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Posted Thursday, February 09, 2012:
Danicek v. Poole,
2012 BCCA 65
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2012/02/09
Court of Appeal
Applications for leave to appeal costs orders.
Leave to appeal is not necessary in Danicek v Poole.
Leave to appeal is granted in the Danicek v Li appeal.
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Destiny Enterprises Canada Ltd. v. Sang Gab Kim,
2012 BCCA 61
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2012/02/09
Court of Appeal
Appeal from an order of the Supreme Court of British Columbia granting judgment to the plaintiff. The defendant, Sang Gab Kim, signed a personal covenant guaranteeing the obligations of a vendor, E-Mart Food Centre Ltd. (“E-Mart”) under a contract for the sale and purchase of business assets to the plaintiff, Destiny Enterprises Canada Ltd. The vendor’s obligations included a term stipulating that E-Mart had title to the leasehold interest in its store property, and that this interest was assignable to the plaintiff. The contract also specified that if E-mart was unable to provide closing documents by the closing date, E-Mart would buy back, at cost, all inventories it had already sold to the plaintiff.
After the plaintiff had taken purchased inventories from E-Mart and taken possession of the property, but before the closing date, a third party, Richard Kim (“R. Kim”), ousted the plaintiff from the premises and took possession of the inventory. R. Kim acted on the basis that he, and not E-Mart, held a valid lease to the property.
The plaintiff sued the defendant, as personal guarantor of E-Mart’s obligations, to recover the value of the inventory it had lost. The trial judge awarded $134,762.79, which included the sum that the plaintiff had already paid to buy inventory from E-Mart, as well as the value of other inventory purchased by the plaintiff (including a 20 percent markup). The defendant appealed, contending that the trial judge had erred in rejecting the defence of frustration, as well as the argument that Destiny had not acted sufficiently to mitigate its losses. He also submitted that the trial judge had erred in including the markup in the assessment of damages.
HELD: Appeal allowed in part. The defendant failed to show any error in the trial judge’s reasoning with respect to the defence of frustration or the issue of mitigation. However, the inclusion of the 20 percent markup in the award of damages was improper. Accordingly, an award of $123,909.34.is substituted for the award of $134,762.79.
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Morlan v. Barrett,
2012 BCCA 66
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2012/02/09
Court of Appeal
Appeal by the defendants from the damages awarded to the plaintiff as a result of two motor vehicle accidents that occurred in quick succession. As a result of the accidents the plaintiff developed fibromyalgia and was required to change jobs. The defendants argued that the awards for loss of future income earning capacity, non-pecuniary damages, and cost of future care should be reduced. Held: Appeal allowed in part.
The trial judge’s finding that the plaintiff’s future employability had been impaired by the accident was supported by the evidence. However, the judge erred in finding that there was a real and substantial possibility that, but for the accident, the plaintiff would have been promoted into a higher paying position with her pre-accident employer. There was, accordingly, no basis for awarding damages based on the positive contingency of promotion. The loss of future earning capacity award was reduced by $150,000.00 to $275,000.00.
The award of $125,000.00 for non-pecuniary damages was upheld. Although generous, it was not inordinately high.
The award for cost of future care was reduced by approximately $10,000.00 to account for negative contingencies.
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Posted Wednesday, February 08, 2012:
Leroux v. Canada Revenue Agency,
2012 BCCA 63
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2012/02/08
Court of Appeal
The Court allowed an appeal in part, from an order permitting the respondent’s tort claims to continue, to provide a direction that the misfeasance and negligence claims be reformulated in a revised statement of claim. The Court found the claims for misfeasance and negligence are based on the misconduct of Canada Revenue Agency employees, and do not infringe on the exclusive jurisdiction of the Tax Court of Canada. The Court dismissed the cross appeal and agreed with the chambers judge that the respondent’s Charter and Bill of Rights claims based on the lack of a statutory stay of proceedings pending appeal in the Excise Tax Act disclosed no reasonable cause of action.
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R. v. Olazo,
2012 BCCA 59
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2012/02/08
Court of Appeal
Crown appeal from an entrapment ruling. The issue was whether the police acted on reasonable suspicion in soliciting a drug transaction.
In placing a call to a number said to be part of a dial-a-dope operation, the police acted on a tip from an informant of unknown reliability. The trial judge held that the police acted on mere suspicion in making the call and should have confirmed the reliability of the tip prior to doing so.
Held: Appeal allowed; convictions restored. The phone call was part of an investigation to determine whether the party answering was involved in the drug trade. Once that was determined, the tip was confirmed and the police had a reasonable suspicion. Consequently, providing an opportunity to sell drugs thereafter did not amount to entrapment.
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Posted Tuesday, February 07, 2012:
Madill v. Sithivong,
2012 BCCA 62
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2012/02/07
Court of Appeal
The appellants appeal a judge’s award of $760,000 for non-pecuniary damages and loss of future earnings arising out of injuries sustained in an automobile accident on the basis that the judge erred basing the award on the respondent’s pre- and post-accident condition with no regard to causation and in her assessment of the credibility of the respondent and his wife. Appeal dismissed. While another trier of fact may very well have reached different conclusions, there was ample evidence to support the conclusions of the trial judge. She prepared very lengthy and thorough reasons for judgment and made no error in her approach to assessing credibility or in considering causation.
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Posted Friday, February 03, 2012:
British Columbia (Attorney General) v. Malik,
2012 BCCA 58
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2012/02/03
Court of Appeal
Application by Province to dismiss as abandoned two appeals filed by Mr. Malik on May 29, 2009 is granted. The appeals relate to an action brought by the Province in October 2007 for the recovery of sums paid by the Province on behalf of Mr. Malik for his defence in the “Air India” trial. The first appeal is from an order striking certain paragraphs in Mr. Malik’s statement of defence. The second appeal is from an order granting the Province judgment for $5,869,759 and interest.
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O’Connell v. Yung,
2012 BCCA 57
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2012/02/03
Court of Appeal
The appellant appealed from a Supreme Court order that awarded the respondent damages for severe injuries sustained in a motor vehicle accident. Non-pecuniary damages, an in-trust award, and damages for cost of future care were at issue on the appeal. The appellants contended the trial judge erred in failing to draw adverse inferences and in her assessment of the evidence.
Appeal allowed in part. There was no basis to interfere with the awards for non-pecuniary damages; the in-trust award; or the rehabilitation component of the cost of future care. However, the trial judge erred in applying the principle from Kroeker v. Jansen, that the loss of capacity to do housework was appropriate whether or not replacement services would be hired, to the assessment of the cost of future personal care. Discussion of the different purposes of loss of housekeeping capacity and future care awards.
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R. v. McCotter,
2012 BCCA 54
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2012/02/03
Court of Appeal
An Order has been made that prohibits the publication of any information or serving to publicly identify the undercover police officers, including but not limited to, any likeness, appearance of their attire and their physical description pursuant to Section 486.4(1) of the Criminal Code.
A jury found the appellant guilty of two counts of second degree murder. The appellant appealed his convictions on the basis that the trial judge erred in admitting hearsay evidence and in delivering instructions to the jury which were confusing on the burdens of proof relating to the defence of not criminally responsible by reason of mental disorder (NCRMD) and the proof of the substantive elements of the offence. The appellant also found fault with oral amendments the judge made to his written charge to the jury.
The court rejected the submission that hearsay evidence relating to the victim’s fear of the appellant ought to have been excluded. The evidence was clearly probative and the trial judge’s conclusion that the probative value of the evidence outweighed the prejudice to the appellant was accorded deference by the Court. On the question of the charge to the jury, the Court concluded that it was complicated because the trial judge accepted a theory of causation urged upon him by counsel for the appellant which, while wrong in law, worked to the benefit of the appellant. The central point made by the appellant, that the jury charge was confusing with respect to the burdens of proof as they related to the defence of NCRMD and to the elements of the offence, was rejected by the court. The charge was clear on the burdens. The charge to the jury would not have confused the jury. The appeal was dismissed.
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