B.C. Court of Appeal

The official version of the reasons for judgment of the Court of Appeal is the signed original in the court file. In the event that there is a question about the content of a judgment found on the judgment database, the original of the judgment in the court file takes precedence. Copies of original judgments can be obtained by contacting the Vancouver registry. A photocopying charge is payable. Judgments are best viewed in Internet Explorer 6 or newer. Please click here to download.

Reasons for Judgment Released This Week

Released 5 February 2008:

• 2008 BCCA 43 Aksidan v. Canada (Attorney General)
  Appeal from a judgment dismissing an action against the federal Crown for damages for sexual assault of aboriginal elementary school students by a teacher at a teacherage connected to a community school on an Indian reserve. The school was administered by a school district established under provincial legislation and the claims against the school district and the teacher were settled before trial. Held, appeal dismissed. The federal responsibilities for the care and safety of Indian children at the school had been delegated by agreement to the Province and the school district and there was no residual responsibility in the federal Crown under the Indian Act that could support a duty of care in negligence or breach of fiduciary duty in the circumstances.
• 2008 BCCA 49 Bain v. Bain
  Appeal from a sole custody order was dismissed. The trial judge did not misuse evidence of the appellant’s character. The conduct of the appellant’s trial counsel did not depart significantly from objective norms and did not affect the result. Fresh evidence from the appellant’s psychiatrist was not admitted as it could not reasonably be expected to produce a different result. A restraining order was not set aside as there was evidence to support it. If the risk has diminished, then an application to set aside the restraining order should be made in Supreme Court.
  Appeal from the equal division of a debt to the respondent’s family was dismissed except insofar as the respondent used that money to cover her share of the section-15 report which is a court cost to be addressed separately. Appeal from the reapportionment of net proceeds of the family residence was allowed, and an equal division was substituted. Appeal from the child support order was dismissed. Cross appeal of the finding that certain credit card debts were incurred for a family purpose was dismissed.

Released 4 February 2008:

• 2008 BCCA 41 R. v. Sagoo
  Global sentence of eight months for four offences allowed and a sentence of six months imposed, in light of confusion at the sentencing hearing as to maximum allowable sentence for three of the four offences.
• 2008 BCCA 42 Fisher v. Lakeland Mills Ltd.
  Ms. Fisher joined the respondent company when she was 48 years old as a receptionist/secretary with duties that eventually included accounts payable and receivable. When she was 65 years old she was assured by the company president she could remain at work as long as she wanted. Subsequently, because a part-time employee left the company, Ms. Fisher was asked to take on shipping duties. These required computer skills with which she was unfamiliar and which she found difficult. She advised the company president that she was unable to do the shipping work and felt she had to retire. He did not counter her views. Ms. Fisher brought an action alleging she was dismissed constructively. The trial judge agreed and awarded her 10 months pay in lieu of notice. Ms. Fisher appealed stating she was entitled to more notice, including four months notice because she had been assured of continued employment (Singh v. British Columbia Hydro) and one month’s notice based on improper conduct by the company (Wallace v. United Grain Growers). The company cross-appealed asserting Mr. Fisher was not dismissed constructively. Held: appeal and cross-appeal dismissed. The shipping duties were a fundamental change in Ms. Fisher’s employment contract. The company president’s silence was an affirmation of Ms. Fisher’s view she had to do the shipping or leave and constituted constructive dismissal. Ten months’ notice was not clearly outside the appropriate range (Burry v. United Communications Inc.) It is likely Singh damages were not sought at trial, but, in any event, they are not appropriate in this case. Ms. Fisher did not alter her position as a result of the assurance. The company president’s silence did not amount to egregious conduct. Wallace damages are inappropriate in this case.
• 2008 BCCA 45 Romfo v. 1216393 Ontario Ltd.
  In the cross-applications before the court, procedural issues in appeals from orders pronounced at different times in relation to different defendants were raised. The plaintiffs were successful in their several actions against 1216393 Ontario Inc. and Tylon Steepe Development Corporation for specific performance of agreements for sale. The plaintiffs’ position at trial was that their alternative claim alleging misrepresentation against the defendant Dennis Kretschmer was not going to be pursued if an order for specific performance was granted. The claim against Kretschmer was dismissed at a hearing subsequent to the release of the reasons for judgment on the specific performance claim. The corporate defendants appealed the order for specific performance. The plaintiffs then brought an appeal from the dismissal of their alternative claim and joined all the defendants as parties to the appeal, even though no relief was sought against the corporate defendants. The corporate defendants’ application to strike the plaintiffs’ appeal as against them in the plaintiffs’ appeal from the order dismissing the alternative claim against the individual defendant was granted. The defendants’ further application to strike the plaintiffs’ appeal on the ground that the appeal was brought out of time was dismissed. The plaintiffs’ cross-motion to extend the time within which to appeal was accordingly dismissed as unnecessary.
• 2008 BCCA 46 Bronson v. Hewitt
  Applications for leave to appeal from two interlocutory orders of a case management judge, ordering a chronological list of documents, and refusing leave to file a further amended statement of claim.
  Both applications dismissed, as not meeting the test for leave on discretionary interlocutory orders.
• 2008 BCCA 47 R. v. MacArthur
  Appeal from sentence of four months in respect of convictions for criminal negligence, assault and uttering a threat, all involving the offender’s ex-wife.
  Held: Appeal dismissed. The sentencing judge did not err in refusing to make a conditional sentence order on the basis that it was not consistent with the sentencing purpose of rehabilitation. The length of the sentence was not demonstrably unfit.

Released 31 January 2008:

• 2008 BCCA 44 R. v. Charlie
  Appeal by the Crown from a conditional sentence imposed following a guilty plea to a charge of possession of cocaine for the purpose of trafficking arising out of a dial-a-dope operation. At the time of the offence the offender was serving a conditional sentence for similar offences. Held: Appeal dismissed. The sentencing judge did not err in considering the fact that the offender’s first conditional sentence had not been terminated. The issue of whether undue weight had been given to the offender’s aboriginal background did not have to be addressed. In the more than two years since his apprehension the offender has been subject to strict conditions, and has taken positive steps with respect to rehabilitation. It would be unjust, and counterproductive, to interfere with his successful efforts by now sentencing him to a period of incarceration.

Released 30 January 2008:

• 2007 BCCA 613 R. v. Tran
  An appeal from sentence for possession of heroin and cocaine for the purpose of trafficking dismissed.
• 2007 BCCA 640 R. v. Soos
  Huddart J.A. granted leave to appeal from the dismissal of an appeal for sexual assault on four questions of law regarding the constitutional validity of s.16.1 of the Canada Evidence Act and s. 486.2 of the Criminal Code. She refused leave to challenge s. 486.1 of the Criminal Code.
• 2007 BCCA 641 Braich (Re)
  Application for an extension of the time to appeal an order made under the Bankruptcy and Insolvency Act.
  Held: application granted. It is in the interests of justice to grant an extension because there was a short delay caused by a mistake of the appellant’s lawyer in circumstances where no inordinate prejudice has been or will be suffered by the respondents and the appeal is not bound to fail.
• 2008 BCCA 11 R. v. Fitzgerald
  Effective eight-year sentence on three counts of arson and one break and enter upheld in case of offender with long record and addicted to cocaine.
• 2008 BCCA 25 Italy v. Seifert
  Extradition: Application for interim release pending a decision on an application for leave to appeal to the Supreme Court of Canada dismissed.
• 2008 BCCA 34 R. v. Brignall
  Appeal by an offender from a ten-year driving prohibition imposed following his conviction on a charge of dangerous operation of a motor vehicle. Held: Appeal allowed; prohibition reduced to three years. The ten-year prohibition was illegal, as it exceeded the three-year maximum permitted under s. 259(2)(c) of the Criminal Code. The Crown’s argument that the sentencing judge intended to impose the prohibition under the Motor Vehicle Act was not supported by the record.
• 2008 BCCA 37 R. v. Carry
  Sentencing: Application for leave to appeal a sentence of five years imprisonment imposed for 10 convictions which included convictions for dangerous driving causing bodily injury, fleeing from police, and driving while disqualified where the applicant had a horrendous criminal record including a conviction for criminal negligence causing death for which he had been sentenced to five years in prison. The applicant was credited with two years for pre-sentence time in custody. Application allowed; appeal dismissed.

Released 28 January 2008:

• 2008 BCCA 40 British Columbia Ferry Services Inc. v. Canadian Transportation Accident Investigation and Safety Board
  Appeal raising a question of whether discretion was exercised properly in dismissing an application for relief from an obligation to hold computer data in confidence. Appeal dismissed.

Yukon Judgments

Released 30 January 2008:

• 2008 YKCA 1 R. v. Taylor
  A sentence of eight months for driving while disqualified was not unfit for an offender with a bad drinking and driving record and a prior offence of driving while disqualified for which he received a one year sentence.