoactive effects (but she did not detect THC, which does), indicating that he had not smoked marihuana within two to four hours prior to the sample being taken. The effects of smoking marihuana would be additive to the effects of the alcohol and may increase sedation and relaxation. [13] Ketamine and benzodiazepine were detected in the blood sample, which had been administered by Emergency Health Services (EHS). Mr. Krewson attempted to cast doubt on the analysis on the basis that he had been administered fentanyl by emergency personnel, which was not detected in his sample. Ms. Dagenais testified that a low dose of fentanyl would be eliminated rapidly or may have been below detectable limits. Dr. Riar offered an opinion that fentanyl would show up in the blood three hours after ingestion. [14] A number of pill bottles were seized from the residence. The toxicology report indicated none of the ingredients in the prescription pills were detected in Mr. Krewson’s blood sample such as lorazepam, diltiazem, carbamazepine, ketorolac, tromethaprine, tramadol or codeine. [15] Mr. Krewson testified that starting around 6:00 a.m., he had been drinking wine and beer and smoking marihuana. He said he had a glass of wine after breakfast, three glasses of wine at lunch, and after 1:00 p.m. he had two to three beers an hour until around 4:00 p.m. or 5:00 p.m. He estimated he had seven, eight, maybe nine beers. Around 5:00 p.m., he said he had another glass of wine. He said he smoked one-and-a-half marihuana cigarettes before breakfast. After breakfast, he finished the other half or shared two more marihuana cigarettes. He said he and Ms. Stewart smoked one or two marihuana cigarettes an hour between noon and about 5:20 p.m. [16] He claimed Ms. Stewart gave him part of a “sleeper” or sleeping pill to help him relax as he was anxious about work. He believed he took another half or whole pill 15 to 20 minutes later. He believed he went to the kitchen for a beer and may have taken a handful of pills that were on the counter. He claimed he felt light-headed and “bizarre” and faded out, or blacked out, or went green, after taking an undetermined number of unidentified pills, which he thought were “sleepers” but could have been lorazepam. The only thing he recalled before waking up on the couch was hearing dogs running around. His evidence of his pattern of drinking was inconsistent with the toxicology report and could put his blood alcohol concentration over 200 milligrams percent, suggesting advanced intoxication. [17] Dr. Kulwant Riar, who was qualified as an expert in forensic psychology, testified that drug or alcohol induced blackouts impact memory but do not necessarily entail the absence of contemporaneous intention. He opined Mr. Krewson had the intention to shoot Ms. Stewart and should have known that he would kill Ms. Stewart, but because Mr. Krewson could not remember anything, Dr. Riar could not determine whether he had the intent to kill. However, Dr. Riar offered an opinion that “looking at the circumstances and how he was reacting at the time, I have my doubts that he had the ability to form an intention to kill her.”  Dr. Riar considered the abnormal circumstances to be poisoning the dogs and throwing things around, although the latter could be a sign of aggression. He testified that it takes about 30–35 minutes for drugs to be absorbed into the system. He agreed Mr. Krewson’s Glasgow Coma Score indicated he was fully orientated and conscious. Issues [18] Mr. Krewson raises the following issues: 1.     Did the trial judge err in not instructing the jury on the defence of involuntary intoxication? 2.     Did the judge err in his instructions on the defence of intoxication: (i)   by “stop[ping] short of providing the relevant sections of the Canadian Criminal Jury Instructions”; and/or (ii)   by failing to refer to the expert evidence on intoxication specifically during his instructions on that defence? 3.     Did the judge misapprehend evidence during his charge to the jury, including: (i)   the timing of Mr. Krewson’s self-inflicted gunshot wound; and (ii)   the types of pills that he had taken? 4.     Did the judge err in his charge on post-offence conduct? 5.     Did the judge err in allowing the Crown to put hearsay evidence of bad character before the jury? 1. Did the trial judge err in not instructing the jury on involuntary intoxication? [19] The issue at trial was intention. Mr. Krewson raised the defence of intoxication. At the close of the defence case, for the first time, he raised the issue of involuntary intoxication. Mr. Krewson argued that the effect of taking pills, which he thought were sleeping pills, caused him to reach a level and type of intoxication that caused him to lack the requisite mens rea for both murder and manslaughter. [20] He submits there was an air of reality to involuntary intoxication as there was some evidence upon which a properly instructed jury acting reasonably could acquit. [21] I would note that, unlike the many cases that have considered involuntary intoxication, it was not alleged that Mr. Krewson was operating in an automatic state or was in a state of extreme intoxication akin to automatism. [22] In determining whether there was an air of reality to the defence of involuntary intoxication, the judge was required to ask whether there was any evidence disproving any of the three elements in the Chaulk test: R. v. Chaulk , 2007 NSCA 84 at para. 47. In that case, the issue was whether the judge erred in concluding that Mr. Chaulk's intoxicated state was not "self-induced". There was no dispute Mr. Chaulk was operating in an automatic state when he committed a number of offences. He said he took a “wake-up pill” and honestly thought he was taking a caffeine pill. Therefore, his state of extreme intoxication was not "self-induced". [23] Chaulk sets out a test for determining whether intoxication is self-induced: (1) the accused voluntarily consumed a substance, which; (2) he or she knew or ought to have known was an intoxicant, and; (3) the risk of becoming intoxicated was or should have been within his or her contemplation: at para. 47. [24] The accused need not contemplate the extent of the intoxication: [46]      … The law concerning responsibility for one’s acts following voluntary ingestion of intoxicating substances does not require that the consumer know to a nicety what the effect of the intoxicating substances will be. It is enough that he knows it might be dangerous and is recklessly indifferent with respect to ingestion or as to warnings relating to the effects of ingestion. [25] Chaulk cited The Queen v. King , [1962] S.C.R. 746, which established an objective test for an involuntary intoxication defence. An accused who voluntarily consumed alcohol or a drug “which he knew or had any reasonable ground for believing might cause him to be impaired” cannot “avoid the consequences of the impairment which results by saying that he did not intend to get into such a condition”: King at 763. [26] Chaulk also cited R. v. Vickberg (1998), 16 C.R. (5th) 164 (B.C.S.C.), where Owen-Flood J. set out the following test to determine whether intoxication was “self-induced”: “… for intoxication to be self-induced, the accused must intend to become intoxicated, either by voluntarily ingesting a substance knowing or having reasonable grounds to know it might be dangerous, or by recklessly ingesting such a substance”: Vickberg at para. 68. [27] The Court also cited R. v. Brenton (1999), 180 D.L.R. (4th) 314 (N.W.T.S.C.), rev’d on other grounds 2001 NWTCA 1, where the Court referred to the objective element on the issue of self-induced intoxication in the following terms: “… the risk of becoming intoxicated is within the contemplation or should be within the contemplation of the individual”: at para. 31. [28] The judge in this case refused to instruct the jury on involuntary intoxication. He had previously ruled that the defence hinged upon Ms. Laird’s evidence of whether Ms. Stewart told her Mr. Krewson was drunk on pills or drunk on drugs. The judge concluded she had said only that he was drunk on drugs. Therefore, he held: THE COURT: Well, I was concerned. And one of the reasons I was going to allow evidence of voluntary [ sic ] intoxication in was based on your submission that that was the evidence of the deceased, that he was drunk on pills. So with that evidence out I have decided I am not going to include that involuntary intoxication in the charge. There’s just no air of reality to it with those words taken out. So I’m not charging on that. [29] In fact, Ms. Laird’s evidence was that Ms. Stewart said Mr. Krewson was drunk on drugs and drunk on pills. [30] In my view, the judge was incorrect with respect to his reason for not leaving the issue of involuntary intoxication with the jury but was ultimately correct in concluding there was no air of reality to it: R. v. Cinous , 2002 SCC 29. [31] Mr. Krewson’s evidence of involuntary intoxication can be summarized as follows: · Ms. Laird’s evidence that Ms. Stewart said she gave Mr. Krewson half of an anti-depressant pill and he may have taken more. · Mr. Krewson’s evidence that he took half of a pill from Ms. Stewart, which he thought was a sleeping pill, to help him relax or take a little “catnap” because he was anxious about a work event. · Mr. Krewson’s evidence that he remembered taking another pill, but he is not sure if it was a half or whole pill, and he might have taken more pills but he could not say for sure. [32] Mr. Krewson admitted he consumed copious amounts of alcohol, marihuana, and pills voluntarily. There is no suggestion he did not know the pills were intoxicants. In fact, he admitted he took the half pill from Ms. Stewart for its intoxicating effect. Clearly, the risk of intoxication ought reasonably to have been in Mr. Krewson’s contemplation. The evidence overwhelmingly established self-induced intoxication, not involuntary intoxication. He did not advance a defence of automatism (and nor could he, as there was certainly no air of reality to that defence). The relevant defence at trial was intoxication. [33] In my view, there was no evidential foundation reasonably capable of being left with the jury in support of the issue of involuntary intoxication. Mr. Krewson’s own evidence contradicts any claim that his intoxication was not self-induced and is unsupported by the toxicology results that identified a relatively low blood alcohol content and no evidence of any of the prescription pills seized from the residence. [34] In my view, there is no merit to this ground of appeal. 2. Did the judge err in his instructions on the defence of intoxication? [35] Mr. Krewson submits the judge failed to provide the jury with a proper charge respecting the defence of intoxication. Specifically, he says the judge failed to follow relevant sections of CRIMJI: Canadian Criminal Jury Instructions , 4th ed., loose-leaf (updated November 2015), (Vancouver: Continuing Legal Education Society of British Columbia, 2005) at 8.36 (“ CRIMJI ”), and failed to refer to expert evidence when charging the jury. [36] I agree with the Crown that the record contradicts Mr. Krewson’s submissions. [37] Prior to the judge instructing the jury, there were a number of pre-charge conferences where the judge sought and received input from counsel on the content of his jury charge. The judge was receptive to all the suggestions of counsel except for leaving involuntary intoxication with the jury on the basis that there was no air of reality. [38] The sole issue for the jury was whether the Crown had disproved beyond a reasonable doubt the defence of intoxication in relation to the specific intent for murder. Mr. Krewson agreed that all the elements of manslaughter were proven on the evidence if the jury found him not guilty of murder. [39] The judge, in instructing the jury, noted that Mr. Krewson had conceded all of the essential ingredients of second-degree murder except intention. That is, the jury would need to be satisfied that the Crown had established beyond a reasonable doubt that Mr. Krewson either: (a) meant to cause the death; or (b) meant to cause bodily harm that he knew was likely to cause death and was reckless as to whether it caused death. [40] The judge used the model charge in CRIMJI , reviewed the relevant evidence, and instructed the jury on the defence of intoxication. He explained, “On the defence of intoxication, the Crown must prove that defence does not leave you in a reasonable doubt concerning the guilt of the accused.” He explained that “[i]ntoxication is a defence to the offence of murder if the accused was so intoxicated that he did not have the necessary intent to commit the offence.” He noted that intoxication could impact an accused’s ability to foresee the fatal consequences of his or her actions. [41] In my view, the judge properly instructed the jury on the defence of intoxication explicitly following all the relevant sections of CRIMJI . As the Crown notes, the jury verdict of guilty of murder was not only reasonable but predictable. Contrary to Mr. Krewson’s evidence that he was in an advanced state of intoxication and lacked the specific intent to murder Ms. Stewart, the evidence overwhelmingly supported the verdict – having regard to what Ms. Laird overheard, to his interactions with the first responders, to the toxicology results, and even to Dr. Riar’s opinions. [42] In my view, there is no merit to this ground of appeal. 3. Did the judge misapprehend evidence during his charge to the jury? [43] Mr. Krewson submits the judge materially misapprehended evidence regarding the timing and location of Mr. Krewson’s self-inflicted gunshot wound and the type of pills he consumed, which led to a miscarriage of justice. I note the jury was told they were the arbiters of the facts and it was their memory of the evidence that was relevant. In any event, in my view, there was no “failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence” that would impact the verdict: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.) at 538 and affirmed in R. v. Lohrer , 2004 SCC 80; R. v. Swales , 2014 BCCA 350. [44] In my view, there is simply no merit to this ground of appeal substantially for the reasons set out in the respondent Crown’s factum at paras. 72–86. 4. Did the judge err in his charge on post-offence conduct? [45] Although not advanced as a separate ground of appeal, Mr. Krewson asserts the judge failed to properly instruct the jury on the limited inferences they could draw from his post-offence conduct of shooting himself in the face. At trial, Mr. Krewson relied on this event as evidence of intoxication impacting his ability to form the specific intent to murder Ms. Stewart. The appropriate post-offence jury instruction was discussed and agreed upon in pre-charge hearings. At defence counsel’s request, the judge removed reference to “attempted suicide” and referred instead to “shot himself in the face”. In his jury charge, the judge instructed that the after-the- fact conduct was a piece of circumstantial evidence for the jury to consider in determining whether the Crown had proven its case beyond a reasonable doubt. He instructed the jury further: It should not be viewed in a vacuum but should be assessed like all other circumstantial evidence. To find guilt based on this evidence, it must be consistent with the accused's guilt and inconsistent with any other rational conclusion. The evidence of the accused’s post-offence conduct has only an indirect bearing on the issue of guilt. You should exercise caution in inferring guilt because the conduct might be explained in an alternative manner. The accused’s post-offence conduct can only be used by you to support an inference of guilt when you reject any innocent explanation for that conduct. [46] In my view, in the circumstances of this case, this instruction was correct. There is no merit to this ground of appeal. 5. Did the judge err in allowing the Crown to put hearsay evidence of bad character before the jury? [47] Mr. Krewson submits the Crown was permitted to lead hearsay evidence of bad character. It was conceded Mr. Krewson put his character in issue when he told Dr. Riar he had no criminal record and no history of aggression or violence with women. Following discussions with the judge and defence counsel, the Crown was permitted to cross-examine Mr. Krewson as to whether he had abused two former girlfriends. He denied the allegations and neither woman was called to testify in rebuttal. [48] Mr. Krewson contends the judge erred in allowing Crown to put hearsay evidence about Mr. Krewson’s bad character before the jury. Specifically, he argues that the Crown’s questions to him on cross-examination about his prior relationships with two women amounted to hearsay evidence because the Crown sought to have the evidence admitted for the truth of its contents. He submits the judge’s caution to the jury was not enough; the prejudice could not be undone. [49] The judge did not allow the Crown to put hearsay evidence of bad character before the jury. Counsel’s questions to a witness are not evidence, let alone hearsay evidence. The jury was told this at the beginning of the trial and in the final charge to the jury. [50] Following pre-charge discussions, the judge instructed the jury to accept Mr. Krewson’s denial of the prior abuse allegations, since neither ex-girlfriend testified at trial. This was a proper instruction and was agreed to by counsel. [51] There is no merit to this ground of appeal. Conclusion [52] I would grant an extension of time to appeal to September 14, 2017, but I would dismiss the appeal. [53] HARRIS J.A. : I agree. [54] FENLON J.A. : I agree. [55] HARRIS J.A. : An extension of time to appeal to September 14, 2017 is granted, but the appeal is dismissed. “The Honourable Madam Justice Stromberg-Stein”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Wu v. Vancouver (City), 2019 BCCA 23 Date: 20190121 Docket: CA44963 Between: Zheqiang Wu and Binxia Cao Respondents (Plaintiffs) And City of Vancouver Appellant (Defendant) Before: The Honourable Mr. Justice Harris The Honourable Madam Justice Dickson The Honourable Madam Justice Griffin On appeal from:  An order of the Supreme Court of British Columbia, dated November 14, 2017 ( Wu v. Vancouver (City) , 2017 BCSC 2072, Vancouver Registry S144129). Counsel for the Appellant: D.R. Bennett, Q.C. and E.C. Lapper Counsel for the Respondent: R.D. Holmes, Q.C. and M. Good Place and Date of Hearing: Vancouver, British Columbia September 18, 2018 Place and Date of Judgment: Vancouver, British Columbia January 21, 2019 Written Reasons by: The Honourable Mr. Justice Harris Concurred in by: The Honourable Madam Justice Dickson The Honourable Madam Justice Griffin Summary: Appeal of a judgment recognizing a private law duty of care imposed on municipal officials to make a decision on a development permit application in a reasonable time and concluding the duty breached. Appeal allowed: the proper remedy for delay in making a decision is mandamus. The public law duty cannot be converted to a private law duty. The regulatory scheme does not create the necessary proximity to justify recognizing a private law duty of care. Policy reasons, in any event, justify negativing a prima facie duty of care. The order cannot be supported on alternative grounds. Reasons for Judgment of the Honourable Mr. Justice Harris: Introduction [1] The City of Vancouver appeals an order declaring the City liable to compensate the respondent homeowners for failing to make a decision on a development permit application within a reasonable time. The consequence of not making a decision was that the respondents arguably lost a right to compensation that would otherwise have been available to them under certain bylaws existing at the time. [2] The judge found that the City, through its officials and Council, acted intentionally and in bad faith in delaying a decision on the development permit application until a change in applicable bylaws removed a right to compensation that previously existed. The judge concluded, nonetheless, that the respondents failed to make out the tort of abuse of public office and they were not entitled to a remedy in the nature of mandamus compelling the issuance of the development permit. Rather, the judge recognized in the law of negligence a novel private law duty of care to make a decision within a reasonable time in accordance with the applicable bylaws. She found the City, in bad faith, breached that duty. [3] For the reasons that follow I would allow the City’s appeal. Background [4] The respondents bought a home in the First Shaughnessy District (“FSD”) of Vancouver in December 2011. The house was built before the First World War. When they bought the house, they knew of land use restrictions that could affect their right to demolish and replace the house. They understood, however, that under the existing rules if the City refused the respondents’ right to demolish the house and the parties could not agree on terms for its retention, the City was obliged to compensate the respondents for the property’s resulting loss of value. [5] Given the view I take of this case, it is not necessary to outline the background and the regulatory regime in detail. The essential bylaws are found as an appendix to these reasons. As well, further detail may be found in the reasons for judgment from the Court below, indexed as 2017 BCSC 2072. The history of the City’s attempts to protect the heritage character of FSD and the regulatory changes to do so implemented over many years are explained in Cummings v. City of Vancouver , 2016 BCSC 1918. [6] The City has long evinced a desire to protect the historic character of FSD and preserve homes of heritage value within it. In 1982, the City rezoned FSD. It also adopted the First Shaughnessy Official Development Plan (“FSODP”) with the goal to “preserve and enhance First Shaughnessy’s unique character”. The goals contained in the FSODP represented the basic planning philosophy for FSD, and the City’s Director of Planning had to take these goals into account when considering new development in FSD. Those goals were more fully articulated in First Shaughnessy Design Guidelines (“Guidelines”). The Guidelines informed the interpretation and implementation of the FSODP and provided a framework for reviewing all new development in FSD. [7] One issue in this case is whether the respondents’ proposed development was consistent with the Guidelines even if the development permit application was, as the judge found, otherwise complete. [8] The process governing development in FSD became more complicated in 1994 when Council created the First Shaughnessy Advisory Design Panel (“Design Panel”). The Design Panel was an advisory body that assisted the City in implementing planning policy by reviewing all development applications for FSD. The mandate of the Design Panel was to “preserve and protect the heritage and special character of the [FSD]”. [9] In 1994, Council created the First Shaughnessy Heritage Inventory (“Heritage Inventory”), listing all 353 pre‑1940 homes. Homes were listed on the Heritage Inventory for planning purposes. Being listed did not confer heritage status or protection. It identified properties as eligible for development incentives to encourage retention. In order to be protected as heritage property, a property had to be added to the Heritage Register by order of Council pursuant to s. 582 of the Vancouver Charter , S.B.C. 1953, c. 55. The respondents’ property was listed on the Heritage Inventory but not on the Heritage Register. [10] By the early part of this decade, pressure to demolish pre‑1940 homes and replace them with new homes increased significantly. In response to the increase in proposals to demolish pre‑1940 homes, an administrative bulletin was published by the City Planning Department in May 2012 (“2012 Bulletin”). The Bulletin was amended in November 2012 and again in February 2013. The stated objective was reconfirmed: preserving and protecting FSD character through the retention of pre‑1940 houses of merit. The 2012 Bulletin required all pre‑1940 homes to be evaluated for merit prior to approving demolition permits. [11] The Bulletin set out a “process of careful analysis” to establish the heritage merit of pre‑1940 homes. This could include the provision of a Statement of Significance (“SOS”). Ultimately, the Director of Planning would decide if a property had heritage merit. If so, that determination would have to be addressed in any subsequent application for a development permit and the City would encourage the property’s retention. If the Director of Planning favoured retention, but the homeowner still wished to demolish the home, the Director could recommend to Council that the house be protected by a designation as “protected heritage property”. In that event, the City would be required to compensate the homeowner for any loss of value under the existing bylaws. [12] This describes some of the basic regulatory principles in place at the time the respondents engaged in pre‑application discussions with the City about their plans to demolish the house. In May 2012, Mr. Leyland, the respondents’ architect, met with the Design Panel and presented their proposed plans. At this meeting, the City presented a heritage evaluation report prepared by Hugh McLean, a heritage planning analyst with the City. Mr. McLean’s report recommended that the property be designated with heritage status. Shortly after the May meeting, the City requested that the respondents prepare retention studies. On October 3, 2012, the City wrote to Mr. Leyland advising the Director of Planning had reviewed the merit evaluation and retention studies, a confirmation of merit of the house had been established, and the Director of Planning would therefore seek retention of the house. The judge found that the October 3, 2012 letter represented a decision by the City that the house had heritage merit and needed to be retained: at para. 96. [13] On January 30, 2013, the respondents submitted a development permit application to the City for the demolition of the house and construction of a new single-family dwelling. The judge found that the application was complete and that the respondents had submitted all of the materials the City required to make a decision with respect to the application: at para. 22. This conclusion is in issue on appeal. [14] The judge concluded that, at this point, the City had three options for dealing with the application: (1) permit the demolition of the house and new development; (2) reach an agreement with the plaintiffs to retain the house with incentives; or (3) designate the property as “protected heritage property” and compensate the respondents for any resulting loss of value under s. 595 of the Vancouver Charter : at para. 20. [15] With respect, I think the judge was wrong to limit the City’s options in this way. In fact, the City could have rejected the application if the proposed development did not comply with the Guidelines. Indeed, the City was required by s. 1.6 of the FSODP to comply with Zoning and Development Bylaw, and the related goals, development principles, regulations, and all applicable policies and guidelines adopted by Council, including those in the FSODP and the Guidelines. [16] Alternatively, the Council could have, as it did later, resort to its power under the bylaws to impose a temporary 120‑day heritage protection order on the property or pass a more general order protecting all properties in the neighbourhood. [17] Between January and April 2013, City staff discussed internally the possibility of recommending to Council that the property be designated as protected heritage property and compensating the respondents. Designation under s. 593 of the Vancouver Charter would have been an unprecedented step. The record discloses that the City had never unilaterally designated a property under s. 593 of the Vancouver Charter , requiring it to pay compensation under s. 595. Rather any designation had been by agreement, including as to the amount of compensation. The risk of designation, absent agreement on compensation, leading to an uncertain amount of compensation determined by arbitration had not been taken by the City. [18] The record also discloses that early in 2013 a policy concern was developing in the City that the existing regulatory regime was proving ineffective in protecting heritage properties and preventing developments that were inconsistent with its conservation policies. As a result, on May 15, 2013, Council passed a motion requesting staff review the City’s Heritage Conservation Program and identify potential improvements to it. This motion led to Council approving a Heritage Action Plan to update and strengthen the City’s heritage conservation programme on December 4, 2013. These facts were in the public domain. [19] In the meantime, on February 15, 2013, the City advised Mr. Leyland that the respondents needed to submit an SOS prepared by an independent heritage consultant in order “to finalize the merit question” for the house. The judge was critical of the City for requesting the SOS, given her finding that the Director had already decided the home had heritage merit and for other reasons. [20] On July 19, 2013, the respondents submitted an SOS to the City. On September 16, 2013, the Vancouver Heritage Commission recommended that the property be added to the Heritage Register. It also requested revisions to the SOS. As I understand it the City took the view that the proposed development was inconsistent with the FSODP. [21] Following that decision, Mr. Leyland met with the City to reiterate that the respondents wanted to demolish the house. On November 7, 2013, the Director of Planning wrote to Mr. Leyland indicating that staff would recommend Council add the house to the Heritage Register if the respondents wanted to proceed with the development permit application. However, on November 25, 2013, the Director of Planning recommended to Council that the property be granted temporary heritage protection under s. 589 of the Vancouver Charter , to “allow staff time to assess retention options for this property which is a candidate for addition to the Vancouver Heritage Register”. This was done. Accordingly, the property was granted temporary heritage protection. [22] During the 120‑day temporary protection period, the City continued to encourage the respondents to consider incentives to retain the house. The respondents reiterated they were not interested in retention. Following the expiry of the temporary protection period, the respondents did not hear anything further from the City regarding their application. [23] As mentioned earlier, on December 4, 2013, Council approved the Heritage Action Plan to update and strengthen the City’s heritage conservation programme. [24] One action item in the Heritage Action Plan was a review of the FSODP to consider the establishment of a heritage conservation area for FSD as a “unique and historic neighbourhood”. The Heritage Action Plan recommended a review of the FSODP to consider the establishment of a heritage conservation area in FSD and a period of temporary protection for FSD. The stated rationale for was: In the past few years there have been increasing concerns in First Shaughnessy including the number of demolition proposals for houses, the use of double height interior spaces which result in large-scaled or bulky houses, and the loss of some of the area’s landscape features. A comprehensive review of the [FSODP] has not been undertaken since it was approved in 1982, even though periodic reviews and updates of the adopted document were intended. [25] I note in passing that the respondents’ application raised a number of concerns reflected in the quoted rationale, including issues to do with bulk and scale, roof lines, and landscaping. [26] In May 2014, the plaintiffs started this action seeking an order in the nature of mandamus to compel issuance of the development permit or, in the alternative, alleging abuse of public office, expropriation, and negligence. [27] On June 24, 2014, less than one month after the respondents’ claim was filed, Council enacted Bylaw 10991, establishing a heritage control period for FSD. The purpose of this bylaw was to ensure that no pre‑1940 buildings were demolished unless authorized by a heritage alteration permit while work to review the FSODP under the Heritage Action Plan was underway. Pursuant to ss. 590(2) and (5) of the Vancouver Charter , such a heritage control period is effective for no longer than one year and can only be implemented in a single area once in a 10‑year period. [28] A report dated May 29, 2015, from the City’s General Manager of Planning and Development Services, recommended that the FSODP be repealed, that Council enact a city‑wide Heritage Conservation Area Official Development Plan and bylaws designating First Shaughnessy as the first heritage conservation area in the City. In part, these recommendations reflected the concern about a significant increase in enquiries and applications to demolish pre‑1940 homes. The report also identified that one advantage of adopting the HCA Bylaws was that no compensation would be payable to homeowners who were refused permission to demolish existing houses. [29] On September 29, 2015, after public hearings, Council repealed the existing FSD zoning bylaw and the FSODP and enacted Bylaw Nos. 11352 and 11349 (the “HCA Bylaws”), establishing a new district schedule for First Shaughnessy and the Heritage Conservation Area Official Development Plan (“HCAODP”) respectively. The HCA Bylaws and HCAODP established FSD as a heritage conservation area and prevented the demolition of any house in the area unless the Director of Planning decided the house no longer of sufficient heritage character or value. Designation of FSD as a heritage conservation area also had the effect of removing the requirement that the City pay compensation to homeowners under s. 595 of the Vancouver Charter . [30] The property is now subject to the HCA Bylaws and HCAODP. Once a development plan is adopted as “official” by Council, s. 563 of the Vancouver Charter mandates that the City cannot “authorize, permit, or undertake any development contrary to or at variance with the official development plan”. As a result, as the judge recognized, the HCA Bylaws and HCAODP “frustrated” the respondents’ plans to develop the property: at para. 94. Reasons for Judgment [31] The judge held that the City had embarked upon a “circuitous course of delay” with respect to the application: at para. 96. She concluded that the City’s conduct in repeatedly asking the plaintiffs to consider retention of the House; requiring an SOS; requesting the respondents prepare retention studies; granting a temporary protection period for the property; and failing to seek heritage protection; all constituted “delay tactics” by the City: at para. 96. [32] The judge was satisfied that the City had acted in bad faith in dealing with the application: at para. 97. She inferred that the only rational explanation of the City’s actions was that it delayed making a decision until the HCA Bylaws were passed, thereby avoiding the requirement to pay compensation: at paras. 98, 223. [33] Nonetheless, the chambers judge concluded the respondents had not established the tort of abuse of public office or misfeasance (paras. 114‑15) or the requirements for a finding of expropriation: at paras. 119‑21. Moreover, she dismissed the application for mandamus on the basis that the City had an option either to grant the application or designate the property and pay compensation: at paras. 236‑38. [34] On the primary issue on appeal, the judge recognized the City owed the respondents a novel duty of care to “make a decision on the plaintiffs’ development permit application, in accordance with the applicable laws, and to do so within a reasonable time”: at paras. 173, 191, 211. She found the meaning of “within a reasonable time” could be established by reference to the City’s average processing time for a development application (10‑14 weeks) and the time limits set out in section 4.2 of the City’s Zoning and Development Bylaw which provide for the expiry of an application for a development permit after one year: at para. 216. [35] Relying on her findings of bad faith, the judge concluded that the City had breached its standard of care (at paras. 223‑24) resulting in direct and foreseeable economic losses. [36] Given her findings that the City never intended to grant the respondents a development permit because of the heritage merit of the property, and given that the respondents were not interested in retention, the judge concluded the only option for the City was to designate the property as heritage and provide compensation. The City’s failure to do so within a reasonable time wrongfully deprived the plaintiffs of the compensation they were owed under the existing bylaw: at para. 232. [37] The quantum of damages was set to be determined at a subsequent hearing. Analysis The public law duty [38] The judge concluded that under the bylaws the City owed the applicants a duty of care to make a final decision on a development permit application within a reasonable time, in accordance with the applicable statutory framework: at paras. 191, 211. [39] The duty, as characterized by the judge, is equivalent to and no different from the public law duty owed to applicants as a result of the empowering enactments. Public officials are under statutory duties to act in accordance with obligations imposed on them by statute, which also serve as the source of their authority to act. Public law duties exist in any circumstance where a public official is authorized and obliged to process an application seeking a grant of permission to act in certain ways. [40] Where an official fails to act in a manner required by statute and accordingly breaches his or her statutory obligations, remedies exist in administrative law. For current purposes, it is sufficient to note that the duty described by the judge is simply a duty to make a decision, not to make a particular decision where the official has a choice or a discretion about what decision to make within the regulatory scheme. Mandamus lies to compel an official to make a decision. It is a remedy for delay. Its availability does not depend on an official having a duty to make a particular decision. This proposition is illustrated by Dagenais v. Trenton (1893), 24 O.R. 343 (Ont. C.A.), in a municipal law context, but it is a principle of wider application. As Justice LeBel explained in Blencoe v. British Columbia (Human Rights Commission) , 2000 SCC 44: [146]    The notion that justice delayed is justice denied reaches back to the mists of time. In Magna Carta in 1215, King John promised: “To none will we sell, to none will we deny, or delay , right or justice” (emphasis added [in original]). [149]    Today, there is no doubt that mandamus may be used to control procedural delays. In the middle of the last century, a British Columbia Court of Appeal judgment recognized the principles behind mandamus, stating that “[t]he high prerogative writ of mandamus was brought into being to supply defects in administering justice”  ( The King ex rel. Lee v. Workmen’s Compensation Board , [1942] 2 D.L.R. 665, at p. 678). It went on to note that the granting of mandamus was “to be governed by considerations which tend to the speedy and inexpensive as well as efficacious administration of justice” (at p. 678, cited with approval in Harelkin v. University of Regina , [1979] 2 S.C.R. 561). Members of our Court have on occasion alluded to the use of mandamus specifically to control delay. (See notably: R. v. Bradley , [1941] S.C.R. 270, at p. 277, per Duff C.J.; Rourke v. The Queen , [1978] 1 S.C.R. 1021, at p. 1027, per Laskin C.J.; and Rahey, supra , at pp. 624‑25, per Wilson J., and p. 631, per La Forest J.) [Emphasis added.] [41] The public law obligation to make a decision in a reasonable time is reflected in a number of cases: see, for example, Austin v. Canada (Minister of Consumer and Corporate Affairs) (1986), 10 F.T.R. 86 (F.C.T.D.) (obligation to exercise discretion within a reasonable time: at para. 6); Ramsay v. Toronto (City) Commissioners of Police (1988), 66 O.R. (2d) 99 (Div. Ct.) ( mandamus requires a statutory duty to be done, not the way it is done, decision to be made without ordering what decision). In Dass v. Canada (Minister of Employment and Immigration) (1996), 193 N.R. 309 (F.C.A.), the point is put clearly: [17]      … This is not to say that the officials may make unlawful decisions without review, or delay indefinitely making a decision. A decision once communicated may be open to attack on judicial review. And if there is undue delay in processing an application for landing it is always open to the applicant to apply for mandamus , not to require a specific decision but rather to require that a decision be taken . [Emphasis added.] [42] These considerations are pertinent here. On the judge’s reading of the City’s statutory obligations, the City had a discretion to decide whether to approve the development permit application or put the house on the Heritage Register and pay compensation. The respondents did not have a right to a particular decision, but they did have a right to a decision. The duty as defined by the judge is nothing more than the public duty articulated as or converted into a private law duty of care. [43] This brings us to the first problem with the judge’s analysis. It is a settled principle that Canadian law does not recognize a nominate tort of breach of statutory duty. As The Queen (Can.) v. Saskatchewan Wheat Pool , [1983] 1 S.C.R. 205, and Holland v. Saskatchewan , 2008 SCC 42, make clear, there is no duty of care imposed on officials to act in accordance with authorizing statutes or regulations. Standing alone, a breach of a statutory duty is not a breach of a private law duty of care. While a breach of statutory duty is subsumed within the law of negligence, a breach of a statutory duty can be evidence of negligence. As a general rule, a breach of a public law duty is not sufficient to establish the breach of a private law duty. The first is not readily converted to the second. The existence of a private law duty of care must be established by the application of common law principles. [44] This proposition is illustrated by the decision of the Supreme Court of Canada in Holland . In that case, the Supreme Court of Canada upheld a decision of the Saskatchewan Court of Appeal striking a claim in negligence based on a failure of public officials to act in accordance with the authorizing acts and regulations. The statement of claim had explicitly alleged a duty of care to ensure that the legislative framework at issue was “administered in accordance with the law”. McLachlin C.J., writing for the Court, outlined the alleged acts of negligence as follows: [7]        … The statement of claim, read generously as required in an application to strike, focused mainly on two alleged acts of negligence: requiring the game farmers to enter into the broad indemnification agreement, and down-grading the status of those who refused to do so. In both cases, the alleged fault may be described as failing to act in accordance with the authorizing acts and regulations . [Emphasis added.] [45] The Supreme Court of Canada relied on Saskatchewan Wheat Pool for the principle that the law does not recognize an action for negligent breach of statutory duty and that mere breach of statute is not negligence. The Court endorsed the view that the law has not recognized an action against a government authority for negligent breach of statutory duty by acting outside or contrary to the law. The issue thus became whether a new instance of negligence should be permitted, by reference to the principled Anns/Cooper analysis ( Anns v. Merton London Borough Council , [1978] A.C. 728; Cooper v. Hobart , 2001 SCC 79). The Chief Justice reasoned: [9]        In my view, the Court of Appeal was correct in these conclusions. The law to date has not recognized an action for negligent breach of statutory duty. It is well established that mere breach of a statutory duty does not constitute negligence: The Queen in right of Canada v. Saskatchewan Wheat Pool , [1983] 1 S.C.R. 205 (S.C.C.). The proper remedy for breach of statutory duty by a public authority, traditionally viewed, is judicial review for invalidity. The appellant pursued this remedy before Gerein C.J.Q.B. and obtained a declaration that the government's action of reducing the herd certification status was unlawful and invalid. No parallel action lies in tort. [10]      The next question was whether a hitherto unrecognized relationship of potential liability in negligence should be recognized under the Anns test. Assuming, without deciding, that the legislative and regulatory matrix established proximity between the Class and the government at the first step, policy considerations would negate recognition of liability, as the Court of Appeal detailed. These include the chilling effect and specter of indeterminate liability. As Richards J.A. stated at para. 43 of the Court of Appeal’s decision: ... the respondent’s theory of liability would fundamentally shift the way in which the public and private spheres historically have carried the consequences or burden of governmental action which is shown to be ultra vires. I see no policy reason which would warrant such a dramatic revision in the shape of the law and, as indicated above, see much which cuts tellingly against shaping the law in the manner sought by the respondent. [46] The principles set out in this case were quoted and relied on by this Court in Ari v. Insurance Corporation of British Columbia , 2015 BCCA 468, albeit in a somewhat different context. [47] With respect, the analysis in Holland appears to me to be directly applicable to this appeal. The duty described by the judge is no more than an action for negligent breach of statutory duty by a public authority. The proper remedy is judicial review. A failure to act as required by statutory authority is properly remedied by an order in the nature of mandamus compelling the authority to decide. The duty recognized by the judge amounts to a fundamental shift in the way in which public and private spheres have historically addressed improper governmental action. The Anns/Cooper analysis [48] Notwithstanding the problem just identified, it remains necessary to consider whether the duty the judge recognized could survive the Anns/Cooper test for identifying novel private law duties of care. Indeed, the judge engaged in an Anns/Cooper analysis in recognizing a private law duty of care. I will address the judge’s reasons in order to explain why, in my opinion, the judge’s analysis does not avoid the result in Holland . As I shall attempt to demonstrate, the judge’s analysis does not engage sufficiently with the law concerning the circumstances in which proximity can be established in connection with the existence of a scheme of regulation in the public interest. [49] The law concerning the recognition of a private law duty of care has evolved significantly in recent decades. This evolution has occurred within the Anns/Cooper framework. I will return later to the issue of whether the law already recognizes the duty recognized in this case. I agree with the judge that if such a duty does exist, it must be rooted in the principled Anns/Cooper framework since the duty is novel. [50] The most significant evolution in applying the Anns/Cooper framework is the increasing emphasis placed on the analysis of proximity, at the expense of reasonable foreseeability, as the critical element in recognizing a prima facie duty of care. In Cooper , the Supreme Court of Canada made clear that reasonable foreseeability standing alone is insufficient to ground a prima facie duty of care. In addition to reasonable foreseeability, there must be proximity: Cooper at para. 42. In Deloitte & Touche v. Livent Inc. (Receiver of) , 2017 SCC 63, the Supreme Court of Canada has recently traced the refinements in the Anns/Cooper framework placing greater emphasis on a robust analysis of proximity as the touchstone for recognizing a novel prima facie duty of care. [51] The law has not defined “proximity” with precision. Indeed, as was said in Cooper , the word may amount to little more than a label identifying the type of relationship in which duties of care arise: Cooper at para. 31. Nonetheless, one can recognize the kind of considerations pertinent to analysing proximity. Such relationships are said to be “close and direct”: Cooper at para. 32. They may involve physical closeness, direct relationships or interactions, the assumption of responsibility; or turn on expectations, representations, reliance, or the nature of property or other interests involved: see, Cooper at paras. 32‑34. In short, proximity recognizes those circumstances in which one individual comes under an obligation to have regard for the interests of another so as to be required to take care not to act in a manner that would cause injury to those interests. Proximity involves an analysis both of the nature of the relationship between the parties and the kind of harms carelessness might cause: see The Los Angeles Salad Company Inc. v. Canadian Food Inspection Agency, 2013 BCCA 34. It involves having regard to all relevant factors arising from the relationship between the parties: Deloitte at para. 29. [52] The evolution in the Anns/Cooper framework is also reflected in cases dealing with the recognition of private law duties owed by public authorities. The historical emphasis on the distinction between operational and policy decisions has been overshadowed by a more rigorous proximity analysis. One of the difficult issues has been the role that a statutory scheme of regulation plays in analysing whether sufficient proximity exists between a public authority and a claimant to justify recognizing a prima facie private law duty of care. In relation to the proximity analysis in relation to public authorities, the issue is complicated first by the underlying principle that no nominate tort of breach of statutory duty is recognized in Canada, and second by the fact that public authorities generally have powers and duties to act in the public interest rather than in a manner designed to protect the private interests of individuals affected by a scheme of regulation. [53] Some general principles apply to the recognition of prima facie private law duties of care owed by public regulators to private parties. [54] First, it is possible that a private law duty of care may arise explicitly or by necessary implication from a statutory scheme: see R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 43. The existence of a statutory scheme of regulation does not foreclose the possibility of finding proximity. [55] Second, while a scheme of statutory regulation may be relevant to whether proximity exists, generally the existence of such a scheme is insufficient to support a finding of proximity. The Supreme Court of Canada appears to have moved beyond its statement in Edwards v. Law Society of Upper Canada , 2001 SCC 80 at para. 9, that factors giving rise to proximity must be grounded in the governing statute if one exists. More recently, in Reference re Broome v. Prince Edward Island , 2010 SCC 11, Justice Cromwell observed that statutory duties “do not generally, in and of themselves, give rise to private law duties of care”: at para. 13. A similar view is found in Alberta v. Elder Advocates of Alberta Society , 2011 SCC 24. In that case, the Chief Justice, endorsing Broome , reasoned that “[w]here the defendant is a public body, inferring a private duty of care from statutory duties may be difficult, and must respect the particular constitutional role of those institutions”: Alberta at para. 74. Much the same view was articulated in Imperial Tobacco . In that case, the Court noted “[i]t may be difficult to find that a statute creates sufficient proximity to give rise to a duty of care”: at para. 44. [56] Third, a principal reason why public law duties are, standing alone, generally insufficient to create proximity is because statutory schemes generally exist to promote the public good. To the extent that one conceives the issue as a matter of legislative intent, as the Supreme Court of Canada noted in Imperial Tobacco , it is difficult to infer that a legislature intended to create a private law duty where a scheme is aimed at a public good: at para. 44. Viewed in this way, the question is whether the legislature intended as a positive matter to create a private law duty notwithstanding that the scheme is aimed at promoting the public good. The basic proposition remains, however, that a public law duty aimed at the public good does not generally provide a sufficient basis to create proximity with individuals affected by the scheme. This is so, even if a potential claimant is a person who benefits from the proper implementation of the scheme. This proposition is illustrated by numerous cases including Cooper, Gill v. Canada (Minister of Transport), 2015 BCCA 344, Imperial Tobacco, and Elder Advocates, to name just a few. [57] Fourth, where a conflict arises between a potential private law duty and the public authority’s duty to the public, the private law duty would unlikely be recognized. This is so whether the issue is viewed as one of proximity or as a policy reason to negate a duty. This principle has been engaged in a number of cases, see for example, Imperial Tobacco, Cooper, Gill, Los Angeles Salad . [58] What I take from these broad principles is that, as a general proposition subject only to arguably rare exceptions, statutory duties owed by public authorities are insufficient to ground private law duties arising out of interactions that are inherent in the exercise of the public law duty. Indeed, it is difficult to convert public law duties into private law duties where those public law duties exist to promote a public good. Generally, discharging public law duties does not give rise to a private law duty of care to particular individuals. [59] Typically, if a private law duty of care is recognized, it will arise from specific interactions either between the public authority and the claimant sufficient to create the necessary proximity or in the context of a statutory scheme: Imperial Tobacco at paras. 45‑46. An example of such an approach is found in Fullowka v. Pinkerton’s of Canada Ltd. , 2010 SCC 5, where the Court emphasized the specific features of the relationship between the plaintiffs and the regulator in the circumstances of the case. There, a combination of factors, including the regulatory regime and the interactions and knowledge of regulators, were necessary to ground a finding of proximity. Vlanich v. Typhair , 2016 ONCA 517, para. 31, helpfully explains how proximity may arise between a public authority and a member of the public where a public authority assumes responsibility for ensuring compliance with standards. [60] I agree with the comments of Mr. Justice Bryson of the Nova Scotia Court of Appeal in Canada (Attorney General) v. Walsh Estate , 2016 NSCA 60: [64]      Notwithstanding judicial comment to the contrary, it is hard to see how a public statute, empowering public actors to accomplish public goals, could alone give rise to a private duty between those public actors and a particular member of the public. Unless the statute conferred a right of action or limited such a right or any remedy, one would expect the statute to be a neutral factor in the analysis. Statutes generally do not create a private law duty of care: Reference re Broome v. Prince Edward Island , 2010 SCC 11 at ¶ 13. [65]      To impose a private duty of care on public actors, one needs to overcome the generic relationship and establish a private one, although it need not be personal. There may be interaction between public defendants and plaintiffs, such as to give rise to a relationship between them, (Hill, ¶ 29). [61] It is necessary, therefore, to begin by characterizing the purpose of the regulatory scheme at issue in this case. The scheme is intended to protect the heritage character of First Shaughnessy. It does so by seeking to preserve properties possessing heritage value and the overall historic character and ambience of the neighbourhood. To achieve that aim, it regulates proposed developments by property owners. The scheme imposes statutory duties on the regulators and provides statutory rights to property owners in making a development permit application. I see nothing in the scheme to suggest the legislative intent is to create a private law duty of care owed to property owners. [62] In this respect, the bylaws at issue are a specific type of bylaws aimed at regulating development. Development permits often authorize the demolition and replacement of certain buildings. Generally speaking, bylaws regulating development do so to control permissible development in accordance with a variety of criteria. Those criteria may encompass a wide range of matters, such as density, use, or compliance with design guidelines, just to name a few. [63] In this case, the bylaws in issue were concerned with protecting the heritage character of a certain part of Vancouver. The regulatory framework exists to promote a conception of the public interest or public good by regulating the type and character of new construction in FSD. The primary objective of the scheme is to promote the public good. In the circumstances, I do not think it can be said that the regulatory framework, standing alone, either explicitly or by implication, creates a relationship of proximity capable of giving rise to a prima facie duty of care. [64] I am reinforced in this view, by examining those factors the judge relied on at paras. 159‑73, in concluding that such a relationship of proximity existed. In my respectful opinion, most of the factors were generic and inherent in the regulatory framework and, accordingly, are not indicative of a relationship of proximity. [65] While the relationship between the parties can be described as “direct and transactional”, this does not materially advance the proximity analysis because such a relationship is both inherent in and an inevitable and necessary part of the regulatory framework, in which individuals apply for permission to undertake a certain activity. The same applies to virtually any licensing or permitting process. I do not think that the inevitable reality of a specific individual making an application to a regulator, and thereby entering into a direct transactional relationship with the regulator, advances the argument that proximity exists in the sense that the regulator has come under an obligation to have particular regard for the interests of the applicant beyond the regulator’s obligation to fulfil his or her statutory duties. [66] Moreover, as I see the matter, the expectations and reliance on “representations”, referred to by the judge at para. 44, is simply another way of describing an applicant’s expectation that a public official will fulfil his or her statutory public law obligations in the manner described in the Administrative Bulletin referred to at para. 10 above. The “representations” are not an indication that the public official is assuming a private law duty of care to have regard for the applicant’s private interests, whatever they may be. Further, the expectation that a public official will act as authorized by law does not, by itself, ground any reasonable expectation that the applicant can rely on the official to discharge his or her obligations with a particular regard for the applicant’s private interests. [67] I agree that a failure by a public official to process a development application according to the law could in some circumstances cause reasonably foreseeable harm to the economic interests of an applicant where there is a clear right to a permit. In this case, it may have been reasonably foreseeable that a failure to process the development permit application in accordance with the law might interfere with private property rights of the applicant. Again, much the same could be said about any scheme of regulation which involves granting or withholding permission to engage in certain kinds of activity. But none of this takes the relationship between the parties outside what is inherent in the scheme of regulation. Moreover, reasonable foreseeability is now treated as a secondary factor. Primary emphasis is given to proximity. Reasonable foreseeability does not create proximity: Deloitte paras. 32-6 . [68] While property owners are entitled to use their property as they wish, they may do so only within a regulatory framework. Property development is highly regulated in the public interest. The manner in which economic interests or property rights may be affected by a failure to administer the law is variable and unpredictable. Given that property owners are not entitled to do what they like with their property outside of the regulatory scheme, it can be conceptually difficult to draw the link between the denial of a permit and causation of damages. The fact that property rights are involved in this regulatory framework does not elevate the nature of interest engaged to such a level that a relationship of proximity is created. [69] In summary, I do not think that the factors inherent in administering a regulatory scheme of this nature are sufficient to create a relationship of proximity. [70] Importantly, this does not foreclose the possibility that a relationship of proximity could be created in the context of a scheme, including this one, and specific facts and circumstances arising from interactions between the parties. There could be a case in which a public official negligently misrepresented certain facts that were relied on by an applicant. This is not such a case. Alternatively, a public official could act in such a way so as to assume a responsibility to have regard for the private interests of an applicant who in turn relies upon that assumption of responsibility. Again, this is not such a case. The representations the judge referred to were, at best, general statements about process. I see nothing in the evidence that would warrant treating them as actionable misrepresentations, and the judge did not do so. [71] In the result, I do not think the scheme of regulation, in and of itself, gives rise to private law duties of care that exist alongside public law duties. I see no basis to convert statutory duties into private law duties. The inevitable interactions involved in development permit applications are not sufficient to create a relationship of proximity. There is nothing in the individual and specific interactions in this case capable of creating a relationship of proximity between these respondents and the City. [72] If I am wrong in my analysis of proximity, policy reasons exist to negative a prima facie duty of care. Here, the Supreme Court of Canada reasons in Holland apply. [73] I observe in the first place that the duty recognized is open-ended and of broad application. The duty is described as a duty to decide within a reasonable time according to the law. Such a duty would apply indiscriminately to virtually any public authority granting or withholding permission through permits or licenses to individuals wishing to make use of private property or engage in certain economic activity. The potential burden imposed on governments to discharge its responsibilities is extraordinary: see e.g., Elder Advocates where at para. 74 the Court identifies the fear of virtually unlimited exposure of government to private claims, taxing public resources, and chilling government intervention as policy reasons to negative a private duty. While one must be careful not to treat the “chilling effect” on government as a blanket means of avoiding recognizing private law duties of care imposed on public authorities, the danger in this case stems from the breadth of the duty the judge recognized. [74] The most recent articulation of the principle of indeterminate liability is found in Deloitte . The Court pointed out that a concern for indeterminate liability should rarely persist after applying a proper proximity and foreseeability analysis: Deloitte at para. 42. It may be, therefore, that the issue I address here has been canvassed in my proximity analysis offered above: in particular, the concern that the judge’s analysis captured relationships generic to and inherent in virtually any permit granting authority. [75] Having said that, the concern arising out of indeterminate liability remains a live issue. It was one of the factors the Supreme Court of Canada relied on in both Holland (at para. 10) and Elder Advocates (at para. 74) referred to above. This is not a question of the magnitude of potential liability. Rather, it is a question of potential liability in indeterminate amounts owed to an indeterminate class: see Deloitte at para. 43. [76] With respect, I do not share the opinion of the judge that the issue of indeterminate liability is resolved by acknowledging that regulators know who they are dealing with and the nature of the permit applied for. To the contrary, given the breadth of the duty and the extraordinary range of circumstances to which it would apply, knowing who had applied for particular permits provides little information about the potential impact of delay on their interests. In my respectful opinion, it is impossible to ascertain the scope of liability the duty contemplates. [77] Moreover, the standard of care to be applied is indeterminate: see e.g., Ari at para. 51, and incapable of having any predictable or objective content. It is not apparent what concrete meaning can be given to “a reasonable time” given the scarcity of resources public authorities can deploy in processing applications and given the competing and shifting priorities public authorities face while discharging their responsibilities. What is reasonable will vary contextually depending on the policy choices a public authority makes. [78] In my opinion, the risk of indeterminate liability is a sufficient public policy reason not to recognize the duty. [79] Finally, the law already provides for alternative remedies. As I have said, the proposed private law duty replicates the existing public law duty. A failure to make a decision within a reasonable time is capable of being remedied by mandamus . This remedy was appropriate in this case. The respondents were not entitled to a particular decision, for example, the grant of a development permit, but they were entitled to a decision. In addition to mandamus , under the bylaws, a failure to make a decision on a development permit is a deemed refusal of the permit. In those circumstances, the respondents again had a remedy. They had a right to appeal to the board of variance, which was empowered to address their complaint. The availability of these alternative remedies provides another policy reason not to recognize the duty. [80] One last issue must be addressed briefly. The judge approached the issue as one of recognizing a novel duty of care. She was right to do so. The respondents argued before us that the duty recognized by the judge was analogous to previously recognized duties, but I see no merit in that argument. We have been reminded recently by the Supreme Court of Canada to pay attention to the particular circumstances and relationships involved in previous cases and not to apply an overly general approach: see Deloitte ; see also Rankin (Rankin’s Garage & Sales) v. J.J ., 2018 SCC 19. As the Court stated in Deloitte : [28]      It follows that, where a party seeks to base a finding of proximity upon a previously established or analogous category, a court should be attentive to the particular factors which justified recognizing that prior category in order to determine whether the relationship at issue is, in fact, truly the same as or analogous to that which was previously recognized. And, by corollary, courts should avoid identifying established categories in an overly broad manner because, again, residual policy considerations are not considered where proximity is found on the basis of an established category ( Cooper , at para. 39). Analytically, this makes sense. For a court to have previously recognized a proximate relationship, second-stage residual policy considerations must already have been taken into account. When, therefore, a court relies on an established category of proximity, it follows “that there are no overriding policy considerations that would [negate] the duty of care” ( ibid .). A consequence of this approach, however, is that a finding of proximity based upon a previously established or analogous category must be grounded not merely upon the identity of the parties, but upon examination of the particular relationship at issue in each case. Otherwise, courts risk recognizing prima facie duties of care without any examination of pertinent second-stage residual policy considerations. [81] Previous cases recognizing a private law duty of care have tended to be rooted in the assumption of responsibility to take care to protect certain interests, whether against personal injury (see e.g., Just v. British Columbia , [1989] 2 S.C.R. 1228) or safety (see e.g., Kamloops (City) v. Nielsen , [1984] 2 S.C.R. 2) or have been derived from undertakings or representations reasonably relied on by an individual: as explained in Vlanich . Alternatively, they have involved direct and specific interactions going beyond those inherent in the application of the regulatory scheme. They have not sprung simply from a failure to make a decision in a reasonable time under the governing law. [82] In the result, I conclude that the City did not owe the respondents a private law duty of care as the judge recognized. Is the Order Capable of Being Upheld for Other Reasons ? [83] The respondents contend that even if the judge erred in recognizing a private law duty of care, the order can be supported on alternative grounds. They contend that they were entitled to an order of mandamus or that they made out the tort of abuse of public office. [84] The judge found the development permit was complete. Nevertheless, she declined to make an order in the nature of mandamus because the City had a discretion whether or not to issue a development permit. [85] I agree with the judge that mandamus could not be ordered. The respondents applied for an order directing the City to issue the development permit. Given the discretion that was available to the City, no such order could be made. The order that was available, at least in principle, was an order directing the City to make a decision. The respondents did not make that application. They could have done so, especially given the public knowledge during much of the material period that the City was actively contemplating changing its approach to heritage protection. [86] Accordingly, quite apart from the fact that the order under appeal deals with issues of compensation, it cannot be supported by way of mandamus . [87] The City raised another ground in support of the argument that the Court could not order mandamus . It contends that the judge made a reversible error in finding that the development permit application was complete and was capable of being issued, subject to the respondents satisfying certain conditions. [88] It is not necessary to address this issue definitively. If it were so, I would be inclined to agree with the City that there were material deficiencies in the development permit application. The judge dismissed the City’s argument out of hand. Respectfully, I think she was too quick to do so. Critically, the development permit application did not, among other deficiencies, comply with the design guidelines forming part of the official community plan. Those deficiencies related, amongst other matters, to the roofline, as well as the bulk, size and scale of the proposed house. The development permit application could not be approved if it were inconsistent with the design guidelines. This was not a minor or trivial deficiency; it would have to be rectified before the City could issue a permit. Similarly, the respondent’s failure to provide an arborist’s report is not a minor deficiency, since landscaping of any proposed development is integral to preserving the heritage character of First Shaughnessy. [89] Finally, I turn to the issue of abuse of or misfeasance in public office. The judge found that the City acted in bad faith in delaying the processing of the respondent’s development permit application. After describing the elements of the tort, she gave the following reason for denying a remedy: [114]    I find that this tort is not made out. The plaintiffs’ claim is that several members of the planning department acted improperly, not one in particular. In fact the claim is advanced against the City of Vancouver. [115]    The court in J.P. held that the individual in question must be personally named as a defendant, making it clear that the claim of misfeasance in public office is a claim against one public official: J.P. at para. 350. [90] With respect, I think the judge fell into error in concluding that a claim of misfeasance in public office can only be made out against one public official. Certainly, it is intrinsic to the tort that it be committed by a person exercising public “functions” or “offices” and the City is not an office holder: see Moses v. Lower Nicola Indian Band , 2015 BCCA 61 at para. 44. To conclude the claim failed because it was premised on several members of the planning department acting improperly, rather than one in particular, is an error. I am aware of no principle in law that would prevent two or more individuals acting in concert from committing the tort. Indeed, embedded in the judge’s findings of fact must be a finding that several members of the planning department were acting in concert. [91] This, however, is not the end of the matter. As this Court held in J.P. v. British Columbia (Children and Family Development), 2017 BCCA 308 : [319]    The mother advanced her claim of misfeasance in public office against the Director and her delegates generally. This is an intentional tort and, therefore, the claim must be pleaded against the individual holder of the public office: Moses v. Lower Nicola Indian Band , 2015 BCCA 61 at para. 44. [350]    The tort of misfeasance in public office is an extremely serious claim. Finding someone liable for such egregious conduct requires, at the very least, that the individual be a named party in the Notice of Civil Claim so that they may defend the claim against them. Procedural fairness in our justice system mandates that an alleged tortfeasor have notice of, and the opportunity to defend, such a claim, with all of the attendant procedural safeguards to which a party to a proceeding is entitled. [92] The point in Moses was expressed in this way: [44]      The even greater difficulty that I see in Mr. Moses’ pleading is that it seems to equate the five councillors who purported to pass the invalid resolutions, with the Band itself. Only the Band is named as a defendant in this proceeding. It is difficult to conceive how it could be said to have committed the tort of misfeasance in public office: the only public “offices” or “functions” in this case are those of councillors and chief, which are obviously held by individuals . The five councillors opposed to the plaintiff’s holding office were defendants in the Federal Court action, but are not named in this proceeding. [Emphasis in original.] [93] The effect of these cases is that in an action alleging misfeasance of public office or abuse of office the plaintiff(s) must name as defendant(s) the public official(s) who are alleged to have abused their office. This was not done here. The finding that the City acted in bad faith is a finding that those officials who handled the development permit application together with the Council engaged in egregious conduct. If such a claim were to be advanced, those officials (and councillors) should have been named. Findings of fact against those individuals ought not to have been made, as they implicitly were, because they were not parties. The failure to name them is fatal to the claim. [94] In the result, I do not think any alternative grounds exist to uphold the order. Accordingly, it is unnecessary to consider the effect of an immunity clause under s. 569 of the Vancouver Charter , which may have at least limited the scope of recoverable damages arising from the bylaw change, as well as the potential continuing relevance of Monarch Holdings Ltd v. Oak Bay (District) (1977), 4 B.C.L.R. 67 (C.A.). Disposition [95] I would allow the appeal, set aside the order below, and dismiss the action. “The Honourable Mr. Justice Harris” I agree: “The Honourable Madam Justice Dickson” I agree: “The Honourable Madam Justice Griffin” APPENDIX Vancouver Charter, S.B.C. 1953, c. 55 Good rule and government 189. The Council may provide for the good rule and government of the city. Council powers respecting official development plan 562 .    (1) The Council may, by by-law, (a)      adopt as the official development plan, or as a part of the official development plan, any development plan prepared under section 561, or (b)      revise or amend the official development plan or any part of the official development plan. (2) If a by-law under subsection (1) adopts or amends a regional context statement under section 561 (4) (b), before adoption of the by-law the Council must refer the by-law for comment to the board of the Greater Vancouver Regional District. (3) Before adopting a by-law under subsection (1), if the official development plan designates a heritage conservation area and includes a schedule referred to in section 596A (3) (b), the Council must hold a public hearing. (4) Section 566 (3) to (5.1) [amendment or repeal of zoning by-law] applies in respect of the adoption of a by-law under subsection (1) and a public hearing referred to in subsection (3). Undertakings, official development plan 563. (1) The adoption by Council of a development plan shall not commit the Council to undertake any of the developments shown on the plan. (2) The Council shall not authorize, permit, or undertake any development contrary to or at variance with the official development plan. (3) It shall be unlawful for any person to commence or undertake any development contrary to or at variance with the official development plan. Zoning by-law 565. (1) The Council may make by-laws (a)      dividing the city or any portion thereof into districts or zones of such number, shape, or size as Council may deem fit; (b)      regulating, within any designated district or zone, the use or occupancy of land and land covered by water for or except for such purposes as may be set out in the by-law; (c)      regulating, within any designated district or zone, the construction, use, or occupancy of buildings for or except for such purposes as may be set out in the by-law; (d)      regulating the height, bulk, location, size, floor area, spacing, and external design of buildings to be erected within the city or within designated districts or zones; (e)      establishing, in any district or zone, building lines and the area of yards, courts and open spaces to be maintained and the maximum percentage of the area of land that can be covered by impermeable material; (e.1)   regulating, in any district or zone, the maximum density of population or the maximum floor-space ratio permissible; (f)       designating districts or zones in which there shall be no uniform regulations and in which any person wishing to carry out development must submit such plans and specifications as may be required by the Director of Planning and obtain the approval of Council to the form of development, or in which any person wishing to carry out development must comply with regulations and guidelines set out in a development plan or official development plan; (f.1)    requiring, where it creates a zone pursuant to this section, that as a condition of approving a form of development a person provide public amenities, facilities or utilities or provide land for such purposes or require that the person retain and enhance natural physical features of a parcel being developed; (g)      delegating to the Director of Planning or such other persons as are authorized by Council the authority to certify the authorized use or occupancy of any land or building; (h)      providing for certificates of use or occupancy and providing that the use or occupancy of any land or building other than in accordance with the certificate of use or occupancy applicable to such land or building shall constitute a violation of the by-law and shall render the owner of the land or building liable to the penalties provided in the by-law; (i)       authorizing the collection of a fee for a certificate of use or occupancy, which fee may vary according to the type of use or occupancy or the value of the land or building used or occupied; (j)       describing the zones or districts by the use of maps or plans, and the information shown on such maps or plans shall form part of the by-law to the same extent as if included therein. (2)      A by-law regulating the use or occupancy of land, land covered by water or buildings may (a)      permit uses or occupancies existing at a date specified in the bylaw as outright uses, and (b)      make uses or occupancies existing at a date specified in the by-law conditional approval uses as of that date. (3)      The regulations under subsection (1) may be different for different protected heritage property, as specified in the by-law. Withholding of permit pending adoption of zoning by-law 570. (1) Before the adoption of a zoning by-law, an official development plan or a bylaw under section 593 designating a heritage property, or of an amendment to a zoning by-law or an alteration, addition or extension to an official development plan, the Council may cause to be withheld the issuance of any development or building permit for a period of 30 days from the date of application for such permit. (2) Where any permit is so withheld, the application therefor shall be considered by the Council within the said period of thirty days, and, if in the opinion of the Council, the development proposed in the application would be at variance or in conflict with a development plan in the course of preparation, or with an alteration, addition, or extension to an official development plan in course of preparation, or with a zoning by-law in course of preparation, or with an amendment to a zoning by-law in course of preparation, the Council may withhold the permit for a further sixty days from the expiration of the thirty-day period hereinbefore referred to, or the Council may impose such conditions on the granting of the development permit as may appear to the Council to be in the public interest. (3) In the event that the Council does not within the said period of sixty days adopt any such plan, alteration, addition, extension, or by-law, the owners of the land in respect of which a development permit was withheld or conditions were imposed pursuant to this section shall be entitled to compensation for damages arising from the withholding of such development permit, or the imposition of such conditions. Such compensation shall be determined by arbitration pursuant to the Arbitration Act. (4) Despite subsection (1), an owner of property for which a permit has been withheld before the adoption of a by-law designating a heritage property may agree that a permit may be withheld for a period longer than the 30 days referred to in subsection (1) and, in that case, subsection (1) continues to apply during that longer period and subsection (2) is deemed to read as if the longer period applies. Heritage register 582. (1) The Council may, by resolution, establish a heritage register that identifies real property that is considered by the Council to be heritage property. (2) The heritage register (a)      must indicate the reasons why property included in a heritage register is considered to have heritage value or heritage character, and (b)      may distinguish between heritage properties of differing degrees and kinds of heritage value or heritage character. (3) Within 30 days after including a property in a heritage register or deleting property from a heritage register, the Council must give notice of this (a)      to the owner of the heritage property in accordance with section 599, and (b)      to the minister responsible for the Heritage Conservation Act in accordance with section 602. (4) The protection of heritage property is not affected by an error or omission in a heritage register. Orders for temporary protection 589. (1) The Council may order that real property is subject to temporary protection in accordance with section 591 if the Council considers that (a)      the property is or may be heritage property, or (b)      protection of the property may be necessary or desirable for the conservation of other property that is heritage property. (2) An order under subsection (1) (a)      must specify the time period during which the temporary protection applies, which may not be longer than 120 days unless the owner of the property agrees to a longer time period, and (b)      must not be made more than once within a 2 year period. (3) An order under subsection (1) may do one or more of the following: (a)      identify landscape features that are subject to the order; (b)      specify types of alterations to property that are allowed without obtaining a heritage alteration permit; (c)      establish policies regarding the issuance of a heritage alteration permit in relation to the property. Heritage control periods for temporary protection 590. (1)      For the purposes of heritage conservation planning for an area identified in the by-law, the Council may, by by-law, declare a heritage control period with respect to the area. (2)      A by-law under subsection (1) must specify the length of the heritage control period, which may not be longer than one year from the date of adoption of the by-law. (3)      A by-law under subsection (1) may do one or more of the following: (a)      identify types of landscape features that are included in the protection under this section; (b)      specify types of alterations to property that are allowed without obtaining a heritage alteration permit; (c)      establish policies regarding the issuance of a heritage alteration permit in relation to property within the area covered by the by-law. (4)      During a heritage control period under subsection (1), property within the area covered by the by-law is subject to temporary protection in accordance with section 591. (5)      A heritage control period under this section may be declared once only during any 10 year period for an area or portion of an area. Temporary protection 591. (1) While property is subject to temporary protection in accordance with this Division, except as authorized by a heritage alteration permit or as referred to in subsection (2), a person must not do any of the following to the property: (a)      alter the exterior of a building; (b)      make a structural change to a building; (c)      move a building; (d)      alter, move or take an action that would damage a fixture or feature identified in the authorizing resolution, order or by-law for the temporary protection; (e)      alter, excavate or build on the property. (2) The prohibition under subsection (1) does not apply to alterations that are allowed by the authorizing resolution, by-law or order for the temporary protection to be made without a heritage alteration permit. Heritage designation protection 593. (1) Except as authorized by a heritage alteration permit or allowed under subsection (3) (f), a person must not do any of the following: (a)      alter the exterior of a building protected under this section; (b)      make a structural change to a building protected under this section; (c)      move a building protected under this section; (d)      alter, remove or take an action that would damage an interior feature or fixture that is identified under subsection (3) (c); (e)      alter, remove or take an action that would damage a landscape feature that is identified under subsection (3) (d); (f)       alter, excavate or build on land protected under this section. (2) The Council may, by by-law, on terms and conditions as it considers appropriate, designate real property in whole or in part as protected under this section if the Council considers that (a)      the property has heritage value or heritage character, or (b)      designation of the property is necessary or desirable for the conservation of a protected heritage property. (3) A heritage designation by-law may do one or more of the following: (a)      apply to a single property or to part of a property; (b)      apply to more than one property, including properties owned by different persons; (c)      apply to affixed interior building features or fixtures identified in the by-law; (d)      apply to landscape features identified in the by-law; (e)      establish policies or procedures regarding the provision of financial or other support for the conservation of the heritage property; (f)       specify types of alterations to the property that are allowed without a heritage alteration permit; (g)      establish policies regarding the issuance of heritage alteration permits in relation to property covered by the by-law. Heritage designation procedure 594. (1) Before a heritage designation by-law is adopted, the Council must hold a public hearing on the proposed by-law for the purpose of allowing affected parties and the general public to make representations respecting matters contained in the proposed by-law. (2) Section 566 (3), (5) and (5.1) applies with respect to the public hearing and enactment of the heritage designation by-law. (3) At least 10 days before the public hearing, a notice in the prescribed form must be given in accordance with section 599 to (a)      all persons who, according to the records of the land title office, have a registered interest in real property that would be designated, and (b)      all occupiers of real property that would be designated. (4) [Repealed 1999-38-67.] (5) The Council must have prepared a report regarding the property to be designated that includes information respecting the following matters: (a)      the heritage value or heritage character of the property; (b)      the compatibility of conservation with the community planning objectives in the area in which the property is located; (c)      the compatibility of conservation with lawful uses of the property and adjoining lands; (d)      the condition and economic viability of the property; (e)      the possible need for financial or other support to enable appropriate conservation. (6) At least 10 days before the public hearing, the report under subsection (5) must be available for public inspection at the City Hall during its regular office hours. (7) No heritage designation by-law is invalid for inadvertent and minor noncompliance with this section or Division (6), or for an error or omission in the report under subsection (5). (8) Within 30 days after the Council adopts or defeats a heritage designation bylaw or determines not to proceed with the by-law, the Council must give notice of this in the prescribed form to the owners entitled to notice under subsection (3)(a). (9) Within 30 days after adopting a heritage designation by-law, the Council must give notice of this (a)      to the land title office in accordance with section 601, and (b)      to the minister responsible for the Heritage Conservation Act in accordance with section 602. Compensation for heritage designation 595. (1) If a designation by a heritage designation by-law causes, or will cause at the time of designation, a reduction in the market value of the designated property, the Council must compensate an owner of the designated property who makes an application under subsection (2), in an amount or in a form the Council and the owner agree on or, failing an agreement, in an amount or in a form determined by binding arbitration under subsection (4). (2) The owner of a designated property may apply to the Council for compensation for the reduction in the market value of the designated property. (3) An application under subsection (2) (a)      must be made, in order for the owner to be entitled to compensation under this section, no later than one year after the heritage designation by-law is adopted, and (b)      may be made before the heritage designation by-law is adopted. (4) If the Council and an owner are unable to agree (a)      that the owner is entitled to compensation, or (b)      on the amount or form of compensation, then either the Council or the owner may require the matter to be determined by binding arbitration under the Arbitration Act. (5) An arbitration under this section must be by a single arbitrator unless the Council and the owner agree to the appointment of an arbitration panel. (6) The arbitrator or arbitration panel, in determining whether the owner is entitled to compensation and the amount or form of compensation, must consider (a)      financial and other support available for conservation of the designated property, and (b)      any other benefits that are available because of the designation of the property. (7) Compensation must not be paid, and an arbitration must not continue, if the Council defeats, or determines not to proceed with, the designation by-law. (8) Nothing in this section authorizes the Council to give any financial or other benefit to an owner except that which is commensurate with reduction in the market value of the designated property as caused by that designation. (9) This section does not apply with respect to property that, immediately before the adoption of the heritage designation by-law, is already designated under a heritage designation by-law or under section 9 of the Heritage Conservation Act.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: D.L.T. v. K.K.M. , 2019 BCCA 13 Date: 20190122 Docket: CA45441 Between: D.L.T. Appellant (Claimant) And K.K.M. Respondent (Respondent) Before: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Tysoe The Honourable Mr. Justice Harris On appeal from:  An order of the Supreme Court of British Columbia, dated June 29, 2018 ( D.L.T. v. K.K.M. , 2018 BCSC 1133, Vancouver Docket E131162). Oral Reasons for Judgment The Appellant, appearing in person: D.L.T. The Respondent, appearing in person: K.K.M. Place and Date of Hearing: Vancouver, British Columbia January 22, 2019 Place and Date of Judgment: Vancouver, British Columbia January 22, 2019 Summary: The appellant appeals three aspects of an order made by a chambers judge in high-conflict family litigation.  Held:  Appeal dismissed.  In dismissing the appellant’s application for the respondent to be restricted to supervised parenting time with their daughter for at least three months, the judge did not err in any of the respects asserted by the appellant.  The appellant did not demonstrate a basis upon which this Court can interfere with the judge’s exercise of discretion in allocating the costs of the expert who prepared a report under s. 211 of the Family Law Act.  The judge did not err in refusing the appellant’s application that he be provided with written progress reports from the person who would be providing therapy to the respondent. [1] TYSOE J.A. :  The appellant appeals three aspects of a 28-paragraph order made by a chambers judge on June 29, 2018 in high-conflict family litigation.  Much of the litigation has centred around the parties’ seven-year-old daughter and, in particular, the respondent’s belief that the appellant presented a risk to their daughter and the appellant’s concern about parental alienation. [2] The matter went to trial in 2015 with Justice Gray presiding.  She issued reasons for judgment indexed as 2015 BCSC 1771, but the conflict continued.  Justice Gray continued to hear applications, and she made several post-trial orders. [3] In late 2016, the respondent expressed concern, on the basis of what she was told by the parties’ daughter, that the appellant was sexually abusing the daughter.  The respondent did not allow the appellant the parenting time to which he was entitled, and the appellant applied in early December 2016 for his parenting time to be reinstated.  Justice Gray reinstated the appellant’s parenting time but directed that there be a further hearing to consider an investigation into what was troubling the daughter. [4] On January 24, 2017, Gray J. heard submissions with respect to who should be appointed to conduct an assessment under s. 211 of the Family Law Act , S.B.C. 2011, c. 25.  The appellant wanted the assessment to be conducted by Dr. Krywaniuk who had prepared a report that was introduced as evidence in the 2015 trial and who estimated that his additional fees would be up to $5,000.  The respondent wanted a psychologist or one of three psychiatrists to conduct the assessment.  The psychologist, Mr. Colby, was in a position to begin work shortly and the respondent said she was prepared to pay all of his costs, which were estimated to be $15,000.  Justice Gray appointed Mr. Colby to conduct the assessment and ordered that the respondent was to pay his fees and was not to have liberty to apply for contribution by the appellant.  At the time of Gray J.’s order, neither party was employed. [5] The order made by Gray J. on January 24, 2017 was incorporated into an omnibus order made by her on March 1, 2017 in which all continuing orders were consolidated into one order for convenience. [6] The respondent paid a retainer of $7,500 to Mr. Colby.  On the basis that she had no further available funds to pay Mr. Colby, the respondent applied to suspend the assessment.  The appellant responded to the application by requesting that he be permitted to pay the remaining portion of the $15,000 fee then estimated by Mr. Colby.  On June 6, 2017, Justice Saunders dismissed the respondent’s application but varied Gray J.’s order with respect to the payment of the costs of Mr. Colby’s report.  Justice Saunders’ order was settled by Registrar Nielsen but an appeal from the settlement of the order was allowed in part by Justice Skolrood. [7] The end result of the settled order was that Gray J.’s order was varied to the extent that the respondent was relieved of the obligation to pay for the entirety of the costs of Mr. Colby’s report and that the first $15,000 of the costs were to be divided on a 50/50 basis.  Justice Saunders’ order also stated that the respondent was “at liberty to have the issue of liability for the entirety of the cost of [M]r. Colby’s report re-visited by the Court upon determination of the consequences respecting parenting that arise from [M]r. Colby’s report based on the Respondent showing evidence of a material change in her circumstances since the said Order of Madam Justice Gray”.  In addition to allowing the appeal from the settlement of Saunders J.’s order, Skolrood J.’s order also provided that the appellant was to pay an additional $4,500 towards the costs “to bring the total retainer to $20,000” and that “[t]his does not vary Madam Justice Gray’s order concerning payment for the s. 211 report and the parties are at liberty to apply at a later date for a reallocation of the costs”. [8] The s. 211 assessment report was issued on March 21, 2018.  Mr. Colby found that the appellant did not present a risk to the parties’ daughter.  He also found that there appeared to be a close bond between the appellant and his daughter, and that there did not appear to be any negation of the appellant by his daughter.  Mr. Colby warned, however, that there was risk of a negative effect on the relationship between the appellant and the parties’ daughter if she becomes aware as she matures of her mother’s extreme wariness of the appellant’s engagement with the daughter. [9] Mr. Colby made a number of recommendations, including a shared parenting arrangement, shared guardianship and therapy for the respondent.  He made the recommendations on the basis that the respondent accepted the finding the appellant did not present a risk to their daughter and that she does not engage further in making allegations without concrete support.  He cautioned that, if the respondent continued in a manner that undermined the relationship between the appellant and their daughter, “consideration should be made for supervised parenting time being the sole basis of [the respondent’s] interactions with her daughter”. [10] Following receipt of Mr. Colby’s report, the appellant made an application for an order varying the omnibus order dated March 1, 2017 in numerous respects and for several additional orders.  The chambers judge who heard the application made a comprehensive order, the relevant aspects of which are as follows: (a) he dismissed the appellant’s application that the respondent’s parenting time with their daughter be restricted to fully supervised access for a period of at least three months, and he ordered an equal parenting arrangement; (b) he declined to accede to the appellant’s application for reimbursement by the respondent of the $12,500 the appellant paid to Mr. Colby, and he ordered that the costs of the report be divided equally, so that the respondent was to pay $2,000 to the appellant (it appears that the respondent may have paid an additional $1,000 of the costs in addition to the initial $7,500 retainer); and (c) he directed that the respondent have an appointment with a registered psychologist or psychiatrist at least once a month but he declined to make the direction requested by the appellant that the therapist provide the appellant with written progress reports every 30 days (although he did direct the respondent to advise the appellant of the date of commencement of her therapy appointments and if she stopped her therapy). [11] At the time of the hearing of the application, both parties had become employed.  The appellant was earning approximately $85,000 and the respondent was receiving a salary and benefits of approximately $43,000. [12] The appellant put into evidence a surreptitious recording he made of a telephone conversation between the respondent and their daughter on April 28, 2018.  In the recording, the daughter said she told the appellant she did not want him to change the parenting schedule, and the respondent told her that the appellant was always going to try and control her but she was getting older and could make decisions for herself.  The respondent also told her daughter to keep telling the appellant that the respondent was not working because “the guy is crazy.  He is taking me to court again”. [13] The appellant also put into evidence a recording of a voicemail message the respondent left on the telephone of the paternal grandparents of the respondent’s other daughter, who is approximately four years older than the parties’ daughter.  In the message, the respondent said she was aware that her older daughter’s grandparents were going to watch the parties’ daughter ride horses and were going out to dinner with her.  The respondent made a comment about going to court and asked the grandparents to leave the parties’ daughter alone. [14] At the hearing of the application, counsel for the respondent informed the chambers judge that the respondent accepted that the appellant is not a threat to their daughter. [15] In his reasons for judgment (indexed as 2018 BCSC 1133), the chambers judge discussed the recorded telephone conversation between the respondent and her daughter.  He commented that it was inappropriate for the respondent to have encouraged her daughter to make her own decisions.  He also commented that the respondent’s persistent encouragement of her daughter to insist on the current parenting schedule and to withhold information from the appellant appeared to be manipulative and contrary to the best interests of the daughter.  However, he concluded that the respondent’s behaviour did not justify the “rather Draconian” order of supervised access and that it would not be in the daughter’s best interests to make so startling a change in her circumstances.  The judge proceeded to make the order for an equal parenting schedule. [16] In dealing with the costs of Mr. Colby’s report, the chambers judge wondered about the basis upon which Saunders J. varied Gray J.’s order, but observed that it was settled by the registrar and entered in the court records.  The judge made no mention of the appeal heard by Skolrood J. or to the additional order made by him.  He stated that the current situation was quite different from that contemplated by Gray J. because the appellant had paid most of Mr. Colby’s fees, and he noted that the appellant was earning double what the respondent was earning.  In those circumstances, the judge considered it appropriate for the fees to be shared equally, and ordered the respondent to pay $2,000 to the appellant. [17] In ordering that the respondent undergo therapy, the chambers judge stated that it would intrude too far into the respondent’s privacy rights if he acceded to the appellant’s request for written progress reports to be sent to him every 30 days.  After ordering that the appellant be advised of the commencement of the therapy appointments and any cessation of the therapy, the judge stated that, if the appellant felt the need for more information, he was to pursue it through the respondent’s counsel or through the court.  The judge did order that the respondent was to advise the appellant, through the respondent’s lawyer, if she stops her therapy. Discussion [18] The appellant challenges the judge’s orders respecting the supervised parenting time, the costs of Mr. Colby’s report and the provision of progress reports by the respondent’s therapist. [19] The decisions of the chambers judge under appeal were discretionary in nature.  An appellate court will interfere with a discretionary decision only if the judge misdirected himself or herself or reached a decision that is so clearly wrong that it amounts to an injustice or the judge gave no or insufficient weight to relevant considerations: see Penner v. Niagara (Regional Police Services Board) , 2013 SCC 19 at para. 27. a) Failure to Order Supervised Parenting Time [20] The appellant submits the chambers judge made five errors in dismissing his application for the respondent to be restricted to supervised parenting time for at least three months.  He says the judge failed to give paramountcy to his daughter’s long-term interests, failed to adequately consider the risk of family violence, failed to consider relevant cases dealing with parental alienation, incorrectly interpreted Mr. Colby’s report and erred by failing to listen to the audio recording evidence. [21] In my opinion, the judge did not commit any of these alleged errors.  In declining to make the order, the judge specifically considered the best interests of the child, and I am not persuaded that he erred in failing to give effect to her best interests. [22] The so-called risk of violence relied upon by the appellant was the respondent’s attempt to alienate the parties’ daughter from the grandparents of the respondent’s other daughter, incidents which he considers to be emotional harassment of himself, and the respondent’s past denial of his parenting time.  None of these events relate to the interaction between the respondent and her daughter, and I fail to see how these types of incidents would warrant supervised parenting time. [23] I am not persuaded that the judge improperly overlooked the case authorities dealing with parental alienation.  Mr. Colby found that there appeared to be a close bond between the parties’ daughter and the appellant, and simply cautioned that there could be a risk of alienation in the future.  The judge did not consider this potential future risk to warrant the supervision sought by the appellant, and his decision is entitled to deference in the absence of a demonstration that he gave insufficient weight to the risk. [24] The appellant has not established that the judge misinterpreted Mr. Colby’s report.  He says the judge placed too much weight on the issue of whether the respondent continued to believe he presented a risk to their daughter and did not understand that the recommendation for supervised parenting was based on the totality of the respondent’s behaviour.  However, the appellant does not point to anything stated by the judge to illustrate that he misinterpreted Mr. Colby’s report.  The judge did not dismiss the appellant’s application solely on the basis that the respondent accepted that the appellant does not pose a risk to their daughter.  He considered the respondent’s additional behaviour and concluded that the order sought by the appellant was not justified. [25] Finally on this aspect of the appeal, the judge did not err in exercising his discretion to rely on the transcripts of the audio recordings without listening to the recordings.  There is no requirement in law that the listening of audio recordings must always be preferred to the reading of the transcripts of the recordings.  I have listened to the recordings and there is nothing unusual about the vocal context or tone that made the transcripts misleading or deficient.  There is no reason to believe that the judge’s decision would have been different had he listened to the recordings. b) Costs of the Colby Report [26] The appellant submits the chambers judge erred in two respects when he dismissed the appellant’s application for an order that the respondent reimburse him for the portion of Mr. Colby’s costs paid by him.  He says the judge incorrectly applied the test of material change of circumstances and failed to give sufficient weight to the consequences arising from Mr. Colby’s report. [27] As the appellant conceded in his factum, the order made by Saunders J. (as ultimately settled by Skolrood J.) was not appealed.  This presents two insurmountable obstacles for the appellant.  First, the order of Gray J. was varied to change the requirement for the respondent to pay all of the costs for Mr. Colby’s assessment and to substitute a requirement that the parties were to each pay half of the first $15,000 of the costs.  Second, Saunders J. gave the respondent, not the appellant, liberty to have the issue of liability for the costs of the assessment re-visited.  The effect of Saunders J.’s order is that the appellant is not entitled to apply for a reallocation of the first $15,000 of the costs. [28] It is not surprising that the appellant did not appeal Saunders J.’s order.  In contrast to the situation before Gray J., when the respondent wanted the assessment to be conducted by Mr. Colby, the respondent wanted the assessment to be suspended.  On the other hand, although initially resistant to the appointment of Mr. Colby to conduct the assessment, the appellant did want him to complete the assessment and volunteered to pay the second half of the $15,000 retainer. [29] In the result, the authority to reallocate any of the costs paid to Mr. Colby on the appellant’s application was contained in the additional order made by Skolrood J., not the order made by Saunders J.  The appellant’s grounds of appeal on this issue are misconceived because they are based on the wording of Saunders J.’s order (i.e., “material change in her circumstances” and “determination of the consequences respecting parenting that arise from [M]r. Colby’s report”), but the authority to reallocate any of the costs upon application by the appellant is not contained in Saunders J.’s order. [30] In his factum, the appellant concedes that the sentence in Skolrood J.’s order giving the parties liberty to apply for a reallocation of the costs refers only to the $4,500 cost overrun that he agreed to pay in order to have the report completed. The effect of the chambers judge’s order was to reallocate this cost in an approximately equal fashion.  That was not contrary to Gray J.’s order because her order was varied by Saunders J. to relieve the respondent of the obligation to pay for the entirety of the cost of the report.  In my view, the appellant has not demonstrated a basis upon which this Court can interfere with the judge’s exercise of discretion in this regard. c) Progress Reports of the Respondent’s Therapy [31] The appellant says that, although his notice of application sought an order that the respondent’s therapist provide him with written progress reports every 30 days, he indicated to the chambers judge during the hearing of the application that “attendance” reports from the therapist would be, at a minimum, necessary to ensure that the respondent was attending the monthly appointments.  He submits the judge erred when he ruled, in effect, that the best interests of his daughter did not outweigh this limited intrusion into the respondent’s privacy. [32] In my opinion, the judge did not err in refusing to order the provision of written progress reports.  In addition to intruding on the respondent’s privacy rights, such an order would undermine the therapy because the respondent could be reluctant to discuss her true feelings with the therapist out of fear that it would be used against her by the appellant.  It is in the best interests of the parties’ daughter that her mother receive the therapy recommended by Mr. Colby, and the therapy should not be jeopardized because of the appellant’s desire to receive progress reports. [33] Although the appellant may have explained to the judge that all he wanted to know was whether the respondent was attending the therapy sessions, it is apparent from the judge’s reasons that he did not understand the appellant to have withdrawn his request for written progress reports.  The appellant’s notice of application did not request “attendance” reports as an alternate form of relief, and the judge was not required to consider lesser remedies if he was not prepared to exercise his discretion to grant the relief sought in the notice of application.  In addition, the judge left it open to the appellant to seek further information through the respondent’s counsel or through the court. [34] I would make one additional comment about the order made by the judge in connection with the respondent’s therapy.  He ordered that the respondent was to advise the appellant, through the respondent’s counsel, if she stops her therapy.  At the time of the order, the respondent was represented by counsel, but she is currently representing herself.  The respondent remains obliged under the order to advise the appellant if she stops therapy and, in the absence of counsel, she would have to advise him directly. Conclusion [35] I would dismiss the appeal with costs on a party and party basis to the respondent.  I would not make an order for special costs as the respondent has requested because the appellant’s conduct in this appeal has not been reprehensible and his bringing of the appeal was not an abuse of process.  Nor would I make the order requested by the respondent that the appellant be ordered to obtain leave before bringing another appeal in this Court because there is no application before us for such an order under s. 29 of the Court of Appeal Act , R.S.B.C. 1996, c. 77, and there is not a proper basis for this Court to make such an order on its own initiative. [36] FRANKEL J.A. :  I agree. [37] HARRIS J.A. :  I agree. [38] FRANKEL J.A. :  The appeal is dismissed. “The Honourable Mr. Justice Tysoe”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Turkson v. TD Direct Investing, A Division Of TD Waterhouse Canada Inc., 2019 BCCA 31 Date: 20190122 Docket: CA44592 Between: Frank O. Turkson Appellant (Plaintiff) And TD Direct Investing, A Division of TD Waterhouse Canada Inc. Respondent (Defendant) Before: The Honourable Madam Justice Newbury (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated June 21, 2017 ( Turkson v. TD Direct Investing, A Division of TD Waterhouse Canada Inc. , Vancouver Docket S149425). Oral Reasons for Judgment The Appellant, appearing in person: F. Turkson Counsel for the Respondent: T.M. Cohen, Q.C. T. Posyniak Place and Date of Hearing: Vancouver, British Columbia January 18, 2019 Place and Date of Judgment: Vancouver, British Columbia January 22, 2019 Summary: Application for extension of time in which to file application to review order confirming dismissal of previous appeal dismissed as abandoned is dismissed. The interests of justice do not support yet another appeal. [1] NEWBURY J.A. : Mr. Turkson seeks an order extending the time for the filing of an application for the review of an order of a justice of this court in chambers which was made on August 24, 2018. [2] The application is not as simple as this description may suggest. This litigation concerned allegations of breach of contract, negligence, breach of fiduciary duty, breach of trust, fraud, wilful concealment and breach of privacy made by Mr. Turkson against the defendant (“TD”) in connection with the operation of a self-directed trading account of Mr. Turkson’s. For reasons indexed as 2016 BCSC 732, Madam Justice Fitzpatrick dismissed the action in its entirety after a summary trial. At paras. 51-61, she described the history of the proceedings in the trial court, ending with the following para. 61: In summary, Mr. Turkson has now, with the indulgence of the Court, amended his claim twice: firstly, by converting the petition to a notice of civil claim in order to advance additional claims; and, secondly, by amending his notice of civil claim in the face of this application. Mr. Turkson acknowledges that he accomplished this and filed his various affidavits after receiving limited legal advice. [At para. 61.] The trial occupied three days of court time and the summary trial judge’s reasons were delivered on April 25, 2016. [3] In due course Mr. Turkson appealed to this court by the filing of a notice of appeal in file CA43656. [4] The following events then occurred: December 5, 2016 – The hearing of the appeal was adjourned from January 5, 2017 to March 27, 2017. Evidently, this occurred after Mr. Turkson set the appeal for the January date without consulting counsel for the respondent. A justice in chambers therefore ordered that the respondent was entitled to costs of the application payable forthwith in any event of the appeal. March 27, 2017 – The appeal was heard by a division of this court. March 31, 2017 – This court issued reasons indexed as 2017 BCCA 147. At para. 11, Madam Justice Saunders for the Court said: The reasons for judgment are quite extensive in the context of what I will say, respectfully Mr. Turkson, is a claim that simply cannot succeed given the agreements you signed. The judge considered first the suitability of the issue for summary trial. She found this is a suitable case for a summary trial. She then addressed each of the claims advanced. The judge found that a claim by the appellant for damages in relation to exercise of options on the basis they were European-Style options rather than American-Style options, was inconsistent with the fact those options were for exchange-traded equity shares which, on the evidence before her, could only have been American-Style options. She dismissed that claim. [At para. 11.] And at para. 16: We have had the opportunity to review the reasons for judgment of the judge and the record. The reasons for judgment are, in my view, soundly based on the evidence before the court. It is clear to me that this was a case that was appropriate for summary trial as it fell to be resolved on documentary evidence, and Mr. Turkson had ample opportunity to adduce the evidence he wished to put before the court. Although he says he should have been given greater latitude by the court because he was self-represented, I am satisfied he had a fair opportunity to have his say, and I will add here that Mr. Turkson’s general theory of his case to the effect he was ill-treated in respect to his margin account cannot stand up in the presence of the margin account agreements he signed in his commercial arrangements with TD Direct Investing. The documents unassailably support the conclusions drawn by the judge. The appeal was dismissed. April 13, 2017 – Mr. Turkson wrote to this court by letter filed on April 21, 2017 seeking reconsideration of his appeal. June 6, 2017 – For supplemental reasons indexed as 2017 BCCA 213, this court dismissed Mr. Turkson’s application to reconsider, again finding no error in the summary trial judge’s reasons. June 21, 2017 – The summary trial judge had dismissed an application by Mr. Turkson to reconsider the trial judgment. June 21, 2017 – In response to a letter from Mr. Turkson, the associate registrar of this court wrote to him confirming that the Court of Appeal’s file was now closed and that: The Court of Appeal process is now complete. There is no further recourse to the BC Court of Appeal. You now have written judgments from the BC Court of Appeal which can be appealed to the Supreme Court of Canada. July 14, 2017 – Mr. Turkson filed another notice of appeal (in file CA44592) seeking an order that “Judges’ Order [...] be reversed and whole matter is to be sent back for a fair trial”. November 10, 2017 – The respondent filed a factum in addition to a notice of motion returnable at the hearing of the appeal, to quash this second appeal as an abuse of process. July 23, 2018 – The Registrar of this court wrote to Mr. Turkson advising that the matter (CA44592) had been placed on the inactive appeal list and warned that unless steps were taken, the appeal would stand dismissed as abandoned on January 14, 2019. August 24, 2018 – After a hearing on August 23, Madam Justice Dickson in chambers dismissed Mr. Turkson’s application to remove from the inactive list his appeal of the trial judge’s order of June 21, 2017 dismissing his application for reconsideration, and to amend his factum. For reasons dated August 24, 2018, Dickson J.A. dismissed the appeal, stating in part: In my view, it is not in the interests of justice to allow the appeal to be reinstated or to proceed any further. Mr. Turkson’s concerns with respect to the underlying litigation have been amply addressed by the court below and definitively ruled upon by this Court. It has long been open to him to obtain a copy of the order from the registry, but he did not do so and has not provided a reasonable explanation for his failure in this regard and the associated delay. Further, and importantly, he has neither suggested nor demonstrated a reviewable error in connection with the order under appeal or even the possibility that there is such an error. In these circumstances, I dismiss the application and dismiss the appeal as abandoned pursuant to s. 10(2)(e) of the Court of Appeal Act. [At paras. 13-14.] August 31, 2018 – The time for applying to vary Dickson J.A.’s order expired under s. 34 of the Rules . October 10, 2018 – Mr. Turkson signed an application for leave to appeal this court’s order of September 7, 2018 to the Supreme Court of Canada. His materials were served on counsel for the respondent on October 31, 2018. November 30, 2018 – The Registrar of the Supreme Court of Canada wrote to Mr. Turkson advising that it was not clear whether the judgment he wished to appeal fell within the meaning of “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” as required by s. 40 of the Supreme Court Act . The Registrar suggested that Mr. Turkson “could have further avenues to appeal your case before bringing it to the Supreme Court of Canada. As a result, your application may be premature.” The Registrar suggested Mr. Turkson contact a lawyer for advice on the question. December 2018 – At a Registrar’s hearing in this court concerning costs, Mr. Turkson advised counsel for the respondent that he wished to apply to vary the order of Dickson J.A.. The Registrar adjourned an application to assess costs in light of this stated intention. December 19, 2018 – The Registrar of this court wrote to the parties confirming his direction that Mr. Turkson would have to seek an extension of time to apply to review Dickson J.A.’s order before a single justice. The Registrar directed that he file the required material on or before January 4, 2019. December 20, 2018 – Mr. Turkson filed a notice of motion seeking an extension of time, the hearing of which was later reset to January 18, 2019 by consent. [5] Before me in chambers, Mr. Turkson said he had been unaware that it was possible to apply to have the chambers judge’s order varied and that he wished to have a new and fuller trial of his claims against the respondent because he had “new evidence” that would prove “overwhelming fraud” on respondent’s part. He referred me to a photocopy of a letter to himself dated January 21, 2015 from RBC Direct Investing Capital Inc., which was a form letter thanking him for opening  a margin account at RBC. Mr. Turkson argues that this letter disproves a finding made by the trial judge that there was “no evidence” he had made any arrangements to move his accounts at some point in the course of events that were the subject of the trial. I see no such finding in the trial judge’s reasons. Rather her findings reflect TD’s revocation of his options privileges in December 2014 and his closing of his TD account after January 2015. In any event, the trial judge’s decision was based on the contractual terms between them, and the existence of an account at RBC does not appear to be relevant. (See para. 136.) [6] Further, Mr. Turkson said he was “shocked” at the fact that the trial judge had ruled a summary trial would be appropriate, in light of various conflicts in the evidence. So confident was he in this position that he did not properly prepare for the possibility that a summary trial might be found to be appropriate. The trial judge considered this argument at paras. 70-77 of her reasons, concluding that Mr. Turkson had been given ample time to prepare and had stated his wish to have the matter heard as soon as possible. In addition, the trial judge said: ... as I have stated, he does not intend to introduce any other evidence in support of his claims. I do not consider that Mr. Turkson’s evidence would be materially different than that to be adduced at a regular trial. Mr. Turkson also has no intention of challenging the evidence of TD Waterhouse. Significantly, the Court has been provided with the extensive agreements that govern the relationship between the parties. I do not consider that it is unjust to decide the issues in a summary trial. [At para. 77.] [7] This court also declined to admit the purported “fresh evidence” at the time it heard Mr. Turkson’s application for reconsideration in March 2017. In the words of Madam Justice Saunders for the Court: Nothing Mr. Turkson has added by way of his fresh letter, in my view, undermines the conclusion we reached on the appeal, or that was reached by the trial judge, and while he complains that that the appeal did not continue past the luncheon break, I am satisfied he had a full opportunity to advance his appeal in his written factum and to draw those aspects that he wished to emphasize, or draw to our attention in the oral hearing. Consistent with that understanding, Mr. Turkson did not seek additional hearing time when we adjourned the hearing with the date set for days hence to give oral reasons if possible. [At para. 6.] [8] The foregoing comments were made more than a year and a half ago. Ms. Cohen for the respondent has demonstrated that Mr. Turkson made submissions at that time that are similar to those he seeks to make again on yet another appeal. Effectively, he seeks another appeal. Ms. Cohen also points out that Mr. Turkson has failed to pay costs orders and to meet various deadlines along the way but has been given various indulgences by both levels of court in light of the fact that he was unrepresented. [9] As I advised Mr. Turkson at the hearing in chambers, this matter has been concluded and the appeal has been dismissed as abandoned. The criteria for granting an extension of time are not met and in this case, there is the added consideration that this court has already dismissed Mr. Turkson’s appeal and an application to reconsider. Thus the matter is res judicata . I can see no possibility that Mr. Turkson would succeed in arguing that Dickson J.A. erred in declining to remove the appeal from the inactive list. As well, in my respectful view, it is not in the interests of justice that this matter be revived yet again. If Mr. Turkson wishes to appeal to the Supreme Court of Canada, he may show a copy of these reasons to the officials of that court. [10] The application is dismissed. [Discussion with counsel re: dispensing with the signature of appellant] [11] NEWBURY J.A. : Yes, that is fine. “The Honourable Madam Justice Newbury”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Cambie Surgeries Corporation v. British Columbia (Attorney General), 2019 BCCA 29 Date: 20190124 Docket: CA45748 Between: Cambie Surgeries Corporation, Chris Chiavatti, Mandy Martens, Krystiana Corrado, Walid Khalfallah by his litigation guardian Debbie Waitkus, and Specialist Referral Clinic (Vancouver) Inc. Respondents (Plaintiffs) And Attorney General of British Columbia Appellant (Defendant) And Dr. Duncan Etches, Dr. Robert Woollard, Glyn Townson, Thomas McGregor, British Columbia Friends of Medicare Society, Canadian Doctors for Medicare, Mari ë l Schooff, Daphne Lang, Joyce Hamer, Myrna Allison, and the British Columbia Anesthesiologists’ Society (Intervenors) And Attorney General of Canada Pursuant to the Constitutional Question Act Before: The Honourable Madam Justice Newbury (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated November 23, 2018 ( Cambie Surgeries Corporation v. British Columbia (Attorney General) , 2018 BCSC 2084, Vancouver Docket S090663). Counsel for the Appellant: J.G. Penner J.D. Hughes Counsel for the Respondents: P.A. Gall, Q.C. Place and Date of Hearing: Vancouver, British Columbia December 21, 2018 Place and Date of Judgment: Vancouver, British Columbia January 24, 2019 Written Reasons by: The Honourable Madam Justice Newbury Summary: The Attorney General of British Columbia’s application for leave to appeal the interim order of a Supreme Court judge in chambers enjoining enforcement of sections 17-8 and 45 of the Medicare Protection Act is dismissed. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] The defendant Attorney General of British Columbia seeks leave to appeal the order made in chambers by Madam Justice Winteringham in this matter on November 23, 2018. Her reasons for judgment are indexed as 2018 BCSC 2084. The order, which I am advised was entered on January 10, 2019, enjoined the enforcement of ss. 17, 18 and 45 of the Medicare Protection Act , R.S.B.C. 1996, c. 286 (“ MPA ”) until June 1, 2019 or further order of the court. The order also dismissed applications for narrower orders staying or suspending the coming into force of certain provisions of the MPA and of the Medicare Protection Amendment Act, S.B.C. 2003, c. 95, pending final determination of the constitutional issues raised in this action. [2] The injunction was sought and granted mid-trial, near the closing of the plaintiffs’ case. The trial began in September 2016 (after an adjournment necessitated by the Province’s disclosure of many thousands of pages of documents to the plaintiffs on the eve of trial) and has occupied about 150 days of court time thus far. It is clear that the case is being hard-fought: there have already been at least five other appeals to this court, and according to the chambers judge, the trial judge has delivered at least 45 formal rulings. Half of the trial court’s time has been spent on evidentiary objections. (See para. 31.) Similar objections were raised in the hearing of the injunction application. The Legislation [3] Sections 17, 18 and 45 of the MPA are reproduced on Schedule A attached to these reasons. These sections are the target of the constitutional challenge brought by the plaintiffs on the basis of s. 7 of the Canadian Charter of Rights and Freedoms, which provides: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The plaintiffs also rely on the decision of the Supreme Court of Canada in Chaoulli v. Quebec (Attorney General) 2005 SCC 35. Canada Health Act [4] The impugned provisions of the MPA are meant to dovetail with the scheme established by the Canada Health Act , R.S.C., 1985, c. C-6 , which establishes conditions a province must meet in order to obtain federal funding for the operation of a public health-care system. Under ss. 18 ‒ 19 of the Canada Health Act , a province is required to ensure that extra billing and user charges are not levied by physicians or private clinics under the provincial health insurance plan. Sections 18 and 19(1) of the federal statute provide as follows: Extra-billing 18 In order that a province may qualify for a full cash contribution referred to in section 5 for a fiscal year, no payments may be permitted by the province for that fiscal year under the health care insurance plan of the province in respect of insured health services that have been subject to extra-billing by medical practitioners or dentists. User charges 19 (1) In order that a province may qualify for a full cash contribution referred to in section 5 for a fiscal year, user charges must not be permitted by the province for that fiscal year under the health care insurance plan of the province. Section 2 of the Canada Health Act defines “user charge” to mean any charge for an insured health service that is authorized or permitted by a provincial health-care insurance plan that is not payable, directly or indirectly, by a provincial plan, other than extra-billing. The latter phrase means billing for an insured health service rendered to an insured person by a medical practitioner in an amount in addition to any amount paid or to be paid for that service by a provincial plan. [5] The Canada Health Act contemplates that where, because of the existence of extra-billing, the federal government has withheld or made deductions from the amount (the “CHT”) payable to a province for the reimbursement of health-care costs, such deductions may nevertheless be reimbursed if the province makes efforts to come into compliance. The Attorney filed evidence at the injunction hearing that such compliance had to be shown by the end of the calendar year in respect of which the deduction was made: see the passage quoted by the chambers judge from the Province’s argument at para. 87 of her reasons. [6] However, in a hearing before the chambers judge on October 22, 2018 (i.e., one month before her main reasons were issued) the parties brought to her attention certain provisions of the Budget Implementation Act , 2018, No.1 , S.C. 2018, c. 12 which amended s. 25.01 of the Federal-Provincial Fiscal Arrangements Act , R.S.C. 1985, c. F-8 to read: A cash contribution provided to a province under section 24.21 may be increased by reimbursing, in whole or in part, a deduction referred to in paragraph 25(b). Certificate for reimbursement of deduction (2)         If the Minister of Health is of the opinion that the circumstances giving rise to a deduction made under section 20 of the Canada Health Act no longer exist, he or she may issue a reimbursement certificate that sets out (a)      the details of the deduction, including the amount of extra-billing or user charges, the province to which it applies and the fiscal year in which the deduction was made; and (b)      the amount to be reimbursed. Time period (3)        The Minister of Health may issue a reimbursement certificate under subsection (2) in the fiscal year in which the deduction was made or in the following two fiscal years and he or she must provide it to the Minister of Finance no later than March 6 of the final fiscal year in which the reimbursement may be made. Reimbursement (4)        A reimbursement under this section must be made by the Minister of Finance upon receipt of a reimbursement certificate within the time period set out in subsection (3). Application (5)        This section only applies to deductions made after March 31, 2017. [Emphasis added.] It appears that ss. (3) allows a longer period than the one-year period which the Attorney had previously asserted. The parties were given the opportunity to make submissions on the reimbursement policy in addition to those they had already made in the three-day hearing in chambers in September 2018. The Challenged MPA Provisions [7] British Columbia's health-care insurance plan, the Medical Services Plan (“MSP” or the “Plan”), is governed by the MPA , under which physicians enrolled in the Plan are paid by the Medical Services Commission in return for providing medically necessary services (“benefits") to residents of the Province who are enrolled in the Plan. [8] Sections 17 and 18 of the MPA (which were enacted in 1995) and s. 45 (enacted in 1992) have been amended in minor ways over the years. In general terms, however, s. 17 prohibits a medical practitioner from charging for a benefit or related service (including the use of a clinic or other place) other than as provided for in the MPA or regulations thereto, or permitted by the Commission; and s. 17(1.2) makes unenforceable any contract to pay such a charge. Section 17(2) provides that s. 17(1) does not apply if the person receiving the medical service is not enrolled as a beneficiary under the MSP; if the Commission does not consider the medical services to be a “benefit", if the practitioner elects or is deemed to have elected to be paid for the service directly by the beneficiary under the MPA ; or if the practitioner is not enrolled in the Plan. [9] Section 18 of the MPA prohibits extra billing for benefits rendered by medical practitioners who are not enrolled in the Plan. Subs. (2) clarifies that subs. (1) applies only to benefits rendered in certain provincially-regulated medical care facilities. Subs. (3) prohibits extra billing by practitioners who elect, or are deemed to have elected, to be paid for benefits directly by a beneficiary. Subs. (4) makes contracts to pay extra billing charges to practitioners who are not enrolled in the Plan, unenforceable. [10] A new s. 18.1 is due to come into force on April 1, 2019, prohibiting direct and extra billing for benefits rendered by enrolled medical practitioners in diagnostic facilities that are not approved by the Commission. Section 18.1 is not the subject of the plaintiffs’ constitutional challenge in this proceeding. [11] Section 45 prohibits and renders void all private contracts of insurance covering the costs of benefits under the MPA . It does not apply to those classes of costs or insurance described in s. 45(2). [12] Section 45.1 came into force on December 1, 2006. It enabled the Commission to apply to the Supreme Court of British Columbia for orders restraining contraventions of ss. 17, 18, 18.1 or 19 of the MPA . Under s. 45.1(3), the Court may grant an interim injunction “until the outcome of an action commenced under subsection (1)”. [13] Section 46 of the MPA first came into force in 1992. Subsections (1) to (6) thereof created offences as follows: (1) A beneficiary or practitioner who misrepresents the nature or extent of the benefit in a claim for payment commits an offence. (2) A person who knowingly obtains or attempts to obtain payment for a benefit to which he or she is not entitled commits an offence. (3) A person who fails to pay or to collect and remit premiums in accordance with an agreement referred to in section 32 (1) commits an offence. (4) A person who obstructs an inspector in the lawful performance of his or her duties under this Act commits an offence. (5) A person who contravenes section 12 or 49 commits an offence. (6) A person who knowingly assists another person to commit an offence under this section commits an offence. [14] By virtue of amendments made to the MPA in 2003, the following subsections (5.1) and (5.2) were added to s. 46, but were not proclaimed into force : ... (5.1) A person who contravenes section 17 (1), 18 (1) or 3 [words not in force] or 19(1) commits an offence. (5.2) A person who is convicted of an offence under subsection (5.1) is liable to a fine of not more than $10,000, and for a second or subsequent offence to a fine of not more than $20,000. It is worth re-emphasizing that the plaintiffs’ Charter challenge in this proceeding targets only ss. 14, 17, 18 and 45 of the MPA and does not extend to s. 46 before or after amendment. At the same time, since s. 46(5.1) refers to contraventions of ss. 17 and 18, it would lose much of its effect if s. 17 or 18 were ruled unconstitutional. [15] Since at least 2009 when this action was commenced, the Province has taken various steps to enforce and restrain the corporate plaintiffs’ operations in contravention of ss. 17 and 18 of the MPA. These steps were described by Associate Chief Justice Cullen (as he then was) in reasons indexed as 2015 BCSC 2169 at paras. 14 ‒ 27, reproduced at para. 16 of the chambers judge's reasons. They included inspections, “targeted audits” and searches of the premises of the corporate plaintiffs. In November 2015, Cullen A.C.J. granted a limited order which was in effect until the commencement of the trial, precluding the Commission from “taking further future enforcement action against the plaintiff clinics on the narrow ground that its role in the litigation should not be permitted to influence, guide, or focus its enforcement role.” (See para. 138.) [16] It was not until September 7, 2018 that the Province proclaimed in force (effective October 1) what became subsections 5.1 and 5.2 of s. 46. There was in evidence before the chambers judge an affidavit of the Hon. Gordon Campbell, who was Premier of British Columbia between June 2001 and March 2011. Mr. Campbell deposes that when he first took office, he was aware that the MPA effectively prohibited enrolled specialists from providing medical services to patients in private clinics, subject to some exceptions such as services related to workplace injuries. He was also aware that the previous government had permitted private surgical clinics in the Province to provide surgeries to non-exempt British Columbians in contravention of the MPA . His affidavit continues: 7.         Because of the information we had about long wait times for surgeries in the public health care system and the increasing costs of the health care system, the Government decided to carry on the practice of allowing enrolled surgeons to provide some private surgical services to non-exempt British Columbians in private medical clinics in the Province to allow them to deal with their personal health care needs outside of the public system. 8.         The Government had no credible evidence that permitting enrolled specialists to perform additional surgeries privately would harm the public system, or the delivery of medical service through the public system. 9.         While the government considered formally eliminating the restrictions on access to private health care in the MPA , we did not take steps to do so because of the possible loss of health transfer payments from the Federal Government. ... 13.       Following the enactment of the amendments, the government decided that, given the wait times in the public system, the amendments would be harmful to the health of British Columbians. 14.       Therefore, the Government did not to proclaim the amendments, and took no further steps to enforce the restrictions on dual practice in the Act . ... 16.       The Government’s conclusions about access to private health care can be summarized as follows: a)         The large and consistent growth of provincial health care costs over the previous decade was unsustainable when taken in conjunction with other essential public services financial requirements since there was no equivalent growth in the provincial economy and therefore provincial revenues. b)         To contain costs, it would be necessary to continue to ration surgeries and diagnostic services in the public system. c)         Delays in receiving what had been considered medically necessary surgeries – and the inability for the province to meet the established wait time guidelines – caused suffering and the risk of permanent harm to many British Columbians. Many patients were already waiting too long for needed diagnostic services and surgeries. d)         The delays in the public system could not be shortened given the constraints on funding, even if additional efficiencies could be found. e)         Surgeons and other specialists had excess capacity due to the limited operating time and use of other facilities and equipment made available to them in the public system. f)          Allowing these specialists to use their excess capacity to provide private diagnostic services and surgeries would cause no harm to the public system. It would also result in more medical treatments being provided to British Columbians, benefiting the overall health and wellbeing of British Columbians, while conserving capital and operational costs in the public system. It would also increase patient choice. g)         Enforcing the prohibitions against private medical services would therefore only harm and not benefit British Columbia’s patients. ... 18.       After the Chaoulli decision, I stated publicly that the Government did not want a two-tier health care system in Canada – one in Quebec after Chaoulli and a second, lower tier in the rest of Canada, including British Columbia. British Columbians should have the same right as the residents of Quebec to access private health care to avoid lengthy waits in the public system, and patients, not the Government, should be free to make that choice for themselves. ... 21.       In 2006, in an effort to satisfy the concerns of the Federal Government, even though the concerns were not supported by credible evidence or arguments, the Government proclaimed certain of the amendments. In particular, it proclaimed amendments which empowered the [Medical Service Commission] to audit private clinics and to obtain an injunction. The amendments proclaimed in 2006 did not include the financial penalties or the new prohibition on private diagnostic testing, because the Government was of the view that those amendments would have prevented British Columbians from accessing these private medical services to protect their personal health care. The Chambers Judge’s Reasons [17] Winteringham J.’s reasons are lengthy and detailed, and reflect a careful weighing of the complex considerations of law, fact and policy raised by the parties below. I do not intend to attempt to rehearse those reasons here except to the extent necessary to address the parties’ arguments on this leave application. The reasons, to which I refer the reader, described the parties’ respective positions at paras. 9 ‒ 11; and the “background circumstances” of the case relevant to interlocutory injunctive relief at paras. 12 ‒ 26. At paras. 27 ‒ 93, the judge reviewed the evidence before her, noting that she had been “guided by the evidentiary rulings of [the trial judge] as I assess the affidavit evidence of several doctors including the weight, if any, to be attributed to that evidence”. She then briefly reviewed Chaoulli at paras. 94 ‒ 103 and considered the law concerning the granting of interlocutory relief in constitutional cases at paras. 104 ‒ 44. [18] The judge’s analysis began at para. 145 and employed the well-known framework affirmed by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General) [1994] 1 S.C.R. 311 for the granting of injunctive relief (including stays.) At p. 334 of RJR , the Court stated: Metropolitan Stores adopted a three-stage test for courts to apply when considering an application for either a stay or an interrogatory injunction. First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. [At 334.] [19] It is trite law that the three factors do not form a checklist of items each of which must be satisfied before injunctive relief may be granted. As stated by McLachlin J.A. (as she then was) for this court in British Columbia (Att’y-General) v. Wale (1986) 9 B.C.L.R. (2d) 333, aff’d . [1991] 1 S.C.R. 62, the three parts of the test are not intended to be separate watertight compartments, but factors that “relate to each other”, such that “strength on one part of the test ought to be permitted to compensate for weakness on another.” (At 346 ‒ 7.) Further, she observed: The checklist of factors which the courts have developed – relative strength of the case, irreparable harm, and balance of convenience – should not be employed as a series of independent hurdles. They should be seen in the nature of evidence   relative to the central issue of assessing the relative risks of harm to the parties from granting or withholding interlocutory relief. [At 347.] Serious Question to be Tried [20] With respect to whether there was a serious question to be tried, the chambers judge began with the Attorney General’s argument that this “low hurdle” had not been met because the enforcement provisions of the MPA were not being challenged in the underlying case. Indeed, the trial judge had dismissed an application by the plaintiffs to amend their notice of claim to plead facts relating to enforcement. (At para. 148.) However, the chambers judge did not agree with the Province’s position. In her analysis: In Charter litigation, it is often the case that the penalty attracts a Charter challenge because the risk of the deprivation of liberty engages s. 7. In Bedford , McLachlin C.J.C., writing for the Court, specifically recognized that s. 7 was engaged not because of the risk of deprivation of liberty due to enforcement of prostitution-related offences. Rather, she wrote, it was “compliance with the laws [that] infringes the applicants’ security of the person”. In the context of explaining why it was that security of the person rights were engaged, she wrote at paras. 59-60: Here, the applicants argue that the prohibitions on bawdy-houses, living on the avails of prostitution, and communicating in public for the purposes of prostitution, heighten the risks they face in prostitution – itself a legal activity. The application judge found that the evidence supported this proposition and the Court of Appeal agreed. For reasons set out below, I am of the same view. The prohibitions at issue do not merely impose conditions on how prostitutes operate. They go a critical step further, by imposing dangerous conditions on prostitution; they prevent people engaged in a risky – but legal – activity from taking steps to protect themselves from the risks. I am not satisfied, based on the circumstances presented, that a direct challenge to the enforcement provisions is required. The Plaintiffs’ challenge is as it was before the MPA Amendments – the prohibitions on private-pay medically necessary health services increase wait times in a way that is harmful and thus engages patients’ life and security of the person rights. [At paras. 150-151; emphasis added.] At para. 152, she adopted the plaintiffs’ contention that it was not the risk of a fine per se that engaged s. 7 of the Charter , and that the enforcement provisions of the MPA did not change the nature of the plaintiffs’ constitutional challenge to the prohibitions on “private-pay medically necessary health services”. [21] Returning to the existence of a serious question to be tried, the chambers judge noted that this determination was to be made on the basis of “common sense” and on a very limited review of the case on the merits, citing RJR at 348. She continued: The Plaintiffs must show that the impugned provisions are sufficiently connected to the harm suffered before s. 7 is engaged. In addition, the Plaintiffs must show that the deprivation of life and/or security of the person is not in accordance with the principles of fundamental justice. Should a violation be found, the AGBC may seek to justify the infringement under s. 1 of the Charter . [At para. 154.] She found that the plaintiffs had established the following on the evidence before her that: a)         Some patients will suffer serious physical and/or psychological harm while waiting for health services; b)         Some physicians will not provide private-pay medically necessary health services after the MPA Amendments take effect; c)         Some private-pay medically necessary health services would have been available to some patients but for the impugned provisions; d)         Some patients will have to wait longer for those medically necessary health services that could have been available but for the new enforcement provisions; and e)         If those patients lose access to private-pay medically necessary health services, awaiting those health services in the public system can be significant and some of those patients are in pain, discomfort and have limited mobility. I am satisfied, based on the evidentiary record before me, that there are some patients who would have accessed private-pay medically necessary health services but now cannot due to the new enforcement provisions. I am satisfied, with respect to those patients, that their s. 7 security of the person rights are engaged. I am also satisfied that there is evidence on the Injunction Application that establishes (in a way that is not frivolous or vexatious) that the prohibitions are sufficiently connected to the harm suffered by some patients. I have concluded that there is sufficient evidence showing that some patients will experience delayed access to health treatment because they are denied access to private-pay medically necessary health services. This delay prolongs the physical and psychological harms to this group of patients. In this regard, I rely on McLachlin C.J.C. and Major J.’s statement in Chaoulli at para. 118, relying on R. v. Morgentaler, [1988] 1 S.C.R. 30 where they write: The jurisprudence of this Court holds that delays in obtaining medical treatment which affect patients physically and psychologically trigger the protection of s. 7 of the Charter. In Chaoulli , McLachlin C.J.C. and Major J. write at para. 119: In Morgentaler , as here, people in urgent need of care face the same prospect: unless they fall within the wealthy few who can pay for private care, typically outside the country, they have no choice but to accept the delays imposed by the legislative scheme and the adverse physical and psychological consequences this entails. As in Morgentaler , the result is interference with security of the person under s. 7 of the Charter . I agree with the Plaintiffs that delays in treatment giving rise to psychological and physical suffering engage the security of the person Charter protections just as they did in Morgentaler . [At paras. 155-159; emphasis added.] [22] On the basis of her preliminary assessment of the evidence demonstrating that “waiting for certain health care services may cause some patients serious physical or psychological harm and that, but for the prohibitions, those patients could have accessed private-pay medical services”, the chambers judge was satisfied there was a serious question to be tried. (At para. 162.) Irreparable Harm [23] The judge then turned to the second factor – whether the plaintiffs had demonstrated irreparable harm. This subject was also contentious. The Province argued that the plaintiffs were required to establish irreparable harm to themselves and not to “unidentified third parties” because (again in the Attorney’s submission) the claim was not pleaded as a systemic one and the plaintiffs did not have public interest standing. (At para. 165.) [24] The ‘standing’ issue was problematic. The trial judge had in 2016 received written submissions on the question of whether the plaintiffs Cambie Surgeries Corporation and Specialist Referral Clinic (Vancouver) Inc. had standing to bring the constitutional challenge in this case. For reasons indexed as 2016 BCSC 1292, he had ruled that the corporate plaintiffs had private interest standing. (See paras. 57 ‒ 8.) At para. 59, he said he did not find it necessary to decide whether they had public interest standing for purposes of the application before him; but he noted that they nevertheless met the “purposive and flexible” test for public i nterest standing enunciated in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society 2012 SCC 45. [25] Then, in later reasons indexed as 2018 BCSC 1141, in ruling on the plaintiffs’ application to amend their pleading in light of the enactment of s. 18.1 of the MPA , the trial judge appears to have found that the plaintiffs did not meet the second part of the test for public interest standing and did not have a real stake or genuine interest in s. 18.1 of the MPA . (As earlier noted, s. 18.1, which deals with diagnostic services, is not yet in effect and was not a subject of the plaintiffs’ Charter argument.) Yet at the same time, he said at para. 60 of his ruling that the corporate plaintiffs had been “previously granted public interest standing after being granted private interest standing.” (Quoted by the chambers judge at her para. 14.) [26] Winteringham J. stated at para. 168 that given the authorities and the trial judge’s ruling on standing, she was in a position to analyse the impact of the impugned legislation on the s. 7 Charter rights of patients generally , as opposed to its impact on the rights of the named plaintiffs specifically, in assessing the issue of irreparable harm. [27] The chambers judge was understandably “wary” of trying to determine on the record whether adequate compensation could ever be obtained at trial should the plaintiffs succeed in their constitutional challenge. Conducting such an inquiry at this stage, she observed, would ignore cautions given by the Supreme Court of Canada in RJR and in Manitoba (A.G.) v. Metropolitan Stores Ltd . [1987] 1 S.C.R. 110 . Thus cautioned, she concluded that irreparable harm had been demonstrated, based on the following: ... a)         Evidence from Dr. Day (and other physicians) deposing that Cambie (physicians) will not perform private-pay medically necessary surgical services once the MPA Amendments are brought into force; b)         Evidence about Kristiana Corrado’s experience accessing private surgical services. In particular, I have relied on the excerpted portions of her trial testimony and her description about the physical and psychological impact on her of waiting for knee surgery. I have considered Ms. Corrado’s evidence that access to private medically necessary surgical services reduced her wait time by approximately six months; c)         Ms. Corrado’s experience occurred some six years ago. However, her experience as a teenage athlete is said to be representative of other young athletes awaiting knee surgery and the physical and psychological effects of waiting; d)         Dr. Day’s specific observations regarding Ms. Corrado. In particular, his observations that “she had a knee that was not functioning well; it was unstable and painful when it shifted out of position and she was distraught about not being able to participate in physical activities… because of the delay in getting the knee fixed.” In addition to his physical observations, he noted in her report that she was depressed, had trouble sleeping and concentrating on her school work because of her knee injury; e)         The general observations to which Dr. Day deposed of “patients suffering from terrible pain that greatly affects their daily lives, the negative effects on their psychological state, their inability to return to work after being off work for a lengthy period, the serious financial consequences for these and their families and the long-term effects on their physical well-being and lives generally”; f)          Excerpted trial testimony of Professor Alistair McGuire explaining his opinion that “the empirical evidence supports a conclusion that waiting time for surgery can have harmful consequences and that the wait, in and of itself, causes harm”. In his explanation, he testified: And on the basis of my experience and knowledge of econometrics, statistics and health policy that’s how I came to my opinion, and the opinion relates largely in these documents to elective surgery, and it relates to whether or not there was a deterioration in quality of life, which is a measure which is used, as I’ve said, by regulatory bodies across the world to try to succinctly define health benefit. g)         Excerpted trial testimony of Nadeem Esmail (qualified as an expert in health care systems, policies and economics of Canada and other developed countries that maintain universal access to health care, including assessing the success of these systems in providing timely, high quality health care to patients) about delayed access to healthcare. Mr. Esmail testified, in part, on the impact of delay: There’s a number of different measures that are used to measure the function, pain and disability of the patients. And based on these various different measures – and they don’t always align between studies, but each of the studies that I’ve cited there did show that there was a relationship between delay and potential deteriorations in status, and in some cases to the extent that initial status at the time of surgery is related to the outcome these deteriorations can then affect the outcome from the surgery. So a delay might not only affect your pain and your function while you’re waiting and it might get worse; the outcome post-surgery might now be worse because you weren’t treated early enough in the degenerative process. [At para. 167.] (I note that Ms. Corrado is a plaintiff in this case. Both she and Ms. Martens had been successfully treated by one or both corporate plaintiffs and their avoidance of the waiting lists they would otherwise have had to endure in the public system is alleged to have saved much pain and suffering and perhaps, in Ms. Martens’ case, her life.) [28] The chambers judge emphasized that she did not intend to suggest that the evidence before her ‘proved’ that the Province had failed to meet optimal waiting times for any particular health care service. That, she said, was to be determined by the trial judge on all the evidence. For purposes of the injunction application, however, she was satisfied that prospective private health-care patients would be precluded from accessing health services in a manner that might alleviate their wait times, and that there was a sufficient causal connection between denying access to private-pay health services and ongoing harm that might be caused by such delay. (At para. 169.) Thus she ruled: I am satisfied that the Plaintiffs have established that some patients will suffer irreparable harm in this sense . But for the prohibitions, patients could obtain health care services much sooner at a private clinic (such as Cambie). The prohibitions infringe the s. 7 Charter rights of the patients by forcing them onto public health care waiting lists and the subsequent delay in receiving treatment causes some patients to endure physical and psychological suffering. [At para. 170; emphasis added.] Balance of Convenience [29] Turning finally to the balance of convenience, Winteringham J. noted that where, as in this case, the purpose of the challenged legislation was to promote the public interest, it was not for her to determine whether it actually had such effect. Rather, she was required to assume that the legislation promoted the public interest. The onus was then on the plaintiffs to demonstrate that its suspension would: ...itself provide a public benefit in order to overcome the assumed benefit to the public interest arising from the continued application of the legislation or that no harm is done to the public interest if the injunctive relief is granted. Put another way, it is the Plaintiffs who must prove a more compelling public interest. [At para. 171.] The judge also acknowledged that applicants usually fail in efforts to obtain interim injunctive relief when they challenge the constitutionality of legislation, and for good reason. It was only in “exceptional” cases, she stated, that democratically-enacted legislation should be suspended before an actual finding of unconstitutionality or invalidity at trial. [30] The Attorney General argued below that this was not one of the “clear cases” in which a court should order duly enacted laws to be “inoperable in advance of complete constitutional review” and that the Province would suffer immediate harm should the injunction be granted. The federal health minister had already deducted the sum of $15.9 million from its transfer payments to B.C. in March 2018. This money could be reclaimed if the Province established that it was “taking steps to end the practice of extra-billing in B.C.” (At para. 175.) [31] The chambers judge characterized this point as speculative: During the hearing of the Injunction Application, considerable time was spent on the CHT [Canada Health Transfer] deduction. The Plaintiffs invite the Court to speculate about whether the federal government will reimburse the province for the $15.9 million deduction in light of the enforcement steps the province has taken. The AGBC also invites the Court to speculate about whether, by the time a decision is rendered in the constitutional case, the “federal government would presumably have made further, and larger, deductions, thereby depriving B.C.’s public health care system of millions more dollars that could be used to provide publicly-funded services to all British Columbians...” [At para. 176.] She noted at para. 177 that there was evidence that suggested the Province could seek to recover the $15.9 million because it had already taken steps to enforce the prohibitions in the MPA . The potential transfer of those funds would, she said, be “generally beneficial”. [32] She found, however, that this was an exceptional case. She reached this conclusion on the basis of the findings set out above and additional factors that, in her analysis, tipped the balance of convenience in the plaintiffs’ favour. First, Chaoulli had “opened the door to Charter scrutiny of health care decision-making.” (At para. 181.) In particular, Chief Justice McLachlin and Major and Bastarache JJ., as well as Deschamps J. in her separate reasons, had agreed that health-care legislation similar to the MPA was subject to constitutional review and that a court could not avoid reviewing legislation for Charter compliance when citizens challenge it. The chambers judge commented: It is an understatement to say that this is a complex constitutional case brought in the context of public health care legislation. The proceedings constitute a direct affront to the public health care system and, importantly, Canada’s pledge to a universal public health care system. In Chaoulli , the much divided court revealed the tension between the laudable goal of providing universal (equal) access to health care and interfering with citizens’ autonomy and dignity by prohibiting access to private health care options for medically necessary health services. The tension is all the more evident when access to health care is redefined as access to a wait list for health care. However, the determination of these complicated issues is for the trial judge, on a full record, with the benefit of legal submissions from the parties. [At para. 182; emphasis added.] and further: ... For the purpose of the Injunction Application only, I am satisfied that the Plaintiffs have demonstrated, to the extent necessary, that the s. 7 Charter rights of some patients are engaged. I make that finding based on the evidence of the doctors who depose that they will refrain from providing private-pay medically necessary health services that are subject to significant financial penalties. Further, those doctors deposed that their own waiting lists for the same health services in the public system will increase. Any delay is thus twofold. First, for a patient such as Ms. Corrado, the MPA Amendments will remove access to private-pay medically necessary health services. Second, patients such as Ms. Corrado will be added to a waiting list that may be longer than what is in place today because the public health care system will need to accommodate those who (but for the MPA Amendments) would have otherwise utilized private health care services. [At para. 183.] The chambers judge was satisfied on the evidence before her that at least some patients are at increased risk of suffering physical and psychological harm by reason of having to wait for public health-care services. It was such waiting, “with no option to pursue an alternative”, that in her analysis engaged the rights of such persons under s. 7 of the Charter and tipped the balance of convenience in the plaintiffs’ favour. [33] The judge’s second reason for finding that the case was “exceptional” in the context of the balance of convenience was that the parties were in the middle of a trial that had been underway for over two years. This was not a case in which the law had been brought into force prior to a trial on the merits. In fact, the plaintiffs’ case was almost concluded and the Attorney General was to open its case in the near future. There had already been some 150 days of trial and 48,000 pages of evidence had been presented at trial. [34] Perhaps more significantly, the new additions to s. 46 of the MPA had in fact been enacted in 2003 but had not been proclaimed into force until September 2018 – some 15 years later. Both parties attempted to rely on a “ status quo argument”, but the chambers judge found that the plaintiffs would be affected in a far greater manner than the Attorney General should injunctive relief not be granted. In her words: ... I say that because I am satisfied that there are doctors who will not provide private-pay medically necessary health services with the new enforcement provisions, thereby potentially impacting the s. 7 rights of some patients. I also wish to address the AGBC’s submission regarding the availability of equitable relief in the circumstances presented here. I am not satisfied based on the evidence before me that it has been established that the Plaintiffs are disentitled to equitable relief because they do not have “clean hands.”  The parties have a complicated history and one that has evolved since the litigation began. I therefore decline to make such a finding on the Injunction Application. [At para. 188.] [35] In the result, Winteringham J. was satisfied that the “special considerations” raised by the application could be addressed by a time-limited order. Having been advised that the case at trial should be concluded by April 1, 2019, she was prepared to grant the injunction (the alternative to the stays sought by the plaintiffs) enjoining the Province from enforcing ss. 17, 18 and 45 of the MPA until June 1, 2019 or further order of the Court. [36] The judge ended by summarizing her conclusions at para. 190: ... a)         Taking into account the circumstances of this constitutional litigation and a preliminary assessment of the evidence, the Plaintiffs have established that injunctive relief is appropriate in this case. I make that determination based on a preliminary assessment of the evidence and finding that the Plaintiffs have established that there is a serious question to be tried in that: i.          Some patients will suffer serious physical and/or psychological harm while waiting for health services; ii.         Some physicians will not provide private-pay medically necessary health services after the MPA Amendments take effect; iii.         Some patients would have accessed private-pay medically necessary health services but for the MPA Amendments; iv.        Some patients will have to wait longer for those medically necessary health services that could have been available but for the MPA Amendments and impugned provisions; v.         A sufficient causal connection between increased waiting times for private-pay medically necessary health services and physical and/or psychological harm caused to some patients. b)         The Plaintiffs have established irreparable harm in the context of a constitutional case that has proceeded in a manner that is consistent with public interest litigation in that some patients, but for the prohibitions, could have obtained private-pay medically necessary health services much sooner at a private clinic (such as Cambie) and the subsequent delay in receiving treatment causes some patients to endure serious physical and psychological suffering. The nature of this constitutional case complicates the assessment of damages at the interlocutory stage. c)         The Plaintiffs have established that the balance of convenience tips in their favour. This is so despite the Court’s conclusion that the MPA Amendments are directed to the public good and serve a valid public purpose. The Plaintiffs have tilted the balance by establishing that restraint of the enforcement provisions will also serve the public interest in that private-pay medically necessary health services will be accessible in circumstances where the parties are in the midst of a lengthy trial to determine the complicated constitutional issues at play. Enjoining the province from enforcing the prohibitions for a relatively short period of time serves that important public purpose. [At para. 190.] Application for Leave [37] In support of his application for leave to appeal, the Attorney General asserts that the chambers judge: a. exercised her discretion on a wrong principle by: i. enjoining the enforcement of validly-enacted legislation despite failing to find that the Plaintiffs had established a clear case of the legislation’s unconstitutionality; and ii. finding that the Plaintiffs had satisfied the irreparable harm branch of the test of an interlocutory injunction by establishing the possibility of harm to unnamed third parties, rather than harm to themselves; b. failed to exercise her discretion judicially by granting the broadest possible remedy, sought by the Plaintiffs only in the alternative, without any explanation of why that was necessary; c. erred in law by making critical findings of fact based on inadmissible expert opinion evidence; and d. erred in fact and law by finding that the Plaintiffs had established irreparable harm on the evidence before her. I propose to address subpara. (a)(ii) and para. (d) together since the arguments advanced by the Province on those issues are essentially the same. [38] At paras.18 and 19 of his written argument, the Attorney General cited the well-known ‘tests’ for the granting of leave to appeal in this court, namely: a. whether the appeal is prima facie meritorious, or on the other hand, whether it is frivolous; b. whether the points on appeal are of significance to the practice; c. whether the points raised are of significance to the action itself; and d. whether the appeal will unduly hinder the progress of the action. The Attorney acknowledges that the overarching consideration is whether it is in the interests of justice to grant leave. [39] The plaintiffs agree with the four factors as stated, but join issue on the application of each in the circumstances of this case. They submit that: In this case, the application for leave to appeal should be dismissed because the proposed grounds of appeal are not meritorious, the proposed appeal raises no legal questions of significance to the practice, it will unnecessarily delay the underlying trial, and there is no public interest in granting leave to appeal of this time-limited and discretionary decision. As well, they emphasize the discretionary nature of the chambers judge’s decision and the deferential standard of review that this court would be bound to apply in any appeal. Counsel appear to agree that the standard is whether the chambers judge erred in principle or made an order not supported by the evidence, or whether the order appealed from will result in an injustice: see the authorities cited by Mr. Justice Fitch in Independent Contractors and Businesses Association v. British Columbia, 2018 BCCA 429 at paras. 35 ‒ 6. Merits of the Appeal: A Wrong Principle? [40] Although the Attorney agrees that an “arguable case” must be shown in all cases by an applicant for injunctive relief, he also contends (or at least so I infer) that a higher or different standard must be met where the applicant is seeking a suspension of the operation of duly enacted legislation. The Attorney says that the chambers judge had to find that the impugned legislation was unconstitutional or, put in slightly different terms, that she had to find a “clear case of unconstitutionality” before she could, in law, grant the injunction. It is said that such proof would have to extend beyond the ‘engagement’ of s. 7 rights, to include a finding that any violation of s. 7 rights  is not in accordance with the principles of fundamental justice. In support, the Attorney cited Metropolitan Stores at 130-3 ; RJR at 343-7; and Harper v. Canada (Attorney General) 2000 SCC 57 at paras. 5 ‒ 9. [41] In Metropolitan Stores , Beetz J. for the Court addressed the ‘arguable case’ test as follows: In the case at bar, it is neither necessary nor advisable to choose, for all purposes, between the traditional formulation and the [ American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396 (H.L.)] description of the first test: the British case law illustrates that the formulation of a rigid test for all types of cases, without considering their nature, is not to be favoured (see Hanbury and Maudsley, Modern Equity . (12 th ed., 1960) pp. 736-43). In my view, however, the American Cyanamid “serious question” formulation is sufficient in a constitutional case where, as indicated below in these reasons, the public interest is taken into consideration in the balance of convenience . [At 128; emphasis added.] He also approved the dictum of Lord Diplock in American Cyanamid that : It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature consideration. These are matters to be dealt with at the trial. [At 130; emphasis added.] The Supreme Court acknowledged that interlocutory procedures rarely allow a chambers judge to decide questions of constitutionality prior to trial. In the words of Beetz J., “…the court is generally much too uncertain as to the facts and the law to be in a position to decide the merits.” (At 133.) [42] The Court in RJR took a similar view. In its analysis: The Charter protects fundamental rights and freedoms. The importance of the interests which, the applicants allege, have been adversely affected require every court faced with an alleged Charter violation to review the matter carefully. This is so even when other courts have concluded that no Charter breach has occurred. Furthermore, the complex nature of most constitutional rights means that a motions court will rarely have the time to engage in the requisite extensive analysis of the merits of the applicant's claim. This is true of any application for interlocutory relief whether or not a trial has been conducted. It follows that we are in complete agreement with the conclusion of Beetz J. in Metropolitan Stores , at p. 128, that “the American Cyanamid ‘serious question’ formulation is sufficient in a constitutional case where, as indicated below in these reasons, the public interest is taken into consideration in the balance of convenience.” What then are the indicators of “a serious question to be tried”? There are no specific requirements which must be met in order to satisfy this test. The threshold is a low one. Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable . [At 337 ‒ 8; emphasis added.] [43] In Harper , the majority of the Supreme Court observed at para. 4 that the first factor is whether there is a serious issue to be tried. The majority found this had been shown “without prejudging the appeal.” [44] Each of the foregoing decisions involved a Charter challenge to existing legislation, and there is no doubt that such a challenge imports special considerations where an injunction is sought pending trial. In Metropolitan Stores , Beetz J. considered how the usual tests for injunctive relief are applied in these circumstances. (See 129.) None of the parties in that case, he observed, had disputed the existence of a discretionary power to grant a stay in such cases, and he agreed with their assumption. (See 126.) He noted that “the courts consider” that they should not be restricted to the application of the traditional criteria and that unless the public interest is also taken into consideration in evaluating the balance of convenience , courts often “express their disinclination” to grant injunctive relief before constitutional invalidity has been finally decided on the merits. (At 129; my emphasis.) Following a review of the relevant cases and various practical consequences of granting injunctive relief in the form of the suspension of legislation, Beetz J. stated: I respectfully take the view that Linden J. has set the test too high in writing in Morgentaler that it is only in “exceptional” or “rare” circumstances that the courts will grant interlocutory injunctive relief. It seems to me that the test is too high at least in exemption cases when the impugned provisions are in the nature of regulations applicable to a relatively limited number of individuals and where no significant harm would be suffered by the public : it does not seem to me, for instance, that the cases of [ Law Soc. of Alta. v. Black and Vancouver Gen. Hosps. v. Stoffman, ] … can be considered as exceptional or rare. Even the Rio Hotel case, supra , where the impugned provisions were broader, cannot, in my view, be labelled as an exceptional or rare case. On the other hand, the public interest normally carries greater weight in favour of compliance with existing legislation in suspension cases when the impugned provisions are broad and general and such as to affect a great many persons. And it may well be that the above mentioned test set by Linden J. in Morgentaler is closer to the mark with respect to this type of case. In fact, I am aware of only two instances where interlocutory relief was granted to suspend the operation of legislation and, in my view, those two instances present little precedent value. [At 147 ‒ 8; emphasis added.] [45] In RJR, the Supreme Court again emphasized that the public interest is a “special factor" to be considered in assessing the balance of convenience in constitutional cases and that it must be given “the weight it should carry”. The Court suggested it should be open to both parties in an interlocutory Charter proceeding to rely on considerations of the public interest. In the words of Sopinka and Cory JJ. for the Court: Each party is entitled to make the court aware of the damage it might suffer prior to a decision on the merits. In addition, either the applicant or the respondent may tip the scales of convenience in its favour by demonstrating to the court a compelling public interest in the granting or refusal of the relief sought. “Public interest” includes both the concerns of society generally and the particular interests of identifiable groups. [At 344; emphasis added.] [46] Sopinka and Cory JJ. stated that a motions court should in most instances assume that irreparable harm to the public interest would result from the restraint of the action sought to be enjoined. They recognized at pp. 346 ‒ 7 that public interest considerations will “weigh more heavily" in a ‘suspension’ case than in an ‘exemption’ case, in which a discrete and limited number of applicants are exempted from the application of the legislation; and that even in suspension cases some relief might be provided if the court is able to limit the scope of the applicant's request for relief. All things being equal, the court said, it is, in Lord Diplock’s words, a “counsel of prudence to… preserve the status quo .” [47] In Harper , the Court re-affirmed that in injunction applications based on constitutional challenges, the motions judge must presume that the impugned law will “produce a public good." In the words of the majority: The assumption of the public interest in enforcing the law weighs heavily in the balance. Courts will not lightly order that laws that Parliament or legislature has duly enacted for the public good are inoperable in advance of complete constitutional review, which is always a complex and difficult matter. It follows that only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed . [At para. 9; emphasis added.] [48] This is presumably the source of the “clear case" requirement asserted by the Attorney General in the case at bar. The same phrase was employed in a lengthy passage quoted by Winteringham J. from a more recent case involving interlocutory relief, Manitoba Federation of Labour et al. v. The Government of Manitoba 2018 MBQB 125. The quoted passage includes the conclusion of Edmond J. that “… only in clear cases will interlocutory injunctions against the enforcement of the law on grounds of alleged unconstitutionality or a violation of the Charter succeed." In his analysis: Although the facts of these cases are different, they make it clear that interlocutory injunctions or stays are rarely granted in constitutional cases because it is assumed that laws enacted by democratically enacted legislatures are directed to the common good and serve a valid public purpose. That does not mean that injunctions are never granted. In order to overcome the assumed benefit to the public interest arising from the continued application of the legislation, the moving plaintiffs who rely on the public interest must demonstrate that the suspension or exemption of the legislation would provide a public benefit. [At paras. 154 ‒ 5; emphasis added.] [49] As I have already suggested, the “clear case” requirement in cases where the constitutionality of legislation is challenged does not in my view affect the first RJR factor by imposing a higher standard in the sense of a strong or highly meritorious argument. Instead, it informs the court’s task in assessing the second factor of the analysis, irreparable harm . Given that a court is required to assume the existence of a public good underlying challenged legislation, it could hardly be otherwise: the applicant for an injunction must, as the chambers judge said, “prove a more compelling public interest” if it is to offset the presumption of public good. (See paras. 171, 177.) The chambers judge clearly accepted these propositions of law, but found that the balance in this case had been tipped in the plaintiffs’ favour. [50] As far as the Attorney’s first ground of appeal – that the chambers judge proceeded on a wrong principle in granting an injunction in the absence of finding that a “clear case” of unconstitutionality had been established – is concerned, none of the authorities supports the assertion that a motions judge should find facts or reach conclusions on the outcome of the issues that stand to be decided at trial. I see no merit in the Attorney’s first proposed ground of appeal, which rests on a misconception of the nature of an interlocutory injunction. Indeed it would have been erroneous for the chambers judge to have attempted to reach any final conclusion on the constitutionality of the impugned provisions of the MPA. Harm to “Unnamed Third Parties” [51] I turn next to the Province’s argument that the chambers judge exercised her discretion on a wrong principle in finding that the test of irreparable harm had been met by the demonstration of harm to “ unnamed third parties ”. It will be recalled that Winteringham J. concluded (based on her review of the pleadings, the trial judge’s ruling on private and public interest standing, and the case authorities regarding Charter litigation and public interest standing) that it was open to her to consider the impact of the MPA prohibitions “more generally” ‒ presumably as a systemic challenge. In the Attorney’s submission, this was erroneous: the judge had to find harm to the plaintiffs themselves before she could be satisfied on the second RJR factor. [52] Although I would describe the Attorney General’s argument on this point as a weak one, I cannot say it is frivolous or vexatious. Part of the difficulty stems from the fact that the trial judge declined to reach a conclusion in his 2016 reasons on the question of the public interest standing of the corporate defendants – despite also finding the plaintiffs had met the applicable criteria for that status. Regardless of the public/private interest standing of the corporate plaintiffs, however, the plaintiffs’ claims here, like those advanced in Chaoulli , are systemic in nature. In the words of Binnie, LeBel and Fish JJ. in Chaoulli at para. 189, their argument is not limited to a case-by-case consideration and they do not limit themselves to the circumstances of any particular patient. (Binnie, LeBel and Fish JJ. were not in dissent on this point; Deschamps J. agreed on this point at para. 35; and Chief Justice McLachlin and Major and Bastarache JJ. agreed with her conclusions: see para. 102.) In addition in the case at bar, one or more of the individual plaintiffs has or had at some point (and I see no meaningful difference on that point) a direct interest in the outcome of the litigation. The corporate plaintiffs have been found to have (at the least) a direct interest as well. In these circumstances, the question of law advanced by the Attorney seems to be of theoretical interest at best. Inadmissible Evidence? [53] Setting aside subparagraph (b) of the Attorney’s grounds of appeal for the moment, we come to his third ground – that the chambers judge erred in law by making critical findings of fact and law based on inadmissible expert opinion evidence. As noted earlier, Winteringham J. stated she was guided in her analysis by the evidentiary rulings of the trial judge in assessing affidavit evidence of several doctors that was filed in chambers by the plaintiffs. Yet the Attorney contends that she relied on evidence the trial judge had ruled inadmissible. (When questioned at the hearing in this court, counsel for the Province said that in using the word “inadmissible” he meant the trial judge had given the evidence “no weight”. On this point, see para. 6 of the trial judge’s reasons at 2017 BCSC 156.) The evidence objected to by the Province included parts of the “lay” evidence (as opposed to expert opinion evidence) of Dr. Brian Day, the president and medical director of the plaintiff Cambie Surgeries Corporation (see 2018 BCSC 514); opinion evidence of Professor Alistair McGuire on the issue of medical harm to individuals waiting for medical care; and opinion evidence of Mr. Nadeem Esmail, an economist. The Attorney says that because Mr. Esmail had no medical training or expertise, he was not qualified to opine on the medical effects of waiting or harm caused by waiting. [54] The plaintiffs respond that, just as it was not for the chambers judge to rule on the constitutionality of the impugned legislation, it was not for her to resolve the many evidentiary disputes that have confronted and will continue to confront the trial judge. They contend that only portions of the disputed evidence were ruled inadmissible by the trial judge and that the chambers judge was entitled to consider the rest. (Neither party before me cited any case-law as to whether the chambers judge was bound by the trial judge’s evidentiary rulings; as Mr. Penner observed, the trial judge is usually the judge who rules on injunctive relief.) As well the plaintiffs say that even if the expert evidence relied on expressly by the chambers judge was “inadmissible” (which they deny), the conclusions reached by Professor McGuire and Mr. Esmail were also supported by various other experts whose reports were admitted, including those of Drs. Masri, Matheson, Chambers and Younger. Last, they emphasize that evidence that may have been excluded as unhelpful on issues at trial may well have been found to be relevant to issues on the injunction application; and that the expert opinions given at trial were similar to those admitted in Chaoulli . [55] Even if one assumes the Attorney is correct in his assertion that the chambers judge relied on evidence the trial judge had found to be truly inadmissible, it is in my view very unlikely a division of this court would, prior to the conclusion of the trial and issuance of the trial judge’s reasons, express views on his evidentiary rulings. As this court (with a division of five judges) observed recently in another appeal in this litigation indexed as 2017 BCCA 287: This Court has repeatedly held it does not have jurisdiction to hear free-standing appeals from evidentiary and other rulings made during the course of a trial. The modern genesis of that line of authority is Rahmatian v. HFH Video Biz, Inc. (1991), 55 B.C.L.R. (2d) 270 (C.A., Chambers), wherein Chief Justice McEachern declined to entertain an application by a defendant in an on-going trial for leave to appeal the dismissal of a no-evidence motion. In his view, the dismissal was not an order but rather, “a ruling, or a ruling on evidence which is part of the trial process, and is not appealable until after the trial has been completed”: at 272. This reasoning is in accord with older authorities to which I will refer later in these reasons. To hold that an evidentiary ruling made during a trial juridically constitutes an appealable order would be inconsistent with the long-accepted principle that it is always open to a trial judge to revisit such rulings:  see R. v. Adams , [1995] 4 S.C.R. 707 at paras. 29–30; R. v. Cole , 2012 SCC 53 at para. 100, [2012] 3 S.C.R. 34. If such rulings gave rise to orders and those orders were formally entered, then the doctrine of functus officio would preclude reconsideration even in the face of a material change in circumstances. [At paras. 40, 63.] Overly Broad Terms? [56] The Attorney’s final ground of appeal is that Winteringham J. failed to exercise her discretion judicially by granting a “broad” injunctive order, rather than a stay restricted to the enforcement provisions of ss. 46(5.1) and (5.2) of the MPA , “without any explanation of why that was necessary.” This assertion tests the limits of the court’s discretion in such cases, and more particularly the extent to which a decision reached by a judge in chambers must be explained in reasons for judgment. Again, given the nature of the motions judge’s task on an application such as the one before Winteringham J., the broad similarity of injunctions and stays, and the deferential standard of review that would have to be applied by this court, I conclude that this ground is a weak one, but not one that could be said to be frivolous or vexatious. Summary on Merits of the Appeal [57] To summarize my conclusions regarding the merits of the issues proposed to be advanced on appeal by the Province, I find that: (i)       There is no merit to an appeal based on the proposition that the chambers judge exercised her discretion on a wrong principle in granting injunctive relief in the absence of a finding of a “clear case” of unconstitutionality. The law is clear that an “arguable” or “serious” case is sufficient at this point, and there is no doubt that “low hurdle” was met; (ii)      The argument that the chambers judge proceeded on a wrong principle in finding harm to “unnamed third parties” rather than to the plaintiffs themselves is highly problematic and overlooks the evidence of the individual plaintiffs in this case, the trial judge’s rulings on public interest standing and the fact that as in Chaoulli , the Charter challenge here is a ‘systemic’ one. Nevertheless, the point is not frivolous or vexatious; (iii)      The argument that the chambers judge considered inadmissible opinion evidence is also problematic given that this court will not rule in an appeal at this stage on whether the trial judge’s evidentiary rulings are correct or not. Nevertheless, the point cannot be said to be frivolous or vexatious; and (iv)     The argument that the chambers judge was required to explain in her reasons why she granted an injunction on the terms she did rather than a stay in the narrower terms sought by the plaintiffs (the injunction being their second alternative) is also arguable, although highly theoretical. Significance to the Practice [58] For the reasons given above, I am of the view that those questions raised by the Attorney which I have found to be arguable, are not of significance to the practice generally. Significance to the Action / Will Appeal Unduly Hinder the Action? [59] It is the final two branches of the test for granting leave to appeal (see para. 38 above) that in my view are decisive of this application. First, an appeal that answered the questions described above would be of very little significance to the action itself. As held in the previous appeal in 2017, this court would in all likelihood decline to rule on the evidentiary issue(s) raised by the Province. Nothing would change at trial if this court were to rule that the chambers judge should not have considered “harm” in a general way, given that direct harm to at least Ms. Corrado and the corporate plaintiffs was shown to the trial judge’s satisfaction. If this court were to rule that the chambers judge should have explained at length why she chose to grant an injunction as opposed to a stay, the practical effect is unclear: the court might still grant an injunction or a stay of some kind. At bottom, the issues are at best theoretical distractions from the constitutional issues that are the subject of the underlying case. Given the amount of time and resources, including judicial resources, that have been devoted to this proceeding thus far, an appeal on these issues simply cannot, in my respectful view, be justified – even if it were the case that both parties have unlimited funds and time, which they do not. [60] This brings me to the fourth factor – the effect that an appeal would have on the trial. The Attorney submitted that two previous appeals in this proceeding were mounted and completed without apparent difficulty on the part of the plaintiffs, suggesting that the same could occur with respect to this appeal. Again with respect, I am doubtful that no real difficulties were encountered by the parties and their counsel by reason of the two appeals. Obviously, judicial time and resources are taken up by appeals, and have been taken up in this case by five of them. More to the point, I reiterate that the appeal of the issues described above would be virtually irrelevant to the resolution of the Charter challenge that has been underway in the Supreme Court of British Columbia since 2016. It is now 2019. The parties and their counsel should be encouraged to complete their cases in the court below, not to pursue distractions in the form of appeals to this court. [61] The ultimate question on this leave application is of course whether the proposed appeal would be in the interests of justice. It will be apparent that in my opinion, the proposed appeal is not in the interests of justice. The authorities are clear than a motions judge is not expected to rule on the issues of fact and law before the trial court, nor to carefully weigh and make rulings on admissibility or findings of harm. The injunction is merely an interim measure, and generally the preservation of the status quo pending the trial court’s decision will be the appropriate course. [62] Here we have three highly theoretical questions that are irrelevant to the important Charter issues in the case; a discretionary decision reached after careful consideration and explained in lengthy reasons; and the granting of relief that effectively preserves the status quo that was in place from 2003 until mid-trial when the Province suddenly decided to attach penalties to contraventions of ss. 17 and 18 of the MPA . Granting leave would only add another layer of expense and complexity to a proceeding that has already occupied 150 days of court time over two years, and presumably many more months of counsel’s time. It is time for counsel and the parties to focus on the completion of the trial process. [63] In all the circumstances, I would dismiss the application. “The Honourable Madam Justice Newbury” SCHEDULE A General limits on direct or extra billing 17 (1) Except as specified in this Act or the regulations or by the commission under this Act, a person must not charge another person (a) for or in relation to a benefit, or (b) for materials, consultations, procedures, use of an office, clinic or other place or for any other matters that relate to the rendering of a benefit. (1.1) The commission may determine that a person charges in relation to a benefit for the purposes of subsection (1) (a) if the charge is for anything done, provided, offered, made available, used, consumed or rendered (a) at any time in relation to the rendering or refusal to render the benefit, and (b) in circumstances that a reasonable person would consider would result in (i) a refusal to render the benefit if the thing were not done, provided, offered, made available, used, consumed or rendered, or (ii) the beneficiary being rendered the benefit in priority over other persons or being given preferential treatment in the scheduling or rendering of the benefit if the thing were done, provided, offered, made available, used, consumed or rendered. (1.2) If a person charges or attempts to charge another person contrary to subsection (1), another person is not liable to pay the amount charged. (2)Subsection (1) does not apply: (a) if, at the time a service was rendered, the person receiving the service was not enrolled as a beneficiary; (b) if, at the time the service was rendered, the service was not considered by the commission to be a benefit; (c) if the service was rendered by a practitioner who (i) has made an election under section 14 (1), or (ii) is subject to an order under section 15 (2) (b); (d) if the service was rendered by a medical practitioner who is not enrolled. Limits on direct or extra billing by a medical practitioner 18 (1) If a medical practitioner who is not enrolled renders a service to a beneficiary and the service would be a benefit under this Act or the Hospital Insurance Act if rendered by an enrolled medical practitioner, a person must not charge another person for, or in relation to, the service, or for materials, consultations, procedures, use of an office, clinic or other place or for any other matters that relate to the rendering of the service, an amount that, in total, is greater than (a) the amount that would be payable under this Act, by the commission, for the service if rendered by an enrolled medical practitioner, (b) if a payment schedule or regulation permits or requires an additional charge by an enrolled medical practitioner, the total of the amount referred to in paragraph (a) and the additional charge, or (c) the amount that would be payable under the Hospital Insurance Act , for the service if rendered by an enrolled medical practitioner. (2) Subsection (1) applies only to a service rendered in (a) a hospital as defined in section 1 of the Hospital Act , (b) a facility as defined in section 1 of the Continuing Care Act , (c) a community care facility or assisted living residence as defined in section 1 of the Community Care and Assisted Living Act that receives funding for the service through a regional health board, the Nisga'a Nation or the Provincial Health Services Authority, or (d) a medical facility or diagnostic facility if (i) a regional health board as designated under section 4 of the Health Authorities Act , or (ii) the Provincial Health Services Authority has contracted to have the service rendered. (3) If a medical practitioner described in section 17 (2) (c) renders a benefit to a beneficiary, a person must not charge another person for, or in relation to, the benefit, or for materials, consultations, procedures, use of an office, clinic or other place or for any other matters that relate to the rendering of the benefit, an amount that, in total, is greater than (a) the amount that would be payable under this Act, by the commission, for the benefit, or (b) if a payment schedule or regulation permits or requires an additional charge, the total of the amount referred to in paragraph (a) and the additional charge. (4) If a medical practitioner who is not enrolled charges another person contrary to subsection (1) or (3), another person is not liable to pay the amount charged. Private insurers 45 (1) A person must not provide, offer or enter into a contract of insurance with a resident for the payment, reimbursement or indemnification of all or part of the cost of services that would be benefits if performed by a practitioner. (2) Subsection (1) does not apply to (a) all or part of the cost of a service (i) for which a beneficiary cannot be reimbursed under the plan, and (ii) that is rendered by a health care practitioner who has made an election under section 14 (1), (b) insurance obtained to cover health care costs outside of Canada, or (c) insurance obtained by a person who is not eligible to be a beneficiary. (3) A contract that is prohibited under subsection (1) is void.

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Cottrill v. Utopia Day Spas and Salons Ltd., 2019 BCCA 26 Date: 20190124 Docket: CA44471 Between: Jennifer Cottrill Respondent And Utopia Day Spas and Salons Ltd. Appellant Before: The Honourable Mr. Justice Goepel The Honourable Mr. Justice Savage The Honourable Madam Justice Fisher Supplementary Reasons to Cottrill v. Utopia Day Spas and Salons Ltd., 2018 BCCA 383. Counsel for the Appellant: R. Mahil Counsel for the Respondent: R.B. Johnson Place and Date of Hearing: Vancouver, British Columbia September 27, 2018 Place and Date of Judgment: Vancouver, British Columbia October 17, 2018 Written Submissions Received: November 30, December 7 and 12, 2018 Date of Supplementary Judgment: January 24, 2019 Supplementary Reasons of the Court Summary: At trial, the respondent succeeded in obtaining damages for wrongful dismissal, aggravated damages and costs. The appellant challenged the respondent’s entitlement to trial costs on the basis that the respondent ought to have brought her claim in the Provincial Court, which the Chief Justice dismissed in reasons indexed at 2017 BCSC 1925. The appellant successfully appealed the aggravated damages award, which this Court set aside in reasons indexed at 2018 BCCA 383. The appellant now seeks costs of the appeal, and asks this Court to set aside the order awarding trial costs to the respondent. Held: application allowed in part. As the appellant was successful on the appeal, it is entitled to the costs of the appeal. The application to set aside the costs award in the court below is denied. Having not appealed the costs order of the Chief Justice in its appeal proper, the appellant cannot now challenge that order. Further, the respondent was successful in her cause of action at trial, and it was not unreasonable for her to refuse the appellant’s offer to settle. Supplementary Reasons for Judgment of the Court: INTRODUCTION [1] The respondent, Jennifer Cottrill, sought damages for wrongful dismissal against her employer, the appellant, Utopia Day Spas and Salons Ltd. (the “Company”). The trial judge, in reasons indexed at 2017 BCSC 704, found that Ms. Cottrill had been wrongfully dismissed and awarded her eight weeks’ severance pay and because of the manner of dismissal, a further $15,000 in aggravated damages. She also awarded costs to the respondent. [2] Following the trial, the appellant challenged the costs award in further written submissions. As the trial judge had retired, the Chief Justice, in reasons indexed at 2017 BCSC 1925, upheld the trial judge’s costs award to the respondent. [3] On the appeal, the Company challenged only the award of aggravated damages. In reasons indexed at 2018 BCCA 383, we allowed the appeal and set aside the aggravated damage award. [4] The parties have now filed written submissions on the question of costs of the appeal and the trial. POSITION OF THE PARTIES [5] The Company seeks the following orders respecting costs as a result of the outcome on appeal: 1.       costs of the appeal; and 2.       with respect to the costs of trial, an order setting aside the award of costs to Ms. Cottrill and ordering that: (a)      each of the parties shall bear its own costs up to the date of the Company’s offer to settle, and the Company be awarded its costs after the date of the offer through to the end of trial; or (b)      in the alternative, each party shall bear its own costs throughout. [6] Ms. Cottrill does not seriously challenge the Company’s entitlement to the costs of the appeal. She submits, however, that the Company having not specifically appealed the costs order, cannot at this time ask the court to revisit the matter of trial costs. Alternatively, she submits that she was the successful party at trial and the trial costs award should not be disturbed notwithstanding the Company’s offer to settle. BACKGROUND [7] To put the parties’ costs submissions in context, it is first necessary to review the proceedings in the trial court. Ms. Cottrill claimed for wrongful dismissal. At trial she sought common law damages of $28,280, representing 12 months of salary in lieu of notice, aggravated and punitive damages of $20,000 and costs. [8] The Company’s position at trial was that the plaintiff was terminated for cause. In the alternative, the Company submitted that the plaintiff’s damages were limited by the terms of her employment contract to eight weeks’ severance pay. [9] The trial judge described the issues before her as: whether the defendant had cause to terminate Ms. Cottrill; if not, what was the period of notice to which she was entitled; and, whether she was entitled to aggravated or punitive damages. [10] The trial judge found that Ms. Cottrill had been wrongfully dismissed, but that the employment contract was binding and limited her damages to eight weeks’ salary in lieu of notice. In addition, she awarded Ms. Cottrill $15,000 in aggravated damages. The trial judge awarded costs to the plaintiff. In doing so, she stated: [146]    Costs are awarded to the plaintiff unless there are circumstances which bear o[n] this issue of which I am not aware. In that eventuality, the parties may make arrangements for submission through Supreme Court Scheduling. [11] The parties were unable to agree on the question of costs. The trial judge having retired, the costs issue was heard and determined by the Chief Justice. At the costs hearing, the Company, relying on R. 14-1(10) of the Supreme Court Civil Rules argued that Ms. Cottrill was not entitled to costs, other than disbursements, because she had recovered a sum within the jurisdiction of the Provincial Court. The Chief Justice rejected this submission and concluded that in this case there was sufficient reason for bringing the proceeding in the Supreme Court. He awarded Ms. Cottrill her reasonable and taxable costs and disbursements of the action. DISCUSSION A.       Costs of the Appeal [12] The Company was successful on the appeal. It is entitled to the costs of the appeal. Ms. Cottrill does not suggest otherwise. B.       Costs of Trial Sufficient Reason for Bringing Claim in the Supreme Court (R. 14-1(10)) [13] We agree with Ms. Cottrill that it is too late for the Company to now challenge the Chief Justice’s costs award on the basis that the case is one that should have been brought in Provincial Court. The point in time for a consideration of whether a plaintiff had sufficient reason for bringing a proceeding in the Supreme Court rather than the Provincial Court is the time of the initiation of the action : Reimann v. Aziz , 2007 BCCA 448 at paras. 38–43. In this case, the Chief Justice decided there was sufficient reason. Our decision allowing the appeal on the question of aggravated damages does not change the analysis or impact on that decision. If the Company wanted to challenge the decision that there was sufficient reason to bring the matter in Supreme Court, it had to do so in the appeal proper. We will not at this late stage re-open the appeal to allow the Company to raise this issue. Success at Trial (R. 14-1(9)) [14] The Company submits that the result of the appeal substantially impacts the trial judgment and the relevant success of the parties in the underlying proceeding. Given that the trial result was modified on appeal, this Court has jurisdiction to set aside and vary the award of trials costs: Reid v. Reid , 2017 BCCA 191 at paras. 13–15; The Owners, Strata Plan K855 v. Big White Mountain Mart Ltd ., 2017 BCCA 438 at para. 84. [15] The Company notes that as a result of the appeal having been allowed: (a)      the trial judgment was reduced from $19,795.78 to $4,795.78, a reduction of more than 75%; and (b)      The award of $4,795.78 obtained by Ms. Cottrill at trial is less than 10% of the quantum of $48,280 that she sought at trial. [16] It submits that in terms of issues in dispute at trial, Ms. Cottrill’s success was limited to a finding that she was wrongfully dismissed. She was unsuccessful at trial on the issue of whether the termination provision in her employment contract was unenforceable for lack of consideration such that she was entitled to common law damages, and, as a result of the appeal, was ultimately unsuccessful on the issue of whether aggravated and/or punitive damages should be awarded. The Company submits that on those issues it was the successful party. In the result, it submits that it can no longer be said that Ms. Cottrill was substantially successful at trial. [17] With respect, we do not agree. The question is not whether Ms. Cottrill was substantially successful at trial. The substantial success test applies when the litigation concerns multiple causes of actions: Strata Plan LMS 3259 v. Sze Hang Holdings Inc ., 2017 BCCA 346 at paras. 91–92. This is not such a case. [18] Pursuant to R. 14-1(9), costs in a proceeding must be awarded to the successful party unless the court otherwise orders. In cases involving a single cause of action the successful party is the plaintiff who establishes liability under that 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. The fact that Ms. Cottrill obtained a judgment in an amount less than sought, is not, by itself, a proper reason to deprive her of costs: 3464920 Canada Inc. v. Strother , 2010 BCCA 328 at para. 43. [19] In this case Ms. Cottrill sued for damages for breach of her employment contract. She succeeded in her claim and unless the court otherwise orders, she is entitled to the costs of the action notwithstanding that she recovered an amount less than that sought. The Offer to Settle (R. 9-1) [20] One circumstance in which the court may otherwise order is where a party fails to accept a formal offer to settle made 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. [21] In C.P. v. RBC Royal Life Insurance , 2015 BCCA 30 at paras. 90–92, this Court held that double costs cannot be awarded to a defendant if the plaintiff has obtained a judgement in its favour. The options therefore available on this application are to decline to award Ms. Cottrill costs in connection with steps taken in the proceeding after service of the offer, award the Company its costs in respect to steps taken in the proceeding after delivery of the offer or award Ms. Cottrill her costs as though the offer had not been made. [22] 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. [23] In this case the Company on May 12, 2016, made a formal offer to settle on the following terms: 1.       the defendant will pay the plaintiff equivalent eight weeks salary as severance; and 2.       both parties bear their own costs. [24] The offer was transmitted in an email on Thursday, May 12 at 5:52 p.m. It was open for acceptance until 12:00 p.m. Monday, May 16. On Thursday May 12, 2016 at 8:53 p.m., counsel for Ms. Cottrill rejected the offer. [25] At the time the offer was made, the parties had concluded discoveries and had filed trial briefs setting out the issues for trial and their respective positions. The trial was less than a month away. It was common ground that the written employment agreement was signed by Ms. Cottrill on her first day of work. The respondent’s trial brief indicated that she was the only witness scheduled to appear on her own behalf and no documentary evidence had been produced in the litigation in support of the claim to aggravated damages. The Company submits that in the circumstances the plaintiff should have known that proceeding with a five-day trial (which ultimately lasted six days) was a significant gamble and there was a substantial risk that the claims beyond entitlement to eight weeks’ notice would not succeed. [26] The Company submits that its offer was not a nuisance offer, but one that reflected the full amount of notice payable in the event that Ms. Cottrill was found to have been wrongfully dismissed. The Company submits that in all of the circumstances, the offer was one which ought to have been accepted and the Company should be awarded its costs of the proceeding below from the date that the offer was served. [27] In C.P. at paras. 94–95, this Court summarized the principles of the offer to settle rule: [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. [28] 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). We will consider those factors in turn. i.     Should the Offer Have Been Accepted [29] Whether an offer to settle is one that ought reasonably to 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. In Hartshorne v. Hartshorne, 2011 BCCA 29 at para. 27, this Court explained: [27]      The first factor - whether the offer to settle was one that ought reasonably to have been accepted - is not determined by reference to the award that was ultimately made. Rather, in considering that factor, the court must determine whether, at the time that the offer was open for acceptance, it would have been reasonable for it to have been accepted: Bailey v. Jang , 2008 BCSC 1372, 90 B.C.L.R. (4th) 125 at para. 24; A.E. v. D.W.J. at para. 55. As was said in A.E. v. D.W.J. , “The reasonableness of the plaintiff’s decision not to accept the offer to settle must be assessed without reference to the court’s decision” (para. 55). Instead, the reasonableness is to be assessed by considering such factors as the timing of the offer, whether it had some relationship to the claim (as opposed to simply being a “nuisance offer”), whether it could be easily evaluated, and whether some rationale for the offer was provided. We do not intend this to be a comprehensive list, nor do we suggest that each of these factors will necessarily be relevant in a given case. [30] As recently noted by Justice Gomery in Kobetitch v. Belski , 2018 BCSC 2247 at paras. 24–25, the wording of the subrule is important. The issue is not whether the offer was reasonable but whether it was unreasonable to refuse it. He explained the distinction as follows: [24]      In my opinion, the wording of the subrule stating this consideration is important. The consideration is not whether it would have been reasonable for the plaintiff to have accepted the offer. It is whether the plaintiff ought reasonably to have accepted the offer. The difference is this. An offer might be such that a reasonable plaintiff could choose to accept it or not. One might term it “a reasonable offer”. On the other hand, to say that an offer ought reasonably to have been accepted is to say that a reasonable person should have accepted it. It was unreasonable to refuse it. [25]      According to the distinction I am drawing, having regard to the wording of the subrule, the consideration is not whether the offer was a reasonable offer. It is whether it was unreasonable for the plaintiff to refuse it. [Emphasis in original.] [31] We agree with that analysis. It is also important to point out that the fact that it may be reasonable for a party to refuse an offer does not necessarily immunize that party from the consequences of a reasonable offer to settle: Wafler v. Trinh , 2014 BCCA 95 at paras. 79–82. For example, in the oft cited cases of Bailey v. Jang , 2008 BCSC 1372, and A.E. v. D.W.J , 2009 BCSC 505, referenced in the above quotation from Hartshorne , the plaintiffs were sanctioned in costs notwithstanding that the trial judges in each case found that it was not unreasonable for them to reject the offer to settle. [32] In this case the Company’s offer to settle accurately forecast the outcome of the trial. Ms. Cottrill had adequate time to consider the offer as evidenced by her rejection of the offer while it remained outstanding. A reasonable person may have chosen to accept the offer. The offer was, however, for but a small fraction of the amounts that Ms. Cottrill was seeking in the litigation and gave no recognition to the possibility that Ms. Cottrill may be awarded more than eight weeks severance, as well as costs. The offer did not offer a genuine compromise or an incentive to settle. Given the amounts sought in the litigation, it was not unreasonable for her to refuse it. Ms. Cottrill did not act unreasonably by taking a chance and proceeding to trial. We are of the opinion that the offer was not one that ought reasonably to have been accepted by the plaintiff. ii.    Relationship Between Offer and Final Judgment [33] The offer to settle was for the equivalent of eight weeks’ salary with each side paying their own costs. The trial judgment was for eight weeks’ salary together with costs and disbursements. In those circumstances it cannot be said that Ms. Cottrill would have been better served by accepting the offer to settle because if she had done so she would given up her right to costs. iii.   Financial Circumstances of the Parties [34] While Ms. Cottrill’s financial circumstances are undoubtedly less than that of the Company, there is no evidence that the Company improperly used its financial advantages in the litigation. In our view the relative financial circumstances are not in this case a material consideration. iv.   Other Considerations [35] An offer that precisely forecasts the outcome of an action is objectively reasonable. A party is not required to compromise its claim beyond their own objective assessment of the case in order to obtain the benefit of an offer to settle: Domtar Inc. v. Univar Canada Ltd. , 2012 BCSC 510 at para. 45; Tham v. Bronco Industries Inc ., 2018 BCSC 240 at para. 17. The Company’s offer recognized that Ms. Cottrill would succeed on her wrongful dismissal claim but that her recovery would be limited to eight weeks’ severance. While that was a reasonable positon, it was far from generous and provided Ms. Cottrill with little incentive to settle. C.       Conclusion [36] The purpose of the offer to settle rule is to encourage the settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizes the party who declines to accept such an offer. The most critical factor in this case is that the offer to settle was, when costs are taken into account, for a sum less than Ms. Cottrill was awarded at trial. A party should not be punished in costs for refusing to accept an offer that is less than the award received at trial. [37] Accordingly, in the circumstances of this case, we would not set aside the trial costs award. Ms. Cottrill should receive the costs of trial as though the offer had not been made. SUMMARY [38] The Company is entitled to the costs of the appeal. We will not set aside or modify the trial costs award. In regards to this application, Ms. Cottrill has been successful on the contested issues and is entitled to the costs of the application. “The Honourable Mr. Justice Goepel” “The Honourable Mr. Justice Savage” “The Honourable Madam Justice Fisher”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Russell, 2019 BCCA 51 Date: 20190124 Docket: CA45261 Between: Regina Respondent And Dennis Dwight Russell Appellant Before: The Honourable Madam Justice Newbury The Honourable Madam Justice Stromberg-Stein The Honourable Madam Justice Fisher On appeal from:  An order of the Provincial Court of British Columbia, dated March 2, 2018 ( R. v. Russell , Vancouver Dockets 247967-1 and 248051-1). Oral Reasons for Judgment Counsel for the Appellant: J. Whysall C.D. Waker S. Dickson, Articled Student Counsel for the Respondent: C.E. Tomusiak Place and Date of Hearing: Vancouver, British Columbia January 24, 2019 Place and Date of Judgment: Vancouver, British Columbia January 24, 2019 Summary: Mr. Russell entered guilty pleas to breach of a long term supervision order and voyeurism. He was sentenced to 365 days for the LTSO breach (less 356 days for pre-sentence custody credit), and 18 months’ consecutive for voyeurism followed by three years’ probation. Mr. Russell appeals his sentence on the basis that the sentencing judge did not give him the correct pre-sentence custody credit, imposed a demonstrably unfit sentence, and erroneously imposed a three-year probation order. Held: appeal allowed to the extent of providing an additional 27 days for pre-sentence custody credit at a rate of 1.5:1, reducing the length of the probation to 18 months, and varying certain terms of the probation order. The sentencing judge properly considered the sentencing principles and the circumstances of the offences and offender; the sentence was not demonstrably unfit. Introduction [1] STROMBERG-STEIN J.A. : Dennis Dwight Russell entered guilty pleas to breach of a long term supervision order (“LTSO”), contrary to s. 753.3(1) of the Criminal Code , R.S.C. 1985, c. C-46, and voyeurism, contrary to s. 162(1)(c) of the Criminal Code . He was sentenced to 365 days for the LTSO breach (less 356 days for pre-sentence custody credit) and 18 months consecutive for voyeurism followed by three years’ probation. [2] Mr. Russell appeals his sentences on the basis that the sentencing judge did not give him the correct pre-sentence custody credit, imposed a demonstrably unfit sentence, and erroneously imposed a three-year probation order. [3] The position of the Crown is that pre-sentence custody credit at a rate of approximately 1.25:1 is reasonable and fair, the sentence is not demonstrably unfit, and there is no error in the length of the probation order. [4] For the reasons that follow, I would allow the appeal to the extent of providing an additional 27 days for pre-sentence custody credit at a rate of 1.5:1, reducing the length of the probation to 18 months, and varying certain terms of the probation order. Standard of Review [5] An appellate court is constrained on a sentence review, as this Court will not interfere with a sentence unless (1) the sentencing judge committed an error in principle, failed to consider a relevant factor, or erroneously considered an aggravating or mitigating factor that had an impact on sentence; or (2) the sentence is demonstrably unfit: R. v. Lacasse , 2015 SCC 64. [6] A demonstrably unfit sentence is one that is “clearly unreasonable” or “in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes”: R. v. Shropshire , [1995] 4 S.C.R. 227 at 249; R. v. M.(C.A.), [1996] 1 S.C.R. 500 at 565, 567. Circumstances of the Offences [7] The same facts gave rise to both offences. [8] On April 25, 2017, a Metrotown Mall security officer observed that when young girls walked by Mr. Russell would shuffle his backpack. At one point, Mr. Russell placed his open backpack under the skirt of a young female standing in line at the food court. Mall security officers arrested Mr. Russell and called the police. The police determined that Mr. Russell had a digital camera in his backpack as well as a number of digital storage cards containing approximately 63 videos of views up the skirts of approximately 85 young women or girls, some wearing school uniforms. One digital storage card was labelled “Catholic School” and another labelled “Lulu.” Some of the videos apparently depicted Mr. Russell following young women or girls from location to location. [9] At the time of his arrest for voyeurism, Mr. Russell was bound by a LTSO. His LTSO was suspended upon arrest and he has been in custody since his arrest. On June 20, 2017, he was charged with the voyeurism offence. On August 21, 2017, he was charged with breach of the LTSO for failing to obey the law and keep the peace. [10] On January 15, 2018, Mr. Russell entered guilty pleas to both charges. Pre-sentence and psychological assessment reports were ordered. He was sentenced on March 2, 2018. At the sentencing hearing, the Crown sought a further 21 months for both offences, in addition to credit for 356 days for pre-sentence custody, and three years’ probation. Mr. Russell sought a global sentence of time served and three years’ probation. [11] None of the victims were identified so there were no victim impact statements. Crown counsel advises the Crown made no efforts to identify the victims due to the potential impact on the victims had they become aware of the invasion of their privacy. Circumstances of the Offender [12] At the time of the offences, Mr. Russell was 71 years old and was serving a 10-year LTSO that was imposed following his 2005 convictions for two sexual assaults for which he received three-year concurrent sentences. In addition, he received one year concurrent for juvenile prostitution and six-month concurrent sentences for three counts of failure to comply with probation. The offences involved 15-year-old and 13-year-old girls. [13] In addition to the 2005 convictions, Mr. Russell has the following criminal convictions: 1. 1987: sexual assault of a 14-year-old girl: conditional discharge and two years’ probation; 2. 1998: possession of child pornography (69 Polaroid photographs of apparently pre-pubescent girls): five months and three years’ probation; 3. 1999: three counts of juvenile prostitution involving a 15-year-old girl, two sexual assaults involving 12-year-old and 13-year-old girls, and failure to comply with probation (for breach of a no-contact condition with persons under 18 years old): six months on each count consecutive; 4. 2002: s. 811 breach (for bringing 13-year-old girls to his apartment and offering them money and alcohol): time served (six days) and two years’ probation; 5. 2003: failure to comply with probation and s. 811 breach: time served (15 days) and three years’ probation. [14] Mr. Russell had no convictions between 2005 and 2017 but he had a number of LTSO suspensions for: obtaining a driver’s license, driving without his probation officer’s approval, being at an erotic massage parlour, owning and driving a truck without permission, inappropriate comments to female staff, providing false information on sign-out sheets, owning a boat, shoplifting, and possessing alcohol. The first time he was charged with a LTSO breach was for the events that occurred on April 25, 2017. [15] The psychological assessment report indicates Mr. Russell represents a high risk to commit a future sexual offence, likely relating to voyeurism, but it could also be a contact offence against underage girls. The pre-sentence report notes that community supervision, incarceration, and sex offender programs have not been successful in reducing or deterring Mr. Russell’s sexual reoffending. Both reports outline a relatively dim view of Mr. Russell’s character as well as his lack of cooperation and compliance. Mr. Russell has a sexual predilection for young girls and petite women and has been diagnosed with hebephilia. He has also been diagnosed with narcissistic personality disorder. [16] He says he has a support system of family and friends but claims his support system broke down, which led to his most recent offending. I note the comments in the psychological report that he tends to externalize responsibility for his conduct. Sentencing Reasons [17] The judge held that balancing the protection of the public with rehabilitation must be the focus of sentencing for the LTSO breach. Denunciation, deterrence, and rehabilitation must be equally balanced for the voyeurism offence. [18] The judge noted there is a wide sentencing range for a LTSO breach: from six months and up depending on the nature of the breach. A technical (administrative) breach, such as being 15 minutes late past curfew or missing an appointment, would attract a lesser sentence than what the judge called a substantive breach, which would attract a higher sentence. The judge concluded the breach in this case was substantive. [19] The judge identified the aggravating factors of the offences, including the seriousness of the offences; that is, while bound by a LTSO, Mr. Russell targeted approximately 85 young victims over a prolonged period of time, coupled with his high risk of reoffending and his particularly egregious criminal record involving sexually predatory behaviour towards young girls. [20] The judge recognised a number of mitigating factors, including Mr. Russell’s guilty pleas. The judge accepted Mr. Russell’s expressed remorse but commented, “He might not have a great understanding of the depth of the wrongness or of moral culpability that he needs to come to terms with”: at para. 65. The judge highlighted Mr. Russell’s education, support system, and employment history as positives. Additionally, he noted that Mr. Russell’s ‘breach of national paroles’ in the pre-sentence report were in fact suspensions of the LTSO: at para. 41. Despite Mr. Russell’s suspensions, the judge acknowledged that Mr. Russell had been in the community for many years without reoffending and recognized there was a gap in his criminal record. He also considered that Mr. Russell was assaulted while in custody and the impact incarceration had on his financial, economic, and physical well-being. [21] The judge acknowledged the totality principle and considered Mr. Russell’s age. However, he concluded that a sentence of time served (approximately 356 days) was insufficient. Therefore, he sentenced Mr. Russell to 365 days (with credit for 356 days) for the LTSO breach, and 18 months consecutive followed by 18 months’ probation for the voyeurism offence: at paras. 75–81. He then increased the probation order to three years after some discussion with counsel and Mr. Russell. [22] The judge attached a number of conditions to Mr. Russell’s probation order (at para. 83), which I will discuss below. Issues [23] The issues on appeal are: 1. Did the judge err in assessing credit for pre-sentence custody? 2. Did the judge impose a demonstrably unfit sentence? 3. Did the judge err in increasing the probation order by 18 months? Did the Judge Err in Assessing Credit for Pre-Sentence Custody? [24] At the sentencing hearing, both Crown counsel and defence counsel agreed that Mr. Russell should receive credit of 356 days for pre-sentence custody. Now Mr. Russell submits the judge erred because the total pre-sentence credit should be 383 days. This would provide Mr. Russell credit for an additional 27 days. The error arises from the failure of the judge to credit him for pre-sentence custody at a rate of 1.5:1 from June 20, 2017, to January 15, 2018. [25] The Crown submits that the judge did not err in apportioning the pre-sentence custody credit because Mr. Russell was effectively granted enhanced credit at a rate of 1.25:1 for the period prior to his plea (January 15, 2018) and granted enhanced credit at a rate of 1.5:1 thereafter. The Crown submits that while the credit was not at a rate of 1.5:1 during the period in dispute, the credit was nevertheless reasonable and fair. [26] Initially, the Crown took the position before the sentencing judge that Mr. Russell should be credited on a 1:1 basis from his arrest on April 25, 2017, to his guilty pleas on January 15, 2018. The Crown took the position that he would be entitled to 1.5:1 credit for the time spent in custody from the date of plea until sentencing. However, in the course of the defence submissions, Crown counsel realized Mr. Russell had not been charged with the offences until June 20, 2017, and August 21, 2017. Crown counsel advised the judge that while Mr. Russell was not entitled to any pre-sentence credit for the pre-charge period he should receive the same credit (356 days) as originally submitted and the excess could reflect the hardships Mr. Russell experienced in custody. [27] The Crown on this appeal is not pressing the issue with respect to pre-sentence credit but submits that at the end of the day Mr. Russell ultimately received sufficient enhanced credit. However, this does not appear to be a case where the judge exercised his discretion to grant Mr. Russell 1.25:1 credit. The judge accepted the assessment of counsel with the Crown suggesting “the excess could reflect the hardships Mr. Russell experienced in custody”. In my view, Mr. Russell should be entitled to credit of 1.5:1 for the time he spent in pre-sentence custody. That accords with the Crown’s position at trial that he was entitled to enhanced credit as well as the weight of the authorities. I would credit Mr. Russell with an additional 27 days on the basis of R. v. Summers , 2014 SCC 26. Was the Sentence Demonstrably Unfit? [28] Mr. Russell submits his sentences are demonstrably unfit because the judge offended the totality principle by imposing what effectively amounted to a global sentence of 905 days and three years’ probation . Mr. Russell submits that despite the aggravating factors of a criminal record and a history of breaching conditions, the global sentence is excessive for the offences of breach of the LTSO and voyeurism. [29] He cites R. v. Dastagir , 2018 MBPC 44 for the proposition that custodial sentences are not warranted in voyeurism cases unless the circumstances involve a serious breach of trust or other significant aggravating factors. He also takes issue with the judge’s reliance on the psychological report which, he says, incorrectly states he breached his LTSO on many occasions. He says the judge erroneously relied on this as an aggravating factor in sentencing. Mr. Russell contends that in light of the departure from the sentencing range for voyeurism and the reliance on the unproven disputed allegation of repeated LTSO breaches, he should have been sentenced to time served for the LTSO breach and 9 months on the voyeurism offence followed by probation for 18 months. [30] The Crown submits the sentences were not demonstrably unfit given the seriousness of the offences and Mr. Russell’s related criminal history over the preceding three decades. The Crown maintains the judge did not improperly rely on previous LTSO breaches, as the impugned passage from the psychological report provides context to Mr. Russell’s overall risk of reoffending, and the judge made clear in his reasons that he was giving no weight to the LTSO suspensions. [31] The judge noted the seriousness of the LTSO breach. He acknowledged the wide range of sentences available for failing to comply with a LTSO, which starts at six months’ imprisonment for a technical breach. I note breaching a LTSO is an indictable offence and the maximum sentence is up to 10 years. The judge found that the breach in this case was substantive. [32] In my view, he correctly applied the principles set out in R. v. Ipeelee , 2012 SCC 13 in assessing the severity of the breach. He considered the circumstances and the nature of the breach in the context of Mr. Russell’s criminal history and risk-management in the community. He balanced this with prospects of Mr. Russell’s rehabilitation. The 12-month sentence that the judge imposed for breach of the LTSO was not, in itself, demonstrably unfit in the circumstances of this case. [33] With respect to the offence of voyeurism, the Crown proceeded by indictment. Therefore, the maximum sentence is five years. The judge properly considered the nature of the offence of voyeurism as a serious invasion of privacy, reproducing the comments of Dhillon P.C.J. in R. v. Bosomworth , 2015 BCPC 7: [12]      Judge Dhillon’s comments under victim impact statements at paragraph 21, in considering the legal authorities when sentencing for this type of offence, writes: The central sentencing objectives in this case are to denounce the unlawful conduct of voyeurism, deter the offender and others from committing voyeuristic offences, and assist in [in that case] Mr. Bosomworth’s rehabilitation [13]      Under the analysis which was found at paragraphs 26, 36, and 38, there are comments about the moral gravity of the offence. It was determined that Mr. Bosomworth thought his plan out, planned it in advance. It was quite deliberate. He devised and carried out a means to spy on and record the activities of other people, thereby invading their privacy. [14]      At paragraph 38 Judge Dhillon really, I think, makes the point quite clear when she writes: It is my view that given the times in which we live, where privacy in the public sphere has been eroded by the prevalence of surveillance cameras or the ready deployment of cell phone cameras in public places, the expectation of personal privacy in highly private places must be protected. [15]      She continues and writes: The law must protect that privacy by ensuring a deterrent and denunciatory sentence which sends the message that a criminal record is likely to result if criminal acts involve a serious breach of personal privacy [16]      So this was not a victimless crime, even though we do not have victim impact statements. The impact on society when people’s privacy is invaded is apparent. [34] As the judge noted, the offence of voyeurism is not a victimless crime. It involves a serious invasion of personal privacy. [35] In determining a fit sentence in the context of this particular offender and his criminal history with young women and girls, the judge distinguished Mr. Russell’s case from many of the case authorities that mostly involved first offenders: at para. 10. The judge considered that Mr. Russell’s aggravating circumstances were more significant than the offenders in the case authorities he considered. [36] Voyeurism is a hybrid offence and encompasses a broad spectrum of offending conduct. Therefore, it is difficult to establish a range of sentences “customarily imposed for similar offenders committing similar crimes”: M.(C.A.) at 567. Martin P.C.J. in Dastagir provides a useful summary of a number of cases when considering an appropriate sentencing range. While illustrative of available sentencing ranges, many of the case authorities in Dastagir and referred to by counsel are helpful but not binding. [37] R. v. Berry , 2015 BCCA 210 provides the most authoritative guidance for sentencing for voyeurism offences in this province. In Berry , a nine-month consecutive sentence was imposed in conjunction with a two-year sentence for sexual assault. In that case, this Court upheld sentences of two years’ imprisonment for sexual assault, nine months consecutive for voyeurism involving his spouse, and two months concurrent for voyeurism against another victim. Mr. Berry had an unrelated record and was considered a low to moderate risk to reoffend, but the offences involved a breach of trust. [38] In R. v. McFarlane , 2018 MBCA 48, the Manitoba Court of Appeal commented that the range of sentences for a first offender who pleads guilty to voyeurism is between a discharge and 12 months’ imprisonment: at para. 25. However, there are other cases where a sentence of two years’ imprisonment has been imposed: R. v. T.L. , 2018 ONCJ 107 (consecutive); R. v. White , 2015 MBPC 20 (concurrent); and one case where an 18-month global sentence and three years’ probation was imposed R. v. D.R.W. , 2016 ONCJ 171. [39] As can be seen, the case authorities reveal a broad range of sentences for voyeurism – from a conditional discharge, to a suspended sentence, to a conditional sentence order, up to two years’ imprisonment. Cases at the higher range generally involve more serious offences and offenders in conjunction with the offence of voyeurism. A lengthy custodial sentence is reserved for egregious conduct and often where the offence is committed in conjunction with other serious offences, in which case the sentence is generally consecutive. [40] I acknowledge Mr. Russell was placed at the high end of the sentencing range, but in my view the judge made no error in doing so given the many aggravating factors in his case. When Mr. Russell was arrested for voyeurism, he was bound by a LTSO, which was imposed for serious sexual offending against young girls. His criminal record involves serious sexual offending against young girls. The judge considered the circumstances and the nature of the offences in the context of Mr. Russell’s criminal history, including a history of breaching conditions. The judge considered his risk-management in the community, which he balanced with the prospects of Mr. Russell’s rehabilitation described in the psychological assessment and pre-sentence reports. Custodial and community supervision have not successfully reduced or deterred Mr. Russell’s sexual reoffending given his lack of cooperation and compliance. He has been diagnosed with hebephilia and represents a high risk to reoffend against young girls. [41] The decision of the sentencing judge to impose a consecutive sentence is a discretionary decision and is entitled to deference. The judge was live to the sentencing principles of proportionality and totality. I am of the view that the 18-month sentence for the offence of voyeurism, consecutive to the one-year sentence for breach of the LTSO (less credit for over one year of pre-sentence custody), having regard to the circumstances of the offences and this offender, as well as the relevant principles of sentencing and the case authorities, is not demonstrably unfit. Did the Judge Err in Increasing the Term of the Probation Order? [42] Mr. Russell submits the judge erred in revisiting and extending his probationary period from 18 months to three years after the judge stated that a probationary period over 18 months would be unfair. [43] The Crown says the judge did not err in the length of the probation order, as it was apparently consented to by Mr. Russell and, in any event, reflected the length of the order that both counsel had originally suggested in their sentencing submissions. [44] The judge attached the following conditions to Mr. Russell’s probation order (at para. 83): (1)        You must report immediately in person to -- well, we say report within 72 hours of your release from custody to a probation officer at 275 East Cordova Street, Vancouver, B.C., and after that you must report as directed by the probation officer. (2)        If at any time prior to the expiration of this order you are arrested, detained, or have served a sentence for another offence, you must report to the probation officer within two business days of your release from custody. (3)        You must reside at a residence approved in advance by the probation officer. You must provide your probation officer with your phone number and you must not change your residence or your phone number without written permission from your probation officer. (4)        You must have no contact or communication, directly or indirectly, with any person under the age of 18 years. (5)        You must not go to any public park, public swimming area, or community centre where persons under the age of 18 years are present or can reasonably be expected to be present, or a library, daycare centre, school ground or playground, except in the immediate presence of a responsible adult approved of in advance by your probation officer and only after he or she has been informed by your probation officer of this order, your history as described in your criminal record, and these reasons for judgment. A copy of these reasons for judgment must be transcribed and provided to the probation officer. (6)        You must not attend any locations where sex trade workers are known to frequent, as well as massage facilities not licenced by provincial health authorities. (7)        You must not engage in activities, volunteer work or employment that could bring you in contact with persons under the age of 18 years without written permission of your probation officer, and when so engaged, you must carry this permission on your person. (8)        You shall immediately report to your probation officer the names and contact information of all relationships you have or establish, whether casual, intimate or otherwise, with adults who have family members who are under the age of 18 years, and not continue those relationships until your probation officer has informed that person of your history and described in your criminal record and these reasons for judgment and with the permission of your probation officer. (9)        You must not associate or have a relationship with anyone named by your probation officer if your probation officer has reasonably determined the relationship or association to be a risk to yourself or others, or to be detrimental to your programming, counselling, reintegration into the community, or a risk to the protection of society. (10)      You must not possess or consume alcohol, drugs or any other intoxicating substance except in accordance with a medical prescription. (11)      You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by the probation officer. Without limiting the general nature of this condition, the intakes, assessments, counselling, or programs may relate to alcohol or drug abuse, mental health or sexual offence prevention. (12)      Having consented, you must do the following: (1)        at the direction of your probation officer report to the forensic psychiatric service or elsewhere for any intake, assessment, counselling or treatment; (2)        attend all scheduled appointments with your doctor, psychiatrist and counsellor; (3)        take all medications prescribed to you; (4)        give your doctor, psychiatrist and counsellor a copy of this order; (5)        you must provide your probation officer/conditional sentence supervisor with the names, addresses and phone numbers of your doctor, psychiatrist and counsellor; (6)        tell your doctor, psychiatrist and counsellor that if you do not follow any terms of this order, he or she is to inform your probation officer. If you decide not to follow these directions, you must immediately report to your probation officer or at least at the very latest report the following business day and tell your probation officer. (13)      You must sign any waiver of confidentiality or release of information forms as will enable your probation officer, counsellors or treatment providers to monitor your attendance, and completion of any intake, assessment, counselling or treatment programs, and to collaboratively discuss your treatment needs. (14)      You shall not own or operate a vehicle, boat or watercraft or mobile home except for such purpose and such times as approved of in advance and in writing by your probation officer, except in case of a medical emergency and at which time you must travel directly to the hospital or medical treatment centre. (15)      You must not possess any electronic device capable of storing digital or audio media. [45] Immediately after, the judge indicated he had concluded his reasons for judgment: at para. 85. However, defence counsel then queried whether the judge had considered the overlapping nature of the LTSO and the probation order. The ensuing discussion led to Crown counsel requesting that the judge extend the 18-month probation to three years, with the first 18 months to include all the conditions, but the last 18 months to include only the protective conditions (4, 5, 6, 7, and 8) for the public interest: at para. 104. The judge first said, “I don’t think it is unreasonable what you are suggesting”: at para.112. Defence counsel commented that “it is very likely that Mr. Russell will be put on some sort of protective conditions at the expiry of the order in any event” (at para. 113) and noted that having to report to a probation officer could be confusing. Then defence counsel questioned the need for the ‘no-alcohol’ condition (condition 10) in the probation order as there was no suggestion that alcohol was involved in the offences: at para. 116. The judge said he was “not going to get rid of that” condition because he had no idea what triggered Mr. Russell’s behaviour: at para. 117. The judge then said: [118]    I am going to decline to impose a further period of probation. In my view, there has to come a time when he has to prove to the people that he is doing time for, his community, and his probation officer, that he can abide by conditions, and he has got -- he has done a year in custody. He is going to do another 18 months. That is a year and a half, and he is going to do another year and a half, 18 months. That is a total of four years which his behaviour is going to have been monitored. [119]    If the Crown is not satisfied with his behaviour between now and the time all that is completed, it is up to the Crown to come back and bring another long-term supervision order. I think it is unfair to almost use the sentencing process as a backdoor mechanism to control his behaviour for an extended time period. [120]    The crime that he committed deserved a significant sentence, and I think keeping his behaviour monitored for a grand total of four years is fairly significant. So I am going to decline to impose any further conditions. He will be bound by those conditions upon the completion of his sentence. Unless defence wants to agree to it, if there is some sort of -- [46] Despite the judge affirming the 18-month probation term for a second time, defence counsel indicated she would agree to the “no-alcohol condition coming off” if “they agree to the 18 months”. The judge and defence counsel negotiated the matter further and then the judge addressed Mr. Russell: [129]    Mr. Russell, how about we give you the benefit of the doubt that you can have a beer when you are watching a ballgame sitting with your friend, but we are going to keep conditions for a period of three years that keep you away from young people. [130]    THE ACCUSED: Yes. [131]    THE COURT: Is that fair? [132]    THE ACCUSED: I’m a teetotaler. I don’t drink. [133]    THE COURT: No, but it’s late in the day. I am just wanting to make sure you are okay with that. [134]    THE ACCUSED: I don’t have any problems with the condition on my alcohol consumption because I don’t drink anything. [135]    THE COURT: Do you have any conditions on the idea of restricting your liberty for a period three years not to be around young people. [136]    THE ACCUSED: No. [137]    THE COURT: Okay. So we are going to do that then. We are going to adjust the probation order to be for a period of three years. Can we have a three-year probation order with an 18-month further period of custody? [138]    MS. SMITH: I -- yes. [139]    THE COURT: Okay. [47] Following this discussion with Mr. Russell, the judge imposed a three-year probation order with the first 18 months to include all the conditions as originally described, except condition 10 was eliminated, and the last 18 months to include only the protective conditions (conditions 4, 5, 6, 7, and 8). [48] In my view, in the circumstances, it was an error in principle for the judge to extend the probationary term from 18 months to three years. The judge had already sentenced Mr. Russell. The judge recognized “it is unfair to almost use the sentencing process as a backdoor mechanism to control [Mr. Russell’s] behaviour for an extended time period”: at para. 119. It has not been argued that the judge was functus , but in my view it was improper for the Crown to request the judge to double the term of probation, just as it was improper for defence counsel to ask him to eliminate the no-alcohol condition. This led to bartering one request against the other. Initially, the judge declined to increase the probationary term because doing so would mean Mr. Russell’s behaviour would have been monitored for effectively four years. The judge said it was up to the Crown to obtain another long term supervision order if the Crown felt it was necessary. While the judge purported to get Mr. Russell’s consent to double the probationary term, it is not at all clear from the transcript that Mr. Russell consented. Judges should avoid getting into protracted discussions with counsel that could be seen as negotiations after judgment has already been pronounced. [49] In the circumstances, I would reduce the probationary term to 18 months. The original terms imposed by the sentencing judge, including condition 10 (as set out at para. 83), are in effect save for condition 4. Mr. Russell says condition 4 of the probation order is “impractically broad”. In my view, the appropriate wording for condition 4 (as set out at para. 83) should match what is in the LTSO and both counsel agree. Conclusion [50] I would allow the appeal to the extent of granting additional pre-sentence credit of 27 days; decreasing the term of probation to 18 months; including condition 10 (as described in para. 83 of the sentencing reasons) in the probation order as follows: (10) You must not possess or consume alcohol, drugs, or any other intoxicating substance except in accordance with a medical prescription; and varying condition 4 (as described in para. 83 of the sentencing reasons) to mirror the condition in the LTSO: (4) You are not to be in the presence of any female children under the age of 18, unless you are accompanied by a responsible adult who knows your criminal history, and has been previously approved in writing by your probation officer. [51] Arrangements will have to be made to have Mr. Russell sign his probation order and have the terms and conditions explained to him as well as the consequences for breaching any of the terms and conditions. [52] NEWBURY J.A. : I agree. [53] FISHER J.A. : I agree. [54] NEWBURY J.A. : The appeal is allowed to the extent indicated. “The Honourable Madam Justice Stromberg-Stein”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: San Bao Investments Inc. v. Sun, 2019 BCCA 30 Date: 20190125 Dockets: CA45796; CA45797 Docket: CA45796 Between: San Bao Investment Inc. Respondent (Plaintiff) And Huigang Sun Appellant (Defendant) And Dejun Yao, San Bao Investment Inc. and Joseph Kwok, aka Joseph Kuen Yu Kwok aka Joseph Kuen-Yu Kwok aka Kun Yu Kwok aka Kuen Kwok Respondents (Defendants by Way of Counterclaim) - and - Docket: CA45797 Between: San Bao Investment Inc. Respondent (Plaintiff) And Besco International Investment Co. Ltd. Appellant (Defendant) And Dejun Yao, San Bao Investment Inc. and Joseph Kwok, aka Joseph Kuen Yu Kwok aka Joseph Kuen-Yu Kwok aka Kun Yu Kwok aka Kuen Kwok Respondents (Defendants by Way of Counterclaim) Before: The Honourable Madam Justice Newbury (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated November 22, 2018 ( San Bao Investments Inc. v. Sun , Vancouver Dockets S1611338 and S1611176) Counsel for the Appellant: D.K. Fitzpatrick Counsel for the Respondent: J.D. Shields Place and Date of Hearing: Vancouver, British Columbia December 21, 2018 Place and Date of Judgment with Written Reasons to Follow: Vancouver, British Columbia December 21, 2018 Place and Date of Written Reasons: Vancouver, British Columbia January 25, 2019 Summary: Dismissal of application for stay of an order of incarceration on a finding of contempt. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] On December 21, 2018, Mr. Sun’s application for a stay of an incarceration order following a finding of contempt was before me in chambers. I dismissed the application with reasons to follow. [2] Mr. Sun was found personally liable, and liable as the principal of Besco International Investment Co. Ltd. Judgments were granted in the Supreme Court against them in July and September 2018 respectively, in the total principal amount of $1,476,823.78 plus (special) costs and interest. As of November 13, 2018, the total amount owing was $1,652,632.36. [3] Thereafter, Mr. Sun failed to attend an examination in aid of execution, avoided service of appointments for examinations in aid, failed to produce documents he had agreed to produce, and failed to provide satisfactory answers to questions on examination. A registrar certified on November 8 and 9, 2018 that Mr. Sun had failed to pay the judgments without reasonable excuse and had failed to provide satisfactory answers to questions about his ability to do so. [4] The matter then came before Madam Justice Matthews on November 22, 2018. She ordered inter alia that Mr. Sun be incarcerated for six days and then have 30 days to pay. If payment was not made by December 27, he was to be incarcerated for a further 30 days. The judge stated in her reasons: There is evidence that Mr. Sun and Besco have considerable means to satisfy the judgments. Funds well in excess of the judgment have gone through the Besco bank accounts. Mr. Sun admitted at his examination in aid of execution that he is capable of borrowing the funds to satisfy the judgment. He identified funds in corporate bank accounts which he has access to which could have been paid in partial satisfaction of the judgment. He agreed to pay those funds in partial satisfaction of the judgment, but has not done so. There is evidence that he has wilfully taken steps to avoid being able to pay the judgment, including that he gave three vehicles, one Bentley and two Range Rovers, to friends. He owns a home on the west side of Vancouver worth five million dollars. It is encumbered by eight million dollars in debt to friends. The law pertaining to committal of a party for failing to comply with a court order was summarized by Mr. Justice Macintosh in Fitzgerald Living Trust v. Mountainstar Gold Inc. , 2018 BCSC 1451, based on the decision of the Supreme Court of Canada in Carey v. Laiken , 2015 SCC 17. The first element that must be proven beyond a reasonable doubt is that the order alleged to have been breached must state clearly and unequivocally what should and should not be done. The second element is that the party alleged to have breached the order must have actual acknowledge of it. Finally, the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order prohibits. I conclude that each of these tests [has] been met in this case and the evidence before me is satisfactory to meet those tests beyond a reasonable doubt. [At paras. 7-10.] Matthews J. was satisfied Mr. Sun had intentionally avoided paying the judgments or failed to pay them although he had argued at an examination that he could borrow the money to do so, and the evidence showed he had “access to assets in excess of the judgment amount and has disposed of some of his assets to avoid paying the judgment.” (At para. 13.) [5] In his argument on behalf of Mr. Sun in this court on December 21, 2018, Mr. Kirkpatrick said all that could be said in favour of his client. He painted Mr. Sun as a person who has many assets but whose ability to pay is impaired at the present time. He asked for 90 days in which his client should, he suggested, be able to borrow the money to pay the judgments. At times he seemed to suggest the money could definitely be found; at other times he said his client was willing to pay “but cannot”. He described Mr. Sun as a “poor manager” whose finances are intertwined with those of his family, which makes it difficult for him to extricate the required amount. [6] Mr. Shields, on behalf of the creditor, referred on the other hand to evidence that suggested Mr. Sun has been preferring other creditors over San Bao and that substantial funds over which Mr. Sun has control have simply “disappeared” without explanation. As far as the debt owing to San Bao is concerned, no real attempts have been made to pay anything; documents including financial statements and income tax returns of Besco have not been produced despite being promised; and there is no indication Mr. Sun has made any effort to persuade his family to help pay his debts. Most tellingly, his answers to questions regarding his various companies were highly unsatisfactory and difficult to credit, given the large amounts of money he had previously claimed to control. All of this conduct is remarkably similar to the conduct described by Mr. Justice Steeves in his reasons for the original judgment that confirmed the indebtedness of Mr. Sun and his company: see 2018 BCSC 1128. [7] The criteria for the granting of a stay are well known – whether the applicant has raised an arguable case on appeal; the question of irreparable harm if a stay should not or should be granted; the balance of convenience; and most importantly, the interests of justice. On a consideration of these factors, I am simply unconvinced that interests of justice are such that a stay should be granted. As I have already observed, Mr. Sun has repeatedly neglected to obey court orders, to appear at examinations in aid, to provide documents he has been ordered to provide, and has failed utterly in providing relevant information to the creditor concerning his financial position and that of Besco. [8] For all the foregoing reasons, the application was dismissed. “The Honourable Madam Justice Newbury”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Ball, 2019 BCCA 32 Date: 20190128 Docket: CA43606 Between: Regina Respondent And Jonathan David Ball Appellant Corrected Judgment:  The text of the judgment was corrected at paragraph 47 on February 1, 2019 Before: The Honourable Madam Justice D. Smith The Honourable Madam Justice Dickson The Honourable Madam Justice Fisher On appeal from:  Orders of the Supreme Court of British Columbia, dated January 25, 2016 (conviction) ( R. v. Ball , Nanaimo Docket No. 77086) and March 24, 2016 (sentence) ( R. v. Ball , 2016 BCSC 79, Nanaimo Docket No. 77086). Counsel for the Appellant: G. Kosakoski N. Moses Counsel for the Respondent: M. Scott Place and Date of Hearing: Vancouver, British Columbia March 16, 2018 Place and Date of Judgment: Vancouver, British Columbia January 28, 2019 Written Reasons by: The Honourable Madam Justice Dickson Concurred in by: The Honourable Madam Justice D. Smith The Honourable Madam Justice Fisher Summary: The appellant challenges his conviction for arson and breaking and entering in connection with fires set to the house and garage of an estranged acquaintance.  He contends the judge failed to instruct the jury adequately on the relevance of his psychiatric condition to his defence of false confession, trial counsel failed to provide him with effective assistance and, viewed separately or in combination, the judge’s errors and trial counsel’s ineffective assistance resulted in an unfair trial and a miscarriage of justice.  The appellant also applies to admit fresh evidence in support of the ground of appeal relating to ineffective assistance of counsel.  Held: Appeal allowed, fresh evidence admitted.  The judge admitted key Crown evidence without testing its questionable admissibility and failed to intervene when Crown counsel elicited irrelevant and prejudicial character evidence.  The judge also expressed undue scepticism regarding the appellant’s self-report of poor mental health, which the appellant relied upon in advancing his defence of false confession.  The cumulative effect of these errors and irregularities rendered the appellant’s trial unfair and resulted in a miscarriage of justice. Reasons for Judgment of the Honourable Madam Justice Dickson: Introduction [1] Jonathan Ball confessed to police that he burned down the house and garage of an estranged acquaintance.  According to his former girlfriend, he told her the same thing.  On January 25, 2016, following a six-day trial, a jury convicted Mr. Ball of two counts of arson and two counts of breaking and entering in connection with the fires.  On March 24, 2016, the presiding judge sentenced him to 15 months’ imprisonment followed by two years of probation. [2] Mr. Ball appeals the convictions on the basis that his trial counsel and the judge committed numerous errors and prejudiced his right to a fair trial, which led to a miscarriage of justice.  In particular, he contends, his trial counsel failed to mount his false confession defence effectively, the judge failed to instruct the jury on the defence adequately and both failed to intervene when Crown counsel adduced inadmissible evidence throughout the course of the trial.  As a result, Mr. Ball says, he was deprived of his fair trial rights and there was a miscarriage of justice.  In consequence, he asks us to set aside the verdict and order a new trial. [3] In my view, Mr. Ball has not established his claim of ineffective representation.  Nor has he established that the judge instructed the jury inadequately.  Nevertheless, for the reasons that follow, I conclude a series of errors and irregularities occurred during the trial which, considered as a whole, rendered it unfair and resulted in a miscarriage of justice.  I would, therefore, allow the appeal, set aside the verdict and order a new trial. Background [4] In June of 2013, Mr. Ball was an anxious, depressed, socially isolated 26-year-old.  He lived with his parents in Qualicum Beach and took medication daily for his poor mental health.  He also consulted periodically with a psychiatrist and received many psychiatric diagnoses, including generalized anxiety disorder, depression and panic disorder.  However, despite his mental health challenges, Mr. Ball was able to work from time to time as a cook and he played guitar in a band. [5] One of Mr. Ball’s bandmates was Mark Maskell.  Mark Maskell’s parents, David and Sandra Maskell, owned a property in Errington, a small rural community near Qualicum Beach.  Located on five acres, the Maskell property had several buildings, including a two-level house, a detached garage and a fishing cabin.  Mr. Ball often spent time at the Maskell house for band rehearsals and, on occasion, left his music equipment there. [6] In addition to working and playing in the band, Mr. Ball carried on sometimes overlapping romantic relationships with women.  Between 2011 and early-2013, he and Carmen Lacey lived together in a turbulent “on-and-off” relationship.  By June of 2013 they had broken up, but they remained in contact and were considering the possibility of a reconciliation, although, unbeknownst to Ms. Lacey, Mr. Ball was also romantically involved with Brooklyn Mrychka.  Ms. Mrychka was Mark Maskell’s former girlfriend. [7] Messrs. Ball and Maskell fell out when Mr. Ball started dating Ms. Mrychka.  As a result, Mark Maskell quit the band.  Shortly thereafter his father returned most, but not all, of Mr. Ball’s music equipment.  In particular, Mr. Maskell did not return an amplifier that belonged to Mr. Ball. [8] On June 26, 2013, the garage on the Maskell property burned down.  The police suspected the fire was set deliberately and Constables Kiperchuk and Racz attended to investigate the next day.  When they arrived they found a broken window at the back of the house, smoke coming out the door and, within minutes of their arrival, the house was fully on fire.  The officers immediately called the fire department and firefighters arrived promptly, but they could not save the house. [9] After the fire, the police continued to investigate.  Early on, they suspected the owners, David and Sandra Maskell, might be responsible.  They also considered Brooklyn Mrychka’s father, David Mrychka, a suspect based on a report that Mr. Mrychka had threatened the Maskell property.  As a result, they arrested and forcefully questioned Mr. Mrychka, but he steadfastly maintained his innocence.  At the end of the interview, he was released and arson charges were not laid. [10] Approximately two weeks after the fires, Ms. Lacey walked into the Parksville RCMP detachment and informed Constable Carr that Mr. Ball told her he set the fires at the Maskell property.  Ms. Lacey said she discussed the fires with Mr. Ball, in person and over Facebook, and she called up several Facebook messages on a detachment computer monitor, which Constable Carr photographed.  The first photograph was of a message sent, according to the history timeline, at 3:27 p.m. on June 27, 2013 by “Johan Gorrific Amputation”, which Ms. Lacey identified as Mr. Ball’s Facebook name.  It read: “I was at Marks. There’s nothing left of the garage. I broke in the basement of the house and looked for anything of value, couldn’t find anything so I lit the basement on fire”.  Other photographed messages included discussion of the fires and Ms. Lacey’s advice that Mr. Ball “[e]rase anything u said here”. [11] Constables Carr and Racz worked at different detachments.  After Ms. Lacey made her statement, Constable Carr contacted Constable Racz, informed him of what had occurred and passed on the photographs of the Facebook messages.  As a result, he arrested Mr. Ball and interviewed him regarding the fires.  During the first part of the interview, Mr. Ball denied any involvement and, when Constable Racz confronted him with the messages, he responded that they didn’t “look right at all”, they were “very fake” and Ms. Lacey might want revenge because he chose Ms. Mrychka.  As the interview progressed, however, Constable Racz suggested that Mr. Ball broke into the Maskell property to get his amplifier back and lit the place on fire when he could not find it.  After more denials and an attempt to implicate Ms. Lacey, Mr. Ball confessed that he set the fires. [12] Mr. Ball told Constable Racz he was angry at Mark Maskell for how he had treated Ms. Mrychka and that he wanted to get back his amplifier.  Among other things, he said that he broke a basement window of the Maskell house with a rock, entered the house through the window and set the fires spontaneously.  He also said that he lit some plastic hanging along the basement wall, told Ms. Lacey he set the fires and sent her the Facebook messages, which he later deleted.  When the interview concluded, Constable Racz gave Mr. Ball 75 milligrams of his psychiatric medication, Venlafaxine. [13] The police did not attempt to identify and search the computing device used to record the Facebook messages or locate the rock that Mr. Ball said he used to break the basement window at the Maskell property.  Nor did they find forensic evidence linking him to the fires.  After he confessed, Mr. Ball was charged with two counts of arson and two counts of breaking and entering.  He retained trial counsel to represent him and elected to be tried by a judge and jury. At Trial The Crown Case [14] The only Crown evidence implicating Mr. Ball in the fires was his confession to Constable Racz and his alleged admissions to Ms. Lacey, in person and via Facebook.  Before the trial began, trial counsel conceded that the confession was voluntary and thus admissible, although, he told the judge, it was a “false confession”.  He said nothing about the admissibility of the photographed Facebook messages and they were not mentioned in formal admissions filed by the Crown.  For his part, Crown counsel asked that several items be marked in advance as exhibits for identification, including the photographs, which occurred. [15] In his opening address, Crown counsel told the jury that the Crown’s case had two key elements: Mr. Ball’s confession and his admissions to Ms. Lacey.  Then he called Constable Kiperchuk as the first Crown witness.  Constable Kiperchuk testified that he and Constable Racz arrived at the Maskell property at approximately 2:45 p.m. on June 27, 2013, that he noticed a broken upper window at the back of the house and that he did not see any other broken windows.  He also testified that Constable Racz told Mr. Ball about the Facebook messages during the police interview.  At that point in his testimony, Crown counsel showed Constable Kiperchuk the photographs, he identified them as photographs Constable Carr took of Facebook messages that Ms. Lacey showed her and Crown counsel asked that they be made a trial exhibit.  No one raised any concern, the photographs were marked compendiously as Exhibit 5 and copies were immediately distributed to the jury. [16] The second Crown witness was Constable Racz, who introduced Mr. Ball’s confession into evidence.  Among other things, he confirmed there was no investigation regarding the computing device used to record and send the Facebook messages. [17] Next, Crown counsel called Ms. Lacey.  She testified that she first learned of the Maskell fires when Mr. Ball told her, in person, that he lit the garage fire, and, via Facebook, that he broke into the house and set it on fire.  She also said that some weeks later she reported his admissions to Constable Carr and called up the Facebook messages on a police computer, and that Constable Carr took photographs.  She said further that she “imagined” Mr. Ball used his smartphone to send the messages and that she used hers throughout the exchange. [18] When she testified, Ms. Lacey repeatedly indicated that she could not recall the precise timing of the events in question.  She also said her awareness of how Facebook operated was general in nature, although she used it quite regularly.  As to the timing of events, she said a history timeline on the photographs showed the date and time the messages were exchanged, but said nothing about how or why she thought that information was accurate.  Referring to the photographs, she testified that Mr. Ball sent the first message regarding the Maskell fires at 3:27 p.m. on June 27, 2013. [19] Ms. Lacey was the only Crown witness called to explain the operation of Facebook Messenger, which she characterized as similar to text messaging.  She said that Facebook users communicate with others on a “Friends list”, but that to do so they must use a password to log in.  She also said she did not know Mr. Ball’s password, but acknowledged having sent a message on his Facebook account when they were in the same room together.  On cross-examination, trial counsel implied that Ms. Lacey accessed Mr. Ball’s account and created the Facebook messages, although he did not ask her directly if Mr. Ball’s password was stored on her computer. [20] Near the end of Ms. Lacey’s direct examination, Crown counsel asked if the police were ever involved during her relationship with Mr. Ball.  She replied in the affirmative.  When Crown counsel asked her to elaborate, she said the relationship was physically violent and that Mr. Ball assaulted her by pushing her down stairs, grabbing her hair and choking her.  No one objected or intervened as Crown counsel elicited this evidence, although, on cross-examination, trial counsel challenged her claim that she was the victim of the domestic violence and tried to cast Mr. Ball as its true victim.  He also elicited evidence from Ms. Lacey that she intensely disliked Mark Maskell, that Mr. Ball had psychiatric problems and that she spoke to Constable Carr on the same day she learned Mr. Ball was romantically involved with Ms. Mrychka. [21] The other Crown witnesses were David and Sandra Maskell and David Mrychka.  The Crown did not call anyone other than Ms. Lacey to authenticate the messages or testify regarding the computer systems on which the data in the photographs was recorded or stored.  Trial counsel made three formal admissions of fact pursuant to s. 655 of the Criminal Code which, as noted, were filed as an exhibit, but none related to the photographs. The Defence Case [22] After the Crown closed its case, trial counsel made a brief opening address in which he described Ms. Lacey as a vindictive ex-girlfriend and Mr. Ball’s confession as tainted by police suggestion.  Then he called Mr. Ball as the first witness for the defence.  Mr. Ball began by describing his background and mental health challenges, testifying that his memory and cognitive function are poor and stating he suffers from anxiety and depression for which he requires daily medication, regular psychiatric care and occasional hospitalization.  He also testified that, if he misses a dose of his medication, Venlafaxine, he becomes “extremely comatose” and “violently ill”. [23] Like Ms. Lacey, Mr. Ball testified about Facebook Messenger.  He said that both he and Ms. Lacey used Facebook on her home computer when they lived together, that a user’s password can be stored on a computer and that he suspected Ms. Lacey might have his password when Constable Racz showed him photographs of the “faked” messages.  As to his relationship with Ms. Lacey, Mr. Ball said it was marked by violence on her part.  On cross-examination, he said that he did not see the messages in the photographs on his Facebook account prior to his arrest. [24] Turning to June 27, 2013, Mr. Ball testified that he did errands that day and visited with his grandmother.  A few weeks later, he said, he went to the RCMP detachment and, when he arrived, Constable Racz “blindsided” him by accusing him of a crime.  He also said that he did not take his medication that morning, he was in a “very delusional state” and he was struggling with anxiety and a faulty memory throughout the police interview.  However, he said, eventually, he began to feel Constable Racz might know his memory better than he did, and, as his medication tapered off, in a dream-like state, hoping to go home, he told the police “exactly what they wanted to hear”.  In other words, he said, he falsely confessed to setting the fires, filling in details that seemed plausible or that came from Constable Racz. [25] The other defence witnesses were Mr. Ball’s grandmother, Loretta Ostman, and Brooklyn Mrychka’s mother, Shirley Mrychka.  Ms. Ostman provided an alibi for Mr. Ball, testifying that he visited her in her home on June 27, 2013 between approximately 12:30 and 3:00 p.m.  Ms. Mrychka testified that, before the fires, Mr. Maskell told her the house would never sell and that “it just needs to be bulldozed”. Closing Addresses of Counsel [26] In his closing address, trial counsel asked the jury to disregard Ms. Lacey’s “venomous” testimony and emphasized her prior access to Mr. Ball’s Facebook account.  After remarking on his quirky character and emotional vulnerability, he asserted that Mr. Ball confessed falsely to police because he wanted to go home.  Noting the absence of corroborating evidence, Ms. Ostman’s alibi evidence and the Maskell’s possible motive for setting the fires, he argued it would be unsafe for the jury to convict Mr. Ball based on his recanted confession. [27] In his closing address, Crown counsel focused on the Facebook messages and Mr. Ball’s confession, telling the jury it could “analyze those things and determine for yourselves whether they are reliable, or believable”.  He described Mr. Ball’s demeanour as relaxed throughout the police interview and said his denials did not hold up, particularly given the details of the crimes he recounted.  He also highlighted the details of Mr. Ball’s alleged admissions to Ms. Lacey, called the Facebook messages a running conversation “just after the fire is burning” and urged the jury to use its common sense in reaching its verdict. Judge’s Charge to the Jury [28] Ms. Lacey’s evidence and Mr. Ball’s confession also featured prominently in the judge’s charge to the jury.  He reminded the jury that Mr. Ball denied any involvement in setting the fires, denied admitting anything to Ms. Lacey and claimed she “faked” the Facebook messages by accessing his account.  However, he said, if the jury accepted that Mr. Ball sent the Facebook messages, they should consider whether any evidence supported the truth of their content.  By way of example, he noted the time of the June 27, 2013 message corresponded closely to the time of the Maskell house fire. [29] The judge told the jury to follow a similar approach when assessing the truth of the content of Mr. Ball’s confession.  For example, he noted, there was no evidence of the rock Mr. Ball told Constable Racz he used to break the window at the Maskell house.  He also told the jury to consider Mr. Ball’s condition when he confessed and, in doing so, called Mr. Ball’s medical condition “self-reported”: Now, in assessing whether or not you conclude that these statements are true, you should consider the condition of the accused at the time he made the statement to police, if you find the accused was suffering from any mental disability, or was under the influence of alcohol or drugs at the time he made the statement, you should take this into account when you determine the weight you will give to the statement.  Here, the suggestion is that a combination of [Mr. Ball’s] personality, combined with a lack of medication and the manner of the interview led to what the accused says is a false confession. The accused’s medical condition is self-reported. You should consider his demeanour throughout the whole of the police interview.  The accused, while acknowledging he made the statement to the officers, testified, under oath, that certain parts of the statement were not true.  In particular, he denied those portions of the statement wherein he acknowledged setting both fires were true. [30] The judge went on to tell the jury that a person can be convicted on the strength of a confession without any corroborative evidence, although people sometimes confess falsely: While it may seem counter-intuitive that someone would admit to a crime they did not commit, it has happened.  Confessions can be unreliable.  People can be persuaded to utter what amounts to a false confessions for a number of reasons.  The criminal justice system is all too aware of the fact that people have been known to confess to things they have not done.  People have been known to make false confessions out of fear, out of hope, or promise, or favour.  You should not begin your deliberations with the mindset that people only confess to crimes they have actually committed. [31] Next, the judge instructed the jury in accordance with R. v. W.(D.) , [1991] 1 S.C.R. 742.  He reminded them that the weight to attach to the evidence was a matter for their determination and noted Mr. Ball testified regarding both his confession and Ms. Lacey’s testimony: Ultimately, the weight you attach to the accused’s statement to police, your conclusion as to who authored the Facebook messages, marked as Exhibit 5, and the conversations said to have occurred between the accused and Ms. Lacey, will inform the verdict you reach.  There is no other evidence implicating the accused in the fires of June 26 and 27, 2013.  Mr. Ball testified, he denied he committed the offences, and he offered an explanation as to the statement given by him to police, and challenged the authenticity of the exchange on Facebook with Ms. Lacey. In considering the evidence of the accused you should consider it as follows … [standard W.(D.) instruction]. [32] Then, the judge turned to a review of the evidence.  Dealing first with Ms. Lacey’s testimony, he said that she “acknowledged the volatile relationship” and testified Mr. Ball instigated the violence.  He also noted the competing versions as to who was the aggressor and told the jury not to consider Mr. Ball’s allegations that Ms. Lacey attacked him when assessing the reliability of her testimony regarding the Facebook messages: I will tell you that considerations of the relationship and its volatility are collateral to the issue you are deciding.  Some of the accused’s testimony regarding Ms. Lacey was never put to her, for her to agree or deny it.  Instances of that are the testimony by the accused as to his injuries and of Ms. Lacey’s premeditations about harming or murdering people.  Please do not consider such allegations when you come to assess the reliability of Ms. Lacey’s account of the origins of Exhibit 5. [33] The judge did not instruct the jury not to consider Ms. Lacey’s allegations that Mr. Ball attacked her in arriving at its verdict.  However, he did summarise Mr. Ball’s account of confessing falsely and his denial that he set the fires.  As to the former, the judge said this: The accused acknowledged making the statement to the police, but testified that same came about as a combination of his not taking his medications that morning in his rush to get to the police station to report the missing wallet, his cognitive function and compliant personality , and the aggressive position of the two officers in failing to believe his original denials of any involvement. He testified that he had a poor memory , and came to believe after repeated prodding by police that maybe his memory was wrong, and he had done the things he was accused of.  He said that he became increasingly scared , and wanted to be compliant with the officers, whom he described as hostile in their facial expressions. He testified that he either adopted what was being said by the officers, chiefly Constable Racz, or that he made things up on the fly to please them. [34] The judge went on to outline the essential ingredients of the offences, the positions of the parties and the available verdicts.  He ended his charge with several standard instructions, after which the jury retired to deliberate.  In the course of their deliberations, the jury returned with a single question: “What time did the officers arrive to find the house in flames?”  After consulting with counsel, the judge responded that both officers testified they arrived at the Maskell property at around 2:45 p.m.  An hour later, the jury returned with guilty verdicts on all four counts of the indictment. Sentencing [35] The judge ordered a presentence report and, in that context, Mr. Ball was referred for a psychological assessment.  In his report, the assessor, Dr. Ferguson, outlined Mr. Ball’s mental health history and described him as a “fragile and vulnerable young man who lacks coping skills to manage stressful situations” and is impaired by anxiety and dependent personality traits. On Appeal Appellant’s Position [36] On appeal, Mr. Ball contends the judge failed to instruct the jury adequately on the relevance of his psychiatric condition to his defence of false confession.  Although he provided a general instruction on the phenomenon of false confessions, he says the judge did not relate the evidence of his distinctive behavioural characteristics and vulnerabilities to his claim that he falsely confessed.  In Mr. Ball’s submission, without an adequate instruction the jury lacked the necessary tools to evaluate the reliability of his confession, which non-direction prejudiced his fair trial rights and amounted to a reversible legal error.  The judge compounded this error, he says, by remarking that his medical condition was “self-reported”, which was both inappropriately disparaging and manifestly incorrect. [37] In addition, Mr. Ball contends, trial counsel failed to provide him with effective assistance, which led to a miscarriage of justice.  In his submission, this occurred because trial counsel did not appreciate that false confessions can be produced by an accused’s vulnerabilities despite the absence of improper police conduct, which led him to focus exclusively on the police misconduct issue.  As a result, Mr. Ball says, trial counsel failed to obtain expert evidence such as that of Dr. Ferguson regarding his psychiatric condition and its relationship to his false confession.  He also failed to introduce his psychiatric records or object to the judge’s inadequate jury instruction and failed to appreciate the significance of the Facebook messages, investigate their authenticity or object to their admissibility when Crown counsel introduced them improperly through Constable Kiperchuk. [38] Viewed separately or in combination, Mr. Ball submits, the judge’s errors and trial counsel’s ineffective assistance resulted in an unfair trial and a miscarriage of justice.  In consequence, he submits, this Court should set aside the verdict and order a new trial. Respondent’s Position [39] The Crown responds that the judge’s instruction on the false confession defence was adequate.  According to Crown counsel, in language approved by this Court in R. v. Earheart , 2011 BCCA 490, it dispelled the incorrect assumption that nobody would confess to something they did not do.  Emphasizing the absence of evidence of police misconduct and the judge’s summary of Mr. Ball’s testimony, he says the evidence that Mr. Ball suffered from significant anxiety, took medication and experienced symptoms without it was uncontested.  In these circumstances, he submits, the judge’s comment that Mr. Ball’s medical condition was “self-reported” was simply unnecessary. [40] However, Crown counsel argues, if the judge erred, the curative proviso applies and a new trial should not be ordered.  This is so, he says, because, quite apart from his police confession, Mr. Ball admitted that he set the Maskell house fire to Ms. Lacey via Facebook less than an hour after it was discovered, before anyone but the arsonist, firefighters and police knew it had occurred.  He goes on to say this powerful evidence was not credibly answered by the highly implausible defence theory that Ms. Lacey hacked Mr. Ball’s Facebook account and fabricated the messages, given their timing and details.  Accordingly, he submits, even if the judge erred in his charge on the false confession defence, it caused no prejudice because the error could not have made a difference to the outcome of the trial. [41] As to Mr. Ball’s claim that trial counsel failed to assist him effectively, Crown counsel emphasizes the presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.  In his submission, that presumption has not been displaced.  On the contrary, he says, trial counsel mounted a competent defence by fully airing credibility issues regarding Ms. Lacey, attempting to demonstrate that she could have fabricated the Facebook messages, calling alibi evidence from Ms. Ostman and eliciting extensive testimony from Mr. Ball concerning his mental health and his reasons for confessing.  In addition, he says, the fresh evidence reveals that trial counsel retained a renowned specialist on false confessions, negotiated a favourable plea arrangement and urged Mr. Ball to obtain up-to-date clinical records and a helpful report from a treating psychiatrist, which Mr. Ball failed to obtain. [42] According to Crown counsel, the foregoing steps were all reasonable, diligent and well within the range of effective assistance by trial counsel.  In any event, he argues, Mr. Ball was not prejudiced by any deficiency in his representation given the timing of the damning Facebook messages, which Ms. Lacey authenticated and which, he says, virtually dictated the trial’s outcome. Fresh Evidence Application [43] In support of the ground of appeal relating to ineffective assistance of counsel, Mr. Ball applies to admit fresh evidence in the form of affidavits from himself and his trial counsel.  In his affidavits, Mr. Ball deposes that he has suffered from psychiatric illness for many years and appends extensive clinical records in this regard.  He also deposes that, when he misses a dose of his medication, he experiences “discontinuation syndrome”, which leaves him feeling disoriented and fearful.  He says he explained his psychiatric condition and discontinuation syndrome to trial counsel and gave him the records, but trial counsel did not seem interested.  Nor, he says, did trial counsel assist him to retain a psychiatric expert to testify on these matters at trial. [44] Mr. Ball deposes further that he told trial counsel the photographed messages were not in his Facebook conversation history and tried to explain his password might be stored on Ms. Lacey’s computer, but trial counsel did not seem to understand or see the Facebook messages as important evidence.  On the contrary, he says, trial counsel expressed a dislike for computers, did nothing to investigate his Facebook account and did not request any Facebook-related information from either the Crown or Facebook. [45] In addition to appending his psychiatric records, Mr. Ball appends screenshots of his June 27, 2013 Facebook conversations with Ms. Lacey which do not include the conversation about the fires depicted in the photographs.  He also describes an experiment which shows a message can be deleted from one Facebook account but remain intact in the other and deposes that Ms. Lacey told him her brother, Eric Lacey, was a volunteer firefighter for the Maskell property area at the time of the fires, which an appended newspaper clipping confirms. [46] In his responsive affidavit, trial counsel acknowledges that he and Mr. Ball discussed Mr. Ball’s psychiatric issues from the outset and that he reviewed Mr. Ball’s psychiatric records.  However, he describes the records as unhelpful for purposes of demonstrating that his confession was coerced because they do not indicate a propensity to fabricate or an unusual susceptibility to police interrogation.  He also acknowledges that he did not assist Mr. Ball to obtain a report from a treating psychiatrist and explains this was because it was Mr. Ball’s responsibility and he could not do it independently.  As a result, he deposes, he encouraged Mr. Ball to obtain expert evidence connecting his psychiatric condition to the purportedly false confession, but he did not do so. [47] Trial counsel goes on to depose that he retained a renowned specialist in the field of false confessions, Dr. John Yuille.  He says Dr. Yuille prepared a report stating the police did nothing improper to induce a false confession and advised him over the phone that he considered Mr. Ball’s confession spontaneous and genuine.  Faced with these results and lacking a helpful expert report, trial counsel says he became discouraged with the false confession defence and considered the Crown’s case overwhelming.  As a result, he says, he negotiated a favourable plea agreement, but Mr. Ball refused to accept the offer made by the Crown. [48] As to the Facebook messages, trial counsel deposes that he was interested but says they were only a small part of the evidence, concerned a “peripheral issue” and paled in significance relative to Mr. Ball’s confession.  He also deposes that he fully understood the password issue and put Mr. Ball’s fabrication theory to Ms. Lacey on cross-examination, although he considered it “a very minor point in the trial” and highly implausible in light of the timing and content of the Facebook messages.  He goes on to express his opinion that the jury convicted Mr. Ball because he confessed to police. Issues [49] In my view, the following issues emerge from the submissions of the parties, the evidence and the judge’s instructions to the jury: a) Did the judge err by failing to instruct the jury adequately on the false confession defence? b) Did the judge err by admitting the photographed Facebook messages without testing their admissibility? c) Did the judge err by permitting the Crown to adduce bad character evidence? d) Is the fresh evidence admissible? e) Has Mr. Ball established that trial counsel provided ineffective assistance? f) Has Mr. Ball established a miscarriage of justice? Discussion Did the judge err by failing to instruct the jury adequately on the false confession defence? Adequacy of Jury Instructions [50] A trial judge has a general duty to ensure trial fairness.  In the context of a criminal jury trial, that duty includes an obligation to instruct the jury adequately.  The purpose of jury instructions is to educate and guide the jury in reaching a true verdict according to the evidence.  Consequently, jury instructions are adequate when they enable the jury to understand the live issues, the relevant law and the salient evidence to be considered in resolving the issues.  In other words, jury instructions are adequate when they are legally correct, comprehensive and comprehensible: R. v. Rodgerson , 2015 SCC 38 at paras. 30, 50, 54; R. v. Pearce , 2014 MBCA 70 at paras. 111-112. [51] The extent to which the judge must review and relate the evidence to the issues to achieve trial fairness is highly case-specific.  Generally speaking, the judge’s task is “to decant and simplify”: R. v. Jacquard , [1997] 1 S.C.R. 314 at para. 13.  As Justice Bastarache explained in R. v. Daley , 2007 SCC 53: [ 57 ] The extent to which the evidence must be reviewed “will depend on each particular case.  The test is one of fairness.  The accused is entitled to a fair trial and to make full answer and defence.  So long as the evidence is put to the jury in a manner that will allow it to fully appreciate the issues and the defence presented, the charge will be adequate”: see Granger, at p. 249.  The duty of the trial judge was succinctly put by Scott C.J.M. in R. v. Jack (1993), 88 Man. R. (2d) 93 (C.A.) , aff’d [1994] 2 S.C.R. 310 : “the task of the trial judge is to explain the critical evidence and the law and relate them to the essential issues in plain, understandable language” (para. 39). [52] An accused is entitled to an adequately instructed jury, but not a perfectly instructed jury: Jacquard at para. 2.  For this reason, appellate courts adopt a functional approach in conducting a review.  The functional approach requires an appellate court to consider jury instructions in the context of the conduct of the trial as a whole, including the nature of the evidence, the live issues, the theories and positions of the parties, the addresses of counsel and counsel’s submissions with respect to the instructions.  If the jury was properly instructed on the law and left, overall, with a sufficient understanding of the facts as they relate to the issues, on appeal the instructions will be considered adequate: Daley at paras. 57-58.  If they fail to meet these criteria, a legal error will be found: Rodgerson at para. 28; Colpits v. The Queen , [1965] S.C.R. 739. False Confessions [53] A confession is an out-of-court statement made by an accused to a person in authority, often a police officer.  Presumptively inadmissible unless proven voluntary, confessions are a particularly powerful and damning form of evidence.  This is true, at least in part, because it seems inherently unlikely that an innocent person would incriminate himself or herself by falsely confessing to a crime in response to police questioning.  People do not normally confess to crimes they have not committed: Pearce at paras. 48-53; R. v. Hart , 2014 SCC 52 at para. 102.  As Justice Iacobucci put it in R. v. Oickle , 2000 SCC 38 at para. 34, the proposition that a confession is false is “counterintuitive”. [54] However, false confessions can and do occur for a variety of reasons in a wide range of circumstances.  When admitted as evidence, they can lead to miscarriages of justice because they have a significant impact on the decision-making process undertaken at trial.  An accused can be convicted on the basis of a confession alone, despite the absence of any confirmatory evidence whatsoever: R. v. Singh , 2007 SCC 48 at para. 29.  And judges and juries tend to disbelieve ex post facto recantations by those who have previously confessed: Pearce at paras. 48-53, 129. [55] In Oickle , Justice Iacobucci discussed the phenomenon of false confessions in the context of considering the common law confessions rule.  After noting the close relationship between false confessions and wrongful convictions, he emphasized the importance of understanding why they occur: [3 7] Ofshe & Leo (1997), supra , at p. 210, provide a useful taxonomy of false confessions.  They suggest that there are five basic kinds: voluntary, stress-compliant, coerced-compliant, non-coerced-persuaded, and coerced-persuaded.  Voluntary confessions ex hypothesi are not the product of police interrogation.  It is therefore the other four types of false confessions that are of interest. [56] In reviewing the four types of possibly involuntary false confessions, Justice Iacobucci stated that proper police interrogations rarely produce a false confession.  As a result, the common law confessions rule is well-suited to protect against them, particularly as concepts of voluntariness and reliability overlap to a significant extent: Oickle at paras. 45, 47.  Nevertheless, not all false confession claims can be properly adjudicated by applying the common law confessions rule and excluding those that are not proven voluntary.  Although rare, even admissible confessions may be false: Pearce at para. 60. [57] In Pearce , Justice Mainella conducted a thorough and thoughtful review of the phenomenon of false confessions and the related risk of wrongful convictions.  In addition to the common law confessions rule, he identified residual judicial discretion to exclude evidence and appropriately informed fact-finding as available safeguards against both.  As to the latter, he observed that accused persons sometimes adduce expert evidence regarding their “distinctive behavioural characteristics” and vulnerabilities to help explain why their voluntary confession is nevertheless false or unreliable and he noted that experts and academics say factors such as mental illness, significant personality traits and intoxicant withdrawal may cause false confessions.  However, he stated, the admissibility of expert evidence on these matters must be determined on a case-by-case basis and it is subject to the Mohan criteria.  He also stated that, where a false confession defence has an air of reality, a trial judge should instruct the jury about the phenomenon of false confessions and relate the essential evidence on the point to the defence so that jurors can appreciate its value and effect: Pearce at paras. 56, 59-64, 81, 104-105, 118; R. v. Phillion , 2009 ONCA 202 at para. 217. [58] As I have already discussed, the extent to which a judge should review and relate the evidence to the live issues when instructing a jury is also case-specific.  In cases involving a purportedly false confession, the content and form of an appropriate jury instruction is a discretionary matter for the judge based on the exigencies of the case.  That said, in my view, in addition to cautioning the jury generally about the phenomenon of false confessions, the judge should review the accused’s explanation for allegedly confessing falsely, relate the salient evidence to the false confession defence and review the extent to which the confession’s details are consistent with or conflict with independently verifiable circumstances.  In doing so, the judge should avoid expressing any personal disbelief, direct or inferential, in the accused’s ex post facto recantation.  Overall, the instruction will be adequate so long as it dispels the common assumption that nobody would confess falsely and it provides the jury with necessary assistance to evaluate the reliability of the confession in conducting the fact-finding process: Pearce at paras. 118-120, 127-135; Colpits at 753. Analysis [59] With these principles in mind, I turn to the question of whether the judge instructed the jury adequately on Mr. Ball’s defence of false confession.  While he could have said more, in my view, considered functionally and in the context of the conduct of the trial as a whole, his charge on the defence, though imperfect, was adequate.  He dispelled the common assumption that people do not confess to crimes they have not committed by providing a general instruction on the false confession phenomenon in language approved in Earheart .  Contrary to Mr. Ball’s submission, the judge also reviewed Mr. Ball’s explanation for confessing, related the evidence of his compliant personality, poor cognitive function and compromised medical condition to his false confession defence and noted several consistent and inconsistent independent circumstances, including the absence of evidence of the rock Mr. Ball said he used to break the Maskell house window.  Although he did not mention that Mr. Ball also said he broke a basement window whereas Constable Kiperchuk testified he saw only a broken upper window at the Maskell house, this was likely because counsel did not draw the potential inconsistency to his attention.  However, this omission did not render the charge inadequate. [60] The judge summarised Mr. Ball’s testimony regarding his psychiatric condition, his emotional state and his perception of and reaction to police questioning briefly, without delving deeply into the details.  That was his prerogative.  The trial was short, the evidence was fresh and his task was “to decant and simplify”.  In my view, it would have been helpful to provide more detailed, specific summaries of the evidence on these matters, but the judge said enough to enable the jury fully to appreciate the factual issues related to Mr. Ball’s defence of false confession.  In other words, he gave the jury sufficient assistance to evaluate the truth and reliability of the confession in the light of the salient evidence.  That being so, the content and form of the instruction were matters within his discretion. [61] As Mr. Ball points out, the judge did not specifically instruct the jury that his “distinctive behavioural characteristics” or vulnerabilities compromised the reliability of his confession.  That is unsurprising.  There was no evidence to this effect.  As Justice Mainella explained in Pearce , accused persons will sometimes adduce expert evidence on mental illness and personality traits to help explain why a confession is false or unreliable, but it is case-specific and must satisfy the Mohan criteria.  In the absence of any such evidence, the judge was not entitled simply to assume that Mr. Ball’s psychiatric condition and personal vulnerabilities compromised the reliability of his confession or instruct the jury that it should do so. [62] Unfortunately, however, the judge did convey a measure of personal scepticism regarding Mr. Ball’s ex post facto recantation when he characterized his medical condition as “self-reported”.  He made this remark when instructing the jury on how to assess the truth of the confession.  The remark followed his statements that the jury should take into account Mr. Ball’s condition “ if you find the accused was suffering from any mental disability” and that the defence “suggested” Mr. Ball’s personality, combined with a lack of medication and the manner of the interview, led to a false confession.  It also immediately preceded his instruction that the jury should also take into account Mr. Ball’s demeanour throughout the interview, which demeanour the Crown contended did not accord with his self-described mental state when he was interviewed. [63] Considering the judge’s remark in this context, the jury could have inferred that he thought the absence of independent evidence regarding Mr. Ball’s medical condition diminished the reliability of his self-report and thus detracted from his explanation for confessing falsely.  In my view, he erred in making the remark.  It was subtly disparaging and factually inaccurate. As the Crown acknowledges, in addition to being uncontested, Mr. Ball’s testimony that he suffered from poor mental health was corroborated at trial by both Ms. Lacey and police witnesses. Nor did the judge remind the jury that their recollection and impression of the evidence on the point was paramount. [64] Mr. Ball focused heavily on his poor mental health when explaining why he allegedly confessed falsely.  Taking into account its central role in his defence, in my view, the judge’s inferential expression of scepticism was not a minor or inconsequential misstep.  Nevertheless, considered on the whole, it did not render the charge on the false confession defence inadequate, nor, standing alone, seriously compromise fundamental trial fairness.  However, as discussed below, it was not the only error of consequence that was made in the course of the trial. Did the judge err by admitting the photographed Facebook messages without testing their admissibility? Electronic Evidence [65] The use of information technology in modern society is ubiquitous.  Given their prevalence, such technologies can generate a “treasure trove” of relevant evidence, but that evidence may be malleable and its sources may not be widely understood.  Our general rules and principles of evidence law developed long before the advent of these technologies and, as a result, the law has had to adapt to facilitate the admission of electronic documents while screening for threshold authenticity and integrity.  Building on established rules and principles, it has done so by imposing a complementary set of admissibility rules via statute and related jurisprudence: David M. Paciocco, “Proof and Progress: Coping with the Law of Evidence in a Technological Age” (2013), 11 C.J.L.T. 181. [66] The applicable statutory provisions for present purposes are ss. 31.1 to 31.8 of the Canada Evidence Act , R.S.C. 1985, c. C-5.  These provisions create a framework for the admission of all forms of “electronic document”, which is broadly defined in s. 31.8 together with several related terms: Definitions 31.8     The definitions in this section apply in section 31.1 to 31.6: “computer system” means a device that, or a group of interconnected or related devices on or more of which, a) contains computer programs or other data; and b) pursuant to computer programs, performs logic and control, and may perform any other function. “data” means representations of information or of concepts, in any form. “electronic document” means data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, printout or other output of that data. “electronic documents system” includes a computer system or other similar device by or in which data is recorded or stored and any procedures related to the recording or storage of electronic documents [67] Facebook posts and messages, emails and other forms of electronic communication fall within the definition of an “electronic document”.  Home computers, smartphones and other computing devices fall within the definition of a “computer system”.  Accordingly, the admissibility of Facebook messages and other electronic communications recorded or stored in a computing device is governed by the statutory framework.  As with other admissibility issues, where there is reason to question whether an electronic document meets the statutory requirements, a voir dire should be held and a reasoned determination made as to its admissibility.  This step is particularly important in the context of a jury trial: R. v. Soh , 2014 NBQB 20 at paras. 26, 32; R. v. Donaldson , 2016 CarswellOnt 21760 at para. 3; R. v. K.M. , 2016 NWTSC 36 at para. 40; “Proof and Progress” at 195. [68] Pursuant to s. 31.7 of the Canada Evidence Act , the statutory framework does not affect any rule of law relating to the admissibility of evidence except rules relating to authentication and “best evidence”.  Although its requirements must always be met, standing alone they do not determine ultimate admissibility.  Rather, the admissibility of an electronic document also depends on the purpose for which it is tendered and any related general rule of evidence.  For example, in addition to meeting the statutory criteria, the content of an electronic document must be legally relevant and it must comply with general evidentiary rules such as those relating to hearsay, character and opinion evidence: K.M. at para. 23; Soh at paras. 41-52; “Proof and Progress” at 193. [69] In many cases, electronic documents are tendered to prove the truth of a statement allegedly input into a computer (for example, Mr. Ball’s alleged statement that “I lit the basement on fire”).  In these circumstances, general hearsay rules apply.  Relevant content might also include information created mechanically by the computer, such as coded Internet Service Provider information or date and time stamps (for example, the history timeline shown on the photographed Facebook messages).  “Computer by-product evidence” of this kind is original or real evidence, not hearsay.  Depending on the circumstances, expert evidence may be required to explain the meaning of the computer-generated information or the accuracy or reliability of the generating technology, although, in the absence of cause for doubt, circumstantial evidence or lay witness testimony is often sufficient.  Regardless, expert evidence is not required to explain generally how commonplace technologies such as Facebook, text messaging or email operate if a lay witness familiar with their use can give such testimony: K.M. at paras. 12-15, 40-44; Soh at paras. 27-30; “Proof and Progress” at 184-186, 188, 198, 211. [70] The statutory rule relating to authentication codifies the common law authentication rule.  The burden of proof is on the tendering party and the threshold is low: is there evidence, direct or circumstantial, to support a finding that an electronic document is what the tendering party claims it to be?  If so, the document is adequately authenticated, although this does not necessarily mean that it is genuine.  That is a question of weight for the fact-finder which often turns on determinations of credibility: R. v. Hirsch , 2017 SKCA 14 at para. 18; “Proof and Progress” at 197. [71] Section 31.1 of the Canada Evidence Act provides: Authentication of Electronic Documents 31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be. [72] The statutory “best evidence” provisions augment the authentication process. At common law, the “best evidence” rule requires the tendering party to produce an original document or the next best available alternative, primarily because alterations are most readily detectible on an original.  However, the concept of an “original” is poorly-suited to electronic documents.  As Justice Paciocco explains in “Proof and Progress”, it is not immediately obvious whether the original is “… the actual hard drive containing the code, the translation of the code that is displayed by the electronic device, a copy of the file, or the first print out”.  Consequently, the statute adopts an inclusive approach; for framework purposes, an original is any translation of the computer code in observable form: “Proof and Progress” at 193, 199-200; Hirsch at paras. 22-23. [73] Like the common law best evidence rule, the statutory rule is intended to help ensure that an electronic document accurately reflects the original information input into a computing device by its author.  The framework provides alternative methods of satisfying the rule, some of which rely on statutory presumptions available in the absence of evidence to the contrary.  Section 31.2 provides for proof, direct or circumstantial, of the integrity of an electronic documents system, proof via secure electronic signature and proof via printout; s. 31.3, for presumptions of integrity with respect to electronic documents systems; s. 31.4, for presumptions regarding secure electronic signatures; and s. 31.5, for consideration of relevant standards, procedures, usages and practices.  The standard of proof for the prerequisites to admissibility is the balance of probabilities: R. v. Oakes , [1986] 1 S.C.R. 103; “Proof and Progress” at 202. [74] The relevant best evidence provisions are ss. 31.2(1)(a), 31.2(2) and 31.3(a) and (b): Application of Best Evidence Rule – Electronic Documents/Printouts 31.2(1) The best evidence rule in respect of an electronic document is satisfied (a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored (2)  Despite subsection (1), in the absence of evidence to the contrary, an electronic document in the form of a printout satisfies the best evidence rule if the printout has been manifestly or consistently acted on, relied on or used as a record of the information recorded or stored in the printout. Presumption of Integrity 31.3 For the purposes of subsection 31.2(1), in the absence of evidence to the contrary, the integrity of an electronic documents system by or in which an electronic document is recorded or stored is proven (a) by evidence capable of supporting a finding that at all material times the computer system or other similar device used by the electronic documents system was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic document and there are no other reasonable grounds to doubt the integrity of the electronic documents system; (b) if it is established that the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to introduce it [75] Canadian courts adopt a functional approach to interpretation and application of the statutory framework.  In Soh , Justice LaVigne held that both screen capture printouts of Facebook messages and photographs of a computer screen displaying those messages are “electronic documents” and she conducted a voir dire with respect to their admissibility.  Given the absence of evidence to the contrary, she found that the electronic documents system on which the messages were recorded was reliable based on the testimony of a lay witness who exchanged them with the accused and the investigating officer who captured, printed and photographed them.  However, she admitted only the screen capture printouts because, she held, they constituted the best evidence of the accused’s recorded admissions whereas the photographs of the computer screen did not. [76] K.M. also illustrates the functional approach to the admissibility of electronic documents.  Like Justice LaVigne in Soh , Justice Charbonneau conducted a voir dire to determine the admissibility of a printout of Facebook messages purportedly exchanged by a witness and the accused and called up on a computer that belonged to the witness’s sister.  Like Justice LaVigne, she admitted the printout despite the absence of expert evidence regarding the integrity of the electronic documents systems in question based on lay witness testimony and the presumption of integrity in s. 31.3. [77] The relevant content of the messages in K.M. included both hearsay (admissions by the accused) and computer by-product evidence (time and date stamps).  After noting that the lay witness, Mr. Boniface, testified “when he uses Facebook, the dates and times that appear next to the messages correspond to the actual dates and time in Fort Good Hope”, Justice Charbonneau stated: [42]      Mr. Boniface may not understand all the ins and outs of Facebook but he was able to create his account, select his password, and use Facebook as a means of communication with people, including K.M.  There is no evidence that he is not capable of recognizing his own Facebook page.  He testified that the printout is consistent with what was on the screen when he logged on to his account at his sister’s office. [43]      There is no evidence to the contrary calling into question the proper functioning of either of these computers (the one Mr. Boniface used at home during the exchange with K.M. or the one he used to call up the message chain and have his sister print it).  There is no evidence, or even any suggestion of tampering by Mr. Boniface, his sister, or anyone else. [44]      While tampering with electronic document and hacking into systems does happen, the mere possibility of that is not sufficient to call into question the authenticity of an electronic document.  Otherwise, the framework set out in the Canada Evidence Act would be useless: expert evidence would be required in each case to negate that possibility of tampering or malfunction. [78] As Justice Paciocco explained in Donaldson , all trial participants must attend to the requirements of the statutory framework when electronic evidence is gathered and presented.  While easily met, they are governing and important for purposes of admissibility: Donaldson at paras. 3-4.  After noting the absence of any investigation to determine the account from which the Facebook messages in question were secured and the vague authentication evidence, Justice Paciocco held the statutory requirements were not met and declined to admit the evidence.  In doing so, he stated: [22]      If you have a case that is important enough to take the court’s time … and you have evidence that is significant enough that it should be put before a court, then the resources and attention to demonstrate the admissibility of that evidence should be committed, both at the investigative stage and at the prosecutorial stage. [79] R. v. Bernard , 2016 NSSC 358, also illustrates the risk of failure to attend to the statutory requirements.  In Bernard , Justice Gogan declined to admit photographs of Facebook posts purportedly made by the accused because those requirements were not satisfied.  In doing so, he rejected the Crown’s argument that photographs of the posts were real evidence, holding, correctly in my view, that the statutory requirements cannot be circumvented simply by photographing electronic information and noted that: [40]      … no steps were taken to search the computer of the accused nor was there any attempt to access the Facebook account of the accused directly, at the police detachment, or anywhere else. [80] Like trial courts, appellate courts adopt a functional approach when considering the admissibility of electronic documents.  For example, in Hirsch , the Saskatchewan Court of Appeal upheld the judge’s admission of screen captures of the accused’s Facebook page in a judge-alone trial although the Crown did not formally authenticate them under s. 31.1, nor did the judge refer to the statutory best evidence rule.  Nevertheless, taking into account the underlying rationale of the statutory rules, the parties’ trial arguments, the judge’s detailed reasoning and the entire body of evidence, the court declined to interfere with the decision to admit the screen captures, primarily because the complainant testified that she recognised them as depicting the accused’s Facebook page, which amounted to s. 31.1 authentication, and because the surrounding circumstances would have supported application of the s. 31.3(b) presumption of integrity.  In other words, in Hirsch the result on appeal turned on the fact that the substance, if not the form, of the framework requirements was plainly satisfied. Analysis [81] The Facebook messages were extremely important Crown evidence.  They included Mr. Ball’s alleged admission to setting the fires and a computer-generated time stamp associating the first message with the time of the Maskell house fire.  The Crown’s closing address, the judge’s charge and the jury’s question all highlighted the significance of the time stamp and the defence challenged the authenticity of the messages.  Nevertheless, their admissibility was not questioned and a voir dire was not conducted. Therefore, the judge did not make a reasoned determination on whether the photographed messages were admissible and, if so, the permissible use for their computer by-product content. [82] There was good reason to question the admissibility of the photographed messages, which depended, in part, on compliance with the statutory framework.  However, it appears no one considered the framework’s requirements at the investigative or trial stage of the proceedings.  Nor, it seems, was the distinct evidentiary nature of the text of the messages, on the one hand, and their computer-generated time stamps, on the other, ever considered. [83] In my view, there were several admissibility issues that required consideration and attention.  The Crown proffered the electronic documents in photographic form and introduced them through Constable Kiperchuk, who had no personal knowledge of their source or origins.  Constable Carr, who took the photographs and presumably operated the police computer system on which the data was called up, was not called and, while trial counsel could have made admissions on these matters, he did not.  Nor did trial counsel concede that the photographs met the applicable admissibility criteria, as he did with respect to the confession. [84] Ms. Lacey was able to recognise the text in the photographs based on her personal involvement in the exchange of the messages and, therefore, the statutory authentication requirement in s. 31.1 was met, albeit implicitly.  However, Ms. Lacey also testified she could not remember exact times and she provided neither direct nor circumstantial evidence specifically concerning the accuracy of the computer-generated time stamps or the reliability of the computer systems on which the data was recorded, displayed and photographed. [85] This was not a case like Soh , K.M. and Hirsch , where, in the absence of evidence to the contrary or any suggestion of tampering, Facebook evidence was admitted based on lay recognition, personal involvement and the s. 31.3 presumption of integrity.  In contrast, in this case, Mr. Ball contended a tamperer created the Facebook messages by accessing his account on a computing device that he did not own and the Crown’s only authenticating witness, Ms. Lacey, was the alleged tamperer.  In addition, unlike K.M. , there was no evidence, direct or circumstantial, regarding the accuracy or reliability of the computer-generated time stamp. [86] On the other hand, this case was, in some respects, similar to Bernard , where Justice Gogan ruled evidence of Facebook posts inadmissible because the statutory requirements were not satisfied.  Much like the circumstances in Bernard , in this case no one investigated whether the messages were recorded using Mr. Ball’s computing device, although police knew he claimed they were “faked” and was advancing a defence of false confession.  In addition, here, as in Bernard , at trial the Crown proffered photographs rather than printouts as proof of the electronic information in question. [87] In my view, it is neither necessary nor desirable for present purposes to determine, at the first instance, whether the photographed Facebook messages met the statutory best evidence rule on a balance of probabilities.  The same is true of whether, if so, the computer-generated time stamps were shown to be sufficiently accurate and reliable for use as evidence of when the messages were sent.  It is sufficient to say there is a realistic possibility that, properly scrutinized, the judge may have justifiably excluded or limited the evidentiary use of the photographs.  In these circumstances, in the absence of a clear concession from counsel, the judge should have made these determinations in the first instance, on a voir dire , in the absence of the jury.  However, he did not, apparently because all concerned overlooked the need for him to do so. [88] At the very least, this was a procedural error.  Mr. Ball was entitled to be tried on only carefully scrutinized and plainly admissible evidence, particularly where that evidence was critically important.  Unfortunately, however, the admissibility of the photographs was not scrutinized and, unlike the circumstances in Hirsch , it is not clear on the record that all prerequisites were established to the necessary standard.  Accordingly, in my view, Mr. Ball was deprived of an important procedural protection, which compromised trial fairness and contributed to what was, overall, a miscarriage of justice. Did the judge err by permitting the Crown to adduce bad character evidence? Bad Character Evidence [89] As is clear from the foregoing, the trial judge plays a key role in ensuring that the jury considers only properly admissible evidence.  While counsel are expected to comply with evidentiary rules, ultimate responsibility for keeping irrelevant, unduly prejudicial or otherwise inadmissible evidence from the fact-finding and reasoning process lies with the judge: R. v. J. (J.) , 2000 SCC 51 at paras. 1, 28; R. v. Barton , 2017 ABCA 216 at paras. 111-112.  This gatekeeping function requires that a judge vigilantly assess and exclude evidence that might jeopardize the fundamental fairness of the trial, taking into account the positions of counsel but unconstrained by them.  One of many contexts in which the duty may arise involves the presentation of bad character evidence. [90] The Crown may not prove that an accused committed an offence by relying on evidence of his or her bad character.  This is because such evidence can distract the jury from focusing on the real issues and because propensity reasoning is generally impermissible.  A jury is not entitled to infer from evidence of an accused’s bad character that the accused was likely to have committed the crime charged: R. v. G.(S.G.) , [1997] 2 S.C.R. 716 at para. 63; R. v. Dvorak , 2001 BCCA 347 at paras. 40-42.  Therefore, the Crown is prohibited from adducing evidence of an accused’s bad character, subject to three exceptions: i) where the accused’s character is relevant to a live issue in the case; ii) where the accused puts his or her character in issue; or iii) where the evidence is adduced incidentally to proper cross-examination of the accused on credibility: G.(S.G.) at para. 63; R. v. Lawrence , 2015 BCCA 358 at paras. 47-51. [91] Where an exception to the general prohibition applies and the Crown is permitted to adduce bad character evidence, a trial judge should typically instruct the jury that it must not use that evidence to find the accused is the sort of person who would have a propensity to commit the offence in question.  An instruction to this effect is mandatory unless it would unduly confuse the jury because the bad character evidence is central and inextricably linked to the motive or mechanism of a crime: R. v. Van Dyke , 2014 BCCA 3 at paras. 16-21.  If the judge fails to give a limiting instruction where it is required, that failure can amount to a reversible error of law: Dvorak at paras. 39-45. [92] In Dvorak , the Crown adduced evidence that the accused was an inveterate liar when he had not put his character in issue.  While she accepted that Crown counsel should not have adduced such bad character evidence, Justice Prowse would not have found the accused’s right to a fair trial was fatally compromised solely by virtue of its admission because admissible evidence of relevant lies was also before the jury.  However, she concluded the absence of any limiting instruction or caution regarding the inadmissible bad character evidence amounted to a fatal flaw that compromised trial fairness: [35]      It is not seriously disputed that the Crown led evidence of Mr. Dvorak’s bad character when Mr. Dvorak had not placed his character in issue.  Although defence counsel did not object to most of this evidence at the time it was led, it should not have been admitted.  It placed Mr. Dvorak in the untenable position of having either to ignore that evidence at his peril, or having to explain it away.  Both options were risky; he chose the latter. [45]      In my view, the trial judge could have offset any damage done by the admission of the irrelevant lies and the exacerbating effect of the Crown's address had he given them a clear, sharp warning that they were not entitled to use his lies as evidence that he was more likely to have committed the offences with which he was charged. In other words, the trial judge should have instructed the jury that it was not open to them to infer from the evidence that Mr. Dvorak was a seasoned liar, that he was also a rapist. I am unable to find anything in the trial judge's charge which can be interpreted as such a warning. Nor am I able to conclude that the jury would have understood the limited use they could make of Mr. Dvorak's propensity for lying in terms of the critical issue of consent. In my view, this non-direction amounted to misdirection. [93] Although the Crown case in Dvorak was strong, Justice Prowse did not apply the curative proviso because the judge failed to warn the jury about the dangers of the bad character evidence and the importance of not reasoning from propensity to lie to propensity to commit the offences in issue: [47]      In my view, this is not an appropriate case for the application of the curative proviso. Here, not only was the evidence of bad character improperly led by the Crown, but the trial judge failed to warn the jury concerning the potential dangers of that evidence and the importance of not reasoning from propensity to lie to propensity to commit the offences in issue. In the result, the fairness of the trial was compromised. There is a risk that the accused was convicted for the wrong reasons; that is, because he was a "liar and a jerk", rather than because the Crown had established lack of consent on the part of the complainant. [48]      It is not without misgivings that I come to this conclusion because, in my view, the case for the crown was a strong one.  But I cannot say that the case was so strong that the verdict would necessarily have been the same in the absence of error. Analysis [94] While this issue was not raised by the appellant, it arises on the record and was addressed in oral submissions at the hearing.  In my view, the judge erred in permitting the Crown to adduce evidence from Ms. Lacey that Mr. Ball assaulted her and, having done so, in failing to warn the jury not to engage in propensity reasoning with respect to Mr. Ball’s alleged acts of domestic violence.  This bad character evidence was untethered to a live issue when the Crown adduced it.  Nor was it covered by any other exception to the general prohibition which prevents the Crown from adducing such evidence. [95] Like Mr. Dvorak, Mr. Ball was placed in the untenable position of either having to ignore the bad character evidence or try to explain it away before the jury.  Like Mr. Dvorak, Mr. Ball chose the latter path. This was not a choice he should have faced.  It meant that he had to deal with irrelevant and damning allegations that he pushed, grabbed and choked Ms. Lacey, as well as meet the charges that he set the fires at the Maskell property.  It created a risk that the jury might infer from the evidence that Mr. Ball was an abusive partner that he was also a malicious arsonist. [96] Regardless of whether trial counsel objected, the judge should have stopped Crown counsel when he elicited evidence from Ms. Lacey that Mr. Ball assaulted her.  On its face, this evidence was irrelevant, inadmissible and prejudicial to Mr. Ball.  If there was an arguable basis for the Crown’s apparently improper questions, the judge should have canvassed it with counsel in the absence of the jury.  Instead, he admitted the evidence without comment or intervention. [97] The damage was not offset by an appropriate warning in the judge’s charge to the jury.  On the contrary, it may have been exacerbated.  Although he did not warn the jury not to consider Ms. Lacey’s allegations that Mr. Ball assaulted her, he did warn them not to consider Mr. Ball’s allegations that Ms. Lacey assaulted him when assessing the reliability of her testimony because those allegations were not put to her in cross-examination.  This may have reminded the jury that there were competing allegations of domestic violence.  Regardless, the charge did not include the necessary and important warning to the jury not to engage in propensity reasoning in determining whether the Crown had proved the arson charges.  The latter non-direction amounted to misdirection. [98] In my view, the admission of the bad character evidence and the lack of appropriate warning, both legal errors, compromised trial fairness.  As in Dvorak , there is a risk that the accused was convicted for the wrong reasons; in this case, because he was an abusive partner, rather than because the Crown proved beyond a reasonable doubt that he set the fires.  Although I see that risk as minimal, when these errors are considered together with other trial irregularities, I conclude they also contributed to an overall miscarriage of justice. Is the fresh evidence admissible? [99] Crown counsel concedes that most of the fresh evidence is admissible for the limited purpose of assessing Mr. Ball’s allegation of ineffective assistance.  However, in his submission, the fresh evidence that Eric Lacey worked as a volunteer firefighter at the time of the fires is obviously inadmissible and should be rejected summarily because it is irrelevant to any issue on the appeal. [100] Subsection 683(1) of the Criminal Code authorizes this Court to receive fresh evidence where it is in the interests of justice to do so.  Pursuant to the test articulated in Palmer v. The Queen , [1980] 1 S.C.R. 759, in addition to the requirement that fresh evidence comply with general rules of evidence, the relevant criteria considered on an application to adduce fresh evidence on appeal are as follows (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: [citation omitted]; (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. [101] The Palmer test applies where fresh evidence is directed to issues decided at the trial level.  Its due diligence criterion promotes finality and order in the litigation process by encouraging parties to put forward their best available case at trial: R. v. Hamzehali , 2017 BCCA 290 at para. 35, quoting from R. v. Wolkins , 2005 NSCA 2. [102] Where a miscarriage of justice is alleged, the applicable procedure is as described in R. v. Stolar , [1988] 1 S.C.R. 480. The fresh evidence application should be heard and, unless the fresh evidence is obviously inadmissible, the court should reserve judgment on the application.  If the court ultimately determines that the fresh evidence could reasonably have affected the result, it should admit the fresh evidence and allow the appeal.  On the other hand, if the court determines that the fresh evidence could not reasonably have affected the result, it should dismiss both the fresh evidence application and the miscarriage of justice ground of appeal. [103] However, where ineffective assistance of counsel is a ground of appeal, the Palmer test and the Stolar procedure are modified.  In such cases, the appellate court is asked to admit fresh evidence for the purpose of considering an issue that was not considered below: R. v. Aulakh , 2012 BCCA 340 at para. 59.  In these circumstances, the fresh evidence relates to the integrity of the trial process itself, not to a substantive factual or legal issue decided at the trial level.  Accordingly, as Justice Smith explained in Aulakh , the due diligence criterion is relaxed and the court may admit the fresh evidence in the interests of justice for the limited purpose of assessing the professional incompetence allegations: [64]      Thus, fresh evidence directed to a new issue on appeal relating to the integrity of the trial process (rather than a substantive issue adjudicated at trial) will be admissible for the limited purpose of assessing the allegation of ineffective representation of counsel if it: (i) complies with the rules of evidence; (ii) is relevant to the new issue; and (iii) is credible. If the fresh evidence also relates to a substantive factual or legal issue adjudicated at trial, the Palmer due diligence criteria may be relevant. It goes without saying that the fourth Palmer criterion, the expectation that the fresh evidence would affect the result, is addressed by the parallel prejudice component of the test for ineffective assistance of counsel. [104] The modified Palmer test and Stolar procedure apply on a case-sensitive basis whenever fresh evidence is directed to matters that go to the integrity of the trial process or to a request for an original remedy: Hamzehali at para. 35. [105] In my view, all of the fresh evidence is admissible for the purpose identified by Crown counsel.  It generally complies with the rules of evidence, it is relevant to the assessment of counsel’s performance and potential prejudice, and it is sufficiently credible and reliable to meet the modified Palmer test.  The hearsay evidence that Eric Lacey worked as a firefighter in 2013, confirmed by the newspaper clipping, relates to whether the defence theory that Ms. Lacey fabricated the Facebook messages was doomed to fail because she could not possibly have known about the Maskell house fire when the messages were sent. Has Mr. Ball established that trial counsel provided ineffective assistance? Ineffective Assistance of Counsel [106] An accused who is represented by counsel is entitled to receive effective legal assistance.  Our adversarial system operates on the premise that competent partisan advocacy will best expose the truth of a criminal allegation.  Effective representation ensures that the prosecution case is tested and the defence case is advanced by a knowledgeable and skilled advocate performing these functions adequately.  It also enhances the adjudicative fairness of the process by ensuring that the accused receives the full benefit of all available procedural protections: R. v. Joanisse , [1995] O.J. No. 2883 (C.A.) at paras. 65-66.  Both contribute to the fairness of a trial. [107] A claim of ineffective assistance of counsel has two distinct components, performance and prejudice.  To succeed, the appellant must establish both that counsel’s acts or omissions were incompetent (performance) and that, as a result, a miscarriage of justice occurred (prejudice).  Professional incompetence is assessed on a standard of reasonableness and it must be proven on a balance of probabilities.  A miscarriage of justice resulting from professional incompetence must also be proven on a balance of probabilities and it may take many forms: R. v. G.D.B. , 2000 SCC 22 at paras. 26-28; R. v. Dunbar , 2003 BCCA 667 at para. 34. [108] The bar for establishing professional incompetence is high and surpassing it is challenging.  It is strongly presumed that counsel’s conduct fell within the wide range of reasonable professional assistance, deference will be accorded to counsel’s strategic and tactical decisions and the “wisdom of hindsight” has no place in the analysis.  Nevertheless, unreasonable acts or omissions by counsel might include a failure properly to challenge the Crown’s case, bring a necessary application or make duly diligent efforts to adduce relevant defence evidence, any of which could amount to assistance so deficient that it was ineffective.  Alternatively, unreasonable acts or omissions might include representing the accused while in a compromised state or failing to comply with instructions, both of which could deny real assistance altogether and thus taint the adjudicative process by which the verdict was reached: Aulakh at paras. 46-48; G.D.B. at paras. 27, 29. [109] On appeal, a court should analyze the prejudice component of an ineffective representation claim before the performance component.  If prejudice is not proven to the requisite standard, the court should typically end the analysis.  This is because grading counsel’s performance is not the object of the exercise.  As Justice Major pointed out in G.D.B. , that is a matter for the self-governing body of the legal profession, not the court: G.D.B. at paras. 27, 29; Dunbar at paras. 24-25. [110] The prejudice component of an ineffective assistance claim is established where the appellant proves that professional incompetence is linked to a miscarriage of justice.  A miscarriage of justice can result where there is a reasonable probability that the outcome of the proceedings below would have been different but for the errors made by counsel.  In Joanisse , Justice Doherty explained that a reasonable probability is a probability which is sufficient to undermine confidence in the reliability of the outcome and it “lies somewhere between a mere possibility and a likelihood”: Joanisse at para. 82.  Alternatively, a miscarriage of justice may result where the outcome was reached through an unfair process, regardless of the reliability of the outcome.  In other words, professional incompetence may result in a miscarriage of justice by reason of procedural unfairness alone: G.D.B. at para. 28; Dunbar at para. 26. Analysis [111] In my view, Mr. Ball has established the prejudice component of the ineffective assistance claim on a balance of probabilities.  The confession and the Facebook messages were the primary pillars of the prosecution.  If trial counsel could and should have approached the false confession defence or the Facebook messages as Mr. Ball claims, the force of the prosecution evidence would have been potentially muted and, but for his errors, there is a reasonable probability that the outcome of the trial would have been different.  In other words, the necessary link exists between the alleged professional incompetence and a miscarriage of justice.  The real question is whether Mr. Ball has established on a balance of probabilities that trial counsel was professionally incompetent. [112] I am not persuaded that professional incompetence is established.  Although other counsel might have done more or otherwise, Mr. Ball has not proved that trial counsel mounted or presented the false confession defence inadequately, nor has he proved that his treatment of the Facebook message evidence was so flawed that it fell outside the wide range of reasonable professional assistance.  That being so, he has not has surpassed the high bar set for proving a claim of ineffective assistance by counsel. [113] Trial counsel elicited extensive testimony from Mr. Ball regarding his poor mental health and his reasons for purportedly confessing falsely.  His testimony regarding his mental health was both uncontested and corroborated.  In hindsight, given the judge’s sceptical remark on his self-report, it may well have been desirable to present additional information from Mr. Ball’s clinical records confirming the details of his psychiatric problems.  However, the judge’s remark was unpredictable and, in my view, confirmatory evidence was not required to advance the false confession defence adequately, nor was it unreasonable for trial counsel not to adduce it.  In the circumstances, trial counsel’s choice to rely on Mr. Ball’s testimony regarding his poor mental health, as corroborated by Ms. Lacey and the police, is entitled to deference. [114] The judge’s charge on the false confession defence, while rather brief, was not inadequate.  It follows that trial counsel was not obliged to object after it was delivered.  As to Mr. Ball’s contention that trial counsel should have located and adduced expert evidence relating the reliability of his confession to his poor mental health, I find it striking that there was no fresh evidence tendered to this effect.  Contrary to Mr. Ball’s submission, while Dr. Ferguson did describe him as a fragile and vulnerable young man, lacking in coping skills under stress and impaired by anxiety and dependent personality traits, he did not relate those behavioural characteristics and vulnerabilities to what Mr. Ball told police when he made his confession.  Nor, so far as I am aware, has any other psychiatric expert.  In my view, one can hardly fault trial counsel for failing to locate and adduce evidence that does not demonstrably exist. [115] I do not accept that trial counsel failed to appreciate the significance of the Facebook messages.  Although, in my view, he understated it in his affidavit filed on the fresh evidence application, his conduct at trial reflects a keen appreciation.  As Crown counsel points out, trial counsel fully aired credibility issues regarding Ms. Lacey and attempted to demonstrate that she could have fabricated the Facebook messages by hacking Mr. Ball’s account via use of his password.  In addition, in his closing address trial counsel urged the jury to disregard Ms. Lacey’s “venomous” testimony and emphasized her prior access to Mr. Ball’s Facebook account.  All of these steps were designed forcefully to challenge the genuineness of the messages.  All were reasonable and diligent. [116] Nor do I accept that trial counsel unreasonably failed to investigate the authenticity of the Facebook messages.  The fact that the messages do not appear on Mr. Ball’s Facebook account is of no moment.  He told police that he deleted them.  The issue, if any, requiring investigation was the computing device on which the messages were recorded.  That was a matter for police investigation.  It was not unreasonable for trial counsel not to encourage any such investigation when he was not and could not be certain of its eventual outcome. [117] Of greater concern is trial counsel’s apparent failure to recognize and address the potential admissibility issues in connection with the photographed Facebook messages.  That was an oversight.  Nevertheless, in my view, an oversight on a technical statutory point of evidence does not necessarily equate to professional incompetence amounting to ineffective representation.  Bearing in mind the high bar that applies, the fact that much of the salient jurisprudence post-dates the trial, the need to avoid the “wisdom of hindsight” and the wide range of reasonable professional assistance I conclude that, while unfortunate, trial counsel’s oversight did not rise to the level of professional incompetence.  My conclusion in this regard is buttressed to some extent by the fact that the police, Crown counsel and the judge apparently all experienced the same oversight. [118] I would not give effect to this ground of appeal. Has Mr. Ball established a miscarriage of justice? Miscarriage of Justice [119] Pursuant to s. 686(1)(a)(iii) of the Criminal Code , an appeal from conviction may be allowed where there was a miscarriage of justice.  In R. v. Davey , 2012 SCC 75, Justice Karakatsanis described a “miscarriage of justice” for the purposes of s. 686(1)(a)(iii) by quoting from R. v. Khan , 2001 SCC 86 and R. v. Wolkins , 2005 NSCA 2: [ 50 ] In his concurring opinion in R. v. Khan , 2001 SCC 86 , [2001] 3 S.C.R. 823 (S.C.C.) , LeBel J. considered the scope of the miscarriages of justice contemplated by s. 686(1)( a )(iii).  He concluded, at para. 69, that when considering whether an irregularity that occurred during a trial rises to the level of a miscarriage of justice, “[t]he essential question in that regard is whether the irregularity was severe enough to render the trial unfair or to create the appearance of unfairness.” [ 51 ] In R. v. Wolkins , 2005 NSCA 2 , 229 N.S.R. (2d) 222 (N.S. C.A.) , at para. 89 , Cromwell J.A. provided a helpful summary of the two types of unfairness contemplated within the meaning of miscarriage of justice under s. 686(1)( a )(iii): the courts have generally grouped miscarriages of justice under two headings.  The first is concerned with whether the trial was fair in fact.  A conviction entered after an unfair trial is in general a miscarriage of justice.  The second is concerned with the integrity of the administration of justice.  A miscarriage of justice may be found where anything happens in the course of a trial, including the appearance of unfairness, which is so serious that it shakes public confidence in the administration of justice.  [Citations omitted.] [120] In Khan , Justice LeBel explained that, in most cases, the whole of the circumstances must be weighed in determining whether a trial was unfair, in reality or in appearance.  Emphasizing that an accused is not entitled to a perfect trial, he acknowledged that minor irregularities will inevitably occur in legal proceedings.  The critical question, however, is whether the irregularity in issue rendered the trial unfair or created an appearance of unfairness, the latter of which is assessed by asking if the irregularity would taint the administration of justice in the eyes of a reasonable and objective observer.  He went on to state that, while there is no strict formula for determining a miscarriage of justice, there are several elements that provide helpful reference points: [75]      First, one should ask whether the irregularity pertained to a question which was, in law or in fact, central to the case against the accused.  Thus, an irregularity which is related to a central point of the case is more likely to be fatal than one concerning a mere peripheral point [76]      Second, the court of appeal should consider the relative gravity of the irregularity.  How much influence could it have had on the verdict? ... [77]      When the court considers the gravity of the error, it should also consider the possible cumulative effect of several irregularities during the trial [78]      Third, one should be mindful of the type of trial during which the error has occurred.  Was it a trial by jury or by a judge sitting alone?  Sometimes, irregularities can have a more severe impact on the fairness of the trial when they occur during a trial before a judge and a jury [79]      Fourth, and related, is the possibility that the irregularity may have been remedied, in full or in part, at the trial [84]      Fifth, one must keep in mind that what matters most is the effect of the irregularity on the fairness of the trial and the appearance of fairness.  Therefore, it will not be a mitigating factor that the irregularity did not result from a deliberate act by the Crown, the judge, or one of the court officials [85]      Sixth, the attitude of defence counsel if and when he was confronted with the irregularity may have an impact.  Therefore, if defence counsel had an opportunity to object to the irregularity and failed to do so, this militates for a finding that the trial was not unfair.  Of course, this is not absolutely determinative, as a trial can be declared unfair even if defence counsel failed to object.  [Citations omitted, emphasis in original]. Analysis [121] In my view, the cumulative effect of the errors and irregularities in Mr. Ball’s trial rendered it unfair and resulted in a miscarriage of justice.  Near the trial’s outset, key Crown evidence was admitted without its questionable admissibility having been tested.  The origin of that evidence was not fully investigated, it was introduced in photographic form through a witness with no personal knowledge and it was immediately provided to the jury, with whom it remained throughout the entire proceeding.  As the trial progressed, Crown counsel elicited irrelevant and prejudicial evidence that Mr. Ball was an abusive partner, no one intervened and the judge did not warn the jury to disregard it.  At the end of the trial, the judge expressed undue scepticism regarding Mr. Ball’s self-report of poor mental health, which condition Mr. Ball relied upon in advancing his defence of false confession. [122] The charges were serious and the jury upon whom the appellant relied required considerable assistance from the court and from counsel.  Although none of the errors and irregularities resulted from deliberately improper acts, all impacted trial fairness and, in my view, were largely borne of insufficient vigilance to ensure its protection.  Although the Crown case was undoubtedly strong, I cannot say it was so strong that the verdict would necessarily have been the same in the absence of these errors and irregularities. Conclusion [123] I would admit the fresh evidence, allow the appeal, set aside the conviction and order a new trial. “The Honourable Madam Justice Dickson” I AGREE: “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Madam Justice Fisher”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Mass v. Canada Trustco Mortgage Company (TD Canada Trust), 2019 BCCA 42 Date: 20190129 Docket: CA44354 Between: Shulamit Mass Appellant (Plaintiff) And Canada Trustco Mortgage Company (TD Canada Trust) and Jharna Chandok and Estate of Surjit Chandok Respondents (Defendants) Before: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Willcock The Honourable Mr. Justice Savage On appeal from:  An order of the Supreme Court of British Columbia, dated March 16, 2017 ( Mass v. Canada Trustco Mortgage Company (TD Canada Trust) , Vancouver Registry S165222). Oral Reasons for Judgment The Appellant appeared in person: S. Mass Counsel for the Respondents Canada Trustco Mortgage Company (TD Canada Trust): T. Louman-Gardiner The Respondent J. Chandok appeared in person: J. Chandok Place and Date of Hearing: Vancouver, British Columbia January 29, 2019 Place and Date of Judgment: Vancouver, British Columbia January 29, 2019 Summary: The respondents obtained orders in foreclosure proceedings against the appellant’s property in 1999. Years later the appellant later commenced proceedings to challenge the validity of the mortgages. Her action was dismissed as statute-barred and as re‑litigation of issues previously determined. Her appeal from that order was put on the inactive list after a year. Her application to have the appeal returned to the active list was dismissed. She missed the deadline to apply to the Court to vary the order. Her application to extend the time to do so was then dismissed. The appellant applied to the Court to vary that order and for an extension of time. Held: appeal dismissed. The appellant did not establish that the chambers judge made any error in principle or misconceived facts or that relevant information was not brought to his attention when he dismissed the application. He did not err in concluding there was no prospect a division of this Court would restore the appeal to the active list. [1] WILLCOCK J.A. : This is an application pursuant to section 9(6) of the Court of Appeal Act , R.S.B.C. 1996, c. 77, to vary the order of Harris J.A., made on October 19, 2018, dismissing the appellant’s application to extend the time to vary the order of Newbury J.A. made May 24, 2018. [2] The standard of review is highly deferential. A review hearing is not a rehearing of the original application. The court will interfere only if there has been an error in principle, if the justice was wrong in a legal sense, the justice misconceived the facts or the relevant information was not brought to the justice’s attention. De Fehr v. De Fehr , 2002 BCCA 139 at para. 6 ; Haldorson v. Coquitlam (City) , 2000 BCCA 672 at paras. 6‑7. [3] The appellant was the victim of fraud that extended over 17 years and is described in detail in the judgment of Ballance J., pronounced on March 21, 2018, indexed at 2018 BCSC 464. That judgment brought an end to proceedings commenced in 2003 and prosecuted in fits and starts over the years, and at trial between June 2008 and September 2016. The appellant attempted to add Canada Trustco Mortgage Corporation and Surjit Chandok as parties to those proceedings. Her application to do so was dismissed on April 8, 2008. [4] Canada Trustco’s involvement in the appellant’s financial affairs is described at paras. 24‑26 of the reasons for judgment of Ballance J. In 1991, the appellant was taken by the fraudster, a Ms. Wood, to Canada Trustco to arrange to place a first mortgage on her home in the Oakridge area of Vancouver. Proceeds of that mortgage were obtained by the fraudster and, together with other advances made by the appellant to Wood, were the subject of the trial heard by Ballance J. [5] The Canada Trustco mortgage went into arrears. Foreclosure proceedings were commenced. An Order Nisi of foreclosure was obtained by Canada Trustco on July 9, 1999. The appellant’s appeal of the Canada Trustco Order Nisi was dismissed by Bowden J. on March 16, 2017. [6] Chandok’s involvement in the appellant’s financial affairs is described at paras. 43‑56 of the reasons for judgment of Ballance J. In 1996, the appellant was taken by Ms. Wood to an individual who privately arranged to place a second mortgage on the Oakridge home. Chandok eventually replaced that second mortgagee. The second mortgage fell into arrears. Foreclosure proceedings were commenced. On August 19, 1999, an Order Nisi of foreclosure was made. An application to extend the time within which that order might be appealed was dismissed on November 25, 1999. On January 7, 2000 an Order Absolute of foreclosure was made. [7] On June 8, 2016, these proceedings were commenced by the appellant in the Supreme Court of British Columbia. The Notice of Civil Claim, amended on January 27, 2017, challenged the validity of the first and second mortgages. [8] On March 16, 2017, the proceedings in Supreme Court were dismissed by Bowden J. [9] The order of Bowden J. was appealed on April 4, 2017. The appeal was moved to the inactive list on April 9, 2018. [10] The appellant’s application for an order removing the appeal from the inactive list was heard by Newbury J.A. on May 22, 2018 and dismissed. In her reasons dismissing the application Newbury J.A. held: [11]      Ms. Mass has known about the frauds on the part of Ms. Wood and all the actions of the lenders since before the foreclosure took place in 1999. Thus at least 19 years have passed since the events she now complains of. All limitations, even allowing for postponement, have long since expired. In my opinion, the claims asserted are also statute barred and barred as res judicata . Cause of action estoppel may also apply to at least some of her claims. [12]      In my opinion it would not be in the interests of justice to spend further public resources on the unfortunate events that have been explored at such great length in the fraud trial. I understand that Ms. Mass’ judgment against Ms. Wood is a dry one, but unfortunately for Ms. Mass that does not change the facts I have described and the law that applies to those facts. I am therefore dismissing the applications. [11] Section 9(6) of the Court of Appeal Act , R.S.B.C. 1996, c. 77, provides that the court may discharge or vary any order made by a justice other than an order granting leave to appeal. Section 34 of the Court of Appeal Rules provides that a party wishing to bring an application under section 9(6) of the Act must prepare a Notice of Application to vary the order in Form 15, file the Notice, and serve it on each of the other parties within seven days after the order was made. The appellant did not do so. [12] On October 16, 2018, the appellant appeared before Harris J.A. and sought an order extending the time within which to do so. [13] Harris J.A. held that the criteria that should apply on the application were well established: [3]        … I have to consider whether there was a bona fide intention to appeal, whether the respondents were informed that intention, any prejudice that might arise from extension of time in the merits of the proposed application. These factors are all encompassed by whether it is in the overall interests of justice to grant the extension. [14] He concluded: [10]      Having examined the materials before Madam Justice Newbury, I am not persuaded that she misapprehended, in any material way, the facts underlying the exercise of her discretion. Ms. Mass has not persuaded me that there is new evidence, either that Madam Justice Newbury misapprehended, or that is capable of undermining her conclusion, in substance, that the appeal of the order Mr. Justice Bowden was bound to fail. [11]      As a result I do not think there is any prospect that a division of this court could interfere with Madam Justice Newbury’s order on a review application. The proposed review application is so lacking in merit that the interests of justice do not support extending time. [12]      As well, I am concerned about the length of time that has elapsed before this application was brought. I accept that Ms. Mass did not understand the nature of her appeal remedies arising from Madam Justice Newbury’s order. That is not, however, explain the delay in bringing the application once Ms. Mass learned of the true position in July of this year. Likely I would not have refused to extend time if this true if this delay were the sole impediment to doing so. Rather, I ground my decision not to extend time on the lack of merit in the proposed application to review. I share Madam Justice Newbury’s opinion that it is not in the interests of justice to spend more resources on this matter, which must come to an end. [15] In a lengthy written submission provided to us today, Ms. Mass seeks not only an order varying the order of Harris J.A. but other relief, including an order removing her appeal from the inactive list. The only matter properly before us is the application to vary the order of Harris J.A. by extending the time within which to seek a review under Rule 9(6). [16] In those written submissions, Ms. Mass argues that both Harris and Newbury JJ.A. were under a misapprehension with respect to the extent to which newly discovered evidence would enable her to make out a meritorious claim against the respondents. She claims that the full extent of the fraud perpetrated upon her by the fraudster was unknown to her until the trial before Ballance J. concluded in September 2016. However, the material substantiates rather than undermines Newbury J.A.’s conclusion that Ms. Mass has known about the fraud on the part of Ms. Wood and all the actions of the lenders since 1999. The appellant herself notes in para. 96 of the written submissions: With the commencement of the foreclosure actions I realized that I was defrauded by the mortgagees themselves and in hindsight they were perpetrators of the Fraud in participation with the fraudster. [17] It was not necessary for the appellant to fully comprehend the extent to which Ms. Wood had defrauded her in order to contest the validity of the mortgages that are the subject of these proceedings. [18] In my opinion, the appellant has not established any error in principle or that Harris J.A. misconceived facts or that relevant information was not brought to his attention when he dismissed the application to extend the time to seek a review of Newbury J.A.’s order. In particular, he did not err in concluding there was no prospect that a division of this Court could interfere with Newbury J.A.’s order on a review application. Newbury J.A., in turn, was not under a misapprehension when she concluded that all limitations, even allowing for postponement, have long since expired and the claims asserted are statute barred and barred as res judicata. [19] The appellant seeks leave to adduce new evidence on this application. The evidence the appellant seeks to adduce, set out in her affidavit filed on December 7, 2018, is a recital of evidence that was available to the appellant at the time the application came on for hearing before Harris J.A. and before her application came on for hearing before Newbury J.A. I would not grant leave to adduce new evidence. In any event, the evidence does not address the fundamental weakness of the appellant’s case, set out in great detail in the judgment of Newbury J.A. [20] I would dismiss the application. [21] FRANKEL J.A. : I agree. [22] SAVAGE J.A. : I agree. [23] FRANKEL J.A. : The application is dismissed. “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Staetter v. British Columbia (Adult Forensic Psychiatric Services), 2019 BCCA 40 Date: 20190129 Docket: CA45596 Between: Christopher Michael Staetter Appellant And Director of Adult Forensic Psychiatric Services and The Attorney General of British Columbia Respondents Before: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Willcock The Honourable Mr. Justice Savage On appeal from: An order of the British Columbia Review Board, dated August 8, 2018). Oral Reasons for Judgment Acting on his own behalf: C.M. Staetter Counsel for the Respondent, Director of Adult Forensic Psychiatric Services: D.K. Lovett, Q.C. Counsel for the Respondent, Attorney General of British Columbia: L.D. Hillaby Place and Date of Hearing: Vancouver, British Columbia January 29, 2019 Place and Date of Judgment: Vancouver, British Columbia January 29, 2019 Summary: S., who was found not criminally responsible on account of mental disorder, appeals from a decision of the British Columbia Review Board ordering his continued detention. Held: Appeal dismissed. The Board’s decision is reasonable. S. continues to have delusions and, if released, would pose a significant risk to public safety. [1] FRANKEL J.A. : This appeal is brought by Christopher Michael Staetter, pursuant to s. 672 of the Criminal Code , R.S.C. 1995, c. C-46, from a custodial disposition order made by the British Columbia Review Board on August 8, 2018. [2] On October 19, 2012, Mr. Staetter was found not criminally responsible on account of mental disorder (“NCRMD”) on two counts of criminal harassment, one count of uttering threats, and one count of uttering a threat to cause death or bodily harm. The trial judge committed Mr. Staetter to the care of the Adult Forensic Psychiatric Services and, pursuant to s. 672.45(1.1) of the Criminal Code , referred him to the Board for disposition. On November 27, 2012, the Board ordered a custodial disposition under s. 672.45(1): [2012] B.C.R.B.D. No. 72. Thereafter, as required by s. 672.81(1), the Board has conducted annual reviews of Mr. Staetter’s status. On each occasion the Board found Mr. Staetter to be “a significant threat to the safety of the public” (s. 672.54) and ordered him detained. Mr. Staetter suffers from schizoaffective disorder complicated by chronic substance abuse, primarily marihuana. [3] This Court has considered and dismissed previous appeals brought by Mr. Staetter from custodial dispositions: · From the November 27, 2012 decision detaining him: 2013 BCCA 307, 340 B.C.A.C. 94. · From the September 16, 2014 decision detaining him for a further 12 months: 2015 BCCA 63, 367 B.C.A.C. 226, leave to appeal ref’d [2015] 3 S.C.R. xi. · From the September 11, 2015 decision detaining him for a further 12 months: 2016 BCCA 167. · From the September 8, 2016 decision detaining him for a further 12 months: 2017 BCCA 68, leave to appeal ref’d [2018] S.C.C.A. No. 219. · From the September 6, 2017 decision detaining him for a further 12 months: 2018 BCCA 125. [4] The index offences were committed in relation to a young woman, P.H., and her father. They were subjected to dozens of voicemail and text messages sent by Mr. Staetter in March and April 2012. The content of those messages was threatening and disturbing. Their basic theme related to Mr. Staetter’s entrenched and false belief that he fathered a son with P.H. He has intractable beliefs he can teleport himself, others, and objects. He believes he teleported himself into P.H.’s bedroom in 2005, where he saw his son in a crib. The victim impact statements established that P.H. and her family experienced significant psychological harm. [5] In its September 6, 2017 decision the Board said this: [24]      There has been no material change in Mr. Staetter’s mental status over the last year. He remains utterly devoid of any insight into circumstances, including his illness, the need for treatment, the risks of marijuana use, and the harms that he has caused the victims. The accused was permitted to represent himself at this hearing. Throughout the proceedings he tried to prove the truth of his delusions, the injustice of his circumstances, and the evils of psychiatry. Aside from reinforcing the evidence with respect to the entrenched nature of his symptoms, the Board was challenged to keep the conduct of the hearing focused on relevant evidence and issues. [25]      We fully agree with the reasons of the last panel on the threshold issue of significant threat as set out in paragraph five of these reasons. The Board’s decision was upheld by the Court of Appeal. Considering the absence of changes in the material factors that affect the accused’s risk, we had little hesitation in determining that he remained a significant threat to public safety. [6] Starting on May 14, 2018, Mr. Staetter began communicating with the Board’s registry by email and telephone, making requests for subpoenas to be issued for two police officers whom he asserts can establish the truth of his beliefs. The tone and content of those emails changed on June 19th. In the first email he described in explicit detail the nature of his alleged sexual relationship with P.H. In a subsequent email the same day he wrote that in order to get the new trial he wants, he “would have to do something silly like I know … maybe harass them with voicemails and text messages and get criminal charges.” The email contained references to his continuing beliefs, including his ability to teleport and being a god. He also expressed frustration with the court and Board not permitting him to introduce evidence he believes is relevant. A third email again contained explicit details of his belief about his relationship with P.H. [7] On June 20, 2018, Mr. Staetter’s treatment team was notified of his communications with the Board. This resulted in his privileges being put on hold. When asked about those communications, he repeated his beliefs that he had sexual relations with P.H. and can teleport himself. He stated he wanted to call witnesses to confirm those beliefs. He said he did not intend to contact P.H., but that she took six years of his life. He also said it was a mistake sending the emails and that he does not plan on doing so again. [8] Mr. Staetter has a lengthy criminal record dating back to 2006. His convictions include criminal harassment, uttering threats, assault, and breach of probation. [9] In a report dated July 15, 2018, Dr. Barinder Singh, Mr. Staetter’s treating forensic psychiatrist, referred to emails Mr. Staetter had sent to the Director in which he: (i) spoke in explicit detail of having sexual relations with P.H.; (ii) claimed P.H. and her father had committed perjury; and (iii) had witnesses who could confirm his ability to teleport himself. [10] Under the heading “Clinical Factors”, Dr. Singh stated Mr. Staetter: · Does not believe he suffers from a mental illness and believes the medications prescribed for him “are poison and he doesn’t need to take them”. · Has not shown any violent ideation or intent recently but his emails to the Director raise concerns with respect to his reaching out to P.H. · Denies having any hallucinations and reports he: (i) has a son with P.H.; (ii) will not contact her again; and (iii) has witnesses who can confirm his ability to teleport himself. · “[B]egrudgingly participates in programs and cooperates with the treatment team.” [11] Later, in that report, Dr. Singh states: [9]     RISK SENARIOS: 1.     In the worst case scenario, if Mr. Staetter was not supervised, he could stop taking his medications and start using marijuana, which in the past has exacerbated his mental illness and led to the index offence. In this case scenario, he would have end up [ sic ] causing psychological or physical harm to someone known to him in his vicinity or even a stranger. 2.     If Mr. Staetter continues to have active symptoms of his mental illness. He is likely to always believe that he had a relationship with the victim and about the existence of his son. In the best case scenario, if he takes his medications, abstains from marijuana and is supervised, he could be stable in the community. However, the risk to the victim remains in case Mr. Staetter was to act impulsively and reach out to her again. [10] SECTION 672.54: i.      The need to protect the public from dangerous persons, which is of paramount consideration: Given Mr. Staetter’s history and the index offence, Mr. Staetter remains at risk to harm others should he have deterioration in his mental health or if he were to use illicit substances, which have worsened his illness in the past. Mr. Staetter continues have limited insight into his illness and remains at risk to the public. ii.     The need to consider the mental state of the accused: Mr. Staetter continues to believe that he has a child with the victim and that he had a relationship with her. He reports that he can call witness who can prove that he had a relationship with the victim and that he can teleport himself. iii.    The reintegration of the accused into society: It would be important for Mr. Staetter to continue with his medications and to abstain from using marijuana. He reports that he plans to start smoking marijuana as soon as he is absolutely released. He reports that he will get a green card from a doctor in the community and smoke marijuana for medicinal purposes. The treatment team continues to proceed cautiously and gradually to reintegrate Mr. Staetter into the community while monitoring his response and coping abilities. [11]   RECOMMENDATIONS: 1.     It is the treatment team’s recommendation that the Review Board consider a custody disposition at this time. [12] Mr. Staetter was represented by counsel at the Board’s most recent hearing. At that hearing, the Board heard from Dr. Singh and Mr. Staetter. Mr. Staetter’s counsel submitted Mr. Staetter should be granted an absolute discharge or, in the alternative, a conditional discharge. Counsel for the Director and counsel for the Attorney General of British Columbia both submitted a custodial disposition was appropriate. [13] In finding that Mr. Staetter continued to pose a significant threat to the safety of the public, the Board stated: [24]      The index offences were part of a longstanding pattern of harassing the victims. That pattern has been interrupted since Mr. Staetter has been in FPH and under the jurisdiction of the Review Board. In the past year he has had frequent unsupervised access to the community on day leaves, and then almost two months in Johnson Manor. He has not contacted the victims of the index offences, and maintains that he has no intention of doing so. However, the delusions that led to the commission of the offences appear to be as strongly held as ever. He continues to blame the victims for his current situation and is particularly resentful because he believes that had he been convicted of the offences rather than being found not criminally responsible, he would have been sentenced to no more than 18 months in custody. Mr. Staetter believes that he was not fairly treated by the trial court, when he was not permitted to call witnesses that he believed would establish the truth of his allegations. He has been frustrated by the continued refusal of the Review Board to permit him to call these witnesses, and has unsuccessfully appealed to the BC Court of Appeal on numerous occasions. The second email of June 19, 2018 said that his only strategy to get a new trial would be to commit further actions similar to the index offences. He is also focused on strategies to hold the victims accountable for what he believes was perjury. [25]      Although Mr. Staetter is clearly frustrated by the Review Board process, he conducted himself respectfully and followed the advice of his lawyer. He can be forthcoming to his treatment team about his thoughts and beliefs, but Dr. Singh acknowledged in her evidence that they were not fully aware of the continued intensity of Mr. Staetter’s delusions. In his evidence, Mr. Staetter said that what he had learned from this recent experience was that everything you say can be used against you, suggesting that he may be even more cautious in the future about disclosing his thoughts to his treatment team. Because of this, Mr. Staetter is a difficult patient to assess. The recent emails illustrated that he had been ruminating about things in a way that his treatment team had not suspected. The tenacity of his beliefs is very concerning as Mr. Staetter’s history is of impulsive behavior on the basis of his false beliefs. Dr. Singh testified that although strong false beliefs are unlikely to disappear as a result of medication, it is the hope that over time they will become less pronounced, and the patient will be less likely to act on them. That is not yet the case for Mr. Staetter. He has demonstrated significant self-control by not contacting the victims, but this has been in the context of significant supervision, largely in custody. [26]      We are satisfied that Mr. Staetter continues to present a significant risk to public safety, and there is not plan in place, or even contemplated at this point, that would be sufficient to manage the risk he presents in the community. We therefore impose a further custody order, with the same terms and conditions as the current order. [14] Mr. Staetter filed a number of documents in support of his appeal, none of which are relevant. The majority are copies of letters Mr. Staetter sent to Dr. Marcel Hediger, his current treating forensic psychiatrist, in late 2018, i.e., months after the decision under appeal. In those letters, which are written in a rambling fashion, Mr. Staetter raises numerous complaints with respect to his continued detention and treatment. Among other things, he asks for a prescription for marihuana (“his main religious belief”), seeks his immediate release, accuses P.H. and her family of committing perjury, and asserts he was denied a proper trial and an appeal. [15] On November 25, 2018, Mr. Staetter emailed the Board’s registry requesting an early date for his next review hearing. He stated he wished to call two police officers to give evidence and that the NCRMD verdict was based on perjury. On December 6, 2018, the Board denied his request. Mr. Staetter responded to that denial in an email containing vulgar language. [16] Mr. Staetter also filed an unsworn document headed “Affidavit”. In that document he says the first problem with the Board’s most recent hearing is “falsified transcripts”. He then states his three main arguments are “error of law, unreasonable verdict, miscarriage of justice.”  This is followed by a litany of complaints directed at the trial judge (who he refers to using an offensive term) and his trial counsel. He also complains about being denied an appeal from the NCRMD verdict. [17] By virtue of s. 672.78(1) of the Criminal Code , this Court has the power to allow an appeal against a Review Board’s decision on three grounds: (a) the decision is unreasonable or cannot be supported by the evidence; (b) it is based on a wrong decision on a question of law; or (c) there was a miscarriage of justice. The reasonableness standard of review applies to whether a decision is unreasonable or unsupported by the evidence. In that regard, the following from the judgment of Justice Dickson in Nelson v. British Columbia (Adult Forensic Psychiatric Services) , 2017 BCCA 40, is apposite: [23] The standard of review on appeal from a decision of the Review Board is reasonableness. Mr. Justice Harris described the applicable standard in Calles v. British Columbia (Adult Forensic Psychiatric Services) , 2016 BCCA 318: [14]      The standard of review for this appeal is reasonableness: R. v. Owen , 2003 SCC 33, [2003] 1 S.C.R. 779 at para. 33. Courts recognize that the assessment of whether the mental condition of an NCR accused renders him a significant threat to public safety “calls for significant expertise”: Owen, at para. 30 . As stated in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 at para. 61, “[a]ppellate courts reviewing the dispositions made by a court or Review Board should bear in mind the broad range of these inquiries, the familiarity with the situation of the specific NCR accused that the lower tribunals possess, and the difficulty of assessing whether a given individual poses a ‘significant threat’ to public safety”. [24] This Court does not make its own judgment on the significant threat issue when evaluating whether a Review Board decision under review was reasonable. Rather, it considers the Board's reasoning and substantive decision to determine whether an acceptable and defensible outcome was reached: Carrick (Re) , 2015 ONCA 866 at paras. 24-26. [18] In his submissions this morning, Mr. Staetter repeated his complaints with respect to his continued detention and treatment. He referred to a number of persons who have been given conditional or absolute discharges. He advanced a free-flowing and wide-ranging argument that he has been dealt with unjustly, including allegations that members of the judiciary have engaged in perjury and should be investigated by the police. [19] In my view, Mr. Staetter has not demonstrated the Board’s decision is unreasonable. [20] In the result, I would dismiss this appeal. [21] WILLCOCK J.A. : I agree. [22] SAVAGE J.A. : I agree. [23] FRANKEL J.A. : The appeal is dismissed. “The Honourable Mr. Justice Frankel”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Coburn and Watson’s Metropolitan Home v. Home Depot of Canada Inc., 2019 BCCA 35 Date: 20190130 Dockets: CA45499; CA45513 Docket: CA45499 Between: Coburn and Watson’s Metropolitan Home dba Metropolitan Home Respondent (Plaintiff) And Home Depot of Canada Inc. Appellant (Plaintiff Class Member) And BMO Financial Group, Bank of Nova Scotia, Canadian Imperial Bank of Commerce, MasterCard International Incorporated, National Bank of Canada Inc., Royal Bank of Canada, Toronto-Dominion Bank and Visa Canada Corporation Respondents (Defendants) And Wal-Mart Canada Corp. Respondent (Plaintiff Class Member) - and - Docket: CA45513 Between: Coburn and Watson’s Metropolitan Home dba Metropolitan Home Respondent (Plaintiff) And Wal-Mart Canada Corp. Appellant (Plaintiff Class Member) And BMO Financial Group, Bank of Nova Scotia, Canadian Imperial Bank of Commerce, MasterCard International Incorporated, National Bank of Canada Inc., Royal Bank of Canada, Toronto-Dominion Bank and Visa Canada Corporation Respondents (Defendants) Before: The Honourable Madam Justice Newbury (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated July 13, 2018 ( Coburn and Watson’s Metropolitan Home v. BMO Financial Group , 2018 BCSC 1183, Vancouver Docket S-112003). Counsel for the Appellant Home Depot of Canada Inc.: J. Orr K. Taylor Counsel for the Appellant Wal-Mart Canada Corp.: E. Babin Counsel for the Respondent Coburn and Watson’s Metropolitan Home: L. Brasil C. Hermanson K. Duke Counsel for the Respondents, BMO Financial Group, Bank of Nova Scotia, Canadian Imperial Bank of Commerce, Royal Bank of Canada, and Toronto-Dominion Bank: K. Kay Counsel for the Respondent MasterCard International Incorporated: J. Simpson J. Musgrove Counsel for the Respondent National Bank of Canada Inc.: S. Griffin Counsel for the Respondent Visa Canada Corporation: R. Kwinter Place and Date of Hearing: Vancouver, British Columbia January 15, 2019 Place and Date of Judgment: Vancouver, British Columbia January 30, 2019 Written Reasons by: The Honourable Madam Justice Newbury Summary: The plaintiff class members’ appeal of settlement approval orders in class proceedings are ordered to proceed before a division of this court to consider: (1) whether an appeal lies in respect of a settlement approval order under the Class Proceedings Act; and if so, (2) whether such an appeal may be properly brought by a member of the plaintiff class with or without being added as a party to the action. Reasons for Judgment of the Honourable Madam Justice Newbury: [1] Before the Court are applications made in connection with purported appeals in a class action brought against certain financial institutions, notably Visa Canada Corporation (“Visa”), MasterCard International Incorporated (“MasterCard”) and National Bank of Canada Inc., on behalf of various merchants, including the applicants Home Depot of Canada Inc. (“Home Depot”) and Wal-Mart Canada Corp. (“Wal-Mart”). In its pleading, the representative plaintiff, “Coburn”, alleged that the defendants had conspired with other financial institutions to set so-called “interchange fees” (fees charged to merchants when they accept Visa or MasterCard credit cards); and that they had conspired with issuing banks to set rules that discourage the use of credit cards that have lower costs to merchants. The action was begun in British Columbia in 2011, and followed similar actions filed in other provinces of Canada. It was certified in 2014 pursuant to the Class Proceedings Act , R.S.B.C. 1996, c. 50 (“ CPA ”). Overall, over 650,000 merchants were represented in the actions across Canada. [2] Similar class proceedings had already been brought in the United States against the American counterparts of Visa and MasterCard and related financial institutions. In mid-2016, an order approving the settlement of the U.S. actions was overturned by the U.S. Court of Appeals for the Second Circuit. That court expressed concern regarding the broad terms of a release that, in the words of Justice Jacobs, “permanently immunize[d] the defendants from any claims that any plaintiff may have now, or will have in the future, that arise out of, e.g., the honor-all-cards and default interchange rules.” He described the settlement as “so unreasonable that it evidences inadequate representation.” (See In Re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation , 827 F. (3d) 223 (2016). [3] By mid-2017, the plaintiffs in the Canadian actions had negotiated settlements with Visa, MasterCard and National Bank. In December, 2017 the B.C. action was finally certified in anticipation of the hearing for court approval of the settlements of the claims against Visa, MasterCard and the National Bank. Although they were members of the plaintiff class, Wal-Mart and Home Depot say they did not become aware of the proposed settlements until shortly before the date set for the approval hearings in July 2018. Counsel for Home Depot and Wal-Mart both appeared, Home Depot objecting to the Visa and MasterCard settlements, and Wal-Mart objecting to all three settlements. [4] Under the settlement agreements each of the three defendants agreed to pay a “Settlement Amount” – $19.5 million payable by each of Visa and MasterCard and $6 million by the National Bank – to the plaintiff class.  According to the factum filed by Home Depot, these amounts averaged about $65 per member before deduction of the fees of class counsel. The settlements also dealt with “surcharges” that merchants would be entitled to charge their customers, and contained a release of claims relating to specified future conduct. [5] The chambers judge below approved the settlements on July 13, 2018 for reasons indexed as 2018 BCSC 1183. As well, he approved legal fees in relation to the latest round of settlements for class counsel, in the amount of $11,250,000. [6] The applicants Home Depot and Wal-Mart seek to appeal the approval orders on the ground that the chambers judge erred in approving the settlements as “fair and reasonable” and in the best interests of the “settlement class”. Home Depot contends that the settlements are unreasonable and unfair to members of the plaintiff class on a cost-benefit basis; that class members were not given sufficient notice of or information about them; that the settlements include releases that are “anti-competitive” and that will sanction behaviour that may in future be found to be improper or illegal; and that members of the plaintiff class were deprived of their statutory rights to opt out of the class in order to avoid the “unprecedented negative effects” of the settlements. For its part, Wal-Mart asserts that the settlements are “extremely advantageous” to the three defendants and “extremely disadvantageous” to the plaintiff class members. Further, it contends: 12.       … the Plaintiff has agreed to provide a release that may give Visa and MasterCard carte blanche (and immunity from civil action) to continue, forever, to engage in a very broad range of improper conduct, provided they can argue that it is currently occurring. Such a release appears to be unprecedented in class proceedings. Although Visa and MasterCard claim that without such a release, it would be impossible to settle this case, this statement is belied by the agreements reached with the Prior Settling Defendants (which only release claims for acts or omissions during the pendency of the class proceedings). The breadth of the release in the present Settlements is exacerbated by the “most favoured nation”, “no further claims” and “no assistance” provisions. 13.       Also in exchange for this paltry sum, the Plaintiff has agreed class members will not continue to assert any claim for modification or abrogation of any of the Visa/MasterCard Rules, or seek any declaratory or other relief asserting that these restraints are illegal, unlawful or unenforceable. Although Visa and MasterCard have agreed that they will make amendments to the “No Surcharge” rule, Wal-Mart Canada has no present intention to implement surcharges, and all of the other Visa and MasterCard rules will remain in place. The modification is also time-limited. After five years, Visa and MasterCard are entitled to reinstate the “No Surcharge” rule. If they do, Releasors may sue, but only in respect of the “No Surcharge” rule, and nothing else. 14.       No sum of money would be sufficient to compensate the Settlement Class Members for the benefits being obtained by Visa and MasterCard, and by National Bank, under the Settlements. [7] In terms of policy, the applicants also argued that there is a need for judicial (and appellate) scrutiny over settlements under the CPA , which are usually reached without any opposition or direct participation by members of the plaintiff class. Mr. Babin emphasized that class proceedings are designed in part to provide access to justice for large groups of consumers or other persons who would not normally be in an economic position to sue; and that the goal of behaviour modification by lawbreakers is usually an important part of such “justice”: see Hollick v. Toronto (City) 2001 SCC 68 at para. 15. In the applicants’ submission, that goal has not been achieved by the settlement in this case; nor is judicial economy achieved, given that a 120-day trial remains on foot for later in 2019 involving other defendants. Procedural Issues [8] The actual applications filed in this court by Home Depot and Wal-Mart were slightly different in terms of procedure: Home Depot sought an order that the appeal had been properly brought by notice of appeal or alternatively, sought leave to act as a representative plaintiff to appeal; Wal-Mart applied for leave to appeal, or alternatively, if leave was not required, to have the three settlement orders set aside on the ground that they were not fair and reasonable or in the plaintiffs’ best interests. (A motion seeking directions, filed by counsel for Home Depot, was withdrawn.) [9] Unfortunately, the procedural issues that arise from these applications are more complicated than first appears. In general terms, two main issues must be addressed – whether a right of appeal exists at all from a settlement order made under the CPA , and whether a member of the plaintiff class (as opposed to a party such as the representative plaintiff) may bring such an appeal in this province (bearing in mind that it is evidently now too late for the applicants to opt out of the action.) I turn to those questions below. Is a Settlement Order Under the CPA Appealable? [10] I believe it is common ground that s. 36 of the CP A does not refer to an appeal from a settlement order.  It provides as follows: 36 (1) Any party may appeal to the Court of Appeal from (a) an order certifying or refusing to certify a proceeding as a class proceeding, (b) an order decertifying a proceeding, (c) a judgment on common issues, and (d) an order under Division 2 of this Part, other than an order that determines individual claims made by class or subclass members. (2) If a representative plaintiff does not appeal as permitted by subsection (1) within the time limit for bringing an appeal set under section 14 (1) (a) of the Court of Appeal Act or if a representative plaintiff abandons an appeal under subsection (1), any member of the class or subclass for which the representative plaintiff had been appointed may apply to a justice of the Court of Appeal for leave to act as the representative plaintiff for the purposes of subsection (1). (3) An application by a class or subclass member for leave to act as the representative plaintiff under subsection (2) must be made within 30 days after the expiry of the appeal period available to the representative plaintiff or by such other date as the justice may order. (4) With leave of a justice of the Court of Appeal, a class or subclass member, a representative plaintiff or a defendant may appeal to that court any order (a) determining an individual claim made by a class or subclass member, or (b) dismissing an individual claim for monetary relief made by a class or subclass member. Section 40 of the CPA also states: 40  The Supreme Court Civil Rules apply to class proceedings to the extent that those rules are not in conflict with this Act. [11] I am aware of only two decisions of this court dealing with an appeal from an order in a class proceeding that did not fall within the terms of s. 36. In Samos Investments Inc. v. Pattison et al. 2004 BCCA 278, the plaintiff (a would-be representative plaintiff) sought directions as to whether it required leave to appeal an order that refused leave to certify a revised plaintiff class under the CPA , and to amend its pleadings accordingly. At the time the application was heard in 2004, ss. 6 and 7 of the Court of Appeal Act , R.S.B.C. 1996, c. 77, required leave for appeals from, inter alia , interlocutory orders. [12] Chief Justice Finch disagreed in Samos with the plaintiff's argument that the order sought to be appealed came within the terms of s. 36 of the CPA. Therefore, he said, the plaintiff did not have a statutory right of appeal under that Act and “leave to appeal must otherwise be obtained.” In his analysis: Dealing first with the question of whether the order comes within s.36(1) of the CPA , counsel for the plaintiff [applicant] says that refusal of leave under s.2(3)(b) [of the CPA ] has the same effect as an order refusing certification. I respectfully disagree. The order refusing leave was a discretionary judgment as to whether the time for making the application should be extended beyond the 90 day period specified in s.2. In reaching a decision on that issue the judge could properly consider the history of the proceedings, the conduct of the parties, and the likelihood or otherwise, of a proper class eventually being defined. It is, in my view, an order of a different character from those specified in s.36. An appeal from that order poses the question of whether leave to apply for certification was wrongly refused, rather than whether certification was wrongly refused. The plaintiff therefore does not have a statutory right of appeal under the CPA . Turning to the question of whether the order is final or interlocutory, the test is whether the order finally disposes of the rights of the parties ... [At paras. 17-8; emphasis added.] [13] The Chief Justice went on to find that the plaintiff's rights had not been finally disposed of, since the plaintiff could still pursue the action as an ordinary one. Again in the words of Finch C.J.B.C.: The order in this case dismissing the plaintiff’s application for leave under s.2(3)(b) to certify the proceeding in respect of the new class does not fall within any of s-s.(a) to (d) of s.36(1), nor is it a final order. It follows that leave to appeal must be obtained. [At para. 22; emphasis added.] He directed the plaintiff to seek leave to appeal the order in question. [14] Similar reasoning was adopted in Harrington v. Dow Corning Corp. et al. 2001 BCCA 534, where the applicant was the representative plaintiff. [15] Samos and Harrington may be taken as suggesting, then, that even though an order obtained in a class proceeding is not one for which s. 36 of the CPA provides an appeal, an appeal or right to seek leave to appeal may nevertheless arise under the Court of Appeal Act. [16] In 2012, the Court of Appeal Act was amended such that ss. 6 and 7 read as follows: 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, and (b) in any matter where jurisdiction is given to it under an enactment of British Columbia or Canada. (2) If another enactment of British Columbia or Canada provides that there is no appeal, or a limited right of appeal , from an order referred to in subsection (1), that enactment prevails. 7 (1) In this section, “limited appeal order” means an order prescribed under the rules as a limited appeal order. (2) Despite section 6 (1) of this Act, an appeal does not lie to the court from a limited appeal order without leave being granted by a justice. (3) In an order granting leave to appeal under this or any other Act, a justice may limit the grounds of appeal. [Emphasis added.] S. 2.1 of the Court of Appeal Rules, B.C. Reg . 297/2001, prescribes the types of orders that are “limited appeal orders”. Counsel are in agreement that an appeal of a settlement order under the CPA does not qualify as a “limited appeal order”. [17] The reasoning in Samos and Harrington concerning s. 36 differs from at least one case decided at the appellate level in Ontario, although one must keep in mind that the legislation of the two provinces differs. Mr. Orr referred us to Dabbs v. Sun Life Assurance Co. of Canada Ltd. (1998) 165 D.L.R. (4th) 482 (Ont. C.A.), which is relevant to both procedural points at issue in the case at bar. In Dabbs , Mr. Maclean, a member of the plaintiff class, disagreed with the terms of a settlement that had been approved under s. 29 of the Ontario Class Proceedings Act, 1992, S.O. 1992, c. 6 (“ OCPA ”). He sought leave to appeal. At the same time, the representative plaintiff, Mr. Dabbs, sought to have the appeal quashed, primarily on the basis that Mr. Maclean was not a party and therefore had no standing to bring an appeal.  At the time, s. 30 provided in relevant part: 30 (1) A party may appeal to the Divisional Court from an order refusing to certify a proceeding as a class proceeding and from an order decertifying a proceeding. ... (3) A party may appeal to the Court of Appeal from a judgment on common issues and from an order under section 24, other than an order that determines individual claims made by class members. ... (5) If a representative party does not appeal as permitted by subsection (3), or if a representative party abandons an appeal under subsection (3), any class member may make a motion to the Court of Appeal for leave to act as the representative party for the purposes of subsection (3). S. 6(1)(b) of the Courts of Justice Act , R.S.O. 1990, c. C-43 provided a general right of appeal from a final order of a judge of the General Division. (It was subsequently amended to provide a right of appeal to the Court of Appeal from a final order of the Superior Court.) [18] The Court of Appeal agreed with the representative plaintiff’s position, noting that one of the purposes of class actions is to handle potentially complex cases of “mass wrongs” efficiently. In the words of Mr. Justice O’Connor (as he then was) for the Court of Appeal: This efficiency is accomplished, in part, by the court appointment of one or more class members under s. 5 to be representative plaintiffs or defendants as the case may be. The criteria for appointment include the ability to fairly and adequately represent the interests of the class. A representative plaintiff or defendant is a party to the proceeding and has the specific rights and responsibilities for the carriage of the litigation on behalf of the class that are set out in the Act . The Act makes a clear distinction between the role of a party and that of a class member . Section 14 gives the court a broad discretion to permit class members to participate in a proceeding and to provide for the manner and terms upon which the participation is permitted. Not surprisingly, s. 14 does not provide that class members who are permitted to participate thereby become parties to the proceeding. The section does not restrict participation to those class members who are able to fairly and adequately represent the class. Indeed, the court may permit participation by those who oppose the manner in which the party representing the class is conducting the proceeding and who assert positions that differ from those of the majority of the class. While the court may consider it useful to hear from these class members and to permit them to participate in a limited manner, it could frustrate the orderly and efficient management of the proceeding if they became parties simply because of their participation. If class members are dissatisfied with the conduct of a proceeding or do not wish to be bound by the result, they may opt out under s. 9 and pursue their claims or defences in a personal capacity . [At paras. 6 ‒ 8; emphasis added.] [19] Mr. Maclean also argued that the settlement order was a final order of the General Division of the Ontario Court and that accordingly, he had a right of appeal under s. 30(3) of the OCPA. The Court of Appeal disagreed, citing the rules of statutory construction that a general statute ‘yields’ to a more specific one, and that a more recent statute takes precedence over prior legislation. Both presumptions led to the conclusion that the appeal provisions in s. 30(3) of the OCPA took precedence over s. 6(1)(b) of the Courts of Justice Act . (See para. 13.) In summary, the Court stated: .I am of the view that s. 30(3) of the Act provides the rights of appeal to this court for class proceedings and that s. 6(1)(b) of the Courts of Justice Act does not supplement those rights . [At para. 17; emphasis added.] [20] Finally, the Court refused to grant Mr. Maclean’s motion to be permitted to act as a “representative party” in order to bring his appeal. There was nothing in the record, O’Connor J.A. said, to indicate that Mr. Maclean would adequately represent the interests of the plaintiff class by bringing an appeal to set aside the settlement agreement. The Court continued: Courts in three jurisdictions have approved the agreement. Maclean is the only class member of an estimated 400,000 who now seeks to set it aside. The wishes of one class member ought not to govern the interests of the entire class. Importantly, if Maclean is dissatisfied with this settlement, he has the opportunity under the terms of Sharpe J.’s judgment and s. 9 of the [ Class Proceedings Act , 1992 ] to opt out of the class and pursue his claim against Sun Life in his personal capacity . [At paras. 19 ‒ 20; emphasis added.] The Court dismissed both motions. [21] In a 2013 case, Cavanaugh v. Grenville Christian College 2013 ONCA 139, the Court of Appeal distinguished Dabbs and found that an appeal to that court existed under s. 6(1)(b) of the Courts of Justice Act. In the words of Mr. Justice Doherty: The result in Dabbs flows from a reading of the [O]CPA as creating a specific right of appeal applicable to the circumstances before the court and limited to a party. The court held that when a statute creates a specific right of appeal, another statute providing a more general right of appeal, like the CJA [ Courts of Justice Act ], cannot be used to create a different right of appeal than that set out in the specific legislation . Dabbs is consistent with the language of s. 6(1)(b) of the CJA . Because Dabbs interpreted the relevant part of the [O]CPA as creating a specific right of appeal applicable in the circumstances of the case and limited to parties, s. 6(1)(b) could not be used to expand that right of appeal to entities who were not parties. Dabbs is distinguishable from this case because, I do not read the appeal provisions in s. 30 of the [O]CPA as speaking to an appeal from an order dismissing an action. [At paras. 27 ‒ 8; emphasis added.] In summary, the Court said: the order as it relates to the Diocese is an order dismissing the action. It is not an order granting or refusing certification. Under the terms of s. 6(1)(b) of the CJA , the order dismissing the action against the Diocese is appealable to this court unless there is an appeal to the Divisional Court . If there is an appeal to the Divisional Court, it must be found within the terms of s. 30 of the CPA . None of the provisions in that section directing appeals to the Divisional Court have any application to an order dismissing the action. Therefore, there is no appeal from that order to the Divisional Court. The appeal is to this court. [At para. 32; emphasis added.] [22] Counsel for Home Depot submits that the reasoning in Dabbs has been supplanted more clearly by more recent authorities, including Airia Brands Inc. v. Air Canada 2017 ONCA 792. The class action in that instance alleged a global conspiracy to impose excessive fuel and security surcharges on air freight shipping services to and from Canada. There was a dispute over whether the plaintiff class could properly include “absent foreign claimants” (“AFCs”). The defendants sought a declaration that the Ontario court did not have jurisdiction over AFCs and that the class should be defined to exclude such parties. They sought a stay of the action as it related to such persons on jurisdictional grounds or on the basis of forum non conveniens . The judge below allowed the defendants’ motion after concluding that the “real and substantial connection test” for jurisdiction simpliciter should not be applied, but that the question should be answered by reference to “principles of order and fairness”. [23] The plaintiffs’ appeal was allowed. For our purposes, we need only note paras. 36 and 37 of the Court of Appeal’s reasons, where Pepall J.A. stated: Before engaging in an analysis of these issues, I will first briefly address this court’s jurisdiction to hear the present appeal. Section 30 of the CPA addresses the appropriate appeal routes for a number of types of orders and judgments made in class proceedings. The CPA however makes no reference to the appropriate avenue for appeal of jurisdiction orders. Where the CPA does not specifically address an avenue of appeal, s. 6(1)(b) of the Courts of Justice Act , R.S.O. 1990, c. C. 43 governs whether an appeal in a class proceeding lies to this court: …. The question therefore is whether the jurisdiction order under appeal is final and appealable to this court pursuant to s. 6(1)(b) or whether it is interlocutory. The jurisdiction order finally disposes of the issue of an Ontario court’s jurisdiction over the AFCs, and therefore the present appeal is properly before this court . [At paras. 36 ‒ 7; emphasis added.] The Court made no reference to Dabbs. [24] I was referred to other appellate cases from both this province and Ontario in which appeals from orders in class actions that did not fall within s. 36 of the CPA or other provincial counterparts, were entertained without substantive discussion of whether a right of appeal existed. In Main v. The Hershey Co. 2011 BCCA 21, for example, a settlement approval order was appealed by the “non-settling defendants” without any discussion of s. 36 of the CPA. In a case analogous to this, Coburn and Watson’s Metropolitan Home v. Bank of Montreal 2018 BCCA 432, the representative plaintiff – obviously a party – sought to appeal an order that the defendants were entitled to discover class members in addition to the representative plaintiff. In the course of his reasons, Mr. Justice Tysoe noted that the Court had expressed concern to counsel about its authority to entertain the appeal: We have reservations about the Court’s jurisdiction as a result of the fact that s. 36(1) of the [ CPA ] does not list an order under s. 17 as one of the orders that can be appealed to this Court. Although s. 36 does not explicitly prohibit the Court from entertaining appeals of other orders, it could be interpreted as an implicit prohibition. However, the defendants do not take the position that the Court lacks jurisdiction to deal with this appeal. [At para. 13.] Ultimately, he said, the issue of jurisdiction did not have to be decided because the Court had concluded that the appeal should be dismissed in any event. Does a member of the plaintiff class have an appeal? [25] The second procedural issue in this case results from the fact that Wal-Mart and Home Depot are not “parties” to the class action, but are merely members of the plaintiff class. It will be recalled that s. 36 of the CPA begins with the wording “Any party may appeal ...”. Section 6 of the Court of Appeal Act contains different wording: it states that “... an appeal lies to the court …” from an order of the Supreme Court, subject to s. 7, quoted earlier. However, s.1 defines “appellant” to mean “ the party ” bringing an appeal, and “respondent” to mean “a person, other than the appellant, who was a party ”. (My emphasis.) [26] Counsel did not cite any authority, from British Columbia or elsewhere, that is directly on point with the facts of this case. Counsel did refer to Logan v. Hong 2012 BCCA 399, in which various doctors were seeking leave to appeal an order that required them to provide the representative plaintiff in a class action against the defendant, with certain private information of patients. Madam Justice Ryan in chambers granted leave to the doctors, whom she described as “non-parties subject to the court order”. At para. 13 she observed that the judge below had “accepted as a given” that he had had jurisdiction under s. 12 of the CPA to make the order in question. No objection had been taken to this court’s jurisdiction to do so.  Ultimately, she granted leave to appeal. Leave was also granted in Equustek Solutions Inc. v. Google Inc. 2014 BCCA 295, to Google Inc., a non-resident “non-party”, to appeal an interim injunction granted in an ordinary action (not a class proceeding) against three defendants. (See para. 21.) [27] In other areas of the law, non-parties have been permitted to appeal orders by which they or their interests are directly affected. Where a frustrated prospective purchaser wishes to contest the fairness of an order for sale granted in foreclosure proceedings, for example, the court may permit the frustrated purchaser to appeal: see Bank of Nova Scotia v. Yoshikuni Lumber Ltd. (1992) 99 D.L.R. (4 th ) 289 (B.C.C.A.), where the fairness and integrity of a process of sealed bidding were put in issue. Similar concerns may arise in the case at bar with respect to the fairness and reasonableness of the process by which the settlement was arrived at by the representative plaintiff and the three defendants. [28] S. 9(3) of the Court of Appeal Act, which states that this court may exercise “any original jurisdiction that may be necessary or incidental to the hearing and determination of an appeal” has also been invoked to permit non-parties to appeal. In J.P. v. British Columbia (Children and Family Development) 2015 BCCA 481, Madam Justice Bennett  noted: A Court of Appeal has the ability to permit a non-party to appeal a decision. This issue was canvassed thoroughly in Société des Acadiens v. Association of Parents , [1986] 1 S.C.R. 549, a decision upholding the New Brunswick Court of Appeal. The Court of Appeal had permitted the Association of Parents, non-parties to the lower court action, to file an appeal. The Court invoked its inherent jurisdiction found in s. 8(2) of the Judicature Act R.S.N.B. 1973 c. J-2 as amended. This section is similarly worded to this Court’s s. 9(3). It is clear that this is an inherent jurisdiction that may be exercised by a division of the Court, not a justice (para. 86). See also Proposed Appellants v. Griffiths , 2005 NSCA 85 at para. 1. [At para. 23; emphasis added.] She continued: It seems to me that what Mr. Strickland really wants is an opportunity to make submissions in relation to the findings in relation to misfeasance in public office. In my view, he may be permitted to make these submissions as a party to the appeal. He does not have to be “an appellant”. Mr. Strickland can be added by a justice of the court as a respondent to the appeal under R. 2(2). This rule was considered by Garson J.A. in Adams Lake Indian Band v. British Columbia , 2011 BCCA 339. Sun Peaks Resort sought to be added as a party under R. 2(2), although its position was more or less aligned with the appellant, the Lieutenant Governor in Council. Garson J.A. canvassed the different approaches to adding a party. She discussed the low threshold found in British Columbia Ferry Corp. v. T & N plc (1994), 2 B.C.L.R. (3d) 26 (C.A.) at paras. 10-13 and the more “direct effect” on the applicant approach found in Canada (Attorney General) v. Aluminum Co. of Canada (1987), 10 B.C.L.R. (2d) 371 (C.A.) at 379, which stands for the proposition that a party cannot be added unless the question to be adjudicated between the existing parties cannot be adjudicated unless the new party is added. Each approach may apply depending on the nature of the appeal and the issues that the applicant wishes to raise. The within case is somewhat similar to Butty v. Butty (2009), 98 O.R. (3d) 713 (C.A.), where under the Ontario equivalent to R. 2(2), LaForme J.A. permitted former trial counsel to be added as a party to address the findings of the trial court that he had deliberately misled the court, suppressed information and otherwise conducted himself unprofessionally. [At paras. 26 ‒ 9; emphasis added.] In the result, Bennett J.A. added the applicant as a respondent pursuant to R. 2(2) of the Court of Appeal Rules . [29] Finally under the rubric of procedural issues, Mr. Orr referred to s. 20 of the Court of Appeal Act , which deals with the quashing of an appeal. It provides: 20 A respondent must not be heard (a) on an application to quash an appeal, or (b) to raise a preliminary objection to the appeal being heard unless the respondent has filed and served on the appellant a notice, specifying the ground of the application or objection, at least 7 clear days before the day that has been set for hearing the appeal. The respondents have not applied to have the present “appeal” (if such it be) in this case quashed, but the applicants suggest that one consequence of s. 20 is that only a division of this court may quash an appeal (a proposition that in my view is unassailable), that formal notice is required and that the motion must be heard on the date set for the hearing of the appeal itself. The latter proposition was considered by this court in Carten v. British Columbia (Family Maintenance Enforcement Program) 2015 BCCA 93, where the appellant objected to a motion to quash for which no application had been filed at least seven days before the hearing. The Court ruled that in the circumstances of the case, the objection should not be sustained, and that the Court had “discretion to consider an application to quash an appeal, regardless of timing.” (At para. 7; see also British Columbia (Technology, Innovation and Citizens’ Services) v. Columbus Real Estate Inc. 2017 BCCA 365 at para. 17.) The Defendants’ Response [30] This brings me to the arguments in response made by counsel for the representative plaintiff and the defendants. Ms. Brasil on behalf of Coburn (with whose argument Visa and MasterCard agreed) expressed surprise at the notion that she might not be in a position to object at the hearing in chambers to the purported appeals without having filed a motion to quash under s. 20. In her submission, it was open to me as a judge in chambers to decide whether Home Depot and Walmart had rights of appeal, and that should be determined without further delay. [31] Counsel addressed the two specific procedural questions together. Ms. Brasil contended that ss. 36 (2), (3) and (4) of the CPA constitute an exhaustive statement of rights of appeal in class actions.  She submitted that, like the applicant Maclean in Dabbs , Home Depot and Wal-Mart had had the opportunity to participate, and did participate through counsel, at the hearing of the settlement approval motion before the chambers judge below. They had also had the opportunity to opt out earlier and had not taken it. Mr. Simpson for the defendants added that the “the orderly and efficient management of the proceeding” under the CPA would be frustrated if a member of a class were permitted to become a party simply because of its participation in the class. (See Dabbs at para. 7.) Counsel also cited Cambridge Mortgage Investment Corporation v. Matich 2014 BCCA 377, where Madam Justice Saunders (in chambers) stated: An appellant is defined in s. 1 of the Court of Appeal Act as “the party bringing an appeal”. To enjoy a right of appeal a person or entity must be a party to the proceeding that produced the order, and thus be bound by an order in that proceeding : Kitimat (District) v. Alcan Inc ., 2006 BCCA 562, Fraser Valley Refrigeration Ltd. v. British Columbia (Attorney General) , 2009 BCCA 576. In this case the foreclosure proceedings in the Supreme Court of British Columbia do not name Mr. Robbins as a party. [At para. 24; emphasis added.] Analysis [32] Leaving aside the procedural questions for the moment, I will say that I would grant leave to appeal in this case if leave were necessary. No one contends, however, that an appeal from an order approving the settlement of a class action is a “limited appeal order” within the meaning of the Rules; thus no leave is necessary, assuming that a right to appeal a settlement order exists and that such an appeal may be brought by a member of a plaintiff class. [33] I am inclined also to the view that in British Columbia, the fact that an appeal from a settlement order is not listed in s. 36 of the CPA may not be fatal to such an appeal. Samos and Harrington , the only authorities directly on point (although they were decided prior to the amendment of s. 7 of the Court of Appeal Act) suggest that contrary to the ruling of the Ontario Court of Appeal in Dabbs, s. 36 may be ‘supplemented’ by a more general right of appeal provided by s. 6(1)(a) of the Court of Appeal Act . [34] Both this issue and the ‘non-party’ issue are important to the law and to this action. I consider that they should be decided by a division of the Court, even if no motion to quash was formally brought by the respondents. (Nor was there a formal motion that the applicants be made representative plaintiffs.) The appeal may therefore proceed to a division, subject to the inclusion by the applicants of the following issues in the issues for determination on appeal, namely (1) whether an appeal lies in respect of a settlement order made under the CPA; and (2) if so, whether such an appeal may be properly brought by a member of the plaintiff class, with or without being added as a party to the action. I would assume that if the Court answers either question in the negative, it would quash the appeal, but that of course will be for the division to decide. [35] I am indebted to counsel for their able submissions. “The Honourable Madam Justice Newbury”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Li v. Rao, 2019 BCCA 56 Date: 20190130 Dockets: CA45061; CA45103 Docket: CA45061 Between: Peipei Li Respondent (Claimant) And Luhua Rao Appellant (Respondent) - and - Docket: CA45103 Between: Peipei Li Respondent (Claimant) And Lu Hua Rao Appellant (Respondent) Before: The Honourable Madam Justice Fenlon (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated January 30, 2018 ( Li v. Rao , 2018 BCSC 142, Vancouver Docket E170206). Oral Reasons for Judgment Counsel for the Appellant: P.R. Albi, Q.C. M.A. Clemens, Q.C J. Parker Counsel for the Respondent: B.B. Olthuis A.C. Bjornson Place and Date of Hearing: Vancouver, British Columbia January 23, 2019 Place and Date of Judgment: Vancouver, British Columbia January 30, 2019 Summary: Application to stay two appeals pending the resolution of a related action in the court (“Settlement Action”). Held: application dismissed. The parties have brought a multiplicity of proceedings in multiple jurisdictions, and it is not clear that resolution of the Settlement Action would end the litigation. Since the appeals are not brought from orders in the Settlement Action, the concern of avoiding litigating in slices does not weigh as heavily in favour of staying the appeals pending its resolution. Further, the respondent’s appeals can be heard expeditiously. As a result, the prejudice to the respondent from the delay in hearing the appeals if the stay is granted outweighs the prejudice to the applicant from having to respond to the appeals while the Settlement Action continues. [1] FENLON J.A. : The respondent Peipei Li applies to have two appeals stayed pending resolution of an action in the Supreme Court to enforce a settlement. Ms. Li asserts that the parties entered into a comprehensive settlement in March 2018 resolving all matters between them. [2] The appellant Lu Hua Rao is a businessman residing in China, and Ms. Li is a businesswoman residing in Vancouver. The two are currently parties to at least six different legal proceedings, all arising out of essentially the same factual background and seeking overlapping relief. Background [3] In or about August 2015 the parties commenced a romantic relationship and eventually underwent a marriage ceremony in Las Vegas, even though Mr. Rao was already married. He says he told Ms. Li he was married and would not leave his wife and two sons, but went through with the marriage ceremony because Ms. Li told him a Las Vegas marriage hardly had any effect and would help them to get mortgage financing for their real estate venture and assist with immigration. For her part, Ms. Li says it was a bona fide marriage and she was later shocked and distressed to discover Mr. Rao was already married in China. [4] On the business side of their relationship, the parties incorporated LPP Properties Inc. (“LPP”), and each received 50% of the shares. They agreed that Mr. Rao would contribute $20 million to the company for his shares and Ms. Li would contribute $1,000. Mr. Rao actually invested $17.65 million. Those funds were distributed to an account controlled jointly by the parties and to an account held by Ms. Li personally. The transfers occurred by way of promissory notes and directions to pay executed by Mr. Rao. [5] The parties’ relationship collapsed in acrimony in late 2016. They immediately became embroiled in a series of proceedings all of which arose out of their relationship and business dealings. Central to their disputes is whether Ms. Li used the $17.65 million invested by Mr. Rao in accordance with the parties’ agreement. [6] The proceedings are as follows: · In December 2016 Mr. Rao commenced a civil proceeding (the Civil Claim) in Supreme Court claiming that Ms. Li had transferred and used LPP funds without his knowledge and contrary to their agreement. · In January 2017 Ms. Li commenced a family proceeding in Supreme Court seeking a divorce, support and division of family property (the Family Claim). Mr. Rao filed a counterclaim in that proceeding. · Early in 2017 Ms. Li also commenced proceedings in China alleging Mr. Rao had committed bigamy. That led to criminal proceedings against Mr. Rao by the Chinese government. · In March 2017 Mr. Rao started a family action in China seeking a declaration that the Las Vegas marriage was a nullity. · In June 2017 Mr. Rao commenced an arbitration in China under the terms of the parties’ agreement which provided for resolution of disputes in that forum (the CIETAC arbitration). In that proceeding he seeks return of the funds advanced to the company and does not mention the romantic component of his relationship with Ms. Li. · Finally, Mr. Rao commenced an action in the Supreme Court advancing the same civil claim and seeking the same relief as the CIETAC arbitration, under s. 9 of the International Commercial Arbitration Act , R.S.B.C. 1996, c. 233 as an interim measure of protection to toll the limitation period given Ms. Li’s jurisdictional challenge to the CIETAC arbitration. [7] In March 2018 the parties met in person in Hong Kong. Ms. Li asserts they came to a settlement, but Mr. Rao backed out of that agreement in late April 2018 when he realized the significant tax consequences flowing from the terms agreed to. [8] In August 2018 Ms. Li commenced civil proceedings in the Supreme Court to enforce the settlement (the Settlement Claim). The terms of the settlement asserted by Ms. Li are as follows: (1)      Mr. Rao would receive the balance of the company funds remaining, amounting to approximately $8 million; (2)      Ms. Li would receive the Vancouver residential property that was purchased with some of the funds, free and clear of any claim by Mr. Rao; (3)      Mr. Rao would remove any liens or other encumbrances he had caused to be placed on the Vancouver residential property; (4)      Ms. Li would receive Mr. Rao’s shares in the company and all of the company’s remaining assets; and (5)      The parties would withdraw any and all claims made against the other including the Family Claim, the Civil Claim, and the CIETAC arbitration. [9] I turn now to the two appeals Ms. Li seeks to stay. The first, Appeal CA45103, is from an order of Madam Justice Forth made in the Family Claim on January 30, 2018. Justice Forth declared the marriage to be void ab initio , but dismissed Mr. Rao’s November 2017 application to strike Ms. Li’s claim for division of family property and spousal support. [10] The second, Appeal CA45061, is from the order of Mr. Justice Funt, also in the Family Claim, made January 12, 2018 enjoining Mr. Rao from taking any further steps in the CIETAC arbitration and enjoining him from requiring Ms. Li to take any steps in that proceeding without leave of the Supreme Court. This order effectively prevented Mr. Rao from withdrawing the Civil Claim and proceeding only with the arbitration. [11] As I have noted, Ms. Li applies for stay of the appeals pending determination of the Settlement Action which she says would resolve all proceedings between the parties, including the Family Claim underlying the orders under appeal, thereby rendering the appeals moot. [12] A single justice may grant a stay of an appeal proceeding pending the occurrence of a certain event, such as the decision of another body, pursuant to subparagraphs 10(2)(a) and (b) of the Court of Appeal Act , R.S.B.C. 1996, c. 77 : Hollander v. Nelson , 2013 BCCA 83 at paras. 14, 21 (D. Smith J.A. in Chambers), citing Taga Ku Development Corp. v. Yukon Territory (1995), 55 B.C.A.C. 266 (Legg J.A. in Chambers). [13] There are two principles animating a decision whether to stay an appeal pending a decision from another body, such as a trial court: Habitat for Humanity Canada v. Hearts and Hands for Homes Society , 2015 BCCA 443 at para. 24. The first concerns the public interest in the efficient use of judicial resources and avoiding “litigating in slices”: Habitat for Humanity at para. 24; Hollander at paras. 25–27. The second is balancing the prejudice between the parties. The Court must ask whether the prejudice from a delay in completing the proceedings in the court below to the party applying for the stay outweighs the prejudice to the other party of a delay in hearing the appeal: Habitat for Humanity at para. 25; Taga Ku at para. 14. [14] This test may respond more flexibly to the considerations relevant to deciding whether to stay an appeal itself as opposed to an order appealed from than the traditional three-part inquiry from RJR-MacDonald Inc. v. Canada (Attorney General) , [1994] 1 S.C.R. 311: Korea Data Systems (USA), Inc. v. Aamazing Technologies Inc. , 2012 ONCA 756 at para. 19. [15] Ms. Li submits that, by any measure, six proceedings dealing with the same set of circumstances and seeking overlapping relief does not amount to an efficient use of judicial resources. She argues that, irrespective of the outcome, the two appeals will not serve to conclude the dispute between the parties — one, if successful, will lead to the CIETAC arbitration intensifying, and the other, while striking the property and spousal support claims from the Family Claim, would leave to be resolved the constructive trust claims advanced both by Ms. Li and by Mr. Rao’s counterclaim in that action. [16] Ms. Li asserts that if the Settlement Action is permitted to proceed while everything else is held in abeyance, it could resolve all of the disputes in the proceedings between the parties. In relation to balancing prejudice, she submits that if the Settlement Action is unsuccessful, Mr. Rao can simply resume his appeals, whereas if she is required to go through the appeals, the cases will continue and she will be left to battle through various proceedings as well as the Settlement Action, incurring significant costs. Given the history of the litigation between the parties, she stresses that further appeals may follow. [17] The application for stays of appeal in this case differs from the stays sought in Habitat , Hollander , and Taga Ku , all of which involved the staying of an appeal until matters in the single underlying cause of action could be completed. The arguments in those cases therefore focused on the disadvantage of litigating in slices, described by Southin J.A. in Digital.Doc Services (Canada) Inc. v. Future Chop Ltd. (1998), 49 B.C.L.R. (3d) 78 (C.A.): [5]        It is obvious to us that what is happening here is what I have called before “litigating in slices” and that form of litigating may result in several matters coming before this Court at different times relating to this obviously highly contested litigation. It is not in the public interest that several panels of this Court should have to deal with several little bits of a lawsuit now and then and here and about. Therefore, we are going to stay of the proceedings now pending in this Court. When Madam Justice Baker has handed down her judgment, the parties will have to consider how to put all of these matters together in an appropriate way so that the time of this Court which belongs to the public and not to us, will not be wasted this way. [Emphasis added.] [18] In contrast, the parties before me are engaged in multiple proceedings in various forums and countries. They appear to have adopted a strategy of litigation warfare on both sides and on all fronts. In this context, a ceasefire to enable the Settlement Action to run its course and potentially end the war by resolving all of the extant proceedings is attractive. The saving in court time and costs to the parties tends to staying the appeals to permit the Settlement Action to be determined. However, there are a number of other considerations that tend to the contrary view. [19] First, I begin by noting that it is not plain on the record before me that Ms. Li is likely to succeed in proving the settlement she asserts. Her own lawyer, in forwarding a draft form of agreement to Mr. Rao’s lawyer, referred to the parties having agreed to a framework for settlement. Although it is possible that Ms. Li will be successful, again, I restrict my remarks to the record I have before me — that of course cannot be assumed, and even if successful at trial, an appeal could well follow. If Ms. Li is not successful, Mr. Rao will have been delayed considerably in his pursuit of the $17.5 million he invested in LPP. [20] Second, and more significantly, the Settlement Action is only at the pleadings stage. Ms. Li has filed a notice of civil claim and Mr. Rao is in the process of preparing his response. Although Ms. Li submits the entire case could be dealt with within a year, that seems improbable. As I see it, there is no prospect of the Settlement Action being resolved expeditiously given the inherent complexity in such an action – many documents will have to be translated from Mandarin, Mr. Rao lives in China and can only proceed through an interpreter, and there is a prospect of a third party proceeding. In addition, there is little reason to anticipate the parties will depart from their aggressive approach to litigation. [21] In contrast, the appeal in the Family Claim from Justice Forth’s order is ready to proceed. All factums and books have been filed and it could be heard within a few months. If that appeal succeeds, it will dispose of a significant portion of the Family Claim and remove a layer of complexity raised by the romantic component of the parties’ relationship. [22] I also take into account the timing of Ms. Li’s application for a stay of Mr. Rao’s two appeals. As I have noted, the appeal in the Family Claim is ready to be heard. The appeal from the order of Justice Funt freezing the CIETAC proceedings is at an early stage but leave was applied for in January 2018 and obtained in May 2018 without Ms. Li raising the settlement she now asserts occurred in April. Mr. Rao incurred the expense of that leave to appeal application and filed his appeal record on July 23, 2018, all before Ms. Li commenced the Settlement Action in August 2018 and applied for a stay. [23] Mr. Rao intends to apply to have the two appeals heard at the same time and based on much of the same record. If Mr. Rao succeeds on appeal, he will be able to continue with the CIETAC arbitration. If the arbitrator assumes jurisdiction of the contractual disputes, many of the issues between the parties will be resolved outside of this jurisdiction. [24] Taking all of these factors into account, and in particular: · the length of time the appeals will have to be stayed until the Settlement Action can be concluded; · Ms. Li’s failure to proceed expeditiously to seek a stay of the appeals after Mr. Rao denied a settlement had occurred; and · the steps taken by Mr. Rao in the appeals which are close to ready to proceed; I am of the view that the prejudice to Mr. Rao in delaying the completion of the appeals in this Court outweighs the prejudice to Ms. Li of requiring her to respond to them. I therefore dismiss the applications to stay both appeals. “The Honourable Madam Justice Fenlon”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Fisher, 2019 BCCA 33 Date: 20190130 Docket: CA45590 Between: Regina Respondent And James Albert Stanley Fisher Appellant Restriction on publication: An order has been made under ss. 486.4(1) and 486.4(2) of the Criminal Code restricting the publication, broadcasting or transmission in any way of any information that could identify the complainants, including their initials. An order has been made under s. 486.4(1) on the publication of any information that would identify the author of the letter at tab 11 of Exhibit 8 of the sentencing exhibits. Pursuant to s. 16(4) of the Sex Offender Information and Registration Act , 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 Chief Justice Bauman The Honourable Madam Justice Garson The Honourable Mr. Justice Willcock On appeal from:  An order of the Provincial Court of British Columbia, dated August 21, 2018 ( R. v. Fisher , 2018 BCPC 210, Surrey Provincial Court Docket 219368‑3C). Counsel for the Appellant: W.B. Smart, Q.C. N. Gilewicz Counsel for the Respondent: M. Mereigh Place and Date of Hearing: Vancouver, British Columbia January 9, 2019 Place and Date of Judgment: Vancouver, British Columbia January 30, 2019 Written Reasons by: The Honourable Madam Justice Garson Concurred in by: The Honourable Chief Justice Bauman The Honourable Mr. Justice Willcock Summary : The appellant, a former police officer, appeals the sentence imposed following his plea of guilty to two counts of breach of trust and one count of sexual exploitation in relation to the kissing of two complainants in police investigations. On appeal, he says that the judge erred in placing undue weight on the victim impact statement of one victim and that the eight-month consecutive sentence on one count of breach of trust was demonstrably unfit. Held: appeal dismissed. The judge did not err in principle by admitting and relying on B’s victim impact statement. The sentence imposed was not demonstrably unfit when the kiss was considered in the context of the victim’s history of abuse and her trusting relationship with the appellant. Reasons for Judgment of the Honourable Madam Justice Garson: [1] James Fisher, a former police officer, appeals the sentence imposed following his plea of guilty to one count of sexual exploitation and two counts of breach of trust. The charges and his plea arose from circumstances surrounding his relationship with two complainants, referred to as A and B, involved in police investigations of two prostitution rings. In the course of the investigations, the appellant befriended and worked closely with A and B. The appellant kissed B once. He kissed A on three occasions. [2] The appellant was sentenced to 90 days in prison for the sexual exploitation of A (the mandatory minimum sentence) and 12 months in prison for the breach of trust of A. These two sentences were to be served concurrently. He was sentenced to eight months in prison for the breach of trust of B, to be served consecutively. Therefore he received a global 20‑month sentence to be followed by two years of probation. The Reasons for Sentence are indexed as 2018 BCPC 210. [3] The appellant does not take issue with the sentence imposed for the offences related to A. He focuses his appeal on the eight‑month consecutive sentence he received for the breach of trust of B. He says that a concurrent sentence ought to have been imposed, but if the sentence is to be consecutive, a sentence of one to two months would be fit. [4] For the reasons that follow I would grant leave to appeal but dismiss the appeal. Background [5] At the sentencing proceedings, the facts which form the background to the charges and plea were set out in a detailed agreed statement of facts and a supplementary statement of facts. There is no dispute about any of the facts, though there is some dispute about the reliability of B’s victim impact statement. I shall return to this point of controversy below. [6] The appellant is a 61‑year‑old former police officer. Until these charges were laid, he had a highly successful career and a stable family life. He has been married for about 32 years and has two adult children. [7] Before becoming a police officer, the appellant worked as a hockey referee at a high level. His goal was to work in the NHL. He did not succeed in that goal, but he did referee in the Western Hockey League and the 1990 national junior hockey championship. Between 2001 and 2011, he volunteered in coaching and organizing women’s hockey. [8] The appellant joined the Vancouver Police Department (“VPD”) in 1988 and became a highly decorated and accomplished investigator. For all but 17 months of his police career, he worked in specialty investigative units such as the Gang Task Force and the Coordinated Law Enforcement Unit. He also worked for Criminal Intelligence Service Canada in Ottawa as a National Coordinator for Asian Organized Crime. He created a working group to formalize the sharing of information on Asian organized crime between federal and municipal investigators in British Columbia and Alberta. He worked with the New York Police Department on human smuggling, attended an Interpol conference in France to provide a briefing on human smuggling, briefed the Solicitor General on organized crime, and testified before a Parliamentary Justice Committee in Ottawa. These are just a few of his professional achievements. He received many awards and commendations. [9] The appellant has no criminal record. [10] The appellant was arrested on December 28, 2016, and immediately suspended from his duties as a police officer. He retired from the VPD in January 2017. He entered guilty pleas on March 28, 2018, and was sentenced on August 21, 2018. [11] I now turn to the background underlying this sentence appeal. [12] On January 2, 2011, the appellant was transferred into the Special Investigation Section-Counter Exploitation Unit of the VPD (“CEU”) where he was positioned when the offences occurred. The CEU is a specialized unit whose purpose is to investigate prostitution-related offences, internet child luring, and internet child pornography. The CEU also assists sex trade workers in leaving the sex trade. The CEU directs its officers not to meet alone with female victims and witnesses. The Breach of Trust and Sexual Exploitation of A [13] In 2014, the CEU began an investigation into an individual named Michael Bannon. The appellant was the lead investigator. Mr. Bannon was arrested in July 2015 and charged with procuring A and eight other complainants to work in the sex trade. A was 17 at the time. She estimated that Mr. Bannon arranged about 200 sexual encounters between her and individuals who paid money for sex with her. On January 30, 2018, Mr. Bannon pleaded guilty to 22 of the counts he was facing. He was sentenced to fourteen years in jail. [14] In the course of the investigation, the appellant and A were in frequent contact. The appellant knew that A was in the care of the Ministry, had virtually no parental relationship or support, had mental health issues including self-harm, had attempted suicide, and was addicted to drugs. He became involved in her life, regularly communicating with her, her step-father, her social worker, and her youth worker. The sentencing judge noted that A was 17 at all relevant times and the appellant was aware of her age: para. 59. [15] The first incident that formed the basis of these charges occurred between August 22 and 30, 2015. The appellant met A alone, having told her he had two tickets to the PNE. They spoke in his car and he agreed to drop her off at a restaurant. Before she got out of the car, they hugged and kissed, including French kissing. They kissed for 30 seconds to a minute. [16] The second incident occurred on November 21, 2015. The appellant wanted to give A a book on drug addiction and rehabilitation. He met with her alone and off duty at around midnight. They talked in his car for about 30 minutes and then kissed for about 10 minutes. About a week earlier, A had been hospitalized for cutting herself, was arrested, and had to change residences. The appellant was aware of these difficulties. At the time of the incident, she had not slept for a number of days and had consumed a large quantity of drugs and alcohol. She had also begun to experience psychotic episodes. [17] The third incident occurred on December 7, 2015. A had confided to the appellant that she was having psychotic episodes. The appellant made her a series of appointments with a psychiatrist. On December 7, he drove her to her appointment with the psychiatrist as her social worker was unavailable. After the appointment, he took A back to his office. He asked her to identify the naked persons in a photograph relevant to the Bannon investigation. They then went into an adjacent office, where he kissed her. She was not feeling well and told him she did not want to kiss him. He asked her for one more kiss and she acquiesced. The kissing lasted about five minutes and included French kissing. [18] In March 2016, A disclosed these incidents to her youth worker. Around the same time, she disclosed the incidents to another police officer. [19] A lengthy investigation into A’s allegations ensued. A became a paid police agent and her communications with the appellant were intercepted by the police. [20] After A agreed to become a police agent, the appellant and some of his colleagues became aware of a false rumour circulating among sex trade workers that he had slept with A. The appellant spoke with A about the rumour and the resulting investigation. These conversations were intercepted by the police. The sentencing judge stated that the intercepted conversations revealed that the appellant was helping, preparing, and arguably coaching A as to what to say to the investigators: para. 67. However, the judge concluded that “there is nothing that amounts to the appellant asking A to lie to the police, or to deceive the police, or do anything to obstruct the police in either investigation”: para. 71. He further noted that there was absolutely no evidence before him that the appellant had had sexual intercourse with A. The Breach of Trust of B [21] B met the appellant in 2011, when she was 16, in the course of the CEU’s investigation of an individual named Reza Moazami. Mr. Moazami was charged with numerous prostitution-related offences involving 11 complainants, including B. He was convicted of 30 counts of prostitution-related offences on September 15, 2014 and sentenced to 23 years in jail. The trial judge described Mr. Moazami’s treatment of B as “abusive, callous, and border[ing] on psychopathic.” [22] The appellant worked with B for five years in the course of the Moazami investigation. He played a significant role in the investigation and had frequent contact by text, telephone, and in person with her. [23] On December 3, 2015, B texted the appellant and they agreed to meet. They talked for approximately 15 minutes in his car in a parking lot. As they were saying goodbye, he hugged her. He asked her for a goodnight kiss and then kissed her on the lips. She left the car. [24] B disclosed the details of the incident to the manager of a program that assists sex trade workers. That individual reported the incident to the police on May 27, 2016, and the police began an investigation. B became a paid police agent. Her communications with the appellant were intercepted and used in the investigation of the kissing incident. The intercepted communications were also relevant to an investigation of whether the appellant had covered up B’s role in a stabbing. [25] B told the police that she was upset by the kiss and did not return to work that night as she had planned. She also told the police that following this incident she began to drink every day. The Burnaby Stabbing Incident [26] On June 8, 2015, a male was stabbed in Burnaby in the course of a drug deal with B and her boyfriend. His injuries were not life-threatening. On June 9, 2015, B met with the appellant and they discussed the incident. At some point, she confessed to him that she was the stabber. On June 10, 2015, the appellant advised the Burnaby RCMP that he had spoken to a female who witnessed the stabbing, and provided B’s name, date of birth, and phone number. He then texted B and encouraged her to contact the RCMP first. B changed her phone number a few days later and the RCMP were unable to reach her. The appellant had her new phone number, but did not provide it to the RCMP. B never spoke with the Burnaby RCMP regarding the stabbing and the appellant never told the investigators that B had confessed to him that she was the stabber. [27] In a statement to the police given on September 16, 2016, B said that she stabbed the victim to protect her boyfriend, since she believed the victim was going to kill him. On September 30, 2016, B was granted immunity in connection with the stabbing. [28] The sentencing judge noted that the appellant was not being sentenced for any crime related to obstructing justice: para. 86. However, he remarked that, as an officer of the law, the appellant had an obligation to do more with B’s admission than bury it: para. 86. Counts [29] The appellant pleaded guilty to three counts. [30] By information, he was charged with one count relating to A: Count 1 James Albert Stanley FISHER, between the 22nd day of August, 2015 and the 7th day of December, 2015, inclusive, at or near Vancouver and Surrey, in the Province of British Columbia, being a person in a position of trust or authority towards a young person, [A], did kiss [A] for a sexual purpose, contrary to Section 153 of the Criminal Code. [31] By indictment he was charged with two further counts: Count 1 James Albert Stanley FISHER, between the 22nd day of August, 2015 and the 7th day of December, 2015, inclusive, at or near Vancouver and Surrey, in the Province of British Columbia, being an official, did, in connection with the duties of his office, commit a breach of trust by kissing [A] for a sexual purpose, [A] being a witness in a criminal prosecution, contrary to Section 122 of the Criminal Code. Count 2 James Albert Stanley FISHER, between the 3rd day of December, 2015 and the 6th day of December, 2015, inclusive, at or near Burnaby, in the Province of British Columbia, being an official, did, in connection with the duties of his office, commit a breach of trust by kissing [B], [B] being a witness in a prior criminal prosecution, contrary to Section 122 of the Criminal Code. [32] As originally framed, Count 2 included the language that he did “commit a breach of trust by kissing [B] for a sexual purpose.” At the outset of the sentencing proceedings, the Crown withdrew the words “for a sexual purpose” from the indictment. However, the judge found that the kiss was a sexual activity: para. 30. [33] The maximum sentence in respect to Count 2 is five years. There is no prescribed minimum sentence. Reasons for Judgment on Sentencing [34] The Crown sought a global sentence for all three counts of 18 to 20 months’ imprisonment plus two to three years’ probation, noting the mandatory minimum of 90 days for the sexual exploitation charge. [35] The defence asked that the mandatory minimum of 90 days’ imprisonment be served intermittently on weekends. For the two counts of breach of trust, the defence sought a lengthy Conditional Sentence Order (“CSO”). [36] The Crown opposed the CSO but acknowledged that it was available. [37] The sentencing judge noted that in breach of trust and sexual exploitation cases, the paramount sentencing principles were denunciation and general deterrence: para. 92. He noted that “the sentence imposed should send a very clear message of society’s absolute and unequivocal condemnation of the offender’s conduct and represent a symbolic collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values” [citation omitted]: para. 92. [38] The sentencing judge reviewed the appellant’s personal background and character references. He noted that the reference letters spoke highly of the appellant. However, the sentencing judge said that there was a hidden side to the appellant. He noted that the offences he committed, as well as his conduct with respect to the Burnaby stabbing incident, appeared irreconcilable with the appellant’s professional and personal accomplishments. [39] The sentencing judge noted that the offences had already had catastrophic consequences for the appellant’s career, reputation, marriage, and post-retirement career prospects. He said he would take into account the price the appellant had already paid for his crimes, but that he ought to have known he would pay that price when he committed the offences: para. 112. [40] The judge then turned to the mitigating and aggravating factors. He noted that there were a number of mitigating factors: the appellant’s guilty plea, the personal and professional consequences he had already suffered, the impact on his family, his lack of a criminal record, and his remorse and full acceptance of responsibility for his crimes. [41] The judge then noted the aggravating factors. [42] First, the appellant had breached both the public trust and the victims’ personal trust. [43] Second, the victims were extremely vulnerable and viewed the appellant as their saviour and as a father figure. A was especially vulnerable. The appellant knew of her fragile psychological state and that she could not legally consent. [44] Third, the crimes were not isolated incidents, but the appellant’s behaviour was escalating over a three- or four-month period. The incidents took place in late August 2015 (A), November 21, 2015 (A), December 3, 2015 (B), and December 7, 2015 (A). However, the judge noted that there was no evidence of further incidents after December 7, 2015. [45] Fourth, the judge considered the impact on the victims to be a significant aggravating factor: para. 123. A and B both filed victim impact statements. In B’s victim impact statement, she stated that after the kiss with Mr. Fisher, she relapsed into substance abuse after five years of being clean and attempted suicide twice. The appellant urged the judge to take a critical view of her statement. He emphasized that the judge who heard Mr. Moazami’s trial, in which B was a witness, made serious adverse findings regarding her credibility and declared her a hostile witness. The judge stated: [24]      I do not quarrel with Justice Bruce’s findings about B., but what I do not accept is that those findings are in any way transportable into this proceeding. B., in giving her victim impact statement, was not likely in survival mode. She had nothing to gain, or no consequence to avoid, by telling lies and making up the impact Mr. Fisher’s crime has had on her life. Could she have exaggerated that impact on her life?  Absolutely. But as trial judges we see on a daily basis victims telling us how a crime has impacted their life. Some exaggerate, some minimize, but in very few cases can we accept, as objectively established, the impact the victim tells us the crime has had on their life. Perception is their reality and we factor their nuanced statements into our sentencing decisions without a critical analysis of how reliable or accurate their feelings are. [25]      So, while at the time of the Moazami trial B. was found to be an unreliable witness, I do not factor those findings into my determination of the impact that Mr. Fisher’s crime has had on B. as told to me by B. [123]    Mr. Fisher has urged me to be cautious taking at face value what B. says in her Victim Impact Statement, given the adverse credibility findings of Justice Bruce in the Moazami trial. I have already commented on this issue earlier in these reasons and I will not repeat what I have already said. But clearly, B. was a victim at the hands of other people from the time she was a child. Mr. Fisher came to rescue her from a psychopathic pimp and developed a father-figure relationship with her. I have no difficulty concluding that Mr. Fisher’s crime against B. had a devastating impact on her. [46] A said in her statement that she had been extremely vulnerable at the time of the incidents. She said that the incidents took her back to her experiences in the sex trade, where she learned that if someone did something for her, she would be expected to reciprocate with sex. The judge accepted that she felt that kissing the appellant was the price she had to pay for the help he gave her in the Bannon investigation. [47] Fifth, the sentencing judge noted that the crimes may have tarnished the reputation of the VPD, although he did not consider this to be a significant aggravating factor. [48] The sentencing judge then reviewed all the authorities provided to him by counsel. He commented first on the Crown authorities: - In R. v. Greenhalgh , 2011 BCSC 511, aff’d 2012 BCCA 236, a Border Services Officer employed by Canada Border Services Agency was sentenced for three counts of sexual assault and one count of breach of trust. He conducted illegal, feigned strip searches of four women who were crossing the border and sexually touched three of them. He was sentenced to two years’ imprisonment less a day followed by three years of probation. - In R. v. Cook , 2010 ONSC 5016, a police officer was sentenced for five offences, including two counts of breach of trust and three counts related to drug offences, for stealing packages of what he believed to be cocaine from a crime scene. The sentencing judge in that case observed that an individual accused of breach of trust will inevitably be able to produce good character references because it is that character profile that allows the individual to attain the position of trust: para. 36. Mr. Cook was sentenced to five years and eight months’ imprisonment. - In R. v. Sandhu , [2013] O.J. No. 6325 (C.J.), aff’d 2015 ONSC 1679, a police officer attending a massage parlour to perform a license inspection demanded that a masseuse perform oral sex on him. He was convicted of sexual assault and sentenced to 15 months’ imprisonment, followed by two months of probation. - In R. v. Von Seefried , [2017] O.J. No. 1094 (C.J.), a police officer was sentenced for sexually assaulting a female passenger of a vehicle he pulled over for a traffic stop. He was sentenced to 16 months’ imprisonment. - In R. v. Bracken , 2005 SKPC 64, a police officer who was the lead investigator in a sexual assault investigation involving a 17‑year‑old complainant sexually assaulted her in his police cruiser by squeezing her breast. He had been initiating sexual conversations with her for several months before this incident. The sentencing judge, Judge Mary Ellen Turpel-Lafond, noted that the complainant was a vulnerable teenage sexual assault victim and that the offender knew from his professional experience that she was scarred by that abuse and was susceptible to influence: paras. 22‑23. Although there was only one incident of sexual touching, Judge Turpel-Lafond found the sexual assault could not be described as being at the low end of the spectrum of harm, given the context: para. 51. The offender was sentenced to nine months’ imprisonment. The sentencing judge noted that the facts in Bracken were strikingly similar to those in this case and that many of Judge Turpel-Lafond’s comments were equally applicable to the appellant: paras. 165, 176. [49] The defence referred to a number of authorities in which a CSO or intermittent jail sentence had been imposed: - In R. v. F.O.R. , 2016 BCPC 223, the offender was sentenced for carrying on a sexual relationship with the teenage daughter of his former partner. The relationship began just prior to her 18th birthday. He pleaded guilty to touching a young person while being in a position of trust and breaching a term of his release. He was sentenced to 90 days’ imprisonment to be served intermittently followed by two years’ probation. - In R. v. Chen , 2017 BCSC 1689, aff’d 2017 BCCA 426, a piano teacher was sentenced for sexually touching and kissing five students, including French kissing, over a period of 17 years. The victims were from 11 to 19 years old. He was 69. He was sentenced to 75 days’ imprisonment followed by 21 months to be served in the community by way of a CSO and one year of probation. In reviewing this decision, the sentencing judge noted that the sentencing judge in Chen must have been of the view that exceptional circumstances existed such that a conditional sentence was appropriate. - In R. v. Nicholson , 2018 BCSC 515, a police officer was sentenced for one count involving three incidents of breach of trust which included encouraging a police informant to provide false information in a drug investigation, giving false information to a fellow officer, and counselling an accused while transporting him to the police detachment about how important it was that he not be found with drugs and offering him an opportunity to make a phone call. The sentencing judge adopted a joint submission of 17 months to be served by way of a CSO. [50] The sentencing judge determined that a CSO would not adequately serve the applicable sentencing principles in this case. He emphasized the appellant’s senior position in the CEU and his role in the Bannon and Moazami investigations. He noted that the appellant was not guilty of a momentary lapse in judgment, but that his offences continued over a period of months. He emphasized the fact that his first offence against A occurred the first time he met alone with her in contravention of the CEU’s policy. He concluded that there were no exceptional circumstances justifying a CSO, as in Chen . The gravity of the offences and the degree of the appellant’s moral culpability required his incarceration. [51] The sentencing judge then considered the appropriate range of sentence. He noted that in Bracken, the range of sentence was determined to be nine to fifteen months. That case involved one incident and one victim. The conduct was “similarly seriously intrusive” given the victim’s vulnerability and their trusting relationship. However, he noted that the relationship had already been overtly sexualized and the offender took immediate responsibility for his actions. He noted that in this case, the appellant’s offences occurred over a period of months and he did not immediately accept responsibility: para. 211. [52] The judge also referred to Von Seefried . That case also involved one incident, one victim, and “seriously intrusive” sexual behaviour. However, the offender had no relationship with the victim and used his authority as a police officer to coerce her. The judge observed that in the case at bar, the appellant “ did not use his authority as a police officer to enable his offences against A and B, rather he used his well-developed relationship with these women to facilitate his offences against them”: para. 212. [53] After considering these authorities, the sentencing judge determined that a jail sentence of between nine and fifteen months for the crimes against each of A and B would be a fit sentence. He determined that the sentences should be consecutive because the crimes occurred at separate times against separate victims. [54] He then sentenced the appellant to the mandatory minimum sentence of ninety days for the sexual exploitation of A, not to be served intermittently; twelve months for the breach of trust of A; and eight months for the breach of trust of B, to be served consecutively. The global sentence was therefore 20 months’ imprisonment. He further sentenced the appellant to two years of probation. Issues [55] The appellant asserts that the sentencing judge erred in two ways. First, he says that the judge erred in accepting the victim impact statement of B without properly scrutinizing it, despite another judge having found B to be a completely unreliable witness. Second, he says that the sentence imposed with respect to Count 2, the breach of trust of B, was disproportionate considering the gravity of the offence and his degree of responsibility. He says that the sentence on Count 2 was unduly harsh. This is his main ground of appeal. [56] The appellant does not appeal from his sentence on the other two counts. In oral submissions, he withdrew an argument based on the judge’s finding that the kiss with B was sexual activity. Discussion Standard of Review [57] The standard of review is that set out in R. v. Lacasse, 2015 SCC 64. Appellate intervention is justified only where the sentencing judge made an error in principle that had an impact on the sentence or the sentence is demonstrably unfit: paras. 43‑44; 51‑53. As stated by Stromberg-Stein and Fitch JJ.A. for the majority in R. v. Agin , 2018 BCCA 133: [56]      Appellate intervention is justified when an appellate court identifies a material error that has impacted the sentence, in that the sentence would have been different absent the error. The court will then assess the fitness of the sentence by conducting its own sentencing analysis. If the sentence is unfit, the court may vary the sentence and impose a fit sentence. [57] Where there is no error, or the error had no impact on the sentence, appellate intervention can still be justified if the sentence is demonstrably unfit. [58] Justice Wagner, speaking for the majority in Lacasse , emphasized that “wide latitude” must be given to sentencing judges: para. 11. Describing the deferential nature of appellate review of sentencing judgments, he said: [40]      In this regard, Iacobucci J. explained in [ R. v. Shropshire, [1995] 4 S.C.R. 227] that consideration of the fitness of a sentence does not justify an appellate court taking an interventionist approach on appeal: An appellate court should not be given free rein to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable. [para. 46] [41] In [ R. v. Proulx , 2000 SCC 5], this Court, per Lamer C.J., discussed these same principles, which continue to be relevant: In recent years, this Court has repeatedly stated that the sentence imposed by a trial court is entitled to considerable deference from appellate courts: see Shropshire , supra , at paras. 46‑50; [ R. v. M. (C.A.), [1996] 1 S.C.R. 500] , at paras. 89‑94; [ R. v. McDonnell , [1997] 1 S.C.R. 948], at paras. 15‑17 (majority); R . v. W . (G.) , [1999] 3 S.C.R. 597 , at paras. 18‑19. In M. (C.A.) , at para. 90, I wrote: 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 . [First emphasis added; second emphasis in original.] ... Although an appellate court might entertain a different opinion as to what objectives should be pursued and the best way to do so, that difference will generally not constitute an error of law justifying interference. Further, minor errors in the sequence of application of s. 742.1 may not warrant intervention by appellate courts. Again, I stress that appellate courts should not second-guess sentencing judges unless the sentence imposed is demonstrably unfit. [paras. 123 and 125] [Citations added; emphasis in original.] Applicable Principles of Sentencing [59] As noted above, the sentencing judge identified denunciation and general deterrence as the paramount sentencing principles in this case. [60] The sentencing judge found the appellant to be deeply remorseful and apologetic. Thus specific deterrence, rehabilitation, and the protection of society were lesser factors in his sentence. [61] I agree with the sentencing judge that denunciation and general deterrence were the primary applicable principles in sentencing the appellant. [62] I now turn to the errors alleged by the appellant. Victim Impact Statement of B [63] This appeal raises the question of the weight that may be placed upon a victim impact statement where the offender disputes the truth or reliability of the statement, but does not seek to cross-examine the victim. [64] In her victim impact statement, B said that after the offence “her life went downhill fast” and she relapsed after five years of being clean. She said that she lost the ability to trust anyone and became “depressed, negative, hopeless, [and] homeless”. She ascribes this downward spiral to the appellant’s conduct. [65] The appellant takes no issue with the admissibility of B’s statement, but says the judge erred in not approaching it with a critical view given the adverse findings made about her credibility in the Moazami trial. He also suggests that B had a financial motive to exaggerate the impact of the offence. He points to the fact that at the time she made the statement, B indicated that she was considering pursuing a claim for restitution; that she told investigators she was considering suing the police department and the City of Vancouver; and that she had been paid more than $40,000 for her role as a police agent. Given this context, the appellant says the judge erred in placing undue weight on her statement. [66] The Crown contends that the appellant chose not to challenge the admissibility of B’s statement, did not seek to cross-examine B on it, and pointed to no disputed facts warranting a Gardiner hearing (in accordance with R. v. Gardiner , [1982] 2 S.C.R. 368). Crown counsel notes that the sentencing judge was well aware of the appellant’s position on B’s credibility, including the factual basis for the argument that she had a financial motive to exaggerate. The sentencing judge nonetheless rejected the appellant’s submission and accepted B’s statement. The Crown points out that pursuant to s. 718.2(a)(iii.1) of the Criminal Code, R.S.C.1985, c. C‑46 , the sentencing judge was required to consider the sentencing principle that a sentence should be increased to account for evidence that the offence had a significant impact on the victim. [67] Section 722 of the Criminal Code provides for the use of victim impact statements on sentencing. The pertinent portion of the section for this appeal is s. 722(1): 722. (1) When determining the sentence to be imposed on an offender or determining whether the offender should be discharged under section 730 in respect of any offence, the court shall consider any statement of a victim prepared in accordance with this section and filed with the court describing the physical or emotional harm, property damage or economic loss suffered by the victim as the result of the commission of the offence and the impact of the offence on the victim. [68] Section 4 of the Victims of Crime Act , R.S.B.C. 1996, c. 478, provides : 4. Crown counsel must ensure that a victim is given a reasonable opportunity to have admissible evidence concerning the impact of the offence, as perceived by the victim , presented to the court before sentence is imposed for the offence. [Emphasis added.] [69] In R. v. Berner , 2013 BCCA 188, this Court discussed the purpose of victim impact statements. The Court stated: [12]      Victim impact statements play an important role in the sentencing process. They were formally introduced into sentencing proceedings by legislation in 1988. While there was some inconsistency among the courts as to the admissibility of such evidence prior to codification, the general trend was toward acceptance. The issue was resolved in R. v. Swietlinski , [1994] 3 S.C.R. 481 at 503, where Chief Justice Lamer observed: “It is well known that the victim’s testimony is admissible at a hearing on sentencing”. The current statutory scheme, enacted in 1995, is set out in s. 722 of the Criminal Code . [70] The Court emphasized that the sentencing judge is required to consider a victim impact statement for the purpose of sentencing. The Court also noted that the statement is intended to bring home to the offender in a palpable way the consequences of his or her conduct. It is a means to inform the court of the damage done by that conduct to the victim and, indirectly, to the community. In this way the victim impact statement achieves the objective of sentencing set out in s. 718(f) of the Criminal Code, which provides: 718. The fundamental purpose of sentencing is to protect society and 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: (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [71] On sentencing, the Crown must prove beyond a reasonable doubt the existence of any aggravating fact disputed by the offender: R. v. Gardiner , supra ; s. 724(3)(e) of the Criminal Code . Where the Crown calls a witness to prove a disputed fact, the offender may cross-examine that witness pursuant to s. 724(3)(c). [72] The appellant faced a dilemma at his sentencing. The judge considered his guilty plea to be a mitigating factor in part because it meant neither victim had to testify. The mitigating effect of the plea might have been diminished if he had put B through the potentially re‑victimizing experience of being cross-examined on her statement: R. v. V.W. , 2008 ONCA 55 at para. 28. In choosing not to cross-examine her, he took the risk that the judge would place significant weight on the statement, as in fact he did. [73] In my view, the judge cannot be said to have erred in accepting and placing weight upon B’s statement in the absence of any cross-examination or contradictory evidence. If the appellant wished to preclude the judge from considering the statement as required by s. 722(1), he could have challenged its admissibility or cross-examined B on it at the sentencing hearing. He chose for strategic reasons not to do so. It was then incumbent upon the judge to consider the statement in determining an appropriate sentence. [74] Even if the judge had erred in placing undue weight on the victim impact statement, such an error would have had no material impact on the sentence. The appellant appears to take issue primarily with the part of the statement that describes B’s relapse into substance abuse and her two suicide attempts. In my view, this part of the statement, while important, did not factor largely in the judge’s reasoning as to the appropriate sentence. Rather, he emphasized B’s history of victimization and the father-like relationship the appellant had with her. The appellant does not dispute B’s history or her description of their relationship. These parts of the statement are corroborated by the intercepted conversations, in which she expressed feelings of betrayal and anger and said that she had viewed the appellant as a father figure. Ultimately, I am not convinced that the impugned portions of her statement had a material impact on the sentence. [75] I would not accede to this ground of appeal. Proportionality of the Eight-Month Sentence [76] As I would find that the sentencing judge committed no error in principle, appellate intervention will only be justified if the sentence is demonstrably unfit. [77] The appellant’s main argument on appeal was that the sentence was unfit on the basis that it was not proportionate to the gravity of the offence. I repeat that this argument relates only to the eight-month sentence on Count 2, the breach of trust for kissing B. The appellant does not seek to minimize the seriousness of his conduct or his moral blameworthiness. He says simply that, although his behaviour was inappropriate, eight months’ incarceration is a disproportionate sentence for one brief consensual kiss. [78] The appellant also contends that the eight-month sentence was disproportionate to the 12‑month sentence imposed for the breach of trust involving A. That breach of trust involved three incidents which were much more sexualized than the incident with B, and hence more serious. [79] The appellant contends that the judge erred by conflating the offence against A with the offence against B. In the appellant’s factum he says: The judge did no individual analysis leading to the conclusion that the range of sentence was appropriate in both circumstances. Without the bolstering effect of joining the offences in the judge’s analysis, the circumstances surrounding the incident with B are limited to a single, brief goodnight kiss on one occasion with a person of the age of consent after having asked permission. [80] Therefore, he says the two offences were significantly different. [81] The appellant also disputes the sentencing judge’s decision to impose consecutive sentences. He says that this decision reflects an inconsistency in the judge’s reasons. He treated the offences as a pattern of escalating conduct, implicitly treating all four offences as linked. However, in deciding to impose consecutive sentences, he described the offences as separate. The appellant also submits that the judge failed to consider the totality principle when imposing consecutive sentences. [82] Finally, the appellant submits that the judge did not take into account the difficult circumstances in prison for a police officer. The judge may not have adverted specifically to his status as a former police officer, but it was so obvious I do not think it can be said to be an error that he failed to expressly refer to it as a factor in his sentencing decision. [83] The Crown argues on the other hand that the appellant’s argument on appeal focuses unduly on the actus reus of the offence, and ignores the context in which the offence occurred. The Crown notes that the sentencing judge found that, while the appellant did not use his authority as a police officer to coerce the victims, he used “his well-developed relationship with these women to facilitate his offences against them”: para. 212. The Crown submits that the sentencing judge’s decision to impose consecutive sentences was discretionary and is owed deference on appeal. The Crown also notes that the eight-month sentence was one month below the judge’s stated sentencing range for the offence: para. 213. [84] I turn to the cases brought to our attention. Six of the eight cases involved sexual contact. Three of those, Greenhalgh, Sandhu, and Von Seefried, involved a police officer or, in Greenhalgh, a border guard who committed aggressive, coercive sexual assaults on strangers. Apart from the official status of the accused, those cases bear less similarity to the facts of the case under appeal. [85] The other three cases, Chen, F.O.R., and Bracken, are more analogous. They each involved an accused who knew his victim or victims and took advantage of their youth and vulnerabilities. As noted above, Chen involved a 69‑year‑old piano teacher who was sentenced to 75 days’ imprisonment, 21 months’ CSO, and one year of probation for sexually touching and kissing five students. That sentence was upheld by this Court. Mr. Chen was suffering from major depression, had been extensively shamed in local Asian newspapers, and had been shunned by his community. As the sentencing judge in this case observed, the judge who sentenced Mr. Chen must have viewed these as exceptional circumstances justifying a CSO. [86] F.O.R. was a Provincial Court decision in which the offender engaged in sexual activity with the daughter of his former partner on one occasion a few weeks before her eighteenth birthday, then carried on a brief consensual relationship with her after she turned eighteen. He was sentenced to 90 days’ intermittent imprisonment and two years of probation . [87] Finally, Bracken was a Saskatchewan Provincial Court decision in which a police officer sexually touched the teenage complainant in a sexual assault investigation. He was sentenced to nine months’ imprisonment. [88] On appeal, the Crown also referred to R. v. Power , 2009 BCSC 1514, aff’d 2010 BCCA 21. The accused in that case was a lawyer who invited his teenaged client to spend the night at his apartment, where he sexually touched him and performed oral sex on him. He was convicted of one count of sexual exploitation and sentenced to 18 months’ imprisonment and two years’ probation. [89] Of these sentencing decisions, all are distinguishable in one way or another and most are lower court decisions. I find most of them to be unhelpful with the exception of Bracken , whose facts are very similar to the facts of this case. In both cases, a senior police officer assisting a young, traumatized crime victim took advantage of his position to initiate sexual contact with her. I do not accept the appellant’s argument that the facts in Bracken are significantly dissimilar. [90] In Bracken , Judge Turpel-Lafond discussed the importance of context in sentencing for sexual offences. At paras. 48, 49 and 51, Judge Turpel-Lafond said: [48]      The characterization of the sexual assault before the Court as at the low end of the spectrum needs to be carefully considered. The case law does anticipate an analysis of the particular facts in each sexual assault but that analysis is not confined to an assessment of the physical acts. The evaluation of the sexual assault requires a consideration of the subjective impact of the assault on a victim, and the inference that a reasonable person would know the impact of their actions. Trial judges do not base their decision on the spectrum solely on the physical acts of sexual assault, placing touching at the low end and intercourse at the high end of a spectrum. [49] Sexual assault sentencing requires a broader contextual analysis. The leading case of R. v. Sandercock (1984), 48 C.R. (3d) 154 (Alberta Court of Appeal), as applied in Saskatchewan, requires the trial judge to evaluate the intensity of the behaviour of the offender and whether or not he knew the victim would suffer emotional or psychological injury, or physical injury. Where the touching might seem to be less aggressive or forceful, but there is a “contemptuous disregard” for the feelings and personal integrity of the victim, the assault must be classified as at the higher end of the spectrum. Context matters a great deal and hence the characterization of the facts before the Court as at the “low end” is difficult to accept. [51] Mr. Herman, on behalf of the Crown, argued that characterizing the sexual touching in this case at the low end of the spectrum is only possible if it is viewed in a vacuum. Mr. Herman’s submission is correct. The impact of Sergeant Bracken’s conduct on a sexual assault victim could not be assessed at the low end of a spectrum of harm given his position, his knowledge, and the fact that the victim was struggling with depression, anxiety and poor self-worth. He demonstrated a contemptuous disregard for her personal integrity. [91] I agree with this description of the importance of context. The comments made by Judge Turpel-Lafond are applicable to the appellant’s offences. As the Crown says, the appellant’s submissions ignore the broader context in which he committed the offences. That context is the appellant’s role in the life of B. [92] The appellant could be described as B’s saviour. He supported her in improving her life, moving away from sex work, and getting off drugs. She had been abused in one way or another by most of the men in her life. She trusted and relied on the appellant, and so his betrayal of that trust by sexualizing their relationship was far more significant than the physical act of one kiss. [93] B described her relationship with the appellant in portions of her victim impact statement that the appellant does not challenge. She met him when she was about 16. She was then an underage sex worker. Over the course of the investigation they became “very close”. She said, “I had so much respect for him and looked up to him as a positive role model, a father figure…. I often looked to him for advice and guidance. We used to joke about him walking me down the aisle one day…. I will never understand why it happened.” I reiterate that the offence with which he was charged with respect to B is a breach of trust. [94] This is a tragic case. It was tragic for the victims who had grown to trust and admire a senior police officer who did all that he could to help improve their lives and bring to justice those who abused them. He worked tirelessly to do so. To experience the appellant as just another man seeking sexual favours from them must have been a breach of trust of the highest order. [95] The many reference letters filed on behalf of the appellant are a testimony to the exceptional nature of his contribution to the police force, of which he was, until these events, a distinguished member. For the appellant, his seemingly inexplicable offending has had catastrophic effects on his life. But, in my view, this appeal seeks to minimize the breach of trust and separate it from the full context in which it occurred. His offence against B was not just a kiss. His offence must be examined in the broader context. The appellant must have known, considering his role in B’s life, that even non‑aggressive or non‑forceful conduct would be a serious breach of her trust in him. As in Bracken , the kiss cannot be examined in a vacuum. [96] For the same reasons I do not accept that the judge erred in overstating the seriousness of the offence against B by conflating it with the offence against A. The offence against B was serious when viewed in the context of B’s life and relationship with the appellant, regardless of whether one also considers the offences against A. [97] The judge’s decision to impose a consecutive sentence is a discretionary one. The appellant does not suggest that these facts require a concurrent sentence; rather he says that the imposition of a consecutive sentence renders the total sentence disproportionate, or that in imposing a consecutive sentence the judge disregarded the totality of the sentence. I do not agree. In my view, when the sentence is examined in its context, it cannot be said that the judge failed to consider the totality of the sentence or imposed a sentence that was disproportionate to the gravity of the offence. I would not accede to the submission that the sentence is demonstrably unfit. Disposition [98] I would grant leave to appeal and dismiss the appeal. “The Honourable Madam Justice Garson” I agree: “The Honourable Chief Justice Bauman” I agree: “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Nield, 2019 BCCA 27 Date: 20190130 Docket: CA44813 Between: Regina Respondent And Gregory Stanley Nield Appellant Before: The Honourable Mr. Justice Frankel The Honourable Madam Justice D. Smith The Honourable Mr. Justice Willcock On appeal from:  An order of the Supreme Court of British Columbia, dated April 8, 2017 ( R. v. Nield , Penticton Registry 42689). Counsel for the Appellant: S.J. Tessmer Counsel for the Respondent: J.R.W. Caldwell Place and Date of Hearing: Kelowna, British Columbia November 1, 2018 Place and Date of Judgment: Vancouver, British Columbia January 30, 2019 Written Reasons by: The Honourable Mr. Justice Willcock Concurred in by: The Honourable Mr. Justice Frankel The Honourable Madam Justice D. Smith Summary: The appellant was involuntarily admitted to hospital under the Mental Health Act. During that hospital admission, the appellant struck his treating psychiatrist and the psychiatrist sustained serious injuries. The jury at trial found the appellant guilty of aggravated assault. He appeals this conviction on the basis that the trial judge erred, during a voir dire and during the trial by jury, in admitting evidence in breach of his Charter rights and in restricting his ability to lead evidence to establish the defences of self-defence and automatism. Held: appeal allowed. The trial judge did not err in how she conducted the voir dire and the appellant did not establish any errors in the trial judge’s decisions on the voir dire. However, the trial judge did err with regards to evidence that could have gone toward establishing the available defence of automatism. The judge failed to weigh the costs and benefits of receiving the treating physician’s opinion evidence. Further, the judge erred in not admitting relevant portions of the hospital record as prima facie proof of the facts recorded therein, including observations on the patient’s behaviour and the administration of drugs, after a witness attested to the record’s authenticity. Reasons for Judgment of the Honourable Mr. Justice Willcock: Background [1] On the morning of November 26, 2014, the appellant’s wife took him to see his family doctor, Dr. Kyle Stevens. The appellant had been consuming hallucinogenic mushrooms and his behaviour had progressively worsened over the preceding two days. He was experiencing auditory hallucinations and was not sleeping; he was emotionally labile and angry. Dr. Stevens felt the appellant would cause or suffer significant harm if not hospitalized. Dr. Stevens completed a medical certificate for involuntary hospital admission (Form 4 prescribed by the Mental Health Act , R.S.B.C. 1996, c. 288 [ MHA ]) certifying that the appellant suffered a disorder that caused serious impairment and required treatment and that he could not suitably be admitted as a voluntary patient. Dr. Stevens directed the appellant to the hospital for further assessment. Section 22(1) of the Mental Health Act provides: The director of a designated facility may admit a person to the designated facility and detain the person for up to 48 hours for examination and treatment on receiving one medical certificate respecting the person completed by a physician in accordance with subsections (3) and (4). [2] In the afternoon, the appellant attended at Penticton Regional Hospital and was assessed by a psychiatrist, Dr. Rajeev Sheoran, who completed a second Form 4. Section 22(2) of the Mental Health Act provides: (2) On receipt by the director of a second medical certificate completed by another physician in accordance with subsections (3) and (5) respecting the patient admitted under subsection (1), the detention and treatment of that patient may be continued beyond the 48 hour period referred to in subsection (1). [3] A patient may be so detained for one month after the date of admission. [4] During the hospital admission in this case, Dr. Sheoran prescribed medication, including anti‑psychotics (Seroquel and Haldol), anti‑anxiolytics (Ativan and Lorazepam), an anti‑convulsant and antimanic agent (Epival), and a sedative ( Imovane). The appellant took the prescribed medications reluctantly. [5] On December 5, 2014, the appellant entered an examining room with Dr. Sheoran. Medical staff nearby heard loud banging sounds. The appellant left the room and was heard saying “I think he’s dead”. When the staff entered the room, they found Dr. Sheoran slumped in a chair and bleeding profusely. He had suffered very significant injuries to his face. His orbital bone was so badly fractured that he required a prosthetic implant. His right eyeball and optic nerve were damaged. He needed reconstructive dentistry and orthodontic treatment. He has suffered a traumatic brain injury and psychological and emotional problems. [6] The appellant’s conduct after the assault was bizarre. A nurse testified that she followed the appellant to a lounge. She testified he was extremely calm but concerned about his hand . She observed him asking people if they wanted a hug. A police officer testified that, while he was read his Charter rights and, later, when he was put in the cells, the appellant hummed and repeatedly introduced him se lf . Decision under Appeal [7] The appellant was charged with aggravated assault. He elected a trial by jury. His trial commenced with a voir dire from March 21 to 31, 2017. The jury heard evidence and submissions from April 1 to 7, 2017, when they returned a verdict of guilty. Mr. Nield appeals the conviction on the grounds the trial judge erred in how she addressed certain questions on the voir dire and in how she conducted the trial. Grounds of Appeal [8] The appeal is founded on the grounds the judge erroneously addressed issues on the voir dire by: a) failing to consider evidence relating to the credibility of Dr. Sheoran in relation to whether the appellant was arbitrarily detained contrary to s. 9 of the Charter ; b) failing to grasp the principle of fundamental justice that people not be compelled to take medication except as prescribed by law; c) finding the appellant consented to the taking of medication; d) not finding the appellant’s rights under s. 10(b) of the Charter had been breached because he was not promptly informed of his right to retain and instruct counsel; and e) not finding the destruction of notes by Dr. Sheoran affected the fairness of the trial, and not ordering a stay of proceedings pursuant to s. 24 of the Charter . [9] And, at the trial itself, by: a) not permitting the appellant to introduce evidence to support self-defence, and lack of mens rea ; b) preventing the appellant from cross-examining Dr. Sheoran on matters within areas of his expertise; c) finding the hospital record was not admissible; and d) preventing questioning of Dr. Sheoran in several areas relevant to his credibility. Rulings on the Voir Dire [10] Prior to trial, the appellant filed a Notice of Application seeking a voir dire to determine whether: 1.      he was arbitrarily detained contrary to section 9 of the Charter ; 2.      Dr. Sheoran and those working with or under Dr. Sheoran’s instructions violated his right to liberty and security of the person protected by section 7 of the Charter ; 3.      his detainees violated his right to counsel protected by section 10(b) of the Charter ; and 4.      either the evidence of the alleged assault on December 5, 2014, should be excluded from evidence pursuant to section 24(2), or an acquittal or a Judicial Stay of Proceedings should be entered as a just and appropriate remedy pursuant to section 24(1) of the Charter . [11] During the course of the voir dire , the appellant’s counsel advanced another argument: that the appellant’s right to a fair trial was prejudiced by Dr. Sheoran’s destruction of documents. [12] The trial judge dismissed the application, for reasons indexed as 2017 BCSC 827. The judge’s findings of fact were dispositive of the motion. The appellant’s principal objection to his certification was founded upon the allegation Dr. Sheoran certified him without conducting an assessment. The judge accepted evidence to the contrary, including Dr. Sheoran’s testimony and a nurse’s note in the Hospital Chart from 15:30 on November 26, 2014, that said Dr. Sheoran assessed the appellant in room 17 of the hospital. The judge found that in deciding to certify the appellant, Dr. Sheoran relied on this assessment, as well as his interview of the appellant and his wife on November 24, 2014, conversations he had with Dr. Stevens, Dr. Stevens’ records, and the Form 4 Dr. Stevens completed. The judge said: [74]      I conclude that Mr. Nield was correctly and legally certified under the Act so as to be properly admitted involuntarily. I also conclude that, throughout his stay in the Hospital, based on the evidence, Mr. Nield’s mental health required his continued certification under s. 22. [13] The evidence was unclear with respect to the timing of Mr. Nield’s detention and the time at which he was advised of his rights following detention. Psychiatric Nurse, Shane Henry, was called as a witness on the voir dire by the appellant’s counsel. He testified that three forms were completed on November 26: Form 13 (a notification of patient rights), Form 15 (nomination of a near relative), and Form 16 (notification to near relative). Mr. Henry read the notification of patient rights to the appellant and noted no signs of a mental disorder during their brief encounter. He could not remember the time when the forms were signed. The trial judge concluded: [105]    Mr. Henry could not remember the time when he advised Mr. Nield of his right to contact a lawyer. Mr. Nield met with Dr. Sheoran at “15:30 hrs” on November 26, 2014. After that, Mr. Nield tried leaving the Hospital, but returned on his own and, at his own request, went into room 16, the seclusion room. Given the process in the Hospital for certification, it was sometime after “16:30 hrs” that Mr. Henry advised Mr. Nield of his rights in accordance with s. 10(b) of the Charter. [106]    In Mr. Nield’s case, there was no risk of self-incrimination. Mr. Nield was entitled to know that he could contact counsel to assist him in regaining his liberty. It is not disputed that, during his stay in the psychiatric unit of the Hospital, Mr. Nield was in contact with counsel. [107]    In R. v. Suberu , [2009] 2 S.C.R 460, the Supreme Court of Canada defined without delay as follows: [41]      A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises. [108]    I conclude that Mr. Nield’s s. 10(b) rights were affected on November 26, 2014, after his certification under the Act. I also conclude that he understood his rights “without delay”, keeping in mind that Mr. Nield was not accused of any crime and his care was of concern before being informed of his s. 10(b) rights. Moreover, I conclude Mr. Nield understood his rights as given to him by Mr. Henry. [14] The judge then considered the appellant’s concern about Dr. Sheoran destroying documents. Dr. Sheoran had documents in a folder at the preliminary hearing, which he described as personal “scribbles” and which included notes for his victim impact statement. The judge found that these documents were destroyed over time when Dr. Sheoran no longer had any use for them and before the appellant brought an application for their production. The judge noted that no one had asked to see the contents of the folder or had applied to obtain the notes at the preliminary hearing. New counsel, subsequently retained by the appellant, made an application for Dr. Sheoran’s handwritten notes in January 2017, a little over two years after the preliminary hearing. He did not proceed with the application after, by consent, the remaining notes Dr. Sheoran had in his possession were produced at trial and marked as Exhibit 5 on the voir dire ; he was apparently satisfied. The judge held: [134]    Mr. Nield has not demonstrated on a balance of probabilities that the documents Dr. Sheoran had at the preliminary hearing would assist Mr. Nield in a material way, which would deprive him of an opportunity to make full answer and defence. [15] The judge found the other criticisms of Dr. Sheoran were unwarranted. She rejected the allegation that he had much later written self-serving notes of his November 24 and 26 assessments as follows: [87]      I conclude that Dr. Sheoran made the progress notes of November 24 and 26, 2014 on the dates noted. The rough notes made on November 24, 2014 were just that, rough notes, and were not intended to be placed in Mr. Nield’s hospital chart. I also conclude that the progress notes described above, and other material from Mr. Nield’s hospital chart, were taken out by Dr. Sheoran to prepare the consultation reports that he intended to do after his meeting with Mr. Nield. However, he was unable to do this as a result of the assault. [16] She addressed the allegation that Dr. Sheoran had wrongly failed to prepare contemporaneous consultation reports as follows: [88]      Dr. Sheoran did delay in the preparation of the consultation report. However, the question of whether it should have been prepared does not affect Mr. Nield’s Charter rights. Conduct of the Trial Questions Regarding Involuntary Admission to the Hospital [17] At the conclusion of the voir dire , the appellant’s counsel advised the judge that, regardless of her ruling on the voir dire , he would ask the jury to conclude the appellant had been arbitrarily and unlawfully detained. He stated: “I intend to prove that this doctor did not examine this man before he certified him and then ask the jury to come to a conclusion that this was unlawful”. He intended to argue that the appellant struck Dr. Sheoran in self-defence in an effort to resist his detention and the administration of drugs he considered to be harmful. [18] Having ruled on the question of the legality of the appellant’s involuntary detention, the judge regarded that question as settled and no longer open to the appellant. As a result, the judge considered the record of the hospital admission from November 26 to December 5, 2014 to be of limited relevance and she narrowly circumscribed the evidence the appellant’s counsel was permitted to adduce from the witnesses called in the Crown’s case. [19] The Crown’s first witness was Nicole Reichenbach, a registered psychiatric nurse who had attended to the appellant in the hospital. When the appellant’s counsel sought to ask Ms. Reichenbach whether the appellant had been involuntarily admitted to the hospital, Crown counsel objected to the question as irrelevant. The appellant’s counsel said the question was relevant to the appellant’s subjective view that he was being illegally held and treated with dangerous medications. The judge held the jury should know why the appellant was in the hospital so the appellant could ask: “Was Mr. Nield there as an involuntary patient as a result of being certified by two doctors, Dr. Sheoran and Stevens, pursuant to the Mental Health Act ?” Available Defences and Opinion Evidence [20] During the discussions of Ms. Reichenbach’s evidence, the appellant’s counsel informed the judge he intended to introduce the hospital record into evidence as a record kept in the ordinary course of business, in the manner and for the purpose established in Ares v. Venner , [1970] S.C.R. 608. Crown counsel objected to the introduction of the entire hospital record as it contained much irrelevant evidence and because she was concerned about the Crown’s “positive obligation to refrain from raising information about a potential defence of not criminally responsible” (referring to R. v. Swain , [1991] 1 S.C.R. 933) . [21] When asked if he would advance a defence of not criminally responsible on account of mental disorder, the appellant’s counsel said that while he might rely on that defence, he would certainly argue that the appellant’s actions were involuntary and, in the alternative, he would seek to establish that the appellant had acted in self-defence. Crown counsel advised the court the Crown took the position the “involuntary” defence amounted to a defence of non‑insane automatism that could only be made out with expert opinion evidence. [22] The appellant’s counsel informed the judge he intended to put the hospital record to Dr. Sheoran in cross-examination to establish the appellant was affected by a mental illness and to determine whether it was caused by the medication prescribed for him. The following exchange then occurred: THE COURT: … are you bringing expert evidence? MR. TESSMER [defence counsel]: No, I intend to rely on this big volume that, hopefully, Dr. Sheoran has looked at, on Compendium of Pharmaceuticals and Specialties . THE COURT: Well, that’s not going to happen. MR. TESSMER: What do you mean? THE COURT: We are going to have Dr. Sheoran be the expert evidence, suddenly? MR. TESSMER: He could testify about side effects from -- from medicine. THE COURT: Yeah, but what has that got to do with the issues? MR. TESSMER: The side effects caused the -- THE COURT: Okay, I am going to rule -- MR. TESSMER: -- the act. THE COURT: -- thus far, it may change, you may change, you can -- I am going to rule that you can take this witness [Nicole Reichenbach] through her notes, and her notes only. And you also were going to ask the question about him being involuntary patient as a result of certification by the two doctors that have been named, pursuant to Mental Health Act . All right? MR. TESSMER: Just for the record, I am not entitled to ask her other questions about things that are recorded in the charts, about adverse reactions to the medicine that occurred to my client, unless she personally witnessed them? THE COURT: I have decided you can ask her about her notes. And [if,] for some reason or other, this case somehow changes ... [w]e may have to recall this witness, but that’s my ruling. [23] The effect of this ruling that the hospital record could not be admitted as evidence and the judge’s view that witnesses could not be asked to express opinions in cross-examination became clear during the cross-examination of the first witness. The appellant’s counsel was not permitted to ask the nurse whether the appellant was prescribed “heavy antipsychotic drugs” while in hospital. He was not permitted to ask the nurse whether, while conducting an exam, she formed the opinion that the appellant’s mental status was “not that bad”. He was not permitted to ask what the nurse knew about Seroquel. He was not permitted to ask whether the appellant’s mental status deteriorated during his hospital stay. [24] The ruling on each of these issues was made following an objection by Crown counsel and without hearing submissions from the appellant’s counsel. The following excerpt is typical of how the judge addressed each objection: Q.        You were still his nurse at 1:10 that afternoon? A.         Yes. Q.        On the 29th of November? A.         Yes. Q.        And he approached you, and he says, “I am losing touch with reality.” A.         Yes. Q.        And he was tearful, and irritable in conversation. A.         Yes. Q.        And restless. A.         Yes. Q.        So -- and then he -- he again said, “I’m really paranoid right now, I just can’t explain it.” A.         Yes. Q.        So, and in your -- there may be an objection, so don’t answer until -- in your opinion, he was getting worse during his stay? MS. FIRESTONE [Crown counsel]:  Objection. This is not a witness who can provide opinion evidence. She hasn’t been qualified to give opinion evidence before the court. THE COURT:  For those reasons, Mr. Tessmer, you can’t ask her the question. Entering Hospital Record into Evidence [25] At the conclusion of the cross-examination of the first witness, the appellant’s counsel again addressed the question of admissibility of the hospital record. Crown counsel objected to the introduction of the whole record on the ground doing so would “further muddy the waters” by putting a voluminous record in the hands of the jury without detailed instructions on how they may use it. The appellant’s counsel again advised the court it was his intention to argue the appellant had acted in self-defence and it was important for the jury to have a complete record of circumstances leading up to the assault. He said he was not attacking the ruling on the voir dire that the appellant had been lawfully certified but he wished to put evidence before the jury going to the appellant’s perception of his circumstances. He added that self-defence has to have an objective component and he wished to introduce evidence of the facts that objectively supported the appellant’s belief he was threatened. He concluded his submissions by saying: I would like, at this point, to put these in so that I … don’t have to call each nurse to say what her observations are, that’s what Ares v. Venner says, and then I can properly, when Dr. Sheoran is on the witness stand, I can take him through … the orders that he made, the drugs that were given, at the time they gave it to him, and… the side effects of these various drugs. So that’s what I need to do, in order to establish my client’s case. [26] The trial judge held, in part, as follows: This case before this jury is not a civil case. The issue is not whether Mr. Nield, the accused, received proper care while under the care of Dr. Sheoran at the Penticton Regional Hospital, and as a result, I am not going to allow Exhibit 3 or the parts of Exhibit 3, that the defendant would like to go in, wholesale. [27] The following exchange ensued: MR. TESSMER: What about the nurses’ notes, can I put the nurses’ notes in, My Lady? THE COURT: We’ve heard the nurse, this nurse’s notes, we’ve heard this one. MR. TESSMER: I want to put all the nurses’ notes in. THE COURT: No, they are not going in. MR. TESSMER: Their observations. THE COURT: They are not going in. MR. TESSMER: Because I need to show that my client’s condition deteriorated while under the care of Dr. Sheoran, and he went towards a psychotic state, and … that’s the only way I can get it, is through the nurses’ notes, or calling each individual nurse. … Which I don’t even know the names of the nurses. THE COURT: Okay. No, you are not getting those in. [28] Dr. Sheoran was the Crown’s second witness. When questions arose with respect to the appropriate scope of the cross-examination of Dr. Sheoran the following exchange occurred: THE COURT: Ares v. Venner was a case about standard of care and negligence, but that’s not what this trial is about. This trial is about an assault, it’s not about whether Mr. Nield or anybody else thinks he got good care or not. MR. TESSMER: No, this is about the deterioration of my client’s health, under this man’s care, which caused the actions on December the 5th. THE COURT: You’re never going to be able to prove that. MR. TESSMER: Well, because you are not letting me ask any other questions. THE COURT: But what proof are you going to have? Are you going to have an expert evidence … say that this man’s care deteriorated? ... MR. TESSMER: He testified to that, we’ve got evidence that his care deter – it’s in the -- in his testimony from the voir dire, about his care deteriorating over the time he was with him. … And every time his health deteriorated, the man upped the drugs, and the drugs have side effects which you say -- THE COURT: But … -- you are not going to bring the evidence before this court. … You’re not bringing evidence before this court about his health deteriorating, the drugs he took, all of those things. The jury cannot make any decision about that. MR. TESSMER: Well, that’s my defence, so -- THE COURT: Well, you are not going to be able to ask the questions. MR. TESSMER: I will have no more questions then, in this trial. Thank you. [29] The appellant’s counsel rethought this rash decision and continued his cross-examination of Dr. Sheoran the following day. Before it continued, however, the appellant’s counsel renewed his effort to have the hospital record admitted: My Lady, if I could get you to reconsider, that what is in issue in this case is whether my client was unlawfully kept against his will and he was entitled to defend himself from the -- of the giving of the drugs against his wishes and his unlawful confinement, contrary to the provisions of the Criminal Code . This is not a Charter issue. So I want to put in what happened during the course of the time when he was in the hospital. The evidence that led to him being in the hospital and the records at the hospital are not only relevant to the things that happened to him while he was in the hospital, they’re also relevant to the fact that under the doctor’s care, his condition got worse. And he was given drugs and his condition got worse and worse and worse. So this evidence is also relevant to his state of mind at the time of the offence, as well as self-defence, and whether or not he had a mental disorder at the time on December the 5th. So it’s in the -- the nurses’ observations, the time the drugs were given, all of these things are in the hospital chart. In my respectful submission, the defence has to be able to put that in, in order to establish our defence. [30] The judge perceived this as an attempt by the appellant’s counsel to show that the appellant was unlawfully confined in the hospital. She held that she had already determined that Mr. Nield was lawfully detained under the MHA and that this was final. The appellant’s counsel asserted that the judge was impermissibly impeding on the jury’s role as the trier of fact by blocking evidence from coming before the jury. [31] In the course of continuing cross-examination, the appellant’s counsel was asking Dr. Sheoran about increasing doses of Epival and a prescription for Haldol on November 30 when the Crown objected to the questions as irrelevant. The jury was excused and the following exchange occurred: THE COURT: We are not here to determine whether Mr. Nield’s health got better, got worse, whether he had bad reactions to some drugs, all of those things. That’s not what we’re here about. MR. TESSMER: No, I say we are, My Lady. THE COURT: No, we’re not. MR. TESSMER: That’s my defence. THE COURT: Well, that’s not -- MR. TESSMER: My defence is that he was given these drugs contrary to his wishes. They made his condition worse until he became psychotic or something like that. …-- on December the 5th. I need to put in his medical -- the history of the drugs he was given so this jury understands the state of mind of this man on December the 5th. THE COURT: You will have to have expert evidence to prove that state of mind. MR. TESSMER: Well, he’s an expert right there. THE COURT: And secondly … that’s not what we’re here about. We are not here about whether the standard of care, whether it was good, bad, and indifferent. We’re not here to determine the effects of these drugs on this man. That’s not what we’re here -- … we’re here about whether this man assaulted Dr. Sheoran or not. So you’re going to stop -- MR. TESSMER: And whether or not he was -- and whether or not he was of sound mind. Remember he’s in the mental institute there because they say he had a disease of the mind. He had a mental disorder, My Lady. THE COURT: Well, that’s another -- MR. TESSMER: We’re not talking about a healthy individual. THE COURT: -- that’s another topic, isn’t it, that you would be raising, I suppose, as a defence as to intent and -- MR. TESSMER: And he knows better than anybody about what drugs he was given. THE COURT: No, he’s not going to be giving an opinion. The witness who was assaulted is going to give an opinion? MR. TESSMER: I want him to -- THE COURT: No, that’s not going to happen and I’m telling you to stop, stop now. The Crown has been -- allowed certain questions. I’ve said to you certain questions you’re to ask and you go over the line every time. [32] The result of this exchange and the rulings made was apparent in the concluding portion of the cross-examination of Dr. Sheoran. The appellant’s counsel was not permitted to ask him: a) What is akathisia? b) Did the appellant have a severe reaction to Haldol? c) What were the side effects of the drugs prescribed? d) Did the appellant’s condition deteriorate during the course of his hospital stay? e) How was the appellant certified and was he properly certified? f) Are some patients hypersensitive to the medications that were prescribed for the appellant? [33] While the appellant’s condition and treatment were canvassed with other witnesses, particularly his mother and father, the appellant did not adduce any further opinion evidence and did not make any further requests to file medical records. Jury Instructions [34] In the written version of the charge to the jury, one of the elements of the offence of aggravated assault, the intentional application of force, was addressed as follows: [99]      … Did Mr. Nield intent i onally apply the force? [1 00] The physical contact must be intentional , as opposed to accidenta l. To decide whether Mr. Nield applied force intentionally, you will have to consider all the evidence, including anything said or done in the c i rcumstances. [101]    The evidence, that is the injuries that Dr. Sheoran suffered, supports that Mr. Nield applied force to Dr. Sheoran. Witnesses heard loud banging. [102] Unless you are satisfied beyond a reasonable doubt that Mr. Nield intentionally applied force to Rajeev Sheoran , you must find Mr. Nield not guilty . Your deliberations would be over. [103] I f you are satisfied beyond a reasonable doubt that Mr. Nield intentionally applied force to Rajeev Sheoran , you must go on to the next question . [132]    The defence says that Mr. Nield was unlawfully confined and forced to take drugs against his will by Rajeev-Sheoran. The defence further says that Mr. Nield tried to go through lawful means to extricate himself , but was prevented from doing so by the actions of Dr. Sheoran in failing to properly chart a diagnosis and treatment plan , and further by removing and or falsifying documents from Mr. Nield’ s Hospital Health Records. The defence says that Mr. Nield’ s actions on December 5 were a direct result of the unlawful actions of Rajeev Sheoran, in detaining him and requiring him to take medication against his will. [133]    The defence says that if Mr. Nield ’ s actions on December 5, 2014 were intentional, then he was entitled to defend himself and , if they were not intentional , because of the i ngestion of drugs, he cannot be convicted of this offence . Either way, Mr. Nield is entitled to an acquittal. [134] Ms. Tessmer told you that if you think he is totally out of line, then I can tell you that. There is no evidence to substantiate any of the allegations set out in the theory of the defence. [135]    Evidence has not been hidden from you. You will recall I told you I was the judge of the law. That is what I do when I rule on whether evidence is admissible or not. [35] After receiving those instructions, the jury returned with questions for the judge. With respect to the words in para. 133 of the charge: “if they were not intentional, because of the ingestion of drugs, he cannot be convicted of this offence”, they asked: Is this true or just the defence’s opinion? [36] With respect to the words in paras. 134‑135 of the charge: “There is no evidence to substantiate any of the allegations set out in the theory of the defence. … Evidence has not been hidden from you”, they asked: we were given no information about the nature of the drugs the defendant was being given. Surely that would be evidence to support the non intention defence. [37] The jury correctly observed that there was no evidence before them of the effect of the ingestion of the drugs prescribed for the appellant during his hospital stay. That was, in part, because the appellant’s counsel had not adduced any expert opinion evidence and, in part, because the trial judge had precluded the appellant’s counsel from adducing opinion evidence from the victim of the assault, Dr. Sheoran , in cross-examination. [38] The judge responded to those questions as follows: If Mr. Nield had ingested prescribed medication which affected his intention to commit the crime, he could not be convicted. However, there is no evidence as to what prescribed drugs he consumed and the effect those drugs would have had on him as to his intention to commit the assault. The evidence you have before you is all the evidence you will receive in this trial. [39] The jury deliberated briefly before finding the appellant guilty of aggravated assault. Analysis [40] In my view, the appellant has not established any error in how the judge conducted the voir dire or the rulings the judge made at its conclusion. [41] There were, however, errors in how the trial was conducted. The scope and effect of those errors requires our careful consideration. The Voir Dire [42] I can see no basis upon which to interfere with the judge’s conclusion that the appellant was correctly and legally certified. There was evidence upon which it was open to her to find that Dr. Sheoran had complied with the provisions of the MHA . There was evidence upon which she could find the appellant had been advised of his right to counsel upon being detained. [43] The appellant submits the trial judge did not determine when detention commenced. He argues he was detained when he attended the hospital pursuant to the first Form 4 completed by Dr. Stevens, long before he met Nurse Henry. However, the evidence was equivocal with respect to when the appellant was, in fact, detained. He attended the hospital in the first instance at the direction of Dr. Stevens but on his own initiative and the judge found as a fact that he left the hospital “on his own” after his assessment by Dr. Sheoran, returning to wait in the seclusion room “at his request” before meeting Nurse Henry and being advised he was detained. In my view, it is not open to us to say the trial judge erred in concluding that Mr. Nield was informed of his rights “without delay” after his detention. The appellant cannot establish a delay on the evidence in the record. [44] Further, the appellant has not established any error undermining the trial judge’s conclusion that the appellant’s criticism of Dr. Sheoran was unwarranted. [45] Without any substantial basis for challenging the findings of fact upon which the trial judge’s conclusions were based, the appellant’s counsel argued on appeal that the wrong person was tried in this case. He continued to impugn the conduct of Dr. Sheoran. In my view, that criticism was unfounded and misdirected. Even if the appellant had established procedural error in the way in which he was certified, there is no doubt, on the evidence, that he was affected by mental illness that required treatment. That opinion was shared by Dr. Stevens, Dr. Sheoran, and subsequent treating health professionals. His hospitalization was not shown to have been a result of a diagnostic mistake or malice. [46] Last, in my view, there was no authority for the questionable proposition that the independent evidence of witnesses to the assault in this case should be excluded, by operation of s. 24(2) of the Charter , as evidence “ obtained in a manner that infringed or denied any rights or freedoms guaranteed” by the Charter . In particular, I accept the Crown’s argument in relation to the alleged breach of s. 10(b) of the Charter , founded upon R. v. Goldhart , [1996] 2 S.C.R. 463, that s. 24(2) should not be invoked in relation to an alleged breach that has such a tenuous temporal and causal link to impugned evidence. [47] As the grounds of appeal relating to the voir dire are without merit, I would not accede to them. Conduct of the Trial [48] The appellant says the trial judge erred in not permitting him to introduce evidence that went toward establishing self-defence and lack of mens rea , in preventing him from cross-examining Dr. Sheoran on matters within areas of his expertise, and in finding that the hospital record was not admissible. These rulings effectively prevented him from advancing his defences, principally the defence that the appellant was incapable of forming the requisite intent. [49] The appellant says he should have been permitted to question all witnesses about the side effects of the prescribed drugs. He argues, relying upon Erven v. The Queen , [1979] 1 S.C.R. 926 at 931, that the voir dire and trial have distinct functions. The former is to address admissibility of evidence whereas the latter is to determine the merits of the case on the basis of admissible evidence. He says in this case the issue on the voir dire was whether the evidence of the assault should be excluded or the proceedings should be stayed as a result of a Charter breach. He says the court, having rejected the application to exclude the evidence of the assault and the argument that his Charter rights had been infringed, should nevertheless have permitted him to introduce evidence relating to the prescription of medication and “lack of mens rea due to the ingestion of the very drugs prescribed by Dr. Sheoran”. [50] The Crown says the trial judge properly restricted the evidence admitted at trial. Exclusion of Evidence for Establishing Self-Defence [51] First, the Crown says there was no air of reality to the claim of self-defence. It argues, citing R. v. Mathisen , 2008 ONCA 747, that a defence should not be put to a jury unless it meets the air of reality test and “is sound in law” (para. 47). The Crown argues the appellant faced no threat other than detention in hospital and the force he used to address that perceived threat was grossly disproportionate. The Crown says, in the event the trial judge did err in restricting evidence with respect to self-defence, a new trial is not required as there is no reasonable possibility that a jury would have returned a different verdict had it been asked to consider self-defence: R. v. Khan , 2001 SCC 86 at para. 28. [52] I would not accede to the argument that the rulings at trial precluded the appellant from arguing self-defence. Despite the ruling on the voir dire that the appellant had been lawfully certified and involuntarily admitted to hospital, the appellant could still seek to establish that he thought that he had been wrongly admitted to hospital, that he was being administered noxious substances, and that Dr. Sheoran was an obstacle to his release from hospital. [53] The trial judge permitted the appellant’s counsel to ask questions relevant to the appellant’s subjective view that he was being illegally held and treated with dangerous medications. The impugned rulings did not preclude the appellant from leading evidence that he had exercised proportionate force to address what he regarded as an imminent threat. [54] I should note, however, that in addressing the question whether there was an air of reality to this defence the Crown is not meeting the argument made by the appellant. The appellant says he was not permitted to lead evidence. It is not an answer to that argument to say there would have been no air of reality to the proposed defence had the evidence been led. The answer is, rather, that the excluded evidence did not speak to this issue. [55] Insofar as this defence is concerned, in my view, none of the evidence excluded at trial would have permitted the appellant to establish that the force he used to attack Dr. Sheoran was either necessary or proportionate in the circumstances. [56] There is, however, a more substantial concern: whether the rulings wrongly precluded the appellant from advancing a defence of mental disorder automatism or non‑mental disorder automatism. There are two components to that question: first, whether the judge erred in law by refusing to permit the appellant to adduce the opinion evidence of Dr. Sheoran or by refusing to admit the hospital record; and, if so, then whether the appellant was prevented from advancing a viable defence. Exclusion of Dr. Sheoran’s Opinion Evidence [57] The Crown says the judge did not err in precluding cross-examination of Dr. Sheoran on matters within his expertise or the appellant’s medications as they related to mens rea . The Crown says the opinion evidence of Dr. Sheoran was rightly excluded from evidence because Dr. Sheoran was not properly qualified as an expert witness and that burden falls upon the party seeking to elicit the opinion. Further, because he was testifying as a complainant in a criminal matter and was the victim of a violent attack, Dr. Sheoran was not an impartial witness and, therefore, did not meet one of the essential criteria to be qualified as an expert witness. [58] In support of these propositions, the Crown relies upon White Burgess Langille Inman v. Abbott and Haliburton Co ., 2015 SCC 23 [ White ], and J.P. v. British Columbia (Children and Family Development), 2017 BCCA 308, and the following passage from the judgment of Watt J.A. in R. v. Vassel , 2018 ONCA 721: [91]      It is the responsibility of the party who seeks to elicit expert opinion evidence from a proposed (or actual) witness to qualify the witness as an expert in the subject-matter about which the opinion is to be elicited. [59] Dr. Sheoran was not formally qualified as an expert witness. However, he is qualified to express the opinions the appellant sought to adduce. On the voir dire , he was asked by Crown counsel to express opinions on the effects of the drugs prescribed for the appellant and did so without objection or reservation. He testified that he prescribed a number of drugs to the appellant, including Seroquel, Ativan and Zopiclone. He described the indications for these drugs and their potential side effects. He described Seroquel as an antipsychotic medication with good sedative and anxiolytic properties. Its side effects include sedation, gastric symptoms, extrapyramidal side effects (motor disorders), and reduction in blood pressure causing feelings of dizziness or light-headedness. He noted “[p]eople can have some slowing or slowed-down feeling” and that the long-term effects of Seroquel include changes in cholesterol levels, skin reactions, and elevation of liver enzymes. [60] Dr. Sheoran described Ativan as “a benzodiazepine, which is classified as [a] sedative/hypnotic/anxiolytic”. It is used to manage states of anxiety or agitation. It can also cause a feeling of dizziness or light-headedness. He testified that Ativan can cause confusion, especially in people with severe underlying physical illness or the elderly. There are idiosyncratic reactions, which are alternative effects to what is expected, particularly in very young people and teenagers. Some people may become more agitated or more active, more aroused rather than sedated. [61] Dr. Sheoran testified that Zopiclone was prescribed to help the appellant sleep, and described it as a selective hypnotic that can cause confusion or altered cognition in people who are elderly. It is very cautiously prescribed. [62] When the appellant’s counsel began to ask Dr. Sheoran about the manner in which a patient presenting with a history of hallucinogenic mushroom consumption should be treated, the Crown objected to the witness being examined on the standard of care and the judge sustained that objection. However, he was asked about the symptoms of mushroom intoxication and answered the question. He was asked about literature with respect to the side effects of medication prescribed for this patient and answered those questions. He was cross-examined in detail with respect to the symptoms exhibited while the appellant was a patient in the hospital. He was examined in detail on the entries in the DSM‑V manual. [63] The trial judge’s finding that the appellant had been lawfully certified relied, in part, upon acceptance of Dr. Sheoran’s opinion that the appellant met the criteria set out in the MHA for involuntary admission to hospital. While this is not entirely a question of expert opinion, since the admitting doctor’s opinion of whether a patient needed to be certified and involuntarily admitted goes towards the factual finding of whether it was done properly, accepting his evidence to this effect must mean that the judge considered Dr. Sheoran to have appropriate expertise. [64] The same, relatively casual, approach was taken to opinion evidence adduced from other witnesses in the voir dire . Dr. Stevens, the appellant’s family doctor, testified in chief and on cross-examination with respect to the side effects and adverse reactions to the drugs prescribed for the appellant. He agreed with the suggestion put to him that Seroquel can create a sense of inner tension and torment that feels like agitated depression. He said this is problematic for patients and doctors because many do not realize this is a drug-induced state. [65] Elizabeth Scott, the patient care coordinator in the psychiatric ward who authorized the treatment administered to the appellant, testified that the appellant received Lorazepam (to treat agitation); Epival (a mood stabilizer); Haldol (to treat agitation and psychosis); Seroquel, Quetiapin and Ativan (anti‑psychotics); and Zopiclone (to promote sleep). She testified to the times and doses of some of the drugs administered and to the administration of Cogentin, an antidote to the neuromuscular problems caused by Haldol. [66] While the issues on the voir dire were distinct, that does not account for the reception of the expert opinion evidence of some witnesses on the voir dire and its exclusion at trial. [67] In my view, the trial judge did not adequately consider the grounds for excluding the opinion evidence of Dr. Sheoran. [68] The trial judge’s view that Dr. Sheoran should not express an opinion at trial appears to be founded upon partiality rather than a lack of expertise or formal qualification. Her decision cannot be based on inadequate notice because a trial judge cannot disallow expert evidence simply because the defence gives inadequate notice of the intention to adduce such evidence: R. v. Horan , 2008 ONCA 589. [69] In White , the Supreme Court considered how a trial judge should weigh an expert’s lack of independence and impartiality. The question in that case was described, at para. 13, as how the law of evidence should best respond to concerns about impartiality of experts. The Court held that a lack of independence and impartiality goes both to the admissibility of the evidence and to the weight to be given to the evidence, if admitted. The admissibility of expert evidence should be scrutinized at the time it is proffered but exclusion at the threshold stage should only occur in very clear cases. The Court held, at para. 49, “anything less than clear unwillingness or inability [to provide the court with fair, objective and non‑partisan evidence] should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence.” [70] The Court, at para. 36, reaffirmed what it had said in Mouvement laïque québécois v. Saguenay (City) , 2015 SCC 16 at para. 106 : It is well established that an expert ’s opinion must be independent , impartial and objective, and given with a view to providing assistance to the decision maker... However, these factors generally have an impact on the probative value of the expert ’s opinion and are not always insurmountable barriers to the admissibility of his or her testimony. Nor do they necessarily “disqualify” the expert ... For expert testimony to be inadmissible, more than a simple appearance of bias is necessary. The question is not whether a reasonable person would consider that the expert is not independent . Rather, what must be determined is whether the expert ’s lack of independence renders him or her incapable of giving an impartial opinion in the specific circumstances of the case ... [Emphasis added, citations omitted.] [71] In my view, in the specific circumstances of this case, Dr. Sheoran’s personal interests might not have precluded him from giving an impartial opinion in response to the appellant’s questions. Because Dr. Sheoran might be biased against the accused, the appellant’s counsel might have properly objected on the grounds of lack of impartiality or independence if the Crown had sought to elicit an opinion from Dr. Sheoran. However, in this case, the appellant was seeking to adduce Dr. Sheoran’s evidence in cross-examination and, by doing so, indicated he was prepared to accept Dr. Sheoran’s opinion with respect to the appellant’s capacity to form the requisite general intent. The judge should have taken this into account in the overall weighing of the costs and benefits of receiving the evidence. That is particularly so where the trial judge had already heard Dr. Sheoran, in the voir dire , express detailed and apparently impartial descriptions of the prescribed medications and their anticipated effects. [72] The judge should have borne in mind that the accused’s right to cross-examine witnesses “without significant or unwarranted constraint” is “an essential component of the right to make full answer and defence” protected by the Charter and “interpreted in a ‘broad and generous manner befitting its constitutional status’” (The Honourable Mr. Justice S. Casey Hill, David M. Tanovich, & Louis P. Strezos, eds, McWilliams’ Canadian Criminal Evidence , loose-leaf, 5th ed (Toronto: Thomson Reuters Canada Limited, 2017), 21:30.10, quoting R. v. Potvin (1989) 47 C.C.C. (3d) 289 (S.C.C.)). [73] This broad and generous approach entails that “a witness called by a party to testify on a limited aspect of the case, perhaps merely for the purpose of producing a document, can be cross-examined by the opposing party on any relevant matter” (McWilliams’, 21:30.30). Limits on cross-examination are generally applications of the ordinary rules of evidence, in particular the weighing of the probative value against the prejudicial effect. However, due to the “fundamental tenet of our judicial system that an innocent person must not be convicted … the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence”, including cross-examination by the accused ( R. v. Shearing , 2002 SCC 58 at para. 76, quoting R. v. Seaboyer; R. v. Gayme , [1991] 2 S.C.R. 577 at 611). [74] While the trial judge was wrestling with management of a jury trial, in which the defence advanced multiple difficult to reconcile and speculative defences, excluding Dr. Sheoran’s opinion evidence cannot, in my view, be justified as a measure properly taken with a view toward efficient management of the trial. As the Ontario Court of Appeal held in Horan : [ 33 ]      … In R. v. Felderhof (2003), 180 C.C.C. (3d) 498 (Ont. C.A.) at para. 57, this court recognized a broad trial management power to promote the efficient use of court time and ensure that all parties are treated fairly. However, excluding relevant and otherwise admissible evidence is an unusual exercise of the trial management power and, in my view, it should be plain and obvious that the circumstances require that remedy and that the usual remedies, such as a short adjournment, would not suffice. [75] Given Dr. Sheoran’s apparent expertise, the fact he cannot have been predisposed to partiality toward the accused, and defence counsel’s clear description of the relevance and importance of the questions going to his defence, I am of the view the trial judge erred in law in failing to engage in the process of weighing of the costs and benefits of receiving his opinion evidence. I cannot say it was correct to exclude the opinion evidence of Dr. Sheoran. [76] The decision of whether to admit expert evidence is discretionary and generally requires deference to the trial judge. However, where, as here, the trial judge does not apply the correct legal analysis in deciding whether to admit the evidence, this is an error of law reviewable on the standard of correctness: R. v. Balla , 2016 ABCA 212 at para. 28, leave to appeal ref’d [2017] 1 S.C.R. vi. An appellate court may intervene where the trial judge makes an error of law in deciding whether to admit expert evidence: R. v. Pearce , 2014 MBCA 70 at para. 74, adopted by this Court in R. v. Orr , 2015 BCCA 88 at para. 65; R. v. Millington , 2016 BCCA 293 at para. 37, aff’d 2017 SCC 53. Exclusion of Other Evidence [77] The Crown says the trial judge properly refused to admit the entire hospital record into evidence. This record consisted of 148 pages and the Crown says providing it to the jury would have been “highly unhelpful and confusing”. In my view, the judge did not adequately examine whether portions of the hospital record could properly be admitted as business records. There is no doubt that, but for concerns with respect to the relevance of certain entries, the hospital record was an admissible document. Rita Johnson, a nurse who was a witness at the voir dire , identified the complete hospital record and this record was admitted into evidence on the voir dire , as Exhibit 3, without objection. [78] The Crown’s objection to admitting the hospital record into evidence was that it was voluminous and contained material that might be difficult for the jury to understand and appropriately weigh. That objection was to the “wholesale” admission of the hospital record. The trial judge, however, rejected defence counsel’s request to have even part of the hospital record, the nursing notes, admitted into evidence. That ruling appeared to be founded upon the view that the hospital record spoke only to the complaint that the appellant had not received appropriate medical care, whereas the appellant’s counsel sought to introduce it as a record of the appellant’s deteriorating mental health in the hospital. [79] In my view, once a witness had attested to the authenticity of the hospital record and it was admitted into evidence on the voir dire without objection, the judge should have admitted relevant portions of the record as prima facie proof of the facts recorded therein. Those facts included observations made by medical staff regarding the patient’s behaviour and the type and quantity of drugs administered to him. [80] Although she left it open to reconsideration, the constraint the judge placed upon the appellant’s counsel in his questioning of Ms. Reichenbach was inappropriate. In my view, there is no principled basis to preclude the appellant’s counsel from asking Ms. Reichenbach about any factual observation noted in the hospital record with respect to a relevant issue. The judge expressed some concern with respect to hearsay in the record, but Crown counsel did not object to the admission of the hospital record on that basis. Rightly so, because Ares v. Venner settled the question, described by Hall J. (at p. 622) in that case as: whether hospital records and nurses’ notes are “either admissible and prima facie evidence of the truth of the statements made therein or not admissible as being excluded by the hearsay rule”. They are admissible as evidence of the truth of facts recorded. Viability of the Automatism Defence [81] The Crown says that a very basic level of intent is required in an aggravated assault case: an intention to apply force to the victim. It says the conclusion in this case was inexorable and: 64        If there was an error made by the trial judge here in foreclosing the appellant’s trial counsel from exploring areas relating to mens rea , then the error was a harmless one, and the evidence of the necessary intent was also overwhelming. Accordingly, the curative proviso should apply. [82] As noted above, in her written charge to the jury the trial judge wrote: “Unless you are satisfied beyond reasonable doubt that Mr. Nield intentionally applied force to Rajeev Sheoran, you must find Mr. Nield not guilty. Your deliberations would be over”. [83] In response to the question posed by the jury, the trial judge said: “If Mr. Nield had ingested prescribed medication which affected his intention to commit the crime, he could not be convicted”. [84] In a series of cases, the Supreme Court of Canada has addressed the mens rea required as an element of the offence of aggravated assault: R. v. DeSousa , [1992] 2 S.C.R. 944; R. v. Creighton , [1993] 3 S.C.R. 3; R. v. Godin , [1994] 2 S.C.R. 484 ; and R. v. Williams , 2003 SCC 41. In Williams , the Court wrote: 22 The mens rea for aggravated assault is the mens rea for assault (intent to apply force intentionally or recklessly or being willfully blind to the fact that the victim does not consent) plus objective foresight of the risk of bodily harm: R. v. Godin , [1994] 2 S.C.R. 484, at p. 485, and [ R. v. Cuerrier , [1998] 2 S.C.R. 371] , at para. 95. There is no dispute that, in this case, this mental element of aggravated assault has been proven beyond a reasonable doubt. [85] This appeal is not concerned with objective foreseeability of harm. We are concerned solely with evidence going to the appellant’s intention to apply force to the victim. [86] The jurisprudence describes the circumstances in which automatism might be established as a defence. This defence has been exhaustively canvassed by Canadian courts: see, e.g., Bastarache J. in R. v. Stone , [1999] 2 S.C.R. 290, Hall J.A. in R. v. Cuthbert , 2007 BCCA 240, and Watt J.A. in R. v. S.H ., 2014 ONCA 303. In S.H. , Watt J.A. wrote: [ 63 ]      Automatism relates to the actus reus or external circumstances of an offence. To be more specific, automatism has to do with the voluntariness component of the actus reus . The requirement of voluntariness is fundamental to the imposition of criminal liability and reflects our underlying respect for an individual’s autonomy. The voluntariness requirement also reflects the principle that unless a person has the capacity and a fair opportunity to adjust his or her behaviour to the law, its penalties ought not to be applied to him or her: Luedecke , at para. 56. [ 64 ]      The law presumes that people, including those charged with crime, act voluntarily: Stone , at para. 171. The presumption is rebuttable. Automatism amounts to a claim that the conduct of a person charged with crime was not voluntary. It follows that a person charged who invokes automatism in answer to the charge bears the burden of rebutting the presumption of voluntariness: Stone , at para. 171. [87] Discussing that evidentiary burden, he observed: [ 70 ]      The court in Stone makes it clear that a mere assertion of involuntariness will not be enough to meet the evidentiary burden: Stone , at para. 183. The claim must be confirmed by expert evidence, sometimes described as “psychiatric evidence” (para. 184), and on other occasions as “expert psychiatric or psychological evidence” (para. 192). [ 71 ]      The Stone majority offered some guidance about the nature of the additional evidence that may be relevant for consideration in deciding whether an accused had satisfied the evidentiary burden to put automatism in play before the trier of fact. That evidence includes, but is not limited to: i. evidence of a documented medical history of automatistic-like dissociative states (para. 189); ii. evidence of a bystander about the appearance of the accused before, during and after the alleged involuntary conduct (para. 190); and iii. evidence of motive or absence of motive (para. 191). [ 72 ]      Where an accused has satisfied the evidentiary burden in connection with automatism, it falls to the trial judge to determine the legal characterization of the automatism. In a jury trial, the trial judge must decide whether mental disorder automatism or non-mental disorder automatism should be left to the jury. In judge alone trials, the distinction between the evidentiary and persuasive burden tends to become blurred since the judge is both the trier of law and the trier of fact. Irrespective of the mode of trial, however, the trier of fact will decide whether the accused has satisfied the legal or persuasive burden of proof. [88] The appellant would have to meet an onerous test to establish that the assault in this case was an autonomic act. However, automatism is available as a response to a charge of aggravated assault. Addressing such a charge in this Court, in R. v. Haslam (1990), 56 C.C.C. (3d) 491 , Lambert J.A. wrote (at 497): Non‑insane automatism presents a difficult defence from the point of view of a trial judge. It is highly unlikely that the uncorroborated evidence of the accused would ever be sufficient to permit the defence to be put to the jury. But it is not open to the trial judge to weigh the evidence in favour of the defence against the contrary evidence. It is not proper for him to consider questions of credibility when deciding whether to put such a defence. If he is in doubt as to whether the defence should be put or not he should resolve that doubt in favour of the accused. Conclusion [89] In my view, it cannot be said that the defence the appellant sought to establish was bound to fail or that the exclusion of the opinion evidence of Dr. Sheoran and the hospital records was immaterial. In my view, this is not a case in which we can or should apply the curative proviso. [90] I would allow this appeal, set aside the conviction, and order a new trial. “The Honourable Mr. Justice Willcock” I agree: “The Honourable Mr. Justice Frankel” I agree: “The Honourable Madam Justice D. Smith”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Reinbrecht, 2019 BCCA 28 Date: 20190130 Docket: CA43699 Between: Regina Respondent And Leon Michael Reinbrecht Appellant Before: The Honourable Mr. Justice Frankel The Honourable Madam Justice D. Smith The Honourable Mr. Justice Willcock On appeal from:  An order of the Supreme Court of British Columbia, dated October 27, 2015 (conviction) ( R. v. Reinbrecht , 2015 BCSC 1960, Kamloops Registry No. 93462-1). Counsel for the Appellant: G.P. DelBigio, Q.C. A.M. Latimer Counsel for the Respondent: S. Elliott Place and Date of Hearing: Kamloops, British Columbia October 30, 2018 Place and Date of Judgment: Vancouver, British Columbia January 30, 2019 Written Reasons by: The Honourable Madam Justice D. Smith Concurred in by: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Willcock Summary: Mr. Reinbrecht appeals an order dismissing his application for a stay of proceedings on the basis that his s. 11(b) Charter right to a trial within a reasonable time was violated. The delay included time for the appellant to bring a Rowbotham application and for the fixing of a new trial date as a result of a change in a key witness’s statement that resulted in defence counsel having to withdraw and new counsel to be retained. The trial judge, applying the Morin framework, found the 46-month and 17-day delay between charge and the end of trial did not violate the appellant’s s. 11(b) Charter right. Shortly after the judge’s ruling, R. v. Jordan, 2016 SCC 27 was released. On appeal, the appellant submits the judge erred by not granting him a stay of proceedings where the total delay was presumptively unreasonable under the new framework. Held: Appeal dismissed. Under the new framework, the delay caused by the Rowbotham application and for the appellant to retain new counsel and secure a new trial date, are discrete events to be deducted from the total delay. This results in the total delay falling below the presumptive ceiling of 30 months in superior courts. The judge also found that the case was factually and legally complex, which further justifies delay that may exceed the presumptive ceiling. Therefore, under the Jordan framework the delay was not unreasonable. In any event, as this case was still “in the system” post-Jordan, under the transitional exceptional circumstance exception any minimal delay that may have exceeded the presumptive ceiling was justified and would support the dismissal of the application as the appellant failed to demonstrate any error by the judge in her application of the Morin framework. Reasons for Judgment of the Honourable Madam Justice D. Smith: [1] Mr. Reinbrecht appeals an order dismissing his application for a judicial stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms [ Charter ]. He applied for a judicial stay on the basis that his s. 11(b) Charter right to be tried within a reasonable time was infringed. He brought the application following his conviction on one count of criminal negligence causing death and one count of criminal negligence causing bodily harm. The trial judge issued reasons for her ruling on May 26, 2016. One month later, R. v. Jordan, 2016 SCC 27, was released. [2] In determining Mr. Reinbrecht’s s. 11(b) application, Justice Donegan applied the analytical framework from R. v. Morin, [1992] 1 S.C.R. 771. The Supreme Court of Canada summarized the Morin framework in Jordan at para. 30: [30]      The Morin framework requires courts to balance four factors in determining whether a breach of s. 11(b) has occurred: (1) the length of the delay; (2) defence waiver; (3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional delay, and other reasons for delay; and (4) prejudice to the accused’s interests in liberty, security of the person, and a fair trial. Prejudice can be either actual or inferred from the length of the delay. Institutional delay in particular is assessed against a set of guidelines developed by this Court in Morin : eight to ten months in the provincial court, and a further six to eight months after committal for trial in the superior court. [3] In her analysis, the judge considered the timeframe from December 8, 2011, when Mr. Reinbrecht was first charged, to October 27, 2015, when he was found guilty of both counts. The judge did not find any defence waiver, which she recognized had to be “clear and unequivocal, with full knowledge of the right one is waiving” (at para. 23). She held the total delay was 46 months and 17 days. The judge then balanced the factors enumerated in Morin and concluded that they did not favour granting a judicial stay. [4] Jordan changed the focus of s. 11(b) Charter applications from institutional delay to defence delay. The new analytical framework fixed presumptive ceilings for unreasonable delay of 18 months for cases proceeding to trial in the provincial court, and of 30 months for those proceeding to trial in the superior court or going to trial in the provincial court after a preliminary inquiry (at para. 46). Total delay (minus defence delay) that exceeds the relevant ceiling is now presumptively unreasonable (at para. 47). The burden then shifts to the Crown to justify the delay. The Crown may discharge its burden by establishing exceptional circumstances. These arise where a discrete event is reasonably unforeseeable or unavoidable and the Crown “cannot reasonably remedy the delays emanating from those circumstances” (at para. 69) and are deducted from the total delay. Delay that continues to exceed the presumptive ceiling may then also be justified based on the complexity of the case (at para. 81). [5] If after deducting delay that arises from a discrete event, the net delay exceeds the presumptive ceiling and the delay above the ceiling is not justifiable based on the complexity of the case, Jordan adds a third form of exceptional circumstances to consider, namely “transitional exceptional circumstances”, for cases that were still “in the system” when Jordan was decided. (See also, more recently, R. v. Cody , 2017 SCC 31 at para. 46). The transitional exceptional circumstance involves a qualitative assessment of the presumptively unreasonable delay based on the parties’ reasonable reliance on the law as it previously existed under Morin ( Jordan at para. 96). [6] As Mr. Reinbrecht’s case was “in the system” by reason of his having filed an appeal before Jordan was released, this Court must re-examine his application under the new framework. In applying the Jordan framework, I am satisfied two discrete events reduce the net delay to 29.5 months. The first discrete event is the delay caused by Mr. Reinbrecht’s Rowbotham application. That period of time began on November 23, 2012, when he filed his application, and continued to October 4, 2013, when counsel for Mr. Reinbrecht on the Rowbotham application advised the court he had been retained as defence counsel of record. The delay caused by this discrete event was 10 months and 11 days. The second discrete event involved the delay caused by the change in a key witness’s statement. This event prompted Mr. Reinbrecht’s counsel to withdraw as counsel of record on November 26, 2013, a few months before the six-week jury trial was scheduled to begin in January 2014. This event continued until about mid-June 2014, when both sides indicated they were available for trial but the court could not accommodate them. The time for this discrete event was six months and 20 days. [7] When the cumulative delay of 17 months for these two discrete events is deducted from the total delay of 46 months and 17 days, the net delay (29.5 months) falls on the border of presumptively unreasonable delay under Jordan. I would further consider the judge’s finding regarding the complexity of the case (at para. 144) and, in any event, the transitional exceptional circumstance, to conclude that any delay over the presumptive ceiling is justified. Summary of Events [8] Mr. Reinbrecht brought his s. 11(b) application after the judge had rendered her verdict on both charges in Reasons for Judgment issued on October 27, 2015, indexed at R. v. Reinbrecht , 2015 BCSC 1960. On May 26, 2016, the judge provided oral reasons for her ruling on Mr. Reinbrecht’s application for a judicial stay, indexed at R. v. Reinbrecht, 2016 BCSC 1790 [the “ Ruling ”]. [9] In the Ruling , the judge provided a comprehensive chronology of “court appearances and other milestones” in the case, from the time Mr. Reinbrecht was first charged to when the trial commenced on February 10, 2015 (at para. 12). This summary is not in dispute, and I attach it as Schedule A to these reasons. [10] At para. 13 of the Ruling , the judge added that she held two more pre-trial conferences before the start of the trial on February 10, 2015, the evidence was concluded on May 26, 2015 with some periods of adjournment, and final submissions were provided on June 15, 2015. [11] The relevant circumstances to the application may be summarized briefly. On July 3, 2010, Mr. Reinbrecht was operating a speed boat that collided with a houseboat on Shuswap Lake. The collision resulted in the death of one person and the injuries of several others. Mr. Reinbrecht was interviewed by the police the following day. On December 8, 2011, he was charged with one count of criminal negligence causing death and one count of criminal negligence causing bodily harm. [12] Mr. Reinbrecht retained counsel immediately. After a reasonable intake period, Mr. Reinbrecht elected to be tried by a Supreme Court judge alone, and a preliminary inquiry was scheduled. The Crown and defence disagreed on the estimated length of the preliminary inquiry. The Crown asked for six days; the defence requested three days, expressing concern that Mr. Reinbrecht could not afford a more lengthy preliminary inquiry. [13] On September 25, 2012, months before the preliminary inquiry was scheduled to commence, the Crown elected to proceed by way of direct indictment. Mr. Reinbrecht was deemed to have elected to be tried by a judge and jury. [14] Mr. Reinbrecht did not have the financial resources to retain counsel for the estimated six-week jury trial. On November 23, 2012, ten months after he was first charged, he filed an application for “an Order staying the proceedings until the Attorney General of British Columbia provides the necessary funding for counsel subject to any assessment of counsel’s bill”, commonly referred to as a “ Rowbotham application”, after the judgment in R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A). His then lawyer, who was not counsel of record, agreed to represent Mr. Reinbrecht for the limited purpose of completing the Rowbotham application. [15] The trial was scheduled to commence in September 2013. Despite the efforts of both sides, the Rowbotham application could not be completed in time for the September 2013 trial date. On June 18, 2013, counsel for Mr. Reinbrecht applied to adjourn the September 2013 trial date to January 2014, stating that he was cautiously optimistic that the Rowbotham application would be successful and that he would be appointed as counsel of record for Mr. Reinbrecht. He also agreed that the delay caused by an adjournment of the trial date would lie at the foot of the defence. [16] On that basis the chambers judge granted the adjournment application with the proviso that there would be no further adjournments granted. Accordingly, the trial date was adjourned and a new trial date fixed for January 2014. [17] On July 25, 2013, the Rowbotham application was heard and a conditional stay of proceedings was granted pending the appointment of state-funded defence counsel. The order was subject to a number of disclosure requirements by Mr. Reinbrecht and a condition that required him to sign an indemnity agreement with the Province. [18] In August 2013, a key Crown witness advised her father that she wanted to change her statement to the police. She had been having nightmares about the incident and reported that she no longer wished to protect Mr. Reinbrecht. The Crown asked the police to re-interview the witness. As the witness was eight months pregnant and having nightmares, the police decided to wait until after she delivered her baby. The child was born in September 2013, and the police re-interviewed her in October 2013. [19] At a September 10, 2013 pre-trial conference, Mr. Reinbrecht’s lawyer requested an adjournment of the January 2014 trial date, advising the court that, even if he was appointed as counsel for Mr. Reinbrecht that day, he could not be ready for the January 2014 trial date. His request for an adjournment was not granted by the chambers judge who adjourned it to October 4, 2013. On that date counsel for Mr. Reinbrecht advised the court that he had been appointed to act as defence counsel for the trial. The January 2014 trial date remained in place. [20] On October 22, 2013, a key Crown witness gave a revised statement to the police in which she alleged that approximately one month after the collision she had participated in a meeting with Mr. Reinbrecht, his son and his lawyer. During the meeting, she said, the lawyer “told them to keep quiet or not say anything about a certain piece of evidence discussed in everyone’s presence” ( Ruling at para. 87). The lawyer denied making that statement but felt compelled to withdraw as Mr. Reinbrecht’s lawyer for ethical reasons. He did so on November 26, 2013, which resulted in Mr. Reinbrecht having to retain new counsel. This event, the appointment of new defence counsel, required a further adjournment of the January 2014 trial date. [21] In January 2014, Mr. Reinbrecht retained Mr. DelBigio, Q.C. On February 3, 2014, the parties appeared before a judge to fix a new trial date. Although the court could accommodate a six-week jury trial in the period from early October through to the Christmas break, Mr. DelBigio was not available until mid-November. This left only five weeks until the break. At Mr. DelBigio’s suggestion the trial was re-scheduled for February 2, 2015. [22] In or around December 2014, Mr. DelBigio unexpectedly became unavailable and Mr. Doyle stepped in to replace him. On December 19, 2014, the defence re-elected to be tried by a Supreme Court judge alone. Anticipating that the re-election would shorten the trial time, the parties and the judge agreed to accommodate the defence’s request to have the trial start one week later, on February 10, 2015. [23] The judge found the trial was delayed 11 months by the Rowbotham application and six months by the witness’ revised statement, which caused new defence counsel having to be retained. Reasons for Ruling [24] The judge found the Crown did not establish any period of time that could be attributed to defence waiver or defence-caused delay, and therefore the overall length of the delay to be considered was 46 months and 17 days (at para. 27). [25] She then addressed certain specific time periods. December 8, 2011 to September 25, 2012 [26] This period pre-dated the Crown preferring the direct indictment. The judge attributed six months to inherent delay and three months to institutional delay (at para. 39). [27] The defence submitted that the Crown’s decision to prefer a direct indictment caused significant delay because Mr. Reinbrecht had to go forward with a Rowbotham application. He argued that any number of things, such as witness examination, could have occurred in the preliminary inquiry to expedite the overall process. [28] The judge found that, based on the guilty verdicts at trial, the preliminary inquiry would have resulted in a committal to stand trial and moved the matter into Supreme Court, which would have required Mr. Reinbrecht to make a Rowbotham application in any event (at para. 45). Had the preliminary inquiry proceeded, the judge found, it would have taken four additional months for the matter to get to trial (at para. 46). Therefore, she concluded, the Crown preferring a direct indictment did not lengthen the trial process. September 25, 2012 to January 2014 [29] This period covered the time between when the direct indictment was preferred and the second scheduled trial date in January 2014. She analyzed this period in two stages: the first, being from the time the direct indictment was preferred on September 25, 2012 to the fixing of the first trial date on February 2013; the second being from that date until the second trial date in January 2014. The judge attributed the first stage to inherent delay and the second stage to “other reasons for delay” (at paras. 48, 73, 75 ‒ 77). [30] The judge found the first four months in the Supreme Court should be attributed to intake time, time to retain counsel, and time to prepare (at para. 75). She held that “in the ordinary course” such a Rowbotham application should reasonably have been completed within this timeframe and, pursuant to Morin, categorized the first stage as inherent delay (at para. 73). [31] As to the period of time for the second stage, which included the seven or eight months between completing intake requirements and the first trial date of September 2013, the judge would have attributed this period to institutional delay had the trial proceeded on that date (at para. 75). The September 2013 trial date, however, had to be adjourned because defence counsel was not yet retained albeit he was cautiously optimistic that he would be. Mr. Reinbrecht used the seven months between February and September 2013 to pursue his Rowbotham application. [32] The judge found the delay that occurred during the Rowbotham application process was caused in part by Mr. Reinbrecht and in part by the financial disclosure the Crown was obliged to request, as reflected in R. v. Crichton, 2015 BCCA 138. In particular, the judge attributed the delay to: (i) Mr. Reinbrecht’s initial disclosure being incomplete, inadequate, and without supporting documentation; (ii) the unsuccessful negotiations between counsel with respect to the extent to which Mr. Reinbrecht would be required to contribute to his legal costs, which necessitated a hearing of the application; (iii) the hearing of the Rowbotham application by another judge, which resulted in a provisional order with conditions and a requirement that Mr. Reinbrecht make further financial disclosure; (iv) the additional five months thereafter for Mr. Reinbrecht to respond to the terms and conditions under the provisional order, which another judge found that Mr. Reinbrecht had not undertaken with the appropriate diligence; and (v) a further two months’ delay in Mr. Reinbrecht signing the indemnity agreement, albeit his then counsel had agreed to proceed with the trial on the January 2014 date on the understanding that he would be representing Mr. Reinbrecht. [33] The judge categorized the seven or eight months Mr. Reinbrecht took to complete his Rowbotham application and the adjournment of the September 2013 trial date to January 2014 under “other reasons for delay”, which she considered to be “neutral” under Morin. January 2014 to February 10, 2015 [34] In October 2013, a key Crown witness came forward with an unexpected new statement that caused Mr. Reinbrecht’s then counsel to withdraw. Mr. Reinbrecht retained new counsel, Mr. DelBigio, in January 2014. [35] As of January 2014, the matter was to proceed as a six-week jury trial. Both Mr. DelBigio and Crown counsel were available for trial in June 2014, however the court could not accommodate that length of a jury trial during the summer months. Accordingly, a third trial date was scheduled to commence on February 2, 2015. [36] The judge categorized the six-month delay of the trial from January 2014 to June 2014 as “other reasons for delay”. She found the unexpected change in the witness’s statement and the need for Mr. Reinbrecht to obtain new counsel to be a neutral factor that could not be attributed to any party (at para. 95). With respect to the eight-month delay from June 2014 to February 2015, the judge characterized this as institutional delay because counsel for both sides were available for trial in June 2014 and the court was unable to offer those dates. She did so while acknowledging that “some portions of this time might possibly be attributed to Mr. DelBigio’s calendar or perhaps his preference for starting in February as opposed to January” (at para. 96). February 10, 2015 to October 27, 2015 [37] This period spanned the start of the trial to when the judge rendered her reasons for conviction. The judge attributed one month of this eight-and-a-half-month period to Crown delay for providing some late disclosure, which in turn led to a short adjournment and some other delays (at para. 104). She attributed the remaining seven-and-a-half months to inherent delay. Summary of the delay findings [38] In summary, the judge characterized the reasons for the delay as: · Inherent delay in Provincial Court ‒ 6 months; · Institutional delay in Provincial Court ‒ 3 months; · Inherent delay in Supreme Court ‒ 11.5 months; · Institutional delay in Supreme ‒ 8 months; · Actions of the Crown ‒ 1 month; · Actions of the defence ‒ none; · “Other reasons”, which are neutral ‒ 17 months. Prejudice to the accused [39] The judge then turned to the issue of prejudice to the accused caused by the delay, as required under Morin. [40] The judge agreed with Mr. Reinbrecht that some degree of prejudice could be inferred given the length of the delay (at para. 108). She then assessed whether there was any actual prejudice to the three interests of an accused that are protected by s. 11(b): liberty, security of the person, and the right to make full answer and defence. Liberty [41] The judge found Mr. Reinbrecht did not suffer any actual prejudice to his liberty interest; he was not arrested or held in pre-trial custody, had no bail conditions, attended court by summons, and had counsel appear for him at court until his trial (at para. 110). Security of the person [42] The police interviewed Mr. Reinbrecht about the collision the day after it occurred. The judge observed that he lived under the weight of possible criminal charges for 17 months until he was charged on December 8, 2011 (at para. 115). He then lived under the weight of the charges for almost four more years until his trial concluded. [43] She further noted that Mr. Reinbrecht lived in a small community near where the incident occurred, and that the community had discussed and speculated on who was to blame, including Mr. Reinbrecht’s possible impairment at the time of the collision. Media coverage included details about his history and the investigation that gave him unwanted public attention and fuelled the speculations. Mr. Reinbrecht’s employment, relationships, and mental health all suffered. [44] The judge found the negative effects on Mr. Reinbrecht’s security interest arose inevitably from the investigation and charge, but they were extended by the delay. Therefore, Mr. Reinbrecht suffered some injury to his security of the person from the delay (at para. 127). Right to make full answer and defence [45] The judge noted that this case was somewhat unique because: (i) much of the delay was attributed to the Rowbotham application, which was specifically meant to ensure that Mr. Reinbrecht had a fair trial; and (ii) the s. 11(b) application was made after the case had been heard, so she could examine if there was any actual prejudice that needed to be righted, rather than considering the risk of prejudice. [46] The judge found there was no evidence of actual prejudice to Mr. Reinbrecht’s right to make full answer and defence because: (i) he had very effective counsel; and (ii) the delay had no adverse impact on the witnesses or the tendering of evidence. Balancing process [47] The judge concluded that, balancing these factors against society’s interest in seeing those charged brought to trial, weighed against the granting of a judicial stay because: (i) the inherent delay was reasonable given the complexity of the case; (ii) the institutional delay was within the Morin guidelines; (iii) both the Crown and the defence took steps to obtain a speedy trial; (iv) the two significant delays, the Rowbotham application and the revised statement by a key witness, were neutral in the analysis; (v) the prejudice to Mr. Reinbrecht was not substantial; and (vi) the verdicts were serious and there is a high social interest in seeing this trial through to sentencing. On Appeal [48] Mr. Reinbrecht submits the judge erred in law: 1.       In finding that the total delay did not violate his s. 11(b) Charter right to be tried within a reasonable time ; and 2.       If correct, the judge erred in not granting a stay of proceedings on that basis. [49] Counsel for Mr. Reinbrecht submits the system failed his client because he should have received a trial in a more timely manner. He contends the new Jordan framework has failed to achieve its stated objective of providing an easier approach to determining unreasonable delay than the Morin approach, which led to “doctrinal and practical problems” and contributed “to a culture of delay and complacency” ( Jordan at paras. 29, 31 ‒ 32). He argues that the Jordan framework forces the parties to engage in the same “quibbling” over the accounting of various events that occur during a trial, as was the case under the “broken” Morin framework. He focuses on the following passages in Jordan , which summarize the dysfunctional aspects of the Morin framework and submits these issues have continued with Jordan : [36]      The retrospective analysis required by Morin also encourages parties to quibble over rationalizations for vast periods of pre-trial delay. Here, for example, the Crown argues that the trial judge erred in characterizing most of the delay as Crown or institutional delay. Had he assessed it properly, the argument goes, he would have attributed only five to eight months as Crown or institutional delay, as opposed to 34.5 months. Competing after-the-fact explanations allow for potentially limitless variations in permissible delay. As the intervener the Criminal Lawyers’ Association (Ontario) submits: “Boundless flexibility is incompatible with the concept of a Charter right and has proved to serve witnesses, victims, defendants and the justice system’s reputation poorly” (I.F., at para. 12). [37]      Finally, the Morin framework is unduly complex. The minute accounting it requires might fairly be considered the bane of every trial judge’s existence. Although Cromwell J. warned in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, that courts must avoid failing to see the forest for the trees (para. 18), courts and litigants have often done just that. Each day of the proceedings from charge to trial is argued about, accounted for, and explained away. This micro-counting is inefficient, relies on judicial “guesstimations”, and has been applied in a way that allows for tolerance of ever-increasing delay. [50] In sum, counsel for Mr. Reinbrecht submits courts need to strictly apply the presumptive ceilings to effectively address the culture of delay and complacency that is said to have developed under the former framework. [51] Counsel’s observations, however, of how the Jordan framework may not be achieving its stated objective, cannot detract from the task of this Court, which is to apply the Jordan framework to determine if the delay in this case was unreasonable. [52] I begin by noting that the judge found no defence waiver or defence-caused delay, the two components of defence delay noted in Jordan (at para. 61), and these do not appear to be issues on appeal. During the June 18, 2013 appearance, then counsel for Mr. Reinbrecht agreed to take responsibility for the four-month delay that would result if the adjournment was granted. A chambers judge subsequently granted the adjournment on the understanding that there would be no further adjournments granted. New trial dates were fixed for January 2014. However, shortly thereafter, the circumstances of the second discrete event that resulted in counsel for Mr. Reinbrecht having to withdraw as counsel of record, new defence counsel to be appointed, and an adjournment of the January 2014 trial date to February 2015, overtook this anticipated four-month defence-caused delay. [53] The central issues, therefore, on appeal are whether the delay caused by the Rowbotham application and by Mr. Reinbrecht having to retain new counsel as a result of a revised statement from a key Crown witness, both of which were neutral factors under the Morin approach, fall within the category of exceptional circumstances under Jordan . If they are found to be exceptional circumstances, the time attributed to each of these discrete events must be deducted from the total delay. Exceptional circumstances [54] Exceptional circumstances are described in Jordan as follows: [69]      Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon. [55] There are three forms of exceptional circumstances relevant to this case: discrete events, the complexity of the case, and transitional considerations. [56] Mr. Reinbrecht submits there are no exceptional circumstances that would warrant a reduction in the total delay of 46 months and 17 days, which substantially exceeds the presumptive ceiling of 30 months. In particular, he submits that neither the delay related to the Rowbotham application nor the delay related to a key witness’s revised statement that resulted in him having to retain new counsel fall within the category of discrete events under Jordan . The Crown submits both are discrete events as: (1) the time for the Rowbotham application was necessary for it to comply with the disclosure requirements from Crichton; and (2) the delay caused by the Crown witness’s revised statement was a “quintessential” discrete event that was not foreseeable or avoidable by the Crown. Neither of these events, it submits, could be remedied by the Crown. Discrete events [57] Discrete exceptional events are quantifiable events or circumstances that are reasonably unavoidable or unforeseeable ( Jordan at para. 73). The period of delay subtracted for a discrete event is limited to delay the Crown and the system could not reasonably have mitigated ( Jordan at para. 75; Cody at para. 48). In this case, two discrete events must be subtracted from the total delay: the Rowbotham application (10.5 months) and the revised witness statement (6.5 months). The net delay after subtracting these two discrete events is 29.5 months. The Rowbotham application [58] The 10.5 months between when Mr. Reinbrecht filed his Rowbotham application (November 23, 2012) and when he retained counsel (October 4, 2013) is a discrete event that should be deducted from the total delay. The Rowbotham application was an unavoidable event aimed at ensuring Mr. Reinbrecht received a fair trial. Mr. Reinbrecht was in control of how long it took him to establish that he met the financial criteria for a Rowbotham order. The Crown had no control over the financial information in Mr. Reinbrecht’s possession and was required to collect this information to comply with Crichton . [59] In Crichton, this Court addressed the scope of “exceptional circumstances” in the context of a Rowbotham application and an application for a conditional stay of proceedings pending a determination of an alleged s. 11(d) Charter violation. After a comprehensive review of the jurisprudence, Justice Bennett wrote: [48]      Under the constitution, the allocation of taxpayers’ dollars is not for the judicial branch of government to decide, except in the face of a Charter challenge or concern for judicial independence ( Criminal Lawyer’s Association at para. 41). Yet, the constitution also imposes a duty on the government to fund a lawyer, outside of the provincially established legal aid scheme, in certain circumstances. An order staying the proceedings is a rare and exceptional order. As noted above, it is only to be invoked in the “clearest of cases”. Considering those factors, it is entirely appropriate to require an applicant seeking the funding of counsel by the taxpayer to establish strictly enforced guidelines for financial eligibility. [49]      In summary, to obtain a conditional stay of proceedings based on a violation of ss. 7 and 11(d), certain financial criteria must be established. First, the applicant’s financial circumstances must be “extraordinary”. The applicant must provide detailed financial evidence of his or her financial circumstances, which includes supporting evidence. The applicant must save money to hire counsel or contribute to his or her legal fees, and make efforts to borrow money from friends or family. The applicant should try to obtain employments or additional employment if already employed. The applicant should try to find counsel who would be willing to work at LSS rates. The applicant must reasonably exhaust his or her own assets to pay for counsel before looking to the taxpayer to pay for a lawyer. The applicant must demonstrate that he or she was prudent with his or her personal living expenses and show foresight and planning of his or her financial affairs to pay for a lawyer. [51]      The inquiry into the applicant’s financial circumstances commences when he or she reasonably knew a lawyer would need to be retained to defend criminal charges, and at the latest, when charges were laid. [60] Mr. Reinbrecht does not challenge the correctness of an applicant’s legal obligations to succeed in a Rowbotham application as set out in Crichton. They are unquestionably stringent to meet. That is because a Rowbotham order is a rare and exceptional order to grant. [61] The judge found the Rowbotham application in this case was an unusually protracted process, which effectively occupied the first 12 months in the Supreme Court and caused the first trial date to be adjourned (at para. 55). Mr. Reinbrecht does not take issue with the judge’s findings of fact on the reasons for the delay with respect to the Rowbotham application. Rather, he contends the application should not be considered a discrete event as, given the seriousness of the charges, the Crown should reasonably have known that Mr. Reinbrecht would need state-funded defence counsel when the length of time for the preliminary inquiry was being discussed (i.e., between January and April 2012). In those circumstances, he submits, the Crown should have agreed summarily to his application, provided interim funding, and addressed the details it required to approve the application retrospectively. [62] Mr. Reinbrecht further submits the Crown was too rigid in its application of the requirements for the appointment of state-funded counsel. He contends that in complex cases such as this one, state-funded counsel should immediately be appointed upon the accused being charged with a serious offence and a professed inability to pay for counsel of their choice. However, what Mr. Reinbrecht proposes is inconsistent with the well-developed body of binding authority that governs Rowbotham applications. [63] While the judge found that both parties were working cooperatively to secure funding for defence counsel, the delay appears to have been largely attributable to Mr. Reinbrecht’s inability to meet the financial disclosure requirements for a Rowbotham application in a timely way. While this “unduly protracted process” under Morin was correctly characterized as a neutral factor by the judge, under Jordan a more nuanced examination of the reasons for the delay are required. [64] Applying Jordan on appeal, it seems to me that the delay was caused by: (i) the “unduly protracted process” created in large part by Mr. Reinbrecht failing to comply with the Crown’s financial disclosure requests that were in accord with Crichton; (ii) the time required for the Rowbotham hearing when negotiations failed with respect to defence counsel’s proposed fees and disbursements, and the extent to which Mr. Reinbrecht would contribute and indemnify the Crown for his legal costs; and (iii) the further delay in Mr. Reinbrecht complying with the conditions and additional disclosure requirements of the provisional Rowbotham order. In my assessment, the Rowbotham application was a discrete event as described in Jordan ; it was not within the Crown’s control. This period of time is appropriately deducted from the total delay. Key witness’s revised statement [65] In October 2013, a key Crown witness revised her statement to the police. The revised statement resulted in defence counsel having to withdraw from the case for ethical reasons. Mr. Reinbrecht had to retain new counsel and the January 2014 trial date had to be adjourned. In my view, the six-and-a-half months between when Mr. Reinbrecht’s counsel withdrew from the case (November 26, 2013) and when his new counsel was ready to proceed (mid-June 2014) qualifies as a discrete event under Jordan and must be subtracted from the total delay. [66] On appeal, Mr. Reinbrecht submits the judge erred in not attributing the two-month delay between when the witness told the police she intended to revise her statement and when the police re-interviewed her to the Crown. In his view, the Crown should have arranged to re-interview the witness as soon as it knew she intended to change her statement (August 2013). In August 2013, the witness was eight months pregnant and experiencing nightmares as a result of the incident. In my view, the Crown’s decision to re-interview the witness after she delivered her baby was a reasonable one in the circumstances. [67] Pursuant to the Jordan framework, I am satisfied this was a discrete exceptional event that (1) was reasonably unavoidable and unforeseeable, (2) could not be remedied by the Crown, and (3) the Crown acted reasonably in re-interviewing the witness after the baby was born. In my view, the six-and-a-half-month delay caused by this unforeseen event must also be deducted from the total delay. [68] This brings the net delay to 29.5 months, just below the relevant presumptive ceiling. However, some dates are not precise from the record, for example the June 2014 date that the parties agreed they were both available for a six-week jury trial but the court could not accommodate their request. Therefore, as the net delay falls close to the border of unreasonable delay under Jordan , I propose to further consider whether any delay over the presumptive ceiling is justified on the basis of the complexity of this case and thereafter under the transitional exceptional circumstance. Case complexity [69] Delay above the presumptive ceiling may still be justifiable in particularly complex cases ( Jordan at para. 80; Cody at para. 63). Jordan describes particularly complex cases as “ cases that, because of the nature of the evidence or the nature of the issues , require an inordinate amount of trial or preparation time” (at para. 77). Determining whether case complexity justifies delay above the ceiling is a qualitative assessment that falls well within a trial judge’s expertise ( Cody at paras. 63 ‒ 65). [70] The judge found that the case “had inherent complexity arising from the volume and nature of the evidence and the nature of the factual and legal issues at play” (at para. 144). Her description of the complexity of this case was prescient as it mirrored the language in Jordan of the factors to consider in assessing this issue. [71] In my view, the judge’s finding with respect to the complexity of this case, having presided over 32 days of trial, is entitled to deference and under Jordan justifies marginal delay that may exceed the presumptive ceiling. Transitional considerations [72] In any event, in my view the transitional considerations justify the delay, if any, that may exceed the presumptive ceiling in this case. For those proceedings that took place before Jordan was released, but are still “in the system”, the focus of the transitional exceptional circumstance assessment is on the parties’ reliance on the factors that were relevant under Morin , including the seriousness of the offence and prejudice ( Cody at para. 71). Cody provides that, in transitional cases, where delay over the presumptive ceilings meets the constitutional muster set out in Morin, it will be justified. The Crown must demonstrate that “it would have understood the delay to be reasonable given its expectations prior to Jordan and the way delay” and the way the other factors such as seriousness of the offence and prejudice under Morin would have been assessed. ( Cody at para. 68). [73] In this case, the entire proceedings and the s. 11(b) hearing took place before Jordan was released. The charges were serious. The judge found that while Mr. Reinbrecht suffered some injury to the security of his person by reason of the negative effects of the delay on his employment, relationships and mental health, on balance the prejudice he experienced from the delay was not substantial. [74] The judge’s Ruling clearly demonstrates that the parties relied on the Morin framework to determine Mr. Reinbrecht’s s. 11(b) application. Moreover, on appeal, Mr. Reinbrecht does not contend the judge erred in characterizing the time for the Rowbotham application or the delay caused by the witness’s revised statement as neutral under Morin. In these circumstances, I am satisfied the Crown has established that the delay in this case was justified based on the parties reliance on the previous state of the law. Disposition [75] In the result, after deducting the two discrete events and, if necessary, considering the complexity of the case, the net total delay was in my view reasonable. In any event, under the transitional exceptional circumstance any marginal delay that may have exceeded the presumptive ceiling was justified. Accordingly, I would dismiss the appeal. “The Honourable Madam Justice D. Smith” I AGREE: “The Honourable Mr. Justice Frankel” I AGREE: “The Honourable Mr. Justice Willcock”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Williams v. Simon Fraser University, 2019 BCCA 41 Date: 20190130 Docket: CA45591 Between: Aleesha Williams Appellant (Plaintiff) And Simon Fraser University Respondent (Defendant) Before: The Honourable Mr. Justice Frankel The Honourable Mr. Justice Willcock The Honourable Mr. Justice Savage On appeal from:  An order of the Supreme Court of British Columbia, dated September 7, 2018 ( Williams v. Simon Fraser University , 2018 BCSC 1787, Vancouver Registry S175149). Oral Reasons for Judgment The Appellant appeared in person: A. Williams Counsel for the Respondent: R.B.J. Kennedy, Q.C. Y. Li-Reilly Place and Date of Hearing: Vancouver, British Columbia January 30, 2019 Place and Date of Judgment: Vancouver, British Columbia January 30, 2019 Summary: The appellant was withdrawn from the professional teacher education and certification program at the respondent university due to concern over her performance in the program. After two unsuccessful appeals of the withdrawal to university officials, the appellant commenced an action against the respondent for breach of contract and various torts. The respondent applied to strike the claim, or alternatively, to obtain summary judgment. The judge allowed the respondent’s application. The appellant argues the judge erred in refusing to allow her to file a further amended notice of civil claim, dismissing her claim summarily, trivializing her claim, conducting the hearing in a biased manner, and relying on hearsay affidavit evidence. Held: Appeal dismissed. The judge’s refusal to allow the appellant to file a further amended notice of civil claim did not affect the result as the judge considered the application as though the pleading had been filed. The judge did not err in striking the claim or granting summary judgment. The dispute was academic in nature and outside of the jurisdiction of the court, except on judicial review. The judge’s conduct during the hearing did not suggest he trivialized the appellant’s claim, and it did not give rise to a reasonable apprehension of bias. The judge did not rely on hearsay evidence in making his decision. [1] SAVAGE J.A. : In this action, Aleesha Williams challenges the decision of Simon Fraser University (“SFU”) to withdraw her from the Professional Development Program in the Faculty of Education (the “Program”), a professional teacher education and certification program. The chambers judge, Mr. Justice Myers, granted a motion to strike the claim under Rule 9‑5 of the Supreme Court Civil Rules as disclosing no reasonable claim. Alternatively, he would have dismissed the claim pursuant to Rule 9‑6 of the Rules , the summary judgment rule. [2] In 2016, Ms. Williams was a student enrolled in the Program at SFU (a “student teacher”). The Program includes educational experiences in a classroom setting, professional coursework and an intensive training practicum. A student teacher’s performance in the Program is monitored by an instructional team. Student teachers who are unable to continually meet the requirements of the Program may be withdrawn from the Program. [3] If the instructional team of a student teacher identifies performance issues with a student teacher, and those performance issues are not sufficiently remedied, a faculty member may initiate a process referred to as “Due Process”. The initial step in Due Process is to issue a Notice of Concern that identifies the performance issues and specifies conditions which must be met, including timelines within which to meet the conditions. [4] If a student teacher is unable to meet the conditions, the student teacher can be placed on Notice of Potential Withdrawal. The Notice of Potential Withdrawal sets out in detail the performance concerns identified by the instructional team. If significant improvement is not forthcoming the student teacher may be required to withdraw from the Program. [5] The decision to require a student teacher to withdraw from the Program is subject to appeal. A faculty member is assigned to hear and determine the appeal (the “First Appeal Review”). The First Appeal Review decision is subject to a further appeal to the Dean of the Faculty of Education (the “Second Appeal Review”). This does not end the opportunities of the student. A student is entitled to apply for re‑entry into the Program. [6] Ms. Williams was placed on a Notice of Concern on April 12, 2016, which she successfully addressed, and on a second Notice of Concern on October 5, 2016, which is the subject of this appeal. On October 13, 2016, the instructional team determined that she had not provided evidence of significant improvement and placed her on a Notice of Potential Withdrawal. The Notice of Potential Withdrawal set out in detail the performance concerns identified by the instructional team. On November 1, 2016, the instructional team determined that Ms. Williams had not met the performance concerns and she was withdrawn from the Program. [7] Ms. Williams appealed the withdrawal and the appeal was heard by Dr. Ann Chinnery, the Director of Undergraduate Programs. In written reasons dated December 15, 2016, Dr. Chinnery dismissed the appeal. Ms. Williams appealed the First Appeal Review decision to the Dean of the Faculty of Education, Dr. Kris Magnusson. Dr. Magnusson found no basis to overturn the First Appeal Review decision and dismissed the appeal on February 10, 2017. Ms. Williams was then advised of the process for re‑entry to the Program but did not seek re‑entry. [8] Twelve days after receiving the Second Appeal Review decision, Ms. Williams commenced an action against SFU in Small Claims Court. An application to transfer the Small Claims action to BC Supreme Court was dismissed. On June 1, 2017, the within action was commenced in BC Supreme Court. Ms. Williams filed a notice of trial on July 25, 2017, setting the action for a 19‑day trial commencing October 1, 2018, although the trial was later adjourned. On September 7, 2018, SFU’s application to dismiss the action was granted by Justice Myers in reasons for judgment indexed as Williams v. Simon Fraser University , 2018 BCSC 1787 (“RFJ”). [9] Ms. Williams appeals the order of Justice Myers on the following grounds, which I summarize and paraphrase as follows: (1) that the court below erred in not consenting to her filing a further amended notice of civil claim; (2) that the court below erred in allowing the motion to dismiss to proceed; (3) that the court below erred in trivializing and interpreting the facts; (4) the court below erred in accepting certain evidence; and (5) the court below conducted the hearing in a manner that was biased. [10] In her written submission, Ms. Williams refers at some length to minor differences between her transcription of the judge’s oral reasons and the written judgment issued by the court. Some of these differences concern alternate citations, punctuation, others concern such things as how a judge is referenced and substituting a name for an indefinite reference. I should say at the outset that there is nothing untoward in such non‑substantive changes made by a judge when finalizing reasons delivered orally. [11] The first ground of appeal can be dealt with briefly. During her submissions on the application, Ms. Williams sought to file a further amended notice of civil claim during her reply. SFU took the position that the application should proceed as though the unfiled pleadings provided further particulars of Ms. Williams’ claim. The judge dealt with SFU’s application based on Ms. Williams’ proposed further amended notice of civil claim “as if this was the governing pleading” (RFJ at para. 2). Thus, whether the notice of civil claim was filed or not was of no consequence to the outcome of SFU’s application. [12] The second ground of appeal is that the matter should not have been determined summarily. Ms. Williams would have preferred that the matter be determined at a lengthy 19‑day trial instead. Ms. Williams advances this point based on two general grounds. First, she says she was misled about the application. Second, she says that because of the complexity of the matter, and her opposition to proceeding summarily, it should not have proceeded in that fashion. I see no merit in these positions. [13] The application made by SFU, to deal with the question of whether there was a genuine issue for trial, and whether the pleadings disclosed a reasonable claim, was made with proper notice and was not misleading. In her factum, Ms. Williams quotes from correspondence she received from counsel for SFU, which is not part of the record before the Court. The portion quoted put Ms. Williams on notice that SFU intended to proceed summarily. SFU’s application was filed on July 12, 2018 and heard on September 6 and 7, 2018. The Notice of Application and the Amended Requisition made it clear that the matter was to proceed based on Civil Rules 9‑6 and 9‑5. Although the matter was contested, the judge did not err in allowing SFU’s applications to proceed. [14] On the application to strike, the judge considered what was set out in both the amended notice of civil claim and in the proposed further amendment (RFJ at para. 9). He concluded that the gravamen of the complaints is the manner in which SFU evaluated her and her ultimate dismissal from the program (at para. 10). Further, he held that characterizing what is in substance an academic matter as a tort does not avail a plaintiff (at para. 12). The judge also considered the authorities. Those authorities support the test he applied: that the test on a motion to strike is whether, assuming the facts in the pleadings are true, is it plain and obvious that the pleadings disclose no reasonable cause of action. [15] In coming to his conclusion, the judge considered a series of cases which hold that matters that are fundamentally academic in nature, focusing on the academic requirements, rules and regulations that a university applies to students, do not fall within the jurisdiction of a court except when they are reviewable on an application for judicial review: Cruickshank v. University of Lethbridge , 2010 ABQB 186 at para. 12; Dawson v. University of Toronto , [2007] O.J. No. 591 (S.C.), aff’d in part 2007 ONCA 875 ; Warraich v. University of Manitoba , 2003 MBCA 58 ; Fufa v. University of Alberta , 2012 ABQB 594 . I agree that this general proposition applies to this dispute. [16] The judge also considered whether allegations of bullying and defamation were independently supportable. With respect, the allegation about bullying (which he interpreted as “harassment”) he found that no allegations of fact were alleged that would support actionable conduct (at para. 15). The allegations supporting defamation were directed at Ms. Williams’ performance, were academic in nature, and were “no different than her complaints with respect to her assessment and mandatory withdrawal” (at para. 16). Furthermore, Ms. Williams did not allege publication or damage, essential ingredients of the tort of defamation. In the result, the judge found that the pleadings disclosed no reasonable claim. [17] Pleadings are required to allege material facts which, if proven, would make out an actionable claim. The pleadings fell short of this standard but, in any event, were directed at issues fundamentally academic in nature and not within the jurisdiction of the courts. Consideration of the evidence did not change the result. Thus, the judge held, correctly in my view, that the case should be dismissed under Rule 9‑5 or, alternatively, under Rule 9‑6. [18] In my view, Ms. Williams’ remaining three grounds of appeal also cannot succeed. The judge neither trivialized Ms. Williams’ claims nor exhibited bias in dealing with the claims in the manner he did. Nor did the judge err in his consideration of affidavit evidence. [19] The examples Ms. Williams provided as an illustration of the judge’s trivialization of the facts and her claim do not show any trivialization or misinterpretation. The judge was merely applying the legal tests required. [20] For example, Ms. Williams says that the judge trivialized the matter because he dealt with the application “when all [of] the evidence was not there.” However, the judge was required to deal with the application based on the material actually before him. Ms. Williams also says the judge trivialized the matter because he dealt with the application over a two‑day hearing. However, the length of time over which an application is heard is not a measure of whether it is trivial or not. I see nothing in the manner by which the application proceeded that would support the notion that the judge did not fully appreciate the importance of the matter to Ms. Williams. [21] The test for reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that it is more likely than not that the judge would not decide the matter fairly: Wewaykum Indian Band v. Canada , 2003 SCC 45 at para. 60. [22] Ms. Williams says that the judge exhibited bias primarily by attempting to limit her time for submissions, by restricting her submissions to material before the court and by laughing and making a joke while SFU’s counsel was speaking. I have reviewed the transcript references provided by Ms. Williams and I find no basis for her allegation of bias. [23] The transcript shows that the judge directed Ms. Williams to stay focused on the issues relevant to the application and not to stray into irrelevant matters after she gave a time estimate of “roughly three hours”. Likewise, he directed her to deal with the material actually before him and not to stray into evidence not actually before the court. Of course, the judge was required to deal with the matter based on the pleadings and the evidence before him. The judge committed no error in attempting to focus submissions on the only material he could consider on the application. [24] Ms. Williams points to two instances where she asserts the judge’s demeanor and/or actions are evidence of bias: the judge’s apparent momentary expression of amusement when counsel used a series of acronyms and when he commented on counsel for SFU’s mispronunciation of a well-known case name. With respect, I do not think a reasonable person could construe the statements and conduct of the judge in this respect, either considered separately or in the context of the two‑day hearing, to demonstrate a reasonable apprehension of bias. [25] Lastly, Ms. Williams says the judge erred by accepting affidavit evidence that was misleading and contained hearsay. The affidavit material attached documents related to the Due Process I described earlier. The affidavit was not tendered for the truth of the contents of the documents attached. There is no merit to this ground of appeal. There was nothing improper about the affidavit evidence filed by SFU, and in any event, the judge made his decision based on Ms. Williams’ proposed further amended pleading and the affidavit evidence as a whole. He found that it did not disclose a cause of action outside of a matter fundamentally academic in nature, about which the courts will not assume jurisdiction, except on judicial review. [26] In the result, I would dismiss the appeal. [27] FRANKEL J.A. : I agree. [28] WILLCOCK J.A. : I agree. [29] FRANKEL J.A. : The appeal is dismissed. “The Honourable Mr. Justice Savage”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Price Security Holdings Inc. v. Klompas & Rothwell, 2019 BCCA 36 Date: 20190131 Docket: CA45126 Between: Price Security Holdings Inc. Respondent (Plaintiff) And Klompas & Rothwell Appellant (Defendant) Before: The Honourable Mr. Justice Tysoe The Honourable Mr. Justice Harris The Honourable Madam Justice Griffin On appeal from:  An order of the Supreme Court of British Columbia, dated January 29, 2018 ( Price Security Holdings Inc. v. Klompas & Rothwell , 2018 BCSC 129, Victoria Docket S171140). Counsel for the Appellant: S.C. Lyons Counsel for the Respondent: R.T. Ashmead Place and Date of Hearing: Victoria, British Columbia December 10, 2018 Place and Date of Judgment: Vancouver, British Columbia January 31, 2019 Written Reasons by: The Honourable Mr. Justice Tysoe Concurred in by: The Honourable Mr. Justice Harris The Honourable Madam Justice Griffin Summary: The respondent was the beneficiary of a trust that owned a commercial building and the appellant was a tenant of some space in the building.  After the tenant had stopped paying its rent, the respondent transferred its beneficial interest in the building, together with the shares in the corporate trustee in whose name the building was registered, to a third party.  The respondent beneficiary brought an action in its own name against the tenant seeking judgment for the rent arrears, and the matter proceeded by summary trial.  The judge concluded the respondent beneficiary had satisfied three prerequisites permitting a departure from the general rule that a beneficiary of a trust cannot directly sue a third party debtor of the trust.  The judge awarded judgment for the rent arrears, interest and costs.  Held: Appeal allowed.  The judge erred in concluding the respondent satisfied the test for departure from the general rule that a beneficiary cannot directly sue a third party debtor of the trust.  The test requires the existence of special circumstances in addition to satisfaction of prerequisites, but the judge failed to consider whether special circumstances existed.  The judge’s order is set aside and a new trial is ordered. Reasons for Judgment of the Honourable Mr. Justice Tysoe: Introduction [1] At issue in this appeal is whether a beneficiary of a trust which owned a commercial building is entitled to directly sue a tenant of the building for rent arrears that accumulated during the period immediately preceding the sale of the building to a third party. [2] Following the hearing of a summary trial application under Rule 9-7 of the Supreme Court Civil Rules , the summary trial judge found that the beneficiary, Price Security Holdings Inc. (“Price Security”), could sue the tenant, Klompas & Rothwell (the “Tenant”), for the rent arrears and awarded judgment against the Tenant in favour of Price Security in the amount of $144,094.29, plus interest at the prime interest rate of Bank of Montreal plus 3% and solicitor and own-client costs of the action pursuant to the provisions of the last written lease executed by the Tenant. [3] The Tenant appeals the judge’s order.  In addition to challenging the standing of Price Security to sue it, the Tenant questions the suitability of the matter for a summary trial determination and the awards of interest and costs. Background [4] At all material times Fort Quadra Holdings Ltd. (the “Landlord”) has been the registered owner of a commercial building located at 895 Fort Street, Victoria, B.C. (the “Property”).  Most of the building consists of office space, and the Tenant, which is an accounting firm, has leased office space in the building since 1985.  The Landlord and the Tenant entered into written leases from time to time, the last of which was dated July 29, 2002 and covered the period from September 1, 2002 to December 31, 2007 (the “Lease”). [5] In the period leading up to the Lease, the Tenant had been renting 1,600 square feet of space at a rent of $12.00 per square foot per year.  As the Tenant was anticipating that an additional accountant would be joining the firm, it requested an additional 592 square feet, with the Landlord paying for the requisite leasehold improvements.  The annual rent under the Lease was negotiated to be $12.50 a square foot per year for the first four months of the term, $13.00 a square foot per year for 2003, $13.50 a square foot per year for 2004 and 2005, and $14.00 a square foot per year for 2006 and 2007.  The Tenant says that the square footage price under the lease was above market rates and that the above-market rent was to repay the Landlord for the leasehold improvements. [6] Article 17.1 of the Lease gave the Tenant the right to renew for a further term of five years at a rent equal to the greater of the then current market rent and the rent payable in the last year of the Lease.  Article 5.10 of the Lease provided that if the Tenant continued occupying the space after the expiration of the term without a further written agreement and without objection by the Landlord, the Tenant would be a monthly tenant on the same terms and conditions except that the monthly rent would be 150% of the rent for the last month of the term. [7] Article 15.1 of the Lease provided that, if the Tenant was in default under the Lease, it would be required to pay interest on overdue rent at a rate of 3% per annum in excess of the prime interest rate of Bank of Montreal and it would be required to reimburse the Landlord for its legal costs on a solicitor and own-client basis.  The enurement clause in the Lease, Article 16.5, stated that the Lease enured to the benefit of successors and assigns of the Landlord. [8] In 2006, prior to the expiry of the Lease, it appears that the beneficial interest in the Property was sold to a party whose identity was not established with certainty by the affidavit evidence but it may have been two trusts related to Price Security.  Registered title of the Property remained in the name of the Landlord, and it appears that the sale was effected by transferring the shares in the Landlord to the purchaser and by having the beneficial owner of the Property execute an unregistered transfer of the beneficial interest in the Property to the purchaser.  This structure was deposed to be used for tax purposes, which the Tenant says is the purpose of avoiding the requirement to pay property transfer tax on the registration of a transfer in the land title office (which was not denied by Price Security). [9] What the affidavit evidence did establish with certainty is that the Landlord executed a document dated as of December 31, 2009 entitled “Declaration of Bare Trust and Agency Agreement”.  The document recited that Price Security, which was incorporated on August 1, 2008, had acquired beneficial ownership of the Property, and Price Security appointed the Landlord as its bare trustee and agent to hold legal title to the Property.  The Landlord acknowledged that it held legal title to the Property as bare trustee and agent for Price Security. [10] The Lease expired at the end of 2007 without the right of renewal being exercised, and no new lease for the space was entered into.  The Tenant continued to occupy the space and still occupied it at the time of the summary trial.  The Tenant was provided on at least two occasions with extension agreements having the rent based on $14.00 per square foot per year, but it was not prepared to sign them.  The Tenant was of the view that rent based on $14.00 per square foot per year was above market rent, and the Tenant no longer needed as much space because the accountant who joined the firm in 2002 had left. [11] Even though the Tenant was not prepared to enter into the proposed extension agreements, it continued for several years to pay rent based on $14.00 a square foot per year for the larger space.  In July 2014, the Tenant stopped paying the rent.  The Tenant says it did so in order to bring the Landlord to the negotiating table, and it was motivated in part because it believed it had been over-paying its rent for years.  The non-payment of the rent did not have the desired effect.  The property manager sent correspondence in August 2015 requesting payment of the rent arrears and, while the Tenant gave indications that it was making arrangements to pay the arrears, it never did. [12] By accepting an offer dated February 2, 2016 and corrected by an addendum dated July 12, 2016 (the “Sale Agreement”), Price Security agreed to sell the beneficial interest in the Property and the shares in the Landlord to PC Urban (Acquisitions) Corp. (“PC Urban”) which, in turn, assigned the accepted offer to Pacific Arbour Six Residences Ltd. (“Pacific Arbour”).  The Sale Agreement contained the following provision dealing with adjustments: 3.3 Adjustments .  The Purchaser will be … entitled to receive all income relating to the Property from and including the Closing Date … The Vendor shall not be credited with arrears of rent and other charges owed by the tenant(s) under the Lease, but the parties agree to co-operate with each other in respect of the collection of the arrears.  The Vendor’s sole remedy, in any event, will be to sue a defaulting tenant in a debt action for recovery of rent arrears. [13] One of the documents executed in connection with the closing of the sale was a Direction to Trustee & Transfer of Beneficial Ownership by which Price Security acknowledged and confirmed that the document transferring ownership of the Property to Pacific Arbour would be effective to transfer not only the Landlord’s interest as trustee but also the entire beneficial ownership interest of Price Security in and to the Property.  Another one of the closing documents was an Assignment of Lease(s) Agreement by which Price Security and a company named 077056 B.C. Ltd. (which appears to have been a predecessor in title to the Landlord) assigned to Pacific Arbour all of the lease agreements relating to the Property and all covenants and rights thereunder accruing after the date of the closing of the sale. [14] After the sale of the Property completed, Price Security’s property manager emailed the Tenant requesting an update on the status of the payment of the rent arrears.  The email pointed out the provisions of the Lease calling for a 150% lease rate for an overholding, as well as interest on overdue rent at 3% above the prime interest rate. [15] The underlying action was commenced in March 2017.  In addition to the Tenant, Price Security named the Landlord, PC Urban and Pacific Arbour as defendants in the action.  The notice of civil claim requested judgment against the Tenant for the rent arrears at the 150% overholding rate, interest at the prime rate plus 3% and solicitor and own-client costs.  The notice of civil claim asserted that Price Security had made written demands to Pacific Arbour that it cooperate to enforce landlord rights against the Tenant, including the use of the Landlord to sue the Tenant, and that Pacific Arbour had refused to cooperate.  The relief sought against PC Urban and Pacific Arbour was for an injunction for them to cooperate with Price Security to enforce the landlord rights, the terms of the Lease, and to seek all available remedies in respect of the rent arrears owing by the Tenant.  No relief was sought against the Landlord. [16] The evidence at the summary trial did not include the written demands referred to in the notice of civil claim.  The evidence did include the responses of the lawyers acting for PC Urban and Pacific Arbour to Price Security’s notice of application for the summary trial.  They stated that their clients had no interest in the application and claimed no interest in the alleged rent arrears owing by the Tenant. [17] At the summary trial, the judge gave the parties liberty to file additional affidavits on the issue of Price Security’s standing to sue the Tenant for the rent arrears.  Counsel for Price Security swore an affidavit stating that he had sent requests in 2016 to the lawyer for the Landlord and Pacific Arbour and the lawyer for PC Urban requesting cooperation in collecting the rent arrears and that their clients refused to assist.  He also swore that after the hearing of the summary trial, he sent a request to these lawyers requesting evidence concerning their clients’ position.  The lawyer for the Landlord and Pacific Arbour replied by way of a letter stating that his clients would not cooperate in the collection of the rent arrears because they were not advised that they were outstanding at the time of their purchase of the Property and that it was up to Price Security as beneficial owner to take action to collect the arrears notwithstanding that the Lease was in the name of the Landlord. Decision of the Summary Trial Judge [18] In her reasons for judgment indexed as 2018 BCSC 129, the summary trial judge first reviewed the factual background and then dealt with the issue of whether the matter was appropriate for a summary trial determination.  The judge concluded that credibility was not a critical factor and that the evidence was sufficient to enable a just determination (at para. 42). [19] The judge next dealt with the issue of contractual privity.  She concluded that none of the exceptions to the doctrine of privity (agency, trust and the principled exception discussed in Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd. , [1999] 3 S.C.R. 108) had been established (at para. 73). [20] The judge then considered the issue of exceptions to the general rule that beneficiaries of a trust cannot directly sue a third party debtor of the trust.  She stated that Price Security may be able to advance a claim against the Tenant if it continued to hold a beneficial interest in the Property.  She then considered the decision of Stoney First Nation v. Imperial Oil Resources Limited , 2014 ABQB 408, which she interpreted to stand for the proposition that a beneficiary is entitled to sue a third party debtor of the trust as long as three prerequisites are satisfied: the trustee refused the request of the beneficiary to sue; the trustee was named as a party in the action suing the third party debtor; and the beneficiary exhausted its remedies against the trustee (at para. 75). [21] The judge reviewed the documentation and concluded that, despite the wording of the direction executed by Price Security at the time of the closing of the sale, the Sale Agreement demonstrated an intention of the parties for Price Security to continue to hold a beneficial interest in the Property; namely, the amounts alleged to be owed by the Tenant (at para. 90).  The judge then reviewed the three prerequisites set out in Stoney First Nation and concluded that Price Security had satisfied all of them (at paras. 92-94). [22] The judge rejected the claim for the 50% increase in rent for the overholding tenancy on the basis of estoppel (at para. 105), and she also rejected a limitation defence raised by the Tenant (at para. 119).  Neither of these points are in issue on this appeal. [23] The reasons for judgment concluded with the judge holding that Price Security was entitled to interest at the prime interest rate plus 3% and solicitor and own-client costs pursuant to the terms of the Lease which continued to apply to the overholding tenancy (at paras. 120-121). On Appeal [24] The Tenant’s grounds of appeal raise the following questions: (a) Was the matter suitable for resolution by summary trial? (b) Did Price Security have standing to directly sue the Tenant for the rent arrears? (c) Should contractual interest and solicitor and own-client costs have been awarded? [25] In addition to joining issue with the Tenant on these questions, Price Security seeks to support the summary trial judge’s order on the basis that these circumstances do constitute a principled exception to the doctrine of privity such that it is entitled to the benefits of the Lease (and the overholding tenancy which is subject to the provisions of the Lease).  Price Security relies on this exception in respect of the rent arrears, interest and legal expenses, but says that the exception provides the preferable way to analyze its entitlement to the interest and legal expenses.  I presume it is considered the preferable way because part of the interest and all of the legal expenses accrued or were incurred after the sale of the Property and after the Lease was assigned to Pacific Arbour. Discussion [26] As I regard the issue of the suitability of the matter for resolution by summary trial to be a threshold issue, I will discuss it first.  I will then address the privity issue because, if Price Security is correct in its position, the appeal should be dismissed without the necessity of dealing with the remaining questions. a) Summary Trial Suitability [27] In considering this issue, the summary trial judge referred to the factors discussed in the seminal decision of Inspiration Mgmt. Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.), and concluded that it would not be unjust to give judgment by way of summary trial because credibility was not a critical factor. [28] The Tenant says the judge erred in exercising her discretion because it was denied the full benefits of document exchange, examinations for discovery and cross-examination.  It goes on to submit that, as in Edward Jones v. Mirminachi , 2011 BCCA 493, it can be an error to proceed by summary trial in situations where the interpretation of a contract requires extrinsic evidence.  However, unlike Edward Jones , the Tenant does not point to any extrinsic evidence that would assist in the interpretation of the Lease and, in particular, Article 5.10 which created the overholding tenancy.  Indeed, the judge did not even appear to rely on Article 5.10 in finding there to be an overholding tenancy.  Rather, she relied on the decision of AIM Health Group Inc. v. 40 Finchgate Limited Partnership , 2012 ONCA 795, which dealt with the creation of overholding tenancies at common law. [29] Next, the Tenant says that not all of the documentation was before the court in relation to the prerequisite referred to in Stoney First Nation that the Landlord had refused a request by Price Security to sue the Tenant for the rent arrears.  However, there was no conflict in the documentation that was before the court and it was open to the Tenant to argue, as I believe it did at trial and as it did on this appeal, that the documentation in evidence was insufficient to establish that the prerequisite had been met. [30] Finally, the Tenant says that there was conflicting affidavit evidence about the market rents in Victoria around the time the term of the Lease expired.  It is true that the parties had differing views on the market rents, but nothing turns on it.  The Tenant did not exercise its option to renew but, even if it had, the renewal rent would have been the greater of the then current market rent and the rent during the last year of the Lease.  The Tenant’s view that it was paying above-market rent during the overholding tenancy did not give it the right to stop paying the rental charges while continuing to occupy the office space.  If the Tenant believed the rental rate to be excessive, its remedy was to find other premises at market rent and vacate the Property. [31] In my opinion, the Tenant has not established that the judge erred in principle or was clearly wrong in exercising her discretion to determine the action on a summary trial application.  Accordingly, her exercise of discretion is entitled to deference: see Edward Jones at para. 25. b) Privity of Contract [32] The doctrine of privity of contract stipulates that only the parties to the contract are entitled to the benefits of it and are subject to the obligations under it.  As a result, a person who is not a party to a contract cannot sue or be sued on the contract or otherwise take advantage of the provisions of the contract.  Until the decision in London Drugs Ltd. v. Kuehne & Nagel International Ltd. , [1992] 3 S.C.R. 299, there were only two generally accepted exceptions to the doctrine; namely, agency and trust: see Greenwood Shopping Plaza Ltd. v. Beattie , [1980] 2 S.C.R. 228 at 237-240.  In the present case, the summary trial judge held that neither of these exceptions applied because Price Security was incorporated after the Lease was executed and after the overholding tenancy was created. [33] In London Drugs , the issue was whether employees of an employer owning a warehouse were entitled to the benefit of a limitation of liability clause contained in a warehousing contract between the employer and the plaintiff.  The Supreme Court of Canada noted that the doctrine of privity had come under criticism by commentators (at 422) and concluded that the doctrine should be relaxed in the circumstances of that case (at 446). [34] The Supreme Court of Canada revisited the issue in Fraser River Pile .  It held that London Drugs was not intended to be limited to situations involving employer-employee relationships (at para. 31) and that, extrapolating from the requirements set out in London Drugs , the determination of whether there should be a principled exception to the doctrine of privity should be made on the basis of the following factors: [32]      … (a) Did the parties to the contract intend to extend the benefit in question to the third party seeking to rely on the contractual provision? and (b) Are the activities performed by the third party seeking to rely on the contractual provision the very activities contemplated as coming within the scope of the contract in general, or the provision in particular, again as determined by reference to the intentions of the parties? [35] In the case at bar, the summary trial judge held the Tenant could not have intended to extend the benefit of the Lease and the overholding tenancy to Price Security because it was not incorporated when they came into existence.  Relying primarily on the decision of Brown v. Belleville (City) , 2013 ONCA 148, Price Security says the judge erred in two respects.  It submits that the judge failed to take into account the enurement clause contained in the Lease and that the judge failed to consider whether Price Security fell within a class of persons the parties intended to have the benefit of the Lease. [36] In Brown , a municipality agreed in a contract with the owner of a farm to perpetually maintain and repair a storm sewer drainage system it constructed on the farm property.  The farm passed to the farmer’s heirs and it was subsequently sold on two occasions.  The contract was not registered and it was not assigned to the purchasers. [37] The Ontario Court of Appeal upheld a determination by a motion judge that the current owners of the farm were entitled to enforce the contract despite the lack of privity.  The Court first agreed with the motion judge that the current owners were “successors” of the owner who entered into the contract with the municipality within the meaning of the enurement clause contained in the contract (at para. 81), and held that “relaxing” the doctrine of privity did not frustrate the reasonable expectations of the parties (at para. 85). [38] The Court went on to consider whether the test for the application of the principled exception to the privity rule was met.  It noted the repeated academic and judicial criticism of the doctrine of privity, and stated that the doctrine is of considerably diminished force in Canada (at para. 79).  In concluding that a principled exception to the doctrine had been established, the Court was of the view that the original contracting parties clearly intended to extend the benefit of the contract to an “ascertainable group or class of persons” that included subsequent owners of the farm (at para. 101). [39] Price Security maintains that it is an assignee of the Landlord within the meaning of the enurement clause of the Lease because the overholding tenancy was “effectively” assigned to it.  It says this occurred at least by 2012 because it was dealing with all leasing matters through a property management company by that year or, alternatively, it occurred at the time of the sale of the Property as a result of the Sale Agreement providing that Price Security was to have the benefit of the provisions of the Lease up to the closing date of the sale. [40] In my opinion, neither of these things constituted an assignment of the overholding tenancy to Price Security.  The fact that Price Security was dealing directly with the property manager, rather than doing it through the Landlord, does not demonstrate that the overholding tenancy was assigned to it.  It simply means that Price Security was ignoring the formalities of the trust for the sake of its own convenience.  There is no evidence that the Landlord intended to assign the overholding tenancy to Price Security while it continued to hold legal title to the Property. [41] Nor did the Sale Agreement serve as an assignment of the Lease to Price Security.  The provision in the accepted offer relied upon by Price Security in this regard (Article 3.3) was only dealing with adjustments, and confirmed that Price Security was entitled to rent arrears accruing prior to the closing of the sale.  As the Landlord was not a party to the Sale Agreement, the document could not have effected an assignment of the overholding tenancy, in whole or in part, from the Landlord to Price Security. [42] I turn now to the principled exception to the doctrine of privity.  Price Security says that it falls within the class of persons to which the parties to the Lease intended to extend the Landlord’s benefits under the Lease, and that it is irrelevant that it was not incorporated when the Lease or the overholding tenancy came into existence. [43] I agree with Price Security that the fact it was incorporated after the Lease and the overholding tenancy were created is not determinative of the matter.  Using Brown as an example, the parties to the contract intended the benefit of the contract to extend to all subsequent owners of the farm, and there was no requirement that any such subsequent owner had to have been born or otherwise in existence at the time the contract was entered into. [44] But I do not agree with Price Security that it can be found that the Landlord and Tenant intended to extend the Landlord’s benefits under the Lease (and the overholding tenancy) to beneficiaries of trusts of which the Landlord may be or become the trustee.  There is nothing in the Lease to evince such an intention, and there was no extrinsic evidence that such an intention existed at the time the Lease was entered into.  The mere possibility that the Landlord held, or may in the future hold, the Property in trust for another person is not sufficient, in my view, to establish an intention on the part of the contracting parties to extend the benefits of the Lease to the beneficiary of the trust. [45] Price Security submits the doctrine of privity should be relaxed in the circumstances of this case to conform with commercial reality and justice and notes, among other things, the lack of prejudice to the Tenant.  Price Security takes this concept of commercial reality and justice from London Drugs , but the Supreme Court of Canada in that case did not hold that the concept dictated the abolishment of the doctrine.  Rather, the Court used the concept to make an incremental change to the law; namely, the establishment of a principled exception to the doctrine, as was amplified in para. 32 of Fraser River Pile quoted above.  Price Security does not meet the test for the principled exception. [46] It may be that the relaxation of the doctrine of privity will not prejudice the Tenant.  However, it must be borne in mind that Price Security made the decision to have the Property held in trust for it by the Landlord.  It admits that it did so to achieve tax savings.  If it wishes to take advantage of a trust structure, it should be prepared to accept the limitations of such a structure, particularly when it was open to it to ameliorate those limitations.  As pointed out by the summary trial judge, Price Security could have made different collection arrangements with the purchaser of the Property (for example, by taking from the Landlord an assignment of the chose in action in respect of the rent arrears).  The lawyer for Pacific Arbour has stated in a letter that his client had no knowledge of rent arrears owing by the Tenant at the time of the purchase of the Property (and the Assignment of Lease(s) Agreement contained a representation by Price Security that there were no rent arrears except those accepted in writing by Pacific Arbour).  It is not known whether Price Security did not pursue different collection arrangements for strategic reasons or through oversight. [47] I would not accede to Price Security’s argument that the present circumstances meet the test for a principled exception to the doctrine of privity.  I will next address the Tenant’s ground of appeal that the summary trial judge erred in holding that Price Security met the test under Stoney First Nation for permitting a beneficiary of a trust to directly sue a third party debtor of the trust. c) Suing a Third Party Debtor of a Trust [48] I wish to make two points before reviewing the case authorities.  The first point is that this topic engages both trust and privity of contract principles.  It is a general principle of the privity doctrine that only a party to the contract may sue on the contract.  It is a general trust principle that it is the trustee of the trust, and not its beneficiaries, who is the appropriate party to sue to enforce rights of the trust.  Both of these principles were involved in the cases discussed in Greenwood Shopping Plaza as illustrations of the trust exception to the privity doctrine. [49] It is important to bear in mind that there are other types of situations involving the issue of whether a beneficiary of a trust can sue a third party where only trust principles are engaged and the doctrine of privity does not stand in the way of the beneficiary being able to sue directly (e.g., a suit by a beneficiary to recover trust property or a suit by a beneficiary in respect of negligence on the part of a third party causing loss of, or damage to, trust property).  Cases involving those situations should not necessarily be regarded as precedent for the present situation in which the doctrine of privity also plays a part. [50] The second point is that the summary trial judge considered it to be a prerequisite for Price Security being able to directly sue the Tenant that it continued to hold a beneficial interest in the Property.  I am unclear why she considered it to be a prerequisite, and neither of the parties on appeal addressed the point other than saying that they did not regard it to be important.  It may be the judge believed that Price Security needed to hold a continuing beneficial interest in the Property in order to pursue the chose in action in respect of the rent arrears.  However, that chose in action belonged to the trust at the time of the sale of the Property, and it is clear from the Sale Agreement that the chose in action was not acquired by the purchaser.  I make the point because, although it does not affect the outcome of this matter, I do not regard the retention of the chose in action after the sale of the Property to constitute a continuing beneficial interest in the Property. [51] In holding that Price Security had standing to sue the Tenant for the rent arrears, the summary trial judge relied solely on the decision of Stoney First Nation .  Before discussing this decision, it will be useful to review the authorities leading up to it. [52] Although it is not the earliest authority, Sharpe v. San Paulo Railway Co. (1873), L.R. 8 Ch. App. 597 is regularly cited in later cases.  In holding that one of several beneficiaries could not, on an allegation that the trustee had refused to take proceedings, sue a debtor of the trust, Lord Justice James said the following (at 609-610): I had lately occasion to consider that question, and I came to the conclusion, very clearly, that a person interested in an estate or a trust fund could not sue a debtor to that trust fund, or sue for that trust fund, merely on the allegation that the trustee would not sue; but that if there was any difficulty of that kind, if the trustee would not take the proper steps to enforce the claim, the remedy of the cestui que trust was to file his bill against the trustee for the execution of the trust, or for the realization of the trust fund, and then to obtain the proper order for using the trustee’s name, or for obtaining a receiver to use the trustee’s name, who would, on behalf of the whole estate, institute the proper action, or the proper suit in this Court. That view I still adhere to, and I say it would be monstrous to hold that wherever there is a fund payable to trustees for the purpose of distribution amongst a great number of persons, every one of those persons could file a separate bill of equity, merely on the allegation that the trustees would not sue. This passage was quoted with approval by the Ontario Court of Appeal in Norfolk v. Roberts (1913), 13 D.L.R. 463 (Ont. S.C. (A.D.)). [53] The next important decision is Hayim v. Citibank N.A. , [1987] A.C. 730 (P.C.), which may have led to some confusion in the jurisprudence.  It involved two trusts, referred to as the Hong Kong trust and the American trust, with the beneficiary of the Hong Kong trust being the trustee of the American trust.  The Hong Kong trust owned a property and the provisions of the American trust provided that the trustee had no obligation to require the sale of the Hong Kong property until two named persons had died.  The beneficiaries under the American trust sued the trustee of the Hong Kong trust for breach of trust in delaying the sale of the property until those two persons had died.  The Privy Council dismissed an appeal from the Court of Appeal of Hong Kong holding that there had not been a breach of trust by the trustee of the Hong Kong trust.  The Privy Council relied on a provision in the American trust stating that its trustee had no responsibility in respect of the Hong Kong property while either of those two persons were alive, and held that this provision meant that the trustee under the American trust owed no duty to the beneficiaries of the trust and was entitled to have instructed the trustee of the Hong Kong trust to delay the sale of the property. [54] Although the Privy Council reviewed authorities involving the issue of whether a beneficiary of a trust could sue a third party, the case did not involve that issue and the Privy Council was not bringing about a change in the law on the issue.  Rather, the issue was whether the beneficiaries of the trust had greater rights than the trustee, and the comments by the Privy Council about the authorities were obiter dicta .  This is clear from the statement made by Lord Templeman immediately prior to his review of the authorities (at 747): The authorities cited by [counsel for the beneficiaries under the American trust] only demonstrate that when a trustee commits a breach of trust or is involved in a conflict of interest and duty or in other exceptional circumstances a beneficiary may be allowed to sue a third party in the place of the trustee. [Emphasis added.] [55] Lord Templeman then reviewed several authorities, including Sharpe and two other decisions stating that a mere refusal by the trustee to sue did not entitle a beneficiary to sue a third party in his own name ( Yeatman v. Yeatman (1877), 7 Ch.D. 210, and Meldrum v. Scorer (1887), 56 L.T. 471 (Ch.)).  He also referred to Travis v. Milne (1851), 9 Hare 141 at 150, 68 E.R. 449 (Ch.), where it was held that beneficiaries under a will of a deceased partner could only sue the surviving partners in “special circumstances … where the relation between the executors and the surviving partners is such as to present a substantial impediment to the prosecution by the executors of the rights of the parties interested in the estate against the surviving partners”.  Special circumstances were found in that case because the executors were accused of breach of trust in carrying on business with the surviving partners. [56] Lord Templeman summarized the authorities as follows (at 748): These authorities demonstrate that a beneficiary has no cause of action against a third party save in special circumstances which embrace a failure, excusable or inexcusable, by the trustees in the performance of the duty [owed] by the trustees to the beneficiary to protect the trust estate or to protect the interests of the beneficiary in the trust estate. [Emphasis added.] In my view, Lord Templeman was not endeavouring to say anything different in this passage than he said in the passage preceding his review of the authorities; namely, a beneficiary of a trustee is not permitted to directly sue a third party except in special circumstances.  Given Lord Templeman’s reference to Sharpe , Yeatman and Meldrum , he cannot be taken to have meant that a refusal of the trustee to sue the third party constitutes a special circumstance. [57] Interestingly, all the other relevant authorities are decisions of the Alberta courts.  In Vogel v. Hall , 2001 ABCA 188 ( sub nom. Remmers v. Lipinski ) (“ Remmers ”), leave to appeal ref’d [2001] S.C.C.A. No. 502, the Alberta Court of Appeal summarized the law as follows: [57] Generally, while beneficiaries have an in personam action against trustees for breach of trust, they cannot sue the debtor of a trust fund. Sharpe v. San Paulo Railway (1873), L.R. 8 Ch. 597. Although beneficiaries may sue to recover trust property, this is not a trust property action but a claim for damages based on gross negligence. D.W.M. Waters, The Law of Trusts in Canada , 2nd ed. (Toronto: Carswell, 1984) at 984. [58] In Kwinter v. Metrowest Development Ltd. , 2007 ABQB 713, the defendants applied to strike the statement of claim for want of standing.  The plaintiff was a beneficiary under a family trust which held the common shares of a corporation, and she sued for oppression and breach of trust in respect of a transfer of preferred shares of the corporation to her sister.  In holding that it was not plain and obvious that the beneficiary lacked standing, Justice Horner made reference to Sharpe , Waters’ Law of Trusts in Canada and Halsbury’s Laws of England in connection with the general proposition that beneficiaries cannot directly sue third parties, and she continued as follows: [36]      The following possible exceptions relevant to the case at bar have been identified: 1. Where there is alleged to be fraud or collusion between the trustee and the third person ( Halsbury’s ), 2. Where by reason of conflict of interest or duty it is impossible or difficult for the trustees to sue ( Halsbury’s ), 3. Where there is a failure by the trustees in performing their duties as trustees to protect the trust estate or to protect the interests of the beneficiary in the trust estate ( Hayim v. Citibank N.A. [[1987] 3 W.L.R. 83 (Eng. Prob. Ct.)]) 4.  Where the beneficiaries are suing to recover trust property (as opposed to suing debtors of the trust) ( Remmers v. Lipinski (2001), 293 A.R. 156 (Alta. C.A.), leave to appeal to S.C.C. refused, (2002), [2001] S.C.C.A. No. 502 (S.C.C.)). To this list I would add statutory exceptions, such as those in the [ Business Corporations Act ] allowing a beneficial owner of securities of a corporation to bring certain actions. Justice Horner did not use the term “special circumstances” or “exceptional circumstances” but it appears that her exceptions (or at least the first three of them) were intended to constitute such circumstances.  In dismissing the application to strike, she held it was not clear that the beneficiary’s claims did not fall under one of these exceptions. [59] The next set of decisions involved the Stoney First Nation.  There was the decision of Stoney First Nation relied upon by the summary trial judge, which was an appeal from the decision of a master in Stoney Tribal Council v. Imperial Oil Resources Limited , 2012 ABQB 557.  The Stoney were suing Imperial Oil in respect of royalty payments payable by it to the federal Crown in connection with lands surrendered by the Stoney to the federal Crown “in trust to lease”.  Imperial Oil applied to dismiss the claim on the basis that the Stoney had no standing to bring the action. [60] Master Hanebury granted the application and dismissed the action.  After making reference to Remmers , the Master said the following: [67]      Exceptions to this general rule [that beneficiaries cannot sue a third party debtor of a trust] require that the beneficiary first meet certain prerequisites and that there be special circumstances : Kwinter v. Metrowest Development Ltd. , 2007 ABQB 713, para. 36. [68]      Imperial argues that it is plain and obvious these prerequisites have not been met nor are there the requisite special circumstances , with the result that there is no genuine issue for trial. [69]      There are three prerequisites to a beneficiary’s action against a third party owing money to a trustee that could be an impediment to the Stoney bringing this action: the beneficiary must first ask the trustee to bring the action and be refused; the beneficiary must name the trustee as a defendant if it sues the third party; and, the beneficiary must exhaust its remedy against the trustee, in this case the Crown. [Emphasis added.] I note that Master Hanebury interpreted Kwinter in the same fashion as I have. [61] In the result, Master Hanebury concluded that the Stoney had not exhausted its recourse against the federal Crown because she was of the view that the royalties the Stoney were claiming from Imperial Oil could be or could have been recovered from the federal Crown.  As she held that one of the three prerequisites had not been satisfied, it was not necessary for her to consider whether special circumstances existed. [62] The appeal from Master Hanebury’s decision was dismissed in Stoney First Nation .  At para. 24, Justice Mahoney quoted para. 69 of Master Hanebury’s reasons setting out the three prerequisites.  In dealing with the issue of standing, he said the following: [53]      I also agree with the Master that the Stoney do not have standing to pursue their claim against Imperial. The Master correctly identified the general rule set out in Remmers v Lipinski , 2001 ABCA 188 at para 57 that while beneficiaries have an in personam action against trustees for breach of trust, they cannot sue the debtor of a trust fund. The Master also correctly identified the exceptions to this legal rule set out in Kwinter v Metrowest Development Ltd , 2007 ABQB 713, which require that the beneficiary first meet certain prerequisites and that there be special circumstances for a beneficiary to sue a third party. [Emphasis added.] [63] Justice Mahoney then quoted para. 36 of Kwinter (set out above) and discussed whether the Stoney satisfied any of the “ Kwinter exceptions”.  He concluded that none of the exceptions had been established or, in other words, there were no special circumstances.  Near the end of his reasons (at para. 78), he expressed his agreement with Master Hanebury’s conclusion that the Stoney had not met the three prerequisites required for a beneficiary to bring an action against a third party debtor of the trust, and he set out those prerequisites. [64] As mentioned above, the summary trial judge relied on Stoney First Nation in concluding that Price Security had standing to sue the Tenant for the rent arrears.  At para. 75 of her reasons, she set out the three prerequisites referred to in para. 78 of Stoney First Nation (and para. 69 of Stoney Tribal Council ).  At paras. 91 to 99, she set out her reasons for concluding that the three prerequisites had been satisfied.  However, the judge never considered whether there were special circumstances justifying a departure from the general rule that a beneficiary cannot directly sue a third party debtor of the trust, as required in Stoney First Nation and the preceding authorities to which I have referred.  In my opinion, the judge erred in that regard. [65] Before I deal with the consequences of the judge’s error, I wish to comment on another Alberta decision that was apparently not provided to the summary trial judge, Stoney Tribal Council v. Shell Canada Limited , 2017 ABQB 314 ( sub nom. Bearspaw, Chiniki and Wesley Bands v. Shell Canada Ltd. ) (“ Bearspaw ”).  The action was similar to the one in Stoney First Nation because the three bands were the same ones as had been represented by the Stoney Tribal Council and the claim against Shell Canada was for royalties that they alleged should have been paid to the federal Crown as their fiduciary.  However, the result was different than in Stoney First Nation because Justice Poelman dismissed the application of Shell Canada for dismissal of the claim for lack of standing. [66] At para. 40 of his reasons, Poelman J. set out what he considered to be the distinguishing features of the case from Stoney First Nation , including the fact that, unlike Stoney First Nation , the federal Crown had been added as a defendant to the action and the federal Crown had not taken action against the oil company.  At para. 42, Poelman J. quoted the following passage from Donovan W.M. Waters, Mark R. Gillen & Lionel D. Smith, eds., Waters’ Law of Trusts in Canada , 4th ed. (Toronto: Carswell, 2012) at 1265: What if the trustee cannot or will not enforce this claim for the benefit of the trust?  A recalcitrant trustee who has rights against a third party but will not enforce them can simply be joined as a defendant to the beneficiary’s action which also names the third party as a defendant. I note that the decision footnoted at the end of this sentence in Waters was Shell U.K. Ltd. & Ors. v. Total UK Ltd. & Ors ( sub nom. Colour Quest Ltd. v. Total Downstream UK Plc. ), [2010] EWCA Civ 180 at paras. 111-144, which involved a claim for economic loss in respect of trust property that had been damaged. [67] After also quoting the above passage from Hayim at 748, Poelman J. discussed whether the plaintiffs had satisfied the prerequisite of exhausting their remedies against the federal Crown.  He concluded the prerequisite was satisfied because the federal Crown had been at least a “recalcitrant trustee” and had failed to perform its duty of securing additional royalties (at para. 43).  He also held that it would be overly inefficient to require the plaintiffs to sue the federal Crown through judgment before suing Shell Canada (at para. 44). [68] Justice Poelman next turned to a consideration of the “ Kwinter exceptions”.  He concluded that the exception based on Hayim applied because there was a failure by the trustee in performing its duty as trustees to protect the trust of the estate or to protect the interest of the beneficiary in the trust estate.  He observed that this was essentially the same as the requirement that a beneficiary exhaust its remedies against the trustee (at para. 47). [69] It appears that Poelman J. used the correct test as set out in Stoney First Nation (with one exception which I will discuss below).  However, it is my view that the manner in which he applied the test effectively did away with the requirement for special circumstances.  He equated the failure of the federal Crown to sue Shell Canada with the special circumstance of a trustee failing in its duty to protect the trust or to protect the interests of the beneficiaries.  The effect of his decision is that a beneficiary would have standing to sue a third party debtor of the trust in all cases where the trustee has merely refused to sue.  He relied on Hayim to come to this conclusion but, as I have illustrated above, the authorities reviewed in Hayim do not support such a conclusion. [70] As the judge in the present case erred by failing to consider whether special circumstances existed, it is my view that her order cannot stand.  As the evidence at the summary trial was in the form of affidavits which are before us, it is open to this Court to decide whether special circumstances did exist and thereby avoid the expense of a new trial: see McGarry v. Co-operators Life Insurance Co. , 2011 BCCA 214 at para. 81.  However, it is my view that this is not an appropriate case for this Court to decide the issue of special circumstances. [71] At the hearing of this appeal, we were advised that the issue of the standing of Price Security in the underlying action was raised for the first time during the course of the summary trial.  The issue was not fully canvassed at the summary trial, and there may have been additional evidence introduced at the summary trial if it had been previously raised.  Detailed submissions on the issue of whether special circumstances existed were not made to us.  In these circumstances, the appropriate remedy is to order a new trial. [72] I wish to make a few comments about the new trial.  As there will likely be additional evidence at the new trial, the determination of the suitability of a summary trial will not be binding on the new trial judge if the new trial is in the form of a summary trial.  In addition, in view of my conclusion with respect to the error made by the summary trial judge, it is not necessary for this Court to consider the three prerequisites mentioned in Stoney Tribal Council and Stoney First Nation or the issues relating to interest and solicitor and own-client costs, and the summary trial judge’s findings in those regards should not be considered to be binding on the new trial judge. [73] Finally, I wish to comment on the third prerequisite mentioned in Stoney Tribal Council and Stoney First Nation that the beneficiary must have exhausted its remedies against the trustee before suing the third party in its own name.  No authority was cited in either of those decisions for this prerequisite, and it is my view that in introducing it, Master Hanebury may have conflated the situation of the beneficiary suing in its own name and the situation of the beneficiary taking steps to sue in the trustee’s name.  If there are special circumstances, the beneficiary may sue in its own name, and there would not seem to be any need for the beneficiary to first take steps against the trustee, especially in view of the second prerequisite that the trustee be named as a defendant in the action against the third party.  But, in the absence of special circumstances, the above-quoted passage from Sharpe explains the avenue open to the beneficiary of obtaining an order to sue in the trustee’s name or to have a receiver appointed to use the trustee’s name.  Another potential avenue is an application for the appointment of a new trustee or a judicial trustee under ss. 30 and 97 of the Trustee Act , R.S.B.C. 1996, c. 464.  In my view, these avenues are what may be envisaged by a requirement for the beneficiary to pursue remedies against the trustee in the absence of special circumstances.  In Bearspaw , Poelman J. almost totally discounted this prerequisite, and I consider it to be an open question whether it is an appropriate prerequisite of general application when there are special circumstances. Conclusion [74] I would allow the appeal, set aside the order of the summary trial judge and direct that there be a new trial. “The Honourable Mr. Justice Tysoe” I AGREE: “The Honourable Mr. Justice Harris” I AGREE: “The Honourable Madam Justice Griffin”

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Verma , 2019 BCCA 14 Date: 20190131 Docket: CA45742 Between: Regina Respondent And Pradeep Kumar Verma Applicant Corrected Judgment:  The text of the judgment was corrected in the Summary, the heading above paragraph 44 and at paragraphs 4(g), 14, 20, 26, 30, 47 and 54 on August 8, 2019. Before: The Honourable Madam Justice MacKenzie (In Chambers) On appeal from:  An order of the Supreme Court of British Columbia, dated November 23, 2018 ( R. v. Verma , 2018 BCSC 2311, Vancouver Docket 27011‑7). Oral Reasons for Judgment The Applicant, appearing in person: P.K. Verma (L. Keallen, Interpreter) Counsel for the Respondent: E.A. Campbell Place and Date of Hearing: Vancouver, British Columbia January 29, 2019 Place and Date of Judgment: Vancouver, British Columbia January 31, 2019 Summary: The applicant brought on numerous applications related or preliminary to his application for leave to appeal, pursuant to s. 839 of the Criminal Code, an order dismissing his summary conviction appeal from convictions on two counts of uttering threats. Held: For a variety of reasons, including their lack of merit, or the Court’s lack of jurisdiction to grant the orders sought, all the applications stand dismissed. [1] MACKENZIE J.A. : Mr. Verma brought on many applications for hearing in Chambers on January 29, 2019. While he emphasized certain applications, he was clear that he did not withdraw any of those filed. I reserved until today my decision on those and other applications brought just that morning. [2] Some of the applications are related, or preliminary, to Mr. Verma’s substantive application for leave to appeal pursuant to s. 839 of the Criminal Code, R.S.C. 1985, c. C‑46, the order of Justice Brundrett dismissing the summary conviction appeal from convictions on two counts of uttering threats against an employee of the Office of the Public Guardian and Trustee (the “PGT”), contrary to s. 264.1(1) of the Criminal Code. Mr. Verma was convicted of these counts on September 23, 2016 by Judge Bahen of the Provincial Court. Justice Brundrett’s reasons of November 23, 2018 are indexed as 2018 BCSC 2311. The actual application for leave to appeal pursuant to s. 839 was not heard on January 29. The determination of the preliminary applications come first. [3] The following list of these preliminary applications is derived from the respondent Crown’s written argument, which has been of great assistance in identifying and consolidating the applications. On my review, this list is accurate as to the relief sought, with the addition of further applications filed on January 22 and 25, 2019 that I will describe below. [4] The applications are for the following orders: a)       The Crown bear the costs of the transcripts and appeal books; b) Amicus curiae be appointed; c) Amicus curiae be directed to submit a report on the merits of this appeal (CA45742) and an appeal or re‑opening of R. v. Verma , 2014 BCCA 157 (Levine J.A. in Chambers), the dismissal of an application for leave to appeal the dismissal of a summary conviction appeal from a 2012 conviction for threatening; d)       Directing the PGT to advance funds from the estate of Tripta Verma (the applicant’s mother) and Pradeep K. Verma; e)       Adding the PGT and Tripta Verma as parties to this appeal; f)        Re‑opening the leave to appeal application dismissed by Levine J.A. in R. v. Verma , 2014 BCCA 157 (in Chambers); g)       Re‑opening two civil cases involving the applicant and the PGT ( Verma v. British Columbia (Ministry of Health) , VA S082438 and Verma v. HMTQ , CA36458); h)       Removing the PGT as the committee of the applicant’s estate; i)        A prohibition against the BC Prosecution Service bringing criminal prosecutions against Tripta Verma or Pradeep Verma without special leave of the court and various orders respecting steps to follow if any prosecution is brought; and j)        A direction to the BC Prosecution Service to enter a stay of prosecution respecting all criminal actions against Pradeep Verma since 2000 and a direction to the PGT to calculate award estimations for all arrests and detentions of Pradeep Verma. [5] Mr. Verma submitted his leave to appeal application becomes moot if the Court focused on the granting of what he characterizes as “criminal immunity” in i) and j) above, whereby the Court is “without jurisdiction to impose penal sanctions”, and has the ability to direct the Prosecution Service to stay all criminal actions against him since 2000. He made lengthy submissions on these issues in particular. [6] Mr. Verma began his submissions with an application that I recuse myself based on a reasonable apprehension of bias. He framed his application this way: Due to a reasonable likelihood or a perception of a reasonable apprehension of bias that the presiding justice might be guided by his prior ruling on this same relief[,] I’d like the Registry to insure [ sic ] that my docket is not placed before a justice who has heard [and] denied these reliefs to me. [Emphasis in original.] [7] Mr. Verma said that if the sole applications I determined were to issue mandamus against the PGT, or to make an order appointing amicus to make such an application , he would have no objection to my hearing them. He requested the Crown not be heard as the appropriate party was the PGT. He wanted to ensure the Crown lawyer did not oppose the Court’s discretion to appoint an amicus “as is standard court procedure where the person is under a disability as in the case at bar”. [8] If I were not inclined to grant these applications (for mandamus , as I understood it, or amicus to apply for mandamus ), then he said he must insist we adjourn to ensure the appointment of amicus to address the jurisdictional question of issuing mandamus in litigation that began in 2007, and requires the issuance of mandamus. [9] Mr. Verma maintained that amicus is “supposed to guide or make submissions to this Court on the question of granting mandamus so that there is a lawyer to oppose the submissions of Crown counsel”. His submissions, he said, have been ignored in the past, creating a breach of fairness. [10] Going further, he submitted mandamus could be wrongfully denied if the Crown were heard, as the Crown is guilty of subverting justice by opposing the appointment of amicus and the issuance of mandamus. [11] Mr. Verma contended he would have no choice but to seek an adjournment before me to make an application for the removal of any Crown counsel on this matter, and the appointment of an “expert lawyer” to make the serious application of the removal of Crown counsel. [12] Mr. Verma submitted the Crown had no standing in the application for mandamus to issue against the PGT. The layers of Mr. Verma’s submissions spiralled deeper and deeper. [13] In the event the Crown opposed the application for mandamus against the PGT and I condoned that “obstruction of justice”, Mr. Verma asked that I read a ten‑page document entitled, “Motion seeking Foreclosure of right of B.C. Prosecution Services to be heard”. This “motion” was apparently required to ultimately prevent offences via use of court orders as “murder weapons”. [14] I dismissed Mr. Verma’s application for the appointment of amicus to make an application on his behalf for mandamus, and also for a month‑long adjournment to make the mandamus application against the PGT with the possible help of a lay person – an advocate for the mentally ill. I advised Mr. Verma that it did not matter who made the application because I had no jurisdiction to order that mandamus be issued against the PGT. An adjournment would therefore be pointless. I denied the adjournment. [15] Mr. Verma then applied for “judge recusal” based on adjudicative fraud, based in turn on a total lack of ultimate remedy (against the PGT, I understand). He said there was no remedy open to him and his mother, although for seven years he has been made to live without income. He and his mother are both denied rehabilitative assistance, which led to his threatening in this case of the PGT employee. He said that jurisdiction must be created or enacted by this Court to fashion a remedy, or the Court must rely on its own remedy. [16] I did not allow either of these applications. This is a criminal matter and the Court’s jurisdiction derives from the Criminal Code . There is no jurisdiction to issue mandamus against the PGT in this matter . In R. v. Verma, 2017 BCCA 436 at para. 14, Justice Saunders for a division of this Court also said that the “issue of mandamus is not one that comes within s. 839 [of the Criminal Code ]”. [17] I understand Mr. Verma has long‑standing conflict with the PGT, which was appointed as committee of his estate pursuant to a certificate of incapability issued under the Patients Property Act, R.S.B.C. 1996, c. 349. Mr. Verma says the PGT was also appointed as committee of his mother’s estate in January 2018. But this Court has no jurisdiction to embark on civil matters in the context of a criminal matter. [18] I dismissed Mr. Verma’s application that I recuse myself, finding the test for reasonable apprehension of bias set out in Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General) , 2015 SCC 25, was not met. The test from Yukon is as follows: [20]      The test for a reasonable apprehension of bias is undisputed and was first articulated by this Court as follows: . . . what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision‑maker], whether consciously or unconsciously, would not decide fairly. [Citation omitted.] ( Committee for Justice and Liberty v. National Energy Board , [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting)) [21]      This test — what would a reasonable, informed person think — has consistently been endorsed and clarified by this Court: e.g., Wewaykum Indian Band v. Canada , [2003] 2 S.C.R. 259, at para. 60; C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, at para. 199; Miglin v. Miglin , [2003] 1 S.C.R. 303, at para. 26; Baker v. Canada (Minister of Citizenship and Immigration) , [1999] 2 S.C.R. 817, at para. 46; R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 11, per Major J., at para. 31, per L’Heureux‑Dubé and McLachlin JJ., at para. 111, per Cory J.; Ruffo v. Conseil de la magistrature, [1995] 4 S.C.R. 267, at para. 45; R. v. Lippé , [1991] 2 S.C.R. 114, at p. 143; Valente v. The Queen , [1985] 2 S.C.R. 673, at p. 684. [22]      The objective of the test is to ensure not only the reality, but the appearance of a fair adjudicative process. The issue of bias is thus inextricably linked to the need for impartiality. In Valente , Le Dain J. connected the dots from an absence of bias to impartiality, concluding “[i]mpartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case” and “connotes absence of bias, actual or perceived”: p. 685. Impartiality and the absence of the bias have developed as both legal and ethical requirements. Judges are required — and expected — to approach every case with impartiality and an open mind: see S. (R.D.) , at para. 49, per L’Heureux‑Dubé and McLachlin JJ. [23]      In Wewaykum, this Court confirmed the requirement of impartial adjudication for maintaining public confidence in the ability of a judge to be genuinely open: . . . public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so. The essence of impartiality lies in the requirement of the judge to approach the case to be adjudicated with an open mind. [Emphasis added in Yukon ; paras. 57‑58.] [24]      Or, as Jeremy Webber observed, “impartiality is a cardinal virtue in a judge. For adjudication to be accepted, litigants must have confidence that the judge is not influenced by irrelevant considerations to favour one side or the other”: “The Limits to Judges’ Free Speech: A Comment on the Report of the Committee of Investigation into the Conduct of the Hon. Mr Justice Berger” (1984), 29 McGill L.J. 369, at p. 389. [25]      Because there is a strong presumption of judicial impartiality that is not easily displaced ( Cojocaru v. British Columbia Women’s Hospital and Health Centre, [2013] 2 S.C.R. 357, at para. 22), the test for a reasonable apprehension of bias requires a “real likelihood or probability of bias” and that a judge’s individual comments during a trial not be seen in isolation: see Arsenault‑Cameron v. Prince Edward Island , [1999] 3 S.C.R. 851, at para. 2; S. (R.D.) , at para. 134, per Cory J. [26]      The inquiry into whether a decision‑maker’s conduct creates a reasonable apprehension of bias, as a result, is inherently contextual and fact‑specific, and there is a correspondingly high burden of proving the claim on the party alleging bias: see Wewaykum, at para. 77; S. (R.D.), at para. 114, per Cory J. As Cory J. observed in S. (R.D.): . . . allegations of perceived judicial bias will generally not succeed unless the impugned conduct, taken in context , truly demonstrates a sound basis for perceiving that a particular determination has been made on the basis of prejudice or generalizations. One overriding principle that arises from these cases is that the impugned comments or other conduct must not be looked at in isolation. Rather it must be considered in the context of the circumstances, and in light of the whole proceeding . [Emphasis added in Yukon ; para. 141.] [19] I concluded there was no basis for me to recuse myself on the grounds alleged. This is a small Court and Mr. Verma has appeared many times before many of its justices. He has appeared before a variety of justices in Chambers because he brings so many applications. It is inevitable that Mr. Verma would find himself before a justice who has heard one of his many applications before. [20] In Mr. Verma’s case, I have made no previous findings of credibility or fact to taint my reasoning in this matter. I observed that the issues raised questions of jurisdiction and law. I said on January 29 that I was confident of my ability to entertain his applications without being improperly influenced. [21] I concluded a reasonable, informed person, viewing the matter realistically and practically – and having thought the matter through – would not think it more likely than not that, whether consciously or unconsciously, I would not decide this matter fairly. Accordingly, I dismissed the application for recusal. [22] Mr. Verma did not wish to withdraw any of the applications filed, so we proceeded. He referred me to the ten‑page document I described earlier. I read it, although it was complicated and difficult to follow. He used the document to make his submissions on the preliminary applications filed, as well as other materials. [23] The Crown opposed all the orders listed above and said, (and I agree), this Court has no jurisdiction in the circumstances to make the orders sought in g) to j) and/or they are wholly unrelated to, and inappropriate for this leave application. Background [24] On September 23, 2016, Mr. Verma was convicted of two counts of uttering a threat to cause death or bodily harm to Kimberly Azyan, contrary to s. 264.1(1) of the Criminal Code ( R. v. Verma (23 September 2016), Vancouver 19901‑4‑C (B.C.P.C.)). Ms. Azyan is the director of adult services for the PGT. [25] The Crown’s useful summary of the background to these applications follows: 4.         Kimberly Azyan is the director of adult services for the office of the PGT. The PGT was appointed as the committee of the applicant’s estate in 2001 and the relationship has been characterized by conflict because the applicant does not believe he is fairly treated by the PGT. [RFJ – Bahen P.C.J., para. 4, R. v. Verma , 2014 BCCA 157 (Chambers), para. 3 (tab 11)] 5.         After the Crown closed its case, the applicant did not call any evidence. As stated by Bahen P.C.J., The accused expressed the view that the trial process was unfair, as he had not had counsel appointed to act on his behalf. He referred to his view that the defence of necessity could have been established at trial, but the opportunity to do so was denied to him, by the refusal of the court to appoint defence counsel. [RFJ – Bahen P.C.J., para. 18 (tab 2)] 6.         An amicus curiae had been appointed to assist the court at trial because of conflicts that arose between the applicant and several lawyers the Legal Services Society appointed to act for him. [ R. v. Verma , 2016 BCCA 307, para. 5 (tab 5)] Amicus curiae provided submissions on what Bahen P.C.J. described as the “principal issue”, whether the applicant formed the intent to threaten. [RFJ – Bahen P.C.J., paras. 7, 23, 27‑28 (tab 2)] 7.         Bahen P.C.J. noted that the applicant raised, on his own behalf, issues including legal justifications for his actions, self‑defence, and the defence of necessity. However, there was no air of reality to any of those issues. [RFJ – Bahen P.C.J., paras. 8, 20] 8.         The same day as his conviction, September 23, 2016, the applicant filed an appeal of that conviction in Supreme Court. [ R. v. Verma , 2016 BCCA 498, para. 14 (tab 6)] 9.         The applicant made a number of applications related to his summary conviction appeal. The relevant ones were dismissed by Mr. Justice N. Smith on January 23, 2017. [ R. v. Verma , 2017 BCSC 652 (tab 3)] Among other things, the applicant sought: (1) the appeal proceed by way of trial de novo ; (2) court‑appointed counsel; and (3) the Crown pay for the transcripts from the Provincial Court trial. The applicant apparently wanted a trial de novo to call witnesses in support of a defence of necessity (para. 9). Justice Smith considered the merits of the appeal and the applicant’s desire to advance a defence of necessity. Smith J. also considered decisions by Justices Silverman, Fisher and Levine regarding an earlier conviction the applicant received for uttering threats with respect to Ms. Azyan. 10.       Bahen P.C.J. also considered the relevance of the applicant’s earlier conviction for threats regarding the same complainant. As he stated, “[t]he principal issue at this trial is whether the accused formed the intent to threaten in September 2015 and March 2016, when he wrote and conveyed words that were quotes or closely similar references to words he had written in 2010” (para. 7). 11.       The applicant’s previous conviction for uttering threats was imposed on April 26, 2012 by Howard P.C.J. In that case, the threat was written in a document that was filed by the applicant in the Court of Appeal in December 2010. In this case, the threat in September 2015 was contained in a new document written by the applicant and sent by email to the PGT. The second threat, in March 2016, was contained in a different document written by the applicant and emailed by him to a social worker who had been involved in assisting the applicant. [RFJ – Bahen P.C.J., paras. 12‑15] As described by Bahen P.C.J., the recent two threats were “certainly closely similar to the words used in the appeal court filing of 2010” (para. 27). 12.       Given the similarity of the wording of the threats with respect to the same complainant and the applicant’s identical defence of necessity or some similar legal justification, Smith J. found the decisions relating to the applicant’s appeal of his 2012 conviction to be relevant. The next three paragraphs will summarize that earlier appeal from the conviction imposed by Howard P.C.J. on April 26, 2012. 13.       On November 21, 2012, Mr. Justice Silverman dismissed an application for amicus curiae with respect to the applicant’s summary conviction appeal of his 2012 conviction. [ R. v. Verma (21 November 2012), Vancouver file 26179 (B.C.S.C.) (tab 9)] Silverman J. considered the applicant’s defence of necessity and his main ground of appeal – that Howard P.C.J. erred in rejecting the defence. Silverman J. concluded there was no merit to the defence and, accordingly, to the appeal (paras. 1‑8). 14.       On March 8, 2013, Madam Justice Fisher [as she then was] dismissed further applications for counsel or an amicus curiae , and various other orders. [ R. v. Verma , 2013 BCSC 782 (tab 10)] In doing so, she noted that neither the defence of necessity nor the defence of duress were available to the applicant (para. 26). She dismissed the appeal for failure to file transcripts and appeal books. 15.       On April 17, 2014, Madam Justice Levine dismissed an application for leave to appeal the decision of Fisher J. [ R. v. Verma , 2014 BCCA 157 (Chambers) (tab 11)] Levine J.A. referenced that Chiasson J.A. had earlier refused an application for counsel or amicus curiae with respect to the leave application (para. 11). Levine J.A. also agreed with both Justices Silverman and Fisher that there was no possibility of success on an appeal on the defence of necessity (para. 12). 16.       Despite his earlier lack of success with the defence of necessity in nearly identical circumstances, the applicant asserted that defence (and variations of it) before Bahen P.C.J. with respect to the case in issue (RFJ – Bahen P.C.J., para. 8). Before Smith J., he sought a trial de novo and court appointed counsel in order to call witnesses to support a defence of necessity ( Verma , 2017 BCSC 652, para. 9 (tab 3)). Smith J. noted the earlier rejections by Justices Silverman, Fisher and Levine in similar circumstances and similarly concluded there was no merit to warrant the applications sought (paras. 14‑19, 23). The applicant’s attempt to appeal Smith J.’s order was rejected as this Court did not have jurisdiction while the summary conviction appeal remained outstanding. [ R. v. Verma , 2017 BCCA 436 (tab 8)] 17.       On November 23, 2018, the applicant’s summary conviction appeal was dismissed by Mr. Justice Brundrett. [ R. v. Verma , 2018 BCSC 2311 (tab 4)] At the time, the applicant had also renewed his application for counsel under s. 684 of the Code and applied for the appointment of amicus curiae . Brundrett J. dismissed both applications, having found no grounds of appeal with any reasonable possibility of success and no basis for the appointment of counsel in the interests of justice (paras. 11‑16). Brundrett J. then dismissed the appeal for want of prosecution as transcripts of the trial had not been filed for a year and a half (paras. 19‑20, 24). On November 27, 2018, the applicant applied for leave to appeal from the order of Brundrett J. [26] I add here that the reasons of Justice Fitch for the Court in R. v. Verma , 2016 BCCA 498 also set out the background of Mr. Verma’s litigation concerning his previous convictions for uttering threats, and attempted interim applications during the summary conviction appeal of those convictions. The “Preliminary” Applications [27] While Mr. Verma emphasized applications i) and j) above, as he did not withdraw any of his applications, I address them all to the extent I understand them. a) The Crown bear the costs of the transcripts and appeal books (Notice filed Nov. 27, 2018, item #1) [28] If Mr. Verma is seeking this order as to the trial proceedings, it would be inappropriate in that a leave application is with respect to an appeal from the summary conviction appeal decision, and not a second appeal from the trial: R. v. Rio Tinto Alcan Inc., 2017 BCCA 440 (in Chambers). Further, as there is no appointment of counsel under s. 684, this Court does not have jurisdiction to make this order. As I understand it, there was documentation specifically stating Mr. Verma was not applying under s. 684 of the Criminal Code. [29] This Court may not fund the production of transcripts without the appointment of counsel: R. v. McDiarmid , 2015 YKCA 19 at para. 17. Mr. Verma has previously been denied, on the basis of McDiarmid , an order that the Crown pay for transcripts. During his attempt to appeal the order of Justice N. Smith prior to the conclusion of his summary conviction appeal, Justice Bennett said in R. v. Verma , 2017 BCCA 273 (in Chambers): [14]      Indeed, this Court may not fund the production of transcripts without the appointment of counsel: R. v. McDiarmid , 2015 YKCA 19 at para. 17. Mr. Justice Donald denied this type of limited retainer application, concluding that appointing counsel for the sole purpose of ordering transcripts would compromise counsel’s professional judgment, and would serve a purpose not directly covered by s. 684 of the Code: R. v. Kim , 2002 BCCA 133, leave to appeal to SCC refused, 29152 (October 3, 2002) at para. 9. I would not grant these orders. [30] In any event, an order with respect to the proceedings on the summary conviction appeal is unnecessary because the leave application can be determined solely on the reasons for judgment of the court below. [31] I deny this application. b) Amicus curiae be appointed and c) Amicus be directed to prepare a report on the merits of the appeal and an appeal or re‑opening of R. v. Verma , 2014 BCCA 157 (Levine J.A. in Chambers), that dismissed an application for leave to appeal the dismissal of a summary conviction appeal from the 2012 convictions for threatening (Notice filed Nov. 27, 2018, items #2, #3, handwritten notice of appeal filed Nov. 27, 2018, Dec. 4, 2018 requisition, item #2) [32] In Ontario v. Criminal Lawyers’ Association of Ontario , 2013 SCC 43 at para. 44, the Court confirmed that courts have inherent or implied jurisdiction to appoint amici curiae where it is necessary to permit a particular proceeding to be successfully and justly adjudicated. Justice Fish, although dissenting in the result, explained the source of statutory courts’ jurisdiction to appoint amici curiae : [112]    In the case of statutory courts, the power to appoint an amicus derives from the court’s authority to control its own process in order to administer justice fully and effectively. Their authority to appoint amici is necessarily implied in the power to function as a court of law: R. v. 974649 Ontario Inc. , 2001 SCC 81, [2001] 3 S.C.R. 575, at paras. 70‑71; [ R. v. Cunningham , 2010 SCC 10] at para. 19. [33] Two principles guide the courts in determining whether to appoint amicus curiae : (a) the appointment must be essential to the discharge of the judicial function; and (b) the court must be wary of making an appointment that blurs the line between the role of friend of the court and the role of defence counsel. There is a difference between amicus curiae and other counsel: Ontario v. Criminal Lawyers’ Association of Ontario ; R. v. Podolski , 2017 BCCA 169 at para. 13. (I understand leave to appeal was dismissed by the Supreme Court of Canada on another issue today.) [34] Significantly in this case, the court may decline to exercise its jurisdiction to appoint an amicus curiae if the appeal is bound to fail: Fairfield v. Canada (Ministry of Citizenship and Immigration) , 2009 BCCA 391 at para. 12. [35] As the Crown submits, most of Mr. Verma’s list of 26 proposed grounds of appeal are irrelevant to what occurred in the court below. This leave application is straightforward because it concerns only two decisions in the court below that resulted in the dismissal of the summary conviction appeal: 1) Mr. Verma was denied counsel or amicus and, accordingly, transcripts and appeal books; and 2) Mr. Verma’s appeal was dismissed for want of prosecution when he did not file those transcripts and appeal books. These decisions were reasonable in the circumstances. [36] Mr. Verma sought before me to renew his application for the appointment of counsel to speak to the leave application because in light of the “constitutional exemptions” (referred to at page 3 of his ten‑page document to which I referred earlier), this now concerns a “class proceeding”. Therefore, the PGT needs to be added as a party. Mr. Verma submits the relief sought in these applications in general must be reviewed by the Court in the context of this being a class action related to constitutional exemptions for mentally ill persons. It has ramifications beyond the instant case, says Mr. Verma. [37] In unpublished oral reasons for judgment indexed as R. v. Verma, 2017 BCSC 652 at para. 14, N. Smith J. cited the test in R. v. Silcoff, 2012 BCCA 463 (in Chambers) at paras. 23‑26 for the appointment of counsel under s. 684 of the Criminal Code. As he observed, it is not in the interests of justice to appoint counsel where an appeal has no merit. [38] As the Crown pointed out in its summary of the background to this matter, Mr. Verma sought to advance a defence of necessity or variations of it, but the trial judge found that defence to have no air of reality. Judges in this Court found it without merit in similar circumstances. As the Crown says, it was appropriate for N. Smith J. to conclude there was no merit to the proposed appeal and it was similarly so for Brundrett J. An appointment of amicus was not justified where there was no reasonable possibility the appeal would succeed. It was also appropriate to deny counsel again under s. 684 of the Criminal Code where the circumstances had not changed. Thus, the dismissal of the summary conviction appeal for want of prosecution followed when transcripts and appeal books were not filed. [39] Because the proposed appeal is without merit, I dismiss Mr. Verma’s application for an amicus curiae . The issues on the proposed application for leave to appeal are not exceptional and this Court does not require the assistance of an amicus . d) Directing the PGT to advance funds from the estate of Tripta Verma and Pradeep K. Verma (Dec. 4, 2018 requisition, item #6) [40] Making such an order would be an inappropriate interference of the PGT’s role and purpose. Further, a single justice of this Court does not have jurisdiction to direct the PGT on how to manage funds of the parties it represents. e) Adding the PGT and Tripta Verma as parties to this appeal (Dec. 4, 2018 requisition, item #3) [41] Even if a single justice in chambers had the jurisdiction to add parties to an appeal, there is no basis to do so here. This matter concerns the summary conviction appeal of Mr. Verma’s convictions for uttering threats. There is no justification to add the PGT or Mr. Verma’s mother as parties to the application for leave to appeal in a criminal matter. f) Re‑opening the leave to appeal application dismissed by Levine J.A. in R. v. Verma , 2014 BCCA 157 (in Chambers) (Dec. 4, 2018 requisition, items #4 and 5) [42] Justice Fitch addressed this very application in R. v. Verma , 2016 BCCA 498: [21] The jurisdiction to appeal to this Court from a decision of a summary conviction appeal court is set out in s. 839 of the Criminal Code , R.S.C. 1985 c. C‑46 ( Code ). Section 839 authorizes an appeal on a question of law alone if leave to appeal is granted. Section 839 does not provide for a review of or appeal from a denial of leave to appeal. This Court has repeatedly held that it does not have jurisdiction to review a decision denying leave to appeal and that provincial legislation cannot bestow jurisdiction in a matter governed by the Code : R. v. Gelz (1990), 55 C.C.C. (3d) 425 (B.C.C.A.); R. v. Stojanovski , 2002 BCCA 679 ; R. v. Wadhams , 2014 BCCA 83; R. v. Staetter , 2014 BCCA 294; and R. v. Louis , 2015 BCCA 225. [43] Mr. Verma’s application to re‑open the leave to appeal application, dismissed by Levine J.A., is outside this Court’s jurisdiction. This Court is without jurisdiction to re‑open an appeal already determined on its merits and for which an order has been entered: R. v. Cliff , 2018 BCCA 301 at paras. 4, 10‑11. Further, there is no basis for this Court to re‑open an earlier leave application. g) Re‑opening two civil cases involving the applicant and the PGT ( Verma v. British Columbia (Ministry of Health) , VA S082438 and Verma v. HMTQ , CA36458) (Dec. 4, 2018 requisition, item #3) [44] I have no jurisdiction to re‑open two civil cases wholly unrelated to the criminal appeal matter before this Court. The Court is addressing a criminal matter in this appeal and has no jurisdiction in this context to re‑open civil cases. h) Removing the PGT as the committee of the applicant’s estate (Dec. 4, 2018 requisition, item #1) [45] Again, this application is wholly inappropriate as the appeal is a criminal matter. The PGT is not a party to this appeal. Although the victim (to whom the threats were directed) is an employee of the PGT, there is no jurisdiction for a single justice of this Court to make an order removing the PGT as the committee of Mr. Verma’s estate. i) A prohibition against the BC Prosecution Service bringing criminal prosecutions against Tripta Verma or Pradeep Verma without special leave of the court and various orders respecting steps to follow if any prosecution is brought (Dec. 21, 2018 notice, item #1) [46] It is open to the Court to make orders to protect the court process from continuing abuse: R. v. Verma , 2016 BCCA 498 at para. 29. However, it would be wholly inappropriate here. There is no basis to say the Crown has conducted itself inappropriately or abused the Court’s process. j) A direction to the BC Prosecution Service to enter a stay of prosecution respecting all criminal actions against Pradeep Verma since 2000 and a direction to the PGT to calculate award estimations for all arrests and detentions of Pradeep Verma (Dec. 21, 2018 notice, item #1) [47] A single justice in chambers has no jurisdiction to enter a stay of prosecution respecting all criminal actions. The order sought by Mr. Verma is inappropriate and unavailable to him. I will not repeat all of Mr. Verma’s lengthy and difficult submissions on the relief he seeks in both i) and j) above. He relied on the ten‑page document I referred to entitled “Motion seeking Foreclosure of right of B.C. Prosecution Services to be heard”, this Court has no jurisdiction in any event to make such orders. [48] Furthermore, as to both i) and j) above, whether characterized as a constitutional exemption or criminal immunity, Mr. Verma’s emphasis on these two applications to further support his application for amicus is misplaced. Mr. Verma wants amicus to advocate his position and to say amicus at trial did not fulfill his role. But Mr. Verma misunderstands that the role of amicus is to assist the Court. [49] As discussed above, an important consideration in whether to appoint amicus is whether there is any merit to the proposed appeal. Mr. Verma focussed his defence at trial on the criminal immunity defence as referred to by Bahen P.C.J. quoted above. Judge Bahen found no air of reality to any of Mr. Verma’s defences. [50] In Mr. Verma’s 18‑page reply filed January 25, 2019, he asserts at para. 35 what he wishes the amicus to do: The applicant would like the court appointed lawyer to argue that the Court of Appeal sit on the judicial review of the conduct of trial by Bahen PCJ and quash the conviction for failing to recognize the constitutional exemptions and by erring in failing to grant the limited criminal immunity. Review of the conduct of the Supreme Court judge [is] futile because he never heard the appeal for want of transcripts . [Emphasis in original.] [51] I agree with the Crown that this demonstrates the lack of merit to the leave application and misconstrues the role of amicus. It also shows Mr. Verma wishes this Court to conduct a judicial review of the trial decision as if it had been an administrative tribunal’s decision. It appears to be an attempt to avoid the constraints of s. 839 of the Criminal Code. At para. 63 of the 18‑page reply filed January 25, 2019, Mr. Verma states: The jurisdiction to appeal to Court of Appeal from a decision of a summary conviction appeal court as set out in s. 839 of the Criminal Code , is moot on at least five grounds, given that the applicants are seeking a judicial review of the conduct of the trial judge in the provincial court, of the exercise of prosecutorial direction by the complainant PGT and the [ sic ] of the exercise of prosecutorial direction by the British Columbia prosecutorial services all of whom have done so in a perverse manner and denied fairness, breached Charter and perpetrated several other errors. Mr. Verma asserts jurisdiction in the context of a judicial review, not under s. 839 of the Criminal Code . He submits this Court has jurisdiction because he is seeking a judicial review of the conduct of the provincial court judge. He is also seeking a judicial review of the PGT’s exercise of discretion, and of the exercise of prosecutorial discretion. Such reviews do not fall within this Court’s role in this matter. [52] Finally, as to the unmeritorious “criminal immunity” defence, Mr. Verma’s words (from para. 57 of the 18‑page reply filed January 25, 2019), in the context of why he says the PGT should be made a party to this case, bear noting. He says: given that officials of the PGT would be exposed to violence that cannot be prosecuted if this exemption is recognized and given that this is a matter of rights of their entire clientele the profound interest of the PGT in this question of law is such that PGT should have applied to be granted a third party status in the appeal which is not necessary because the PGT is already a party to the action as a complainant. As the Crown submits, these are ominous words. They suggest Mr. Verma would be exempted from charges involving violence against employees of the PGT. The application for criminal immunity is utterly without merit, as is the defence of necessity. Thus, again the appointment of amicus is not justified. [53] Mr. Verma wishes to complicate this matter to draw in a consideration of the PGT’s conduct and its treatment of him and his mother, but the Court does not require the assistance of amicus based on the narrow issues before the Court on the leave application. Even though Mr. Verma has refocussed on issues i) and j), the application for the appointment of amicus is dismissed. [54] As mentioned earlier, Mr. Verma made additional applications on January 22 and 25, 2019. I discern the January 22 application to be for a contempt citation against the Crown for what he characterizes as “five (5) serious unconscionable acts of malice and fraud on the court”. There is no basis at all to these extreme and scandalous claims, and I will not address them further. [55] The January 25 application I referred to is found in the 18‑page reply to the Crown’s submissions. It is for an order that the PGT be required to submit an affidavit. There is no basis for the Court to make such an order. The PGT is not a party to this proceeding. In that same reply, Mr. Verma makes nonsensical allegations of collusion between the Crown, judges and the PGT for the ulterior agenda of inflicting oppressive tyranny on the Vermas. [56] In summary, Mr. Verma is unsuccessful on all of his preliminary applications. They are all dismissed. “The Honourable Madam Justice MacKenzie”