COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Shebib v. Victoria (City),

2012 BCCA 42

Date: 20120127

Docket: CA038771

Between:

David Michael
Shebib

Appellant

(Appellant)

And

The Corporation of
the City of Victoria

Respondent

(Respondent)

Corrected
Judgment: The text of the judgment was corrected at paragraphs 14 and 15 where
changes were made on May 14, 2012

Before:

The Honourable Mr. Justice Chiasson

(In Chambers)

On appeal from:  Supreme
Court of British Columbia, November 30, 2010
(
Johnston v. Victoria (City)
,
2010 BCSC 1707, Victoria Docket 145835-1)

Appellant:

In person

Counsel for the Respondent:

K. Morley

Place and Date of Hearing:

Victoria, British
  Columbia

January 9, 2012

Place and Date of Judgment:

Vancouver, British Columbia

January 27, 2012

Reasons for
Judgment of the Honourable Mr. Justice Chiasson:

Introduction

[1]

This case illustrates the tension that often develops among the
aspirations of self-represented parties, the interests of parties who are
represented and the responsibilities of the court in overseeing the orderly
administration of litigation.

Background

[2]

Mr. Shebib and Mr. Johnston were convicted in
Provincial Court of violating a by-law of the respondent City of Victoria by
erecting temporary daytime shelters on municipal property (
R. v. Johnston
and Shebib
(12 February 2009), Victoria 145835-1).  They appealed to the
Supreme Court.  Their appeal was dismissed on November 30, 2010 (
Johnston v. Victoria (City)
, 2010 BCSC 1707).

[3]

Messrs. Johnston and Shebib separately applied
for leave to appeal to this Court and, because their applications were out of
time, each applied to extend the time.

[4]

Mr. Johnstons appeal progressed and was
dismissed by this Court on October 18, 2011 (
Johnston v. Victoria (City)
,
2011 BCCA 400).

[5]

Mr. Shebibs appeal did not progress.  On September 12, 2011, he appeared before Mr. Justice Frankel pursuant to notice given by the
Registrar of this Court, in accordance with
Rule 13(3) of the
Criminal
Appeal Rules, 1986
, B.C. Reg. 145/86,
advising Mr. Shebib
that his appeal might be referred to a division of this Court for possible
dismissal.  At that time Mr. Shebib expressed his concern with the proceedings
in the Supreme Court.  In particular, he was and remains concerned with the
absence of a trial
de novo
in that Court.

[6]

Justice Frankel explained that Mr. Shebib first
had to deal with the requirement that he obtain an extension of time and then
had to address his application for leave to appeal because his proposed appeal
was from the dismissal of an appeal from a Provincial Court summary conviction proceeding.  Nothing had been filed by way of evidence or argument to support
either of Mr. Shebibs applications.  On September 12, 2011, the decision of this Court on the
Johnston
appeal was pending.

[7]

Justice Frankel ordered that Mr. Shebibs
application for an extension of time be heard on January 9, 2012, and that he
apply for leave to appeal on that date if this Court were to allow Mr.
Johnstons appeal before then.

[8]

Mr. Shebib filed no material in advance of January 9, 2012.  At the chambers hearing he gave me a written submission that essentially
set out his concerns with the proceedings in the Supreme Court, that is, the
same information provided to Frankel J.A., which he had identified as not
helpful at this stage of the proceedings.  Mr. Shebib also gave me copies of
three orders made by the Supreme Court.  This meant that I had nothing other
than this material and his applications for leave to appeal and to extend the
time to do so.

[9]

Counsel for the respondent proposed that Mr.
Shebibs applications should be dismissed.

[10]

Subsequent to the hearing, Mr. Shebib filed two
transcripts of hearings before the Supreme Court.  I directed the Registry to
advise and make copies available to the respondent.

Discussion

[11]

Court rules, procedures and provisions governing
appeals are designed to achieve an effective appellate process.  Their
objective is to facilitate, not obstruct, the achievement of a correct legal
result.  Appellate procedural rules protect and promote the interests of
parties, including Mr. Shebib.  When rules and procedures are not followed, it
is difficult for this Court to administer appeals effectively.  Parties who do
not follow the appropriate rules and procedures often obscure their legitimate
positions, making it hard for this Court to address their concerns.  Failure to
comply with the appropriate rules and procedures also may unfairly compound the
difficulties of the opposing partys task of presenting its position and resisting
the position of the defaulting party.

[12]

At the hearing on January 9, 2012, I had three choices for the disposition of Mr. Shebibs applications: dismiss them because
he had not filed material, contrary to the order of Frankel J.A.; adjourn the
matter; deal with the applications based on the material I had.  I discussed
his position with Mr. Shebib.  In my view, the interests of justice are best
served by addressing Mr. Shebibs applications on the available material.

[13]

An appeal lies to this Court, with leave, from a
decision of a Supreme Court judge on appeal from a decision of the Provincial
Court, but only on a point of law (
Criminal Code,
R.S.C., 1985, c. C-46,
s. 839).  The application for leave to appeal must be filed within 30 days of
the pronouncement of the Supreme Court decision, as required by s. 14(1) of the
Court of Appeal Act
,

R.S.B.C. 1996, c. 77.  Mr. Shebib filed his
application for leave to appeal and his application to extend time on January 31, 2011.  The appeal decision of Mr. Justice Bracken was pronounced on November 30, 2010.  Mr. Shebib requires an order extending the time for applying for leave
to appeal.

[14]

The test for granting an extension of time was stated
in
R. v. Smith
(1990), 11 W.C.B (2d) 445 (C.A.) at paras. 4 and 5,
by Mr. Justice Macfarlane, for the Court:

[4]        The appellant in order to obtain
an extension of time must satisfy certain rules. The governing principle on
which this Court acts on applications to extend time for doing an act is that
the applicant must establish special circumstances.

[5]        In considering whether there are
special circumstances this Court has always taken into account such factors as
whether: (1) the applicant had a bona fide intention to appeal before the
expiration date of the appeal date; (2) informed the respondent either
expressly or impliedly of his intention; (3) the respondent would not be unduly
prejudiced by an extension of time; (4) there is merit in the appeal in the
sense that there is a reasonably arguable ground; (5) it is in the interest of
justice, that is the interest of the parties, that an extension be granted. How
much weight will be given to any of these factors in determining whether there
are special circumstances will depend on the circumstances of each case.

[15]

In this case, the first three factors are of less significance
than the fourth, the merits of the proposed appeal, which, of course, is key to
whether leave to appeal should be granted.  Considering all of the
circumstances of the proposed appeal, I conclude that it is not in the
interests of justice that an extension be granted.

[16]

The test for leave was stated succinctly in
R. v.
Winfield,
2009 YKCA 9, 273 B.C.A.C. 152 at para. 13:

To
obtain leave to appeal from the decision of a summary conviction appeal court,
the applicant must establish that (a) the ground of appeal involves a question
of law alone, (b) the issue is one of importance, and (c) there is sufficient
merit in the proposed appeal that it has a reasonable possibility of success.
The overriding consideration in the exercise of the discretion to grant or
refuse leave is the interests of justice:
R. v. Cai
, 2008 BCCA
332, 258 B.C.A.C. 235 at para. 26 (Chambers);
R. v. Gill
, 2008 BCCA
259 at para. 3 (Chambers).

Leave is to be granted sparingly (
R. v. Gaudaur
, 2010 BCCA 157, 286 B.C.A.C. 41 at para. 3).

[17]

I question whether Mr. Shebibs ground of appeal
involves a question of law alone.  He may be attacking the exercise of
discretion of the appeal judge or he may be claiming a denial of natural
justice.  Depending on the characterization of the ground of appeal, it could
be a question of importance.  I need not resolve these issues on the view I have
of this case.

[18]

I have reviewed the three-page submission that
Mr. Shebib presented on January 9, 2012.  It is apparent that his principal
concern is that he was not afforded a trial
de novo
.  The court is
empowered to order such a proceeding under s. 822(4) of the
Criminal Code
,
which states:

Despite subsections (1) to (3),
if an appeal is taken under section 813 and because of the condition of the
record of the trial in the summary conviction court or for any other reason,
the appeal court, on application of the defendant, the informant, the Attorney
General or the Attorney Generals agent, is of the opinion that the interests
of justice would be better served by hearing and determining the appeal by
holding a trial
de novo
, the appeal court may order that the appeal
shall be heard by way of trial
de novo
in accordance with any rules that
may be made under section 482 or 482.1, and for that purpose the provisions of
sections 793 to 809 apply, with any modifications that the circumstances
require.

[19]

A trial
de novo
may consist of repeating
the oral evidence adduced at trial or of a consideration of the evidentiary
record in the Provincial Court as supplemented by additional evidence (s.
822(5)).

[20]

Mr. Shebib points to three orders of the Supreme
Court:

1.       May
27, 2009  Madam Justice Gerow granted an application for a trial de novo  as
evidence relating to the availability of daytime shelters may be relevant to
this proceeding;

2.       November
25, 2009  Mr. Justice Punnett ordered that [t]he action can proceed by way of
an appeal of the decision of the Honourable Judge Blake and evidence related to
the availability of daytime shelter in the City of Vicotria can proceed by way
of Affidavits;

3.       July
7, 2010  Mr. Justice Metzger adjourned Mr. Shebibs application for a trial de
novo to the presiding Judge at the appeal hearing which then was scheduled
for July 19, 2010.

[21]

In all, there appear to have been eight
interlocutory proceedings before the Supreme Court appeal was heard.  Mr.
Shebib refers to transcripts of proceedings on October 14, 2009, which
adjourned the hearing of the appeal and to the transcript of the November 25,
2009 proceedings before Punnett J.  I have reviewed these transcripts.  They
suggest the source of some possible confusion by Mr. Shebib because counsel for
the respondent appears to have suggested that there was no issue concerning the
availability of daytime shelter in Victoria and because there was an apparent
change to the mode of proceeding on the appeal.  That said, I see no
substantive difference between the orders of Gerow and Punnett JJ.

[22]

Although there was some discussion before
Punnett J. about not proceeding with a trial
de novo
, the substantive
effect of his order did not dispense with that mode of trial.  It merely
specified how evidence of daytime shelter would be adduced, which was the basis
on which Gerow J. had ordered a trial
de novo
.

[23]

Regardless of the comments of counsel, it always was clear that
the factual issue
which was to be addressed was the
availability of daytime shelter.  I read the order of Metzger J. as leaving to
the appeal judge the task of clarifying any misunderstanding Mr. Shebib may
have had about the nature of the proceeding.

[24]

Evidence as to the availability of daytime shelter
in Victoria was what courts characterize as fresh evidence, that is, evidence
that existed at the time the original proceeding took place, but which was not
placed before the tribunal.  There are special rules governing the
admissibility of such evidence, which is not received readily.  As noted, s.
822 of the
Criminal Code
permits the court to order a trial
de novo
.
Pursuant to s. 822(5), the evidence adduced at the trial may be read at the
trial
de novo
.  That is, the trial
de novo
may consist of the
record of the original trial proceedings supplemented by fresh evidence.  This
possibility has caused some courts to conclude that trials
de novo
should
be ordered sparingly.

[25]

Judicial caution in ordering trials
de novo
derives
from two considerations: one, the fact that prior to the enactment of s. 822(4)
in 1976, appeals from summary conviction matters to a superior court was always
by way of trial
de novo
, which indicates that trials
de novo
now
are the exception rather than the rule; two, fresh evidence may be admitted on
a trial
de novo
without the need to meet the usual criteria for such
admission.  In
R. v. Faulkner
(1977), 37 C.C.C. (2d) 26
(N.S.Co.Ct.);
R. v. Leung,
[1998] 2 W.W.R. 178, 54 Alta. L.R. (3d) 1; and
Toralta Construction (1988) Ltd. v. Hankewich Homes Ltd.
(1992), 130
A.R. 156 (Q.B.) the courts have taken a quite restrictive approach.

[26]

These concerns appear not to have held sway in
this Province.
This Court in
R. v. Winters
, [1981] 4 W.W.R. 128,
27 B.C.L.R. 385 held that a reviewing court has a broad discretion whether to
order a trial
de novo
.

[27]

In this case, it does not appear that the
evidence concerning daytime shelter in Victoria was considered as fresh
evidence.  The absence of such evidence at trial was the basis on which a trial
de novo
was ordered and on which it was ordered that the evidence could
be adduced by affidavit.  No appeal was taken from either of these orders, but it
is not clear on what basis it was considered appropriate to proceed by way of
trial
de novo
in this case, that is, to allow the parties to adduce
evidence on the appeal that could have been, but which was not, adduced at the
Provincial Court trial.

[28]

It may be that Mr. Shebib was confused by the
orders of Gerow and Punnett JJ., but legally and practically these orders gave
him what he wanted: the opportunity to adduce evidence concerning the
availability of daytime shelter in Victoria.  The respondent adduced evidence
on this issue.  Mr. Shebib decided not to do so.

[29]

In effect, a trial
de novo
took place.
In the
Johnston
appeal, this Court confirmed that the Supreme Court
appeal was a trial
de novo
.  The respondent adduced evidence of the
availability of daytime shelter in Victoria.  Messrs. Shebib and Johnston
appear not to have done so, although in para. 26, Bracken J. refers to a
Mayors Task Force Report and states that [a] copy of that report is attached
to Mr. Johnstons affidavit in this matter.  No such affidavit is found
in the Supreme Court appeal file or the record filed in this Court on the
Johnston

appeal.  In any event, it is common ground that Mr. Shebib did
not adduce evidence on the appeal.

[30]

Mr. Shebib advised me that he decided to rely on
the evidence adduced in
Victoria (City) v. Adams,
2008 BCSC 1363, 299
D.L.R. (4th) 193, affd 2009 BCCA 563, 313 D.L.R. (4th) 29, in which the
respondents by-law was struck insofar as it prohibited temporary nighttime
shelters.  An examination of the reasons of Bracken J. confirms that
Messrs. Shebib and Johnston took this approach and, as noted, also relied on
the Mayors Task Force Report, which was relied on in
Adams
, to
establish the absence of sufficient daytime shelter in Victoria and to
discredit the evidence adduced by the respondent (paras. 13, 14, 26, 31 and
32).  Mr. Shebib now questions the evidence and submissions of the respondent
and wants to introduce his own evidence concerning the availability of daytime
shelter in Victoria.

[31]

Mr. Shebibs appeal seeks to overturn the
decision of the Supreme Court to obtain what he was given: a trial
de novo
.
His objective is to adduce evidence that he could have adduced before the
Supreme Court and before the Provincial Court.

[32]

This Court is a court of error.  That is, it
reviews decision of other tribunals to determine whether they have erred.  If
they have not, this Court does not interfere.  It particularly does not do so
where the alleged error involves a matter of discretion, such as determining
the mode of conducting a proceeding, unless
the decision
is clearly wrong or serious injustice will occur
or
where
discretion was not exercised judiciously or was exercised on a
wrong principle:

Strata Plan LMS 2019
v. Green
,
2001 BCCA 286
, 152 B.C.A.C. 174, per Proudfoot J.A. (in Chambers) and
Stone
v. Ellerman,
2009 BCCA 294, 92 B.C.L.R. (4th) 203, leave to appeal refd
[2009] S.C.C.A. No. 364, at para. 94).
No such error has been
shown in this case.

[33]

In addition to concerns about allowing parties
to prolong litigation by waiting for a proceedings outcome to determine the
extent to which they want to participate in it, to allow this matter to
continue, to effectively start afresh, would be manifestly unfair to the
respondent.  It may be that Mr. Shebib disagrees with the approach the
respondent takes to people in his circumstances, but, in this Court, the clash
is between the parties legal rights.  These rights must be determined in
accordance with the law.  It is as important to Mr. Shebib as it is to the
respondent that this be so.  Equally important is the ability of each
protagonist to pursue his or its position in accordance with the rules and
procedures of this and other courts.  Causing chaos in the processes of the
court and leaving the court unclear as to positions being advanced does not
serve the best interests of any litigant.

[34]

In my view, there is little likelihood that a
division of this Court would overturn the decision of the Supreme Court appeal
judge to allow Mr. Shebib to now introduce evidence he could have, but chose
not to, adduce at the hearing of his appeal.

[35]

An additional difficulty faced by Mr. Shebib
emerges from this Courts decision in the
Johnston
appeal.  In part, he
argues that Bracken J. misapplied the test for justification under s. 1 of the
Charter
of Rights and Freedoms, Constitution Act, 1982
as articulated in
R. v.
Oakes,
[1986] 1 S.C.R. 103.  In
Johnston
, this Court made it clear
that justification was not engaged because a breach of s. 7 of the
Charter
had
not been established.  It was not established because the evidence did not
establish a need for the erection of temporary daytime shelters on municipal
land, that is, that there was an insufficiency of daytime shelter in Victoria.  The burden of doing so was on Mr. Shebib.

[36]

Mr. Shebibs application to extend the time to
bring an application for leave to appeal is dismissed.  It follows that the
application for leave to appeal cannot proceed, which in any event, in my view,
would have no prospect of success.

The Honourable Mr. Justice Chiasson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Stark v. Board of School Trustees of School District
  No. 39 (Vancouver),

2012 BCCA 41

Date: 20120127

Docket: CA033181

Between:

Robert Allen Stark

Appellant

(Petitioner)

And

Board of School
Trustees of the School District No. 39
Vancouver, International Union of Operating Engineers Local 963
and James E. Dorsey, Q.C.

Respondents

(Defendants)

Before:

The Honourable Mr. Justice Chiasson

(In Chambers)

On appeal from:
Supreme Court of British Columbia, June 23, 2005
(
Stark v. Board of School Trustees of School District No. 39 (Vancouver)
,
2005 BCSC 931, Vancouver No. L033177)

Appellant:

In person

Counsel for the Respondent,
School Board:

R.P. Fairweather

Place and Date of Hearing:

Vancouver, British Columbia

January 13, 2012

Place and Date of Judgment:

Vancouver, British Columbia

January 27, 2012

Reasons for Judgment of the
Honourable

Mr. Justice Chiasson
:

Introduction

[1]

This appeal illustrates the tension that often develops between the role
of this Court and the focus of self-represented litigants on establishing a
position that has been advanced and rejected in proceedings previous to an
appeal.  Where it is feasible to do so, it is incumbent on this Court to
communicate to litigants in practical terms why decisions adverse to their
interests were made.  It is necessary for self-represented litigants to
understand and appreciate not only the role of this Court, but the processes
available to address their interests.

[2]

Mr. Starks employment with the Vancouver School Board was terminated on
 July 19, 2002.  He considered and still considers the termination to have been
improper.  He states that his quest has been and remains to have a fair hearing
of his position.

Background

[3]

On August 31, 2002, an arbitrator appointed pursuant to the provisions
of the collective agreement that governed Mr. Starks relationship with his
employer upheld his dismissal.  In February 2003, Mr. Stark sought a review by
the Labour Relations Board of the arbitrators award under s. 99 of the
Labour
Relations Code
, R.S.B.C. 1996, c. 244.  The Board dismissed Mr. Starks
application and upheld his dismissal.  Pursuant to s. 141 of the
Code
,
in April 2003 Mr. Stark sought leave for a reconsideration of the Boards
decision.  Leave was refused.

[4]

Mr. Stark then brought judicial review proceedings in which he sought
various forms of relief.  Madam Justice Ballance described the situation at
para. 32 of her reasons dismissing the judicial review (
Stark v. Board of
School Trustees of School District No. 39 (Vancouver) et al.
, 2005 BCSC
931):

In his Petition Mr. Stark asks
that the Settlement Agreement, the June Award and the August Award be set aside
and that the matter of his dismissal be referred back to the tribunal pursuant
to the
Judicial Review Procedure Act
, R.S.B.C. 1996, c. 241. He does not
explicitly seek relief in relation to the three decisions of the Labour Board,
however he criticizes them in the body of his Petition and throughout his
written submissions. Recognizing that the Petition and accompanying written
materials were drawn by a layperson, I think it reasonable to interpret the
Petition as seeking review of the decisions of the Labour Board. Indeed, in
their respective submissions, the Union, School Board and Labour Board
proceeded on that footing as did Mr. Stark in his submissions. Accordingly, I
consider the prudent course is to approach the Petition on the basis that it
seeks judicial review of the Settlement Agreement, the two arbitration awards
as well as the three decisions of the Labour Board.

Justice Ballance dismissed the judicial review of the Boards decisions
on the basis they were not patently unreasonable.

[5]

Mr. Starks appeal to this Court raised two issues: first, whether the
Supreme Court has the jurisdiction on judicial review to quash the award of an
arbitrator appointed pursuant to the terms of a collective agreement; second,
whether Ballance J. was correct in holding that the decisions of the Board were
not patently unreasonable.

[6]

The judgment of this Court was short and dealt mainly with the
jurisdictional issue.  Justice Ballance had considered the arbitration award
and found it acceptable.  This Court held that there is no judicial review of a
labour arbitrators award concurrent with Board review under s. 99 of the
Code
.
It also upheld the judges determination that the Boards decisions were not
patently unreasonable, stating that she was correct in reaching that
conclusion.  Mr Starks appeal was dismissed (
Stark v. Vancouver School
District No. 39
, 2006 BCCA 124).

[7]

Mr. Stark did not apply for leave to appeal to the Supreme Court of
Canada from the dismissal of this appeal.  It was and remains his view that
redress lies with this Court.

[8]

On October 27, 2011, Mr. Stark attempted to file a notice of motion, the
operative portion of which I reproduce:

1.         That
the Court of Appeal review the award of James E. Dorsey made the 31st of August, 2002, for errors of general law not included in section 99(1) of the Labour
Relations Code.

2.         That
the Appellant's Factum filed herein on November 18, 2005, be considered as the statement of arguments on the application.

3.         That
the Respondent be granted 30 days to file a factum or argument in reply.

4.         That
the Appellant be granted 15 days to file any rebuttal argument.

The
Appellant will rely upon the following rules or enactments:

1.         The
Labour Relations Code, 1996, RSBC, c. 244, section, 100.

2.         The
Law and Equity Act, 1996 RSBC, c. 253, sections, 4, 9, 10, 24, and 44.

3.         Court of
Appeal Civil Rules, rule 33(1).

The Registry refused to accept the application.

[9]

There followed a series of correspondences between Mr. Stark and
representatives of this Court which culminated in the application before me.
The substance of the application is set out in a notice of motion filed December 20, 2011, which states in operative part:

1.         That
under section 10 (2) (d) of the Act, the presiding justice extend any time
constraints that are applicable and provided for in the Court of Appeal rules
for the filing and service of this Notice of Motion and supporting affidavit so
as to permit the application herein to proceed and be heard in its merits.

2.         That
a justice of the Court of Appeal review the order or direction of the registrar
of the Court

of Appeal set out in the Registrar's letter of December 13,
2011, and, after reviewing said order, vary the order or direction by directing
that the Registrar direct the court registry staff to accept for filing the
Notice of Motion of the Appellant and his supporting affidavit
,
copies
of which as appended to the

affidavit of the Appellant sworn December
20, 2011, and filed herein and that the registrar set down a convenient date
for the hearing of the Appellant's application before a justice.

The
Applicants will rely upon the following rules or enactments:

1.         Court
of Appeal Civil Rules 35 (and 52 if necessary).

2.         Court
of Appeal Act section 10 (3).

3.         The
Law and Equity Act, 1996 RSBC, c. 253, sections, 4, 9, 10, 24, and 44.

4.         Court
of Appeal Civil Rules, rule 33(1).

5.         The Labour
Relations Code, 1996, RSBC, c. 244, section, 100.

[10]

The December 13, 2011 letter of the Registrar of this Court stated:

I am in receipt of your letters of November 1, 2011 and December 7, 2011.

With respect to both of these letters, there
is nothing further to add to the comments you have already received from the
Court of Appeal staff.

As discussed in the letter from Timothy
Outerbridge on 15 September 2011, the above appeal has been heard by a division
of the Court and an order has been issued. This matter is concluded in the
Court of Appeal. If you seek further remedies, I suggest that you contact a
lawyer for further advice. The registry staff is not in a position to offer you
legal advice. They are also not permitted to accept material that is not
properly before the Court.

A lawyer may
advise you as to the merits and methods of any further litigation.   If you
cannot afford a lawyer at this stage, then you may seek assistance from
agencies such as the Access Pro Bono Society of British Columbia or the
Canadian Bar Association, B.C. Branch, who can help you find a lawyer who might
assist you for a reduced or no fee. You may call Access Pro Bono at
604-878-7400 or the Canadian Bar Association at 604-687-3221.

Discussion

[11]

This application raises a number of issues, some legal and some
practical.  I begin by addressing Mr. Starks understanding of what this Court
said on his appeal.

[12]

In the hearing before me on January 13, 2012, Mr. Stark pointed to comments of Madam Justice Southin at para. 10 of her reasons for judgment, which
he quotes as stating, the result is that the record for this court is
deficient and a deficient record is not a sound basis for this court to
consider issues of law.  He asserts that these comments show that through no
fault of his own, he was denied his day in court.  This assertion is based on a
misunderstanding of what this Court said.

[13]

I quote paras. 9 and 10 of Southin J.A.s reasons:

With respect, the learned judge should have put it to the
petitioner below that if he wanted to seek Judicial Review of the decisions of
the Labour Relations Board, he must first seek an amendment to his petition and
should have refused to address the Labour Relations Board decisions unless and
until the petition was amended.

Her approach was kindly meant,
but the result is that the record for this Court is deficient. A deficient
record is not a sound basis for this Court to consider issues of law.

[14]

Placed in context, the comments of Southin J.A. were directed at the
inclusion of the decisions of the Board in the judicial review proceedings
before Ballance J.  Justice Southin considered the review procedure to have
been flawed, but went on to state at para. 11 that, [f]ortunately, this case
is so simple that we are able to do so, that is, able to consider the necessary
issues.  This Court did go on to consider the judicial review of the Boards
decisions and upheld the decision of Ballance J.  The observations of Southin
J.A. at para. 10 did not in any way deprive Mr. Stark of any aspect of his appeal
hearing.

[15]

The jurisdictional aspect of this Courts decision helps put Mr. Starks
concerns into legal context.  There are two streams for the review of labour
arbitration awards, set out respectively in ss. 99 and 100 of the
Code
.

[16]

The former section provides for the process that was followed in this
case.  It allows the review of arbitral awards by the Board, with potential
judicial review by the Supreme Court of the Boards final decision (
Northstar
Lumber v. United Steelworkers of America, Local No. 1-424,
2009 BCCA 173,
308 D.L.R. (4th) 22;
United Steelworkers, Paper and Forestry, Rubber,
Manufacturing, Energy Allied Industrial and Service Workers International
Union, Local 2009 v. Auyeung
, 2011 BCCA 527).  Section 100 provides for
review by this Court if the basis of the decision or award is a matter or
issue of the general law not included in s. 99 (1).

[17]

In this case, Mr. Stark followed the process made available to him under
s. 99.  His position has been considered by an arbitrator, twice by the
Board, by the Supreme Court and by this Court.  By the scheme of the
legislation and the mandate of the courts, the scope of review narrows as the
process progresses.  This is because the Legislature has established the Board
as a specialized tribunal and the legislation recognizes the specialized nature
of labour arbitration.  That being said, Mr. Starks position has been
considered to the full extent of the law in the process he followed.

[18]

That process ended when this Court gave its judgment, which was entered
on May 23, 2006.  The Registrars December 13, 2011 letter accurately describes Mr. Starks position and options.

[19]

In his letter to the Registrar and in his notices of motion, Mr. Stark
refers to s. 100 of the
Code
.  He asks that I direct the Registry
to accept for filing his October 27, 2011 notice of motion which seeks a s. 100
review in the appeal proceedings that were brought to an end in 2006.  In my
view, it is not possible for me to do so.  That appeal is over.  This Courts
jurisdiction on that appeal is spent.

[20]

There is no proceeding in this Court in which Mr. Stark may pursue
relief pursuant to s. 100 of the
Code
.  He is, of course, long out of
time for the initiation of such proceedings.  In addition, Mr. Stark asks that
his factum on the 2006 appeal be used to support his application to review the
arbitral award for errors of general law.  I have looked at that factum and
question whether it identifies any errors of general law.

[21]

It is my hope that with a better understanding of the process that was
available to and followed by Mr. Stark and with a more clear appreciation of
what this Court did and did not decide on his appeal, Mr. Stark will put this
unfortunate situation behind him and move forward with his life.

[22]

Mr. Starks application to file his October 27, 2011 notice of motion is dismissed.

The
Honourable Mr. Justice Chiasson


COURT OF APPEAL FOR BRITISH
COLUMBIA

Citation:

William v. British Columbia,

2013 BCCA 1

Date: 20130103

Nos.:
CA035617; CA035618; CA035620

Docket: CA035617

Between:

Roger
William, on his own behalf and on behalf of all
other members of the Xeni Gwetin First Nations Government
and on behalf of all other members of the Tsilhqotin Nation

Respondent

(Plaintiff)

And

Her
Majesty the Queen in Right of the Province of British Columbia
and the Regional Manager of the Cariboo Forest Region

Appellants

(Defendants)

And

The Attorney
General of Canada

Respondent

(Defendant)

And

B.C. Wildlife
Federation and B.C. Seafood Alliance,
Treaty 8 First Nations, Chief Wilson and Chief Jules,
First Nations Summit and Temexw Treaty Association

Intervenors

---------------------------------------------------------------------------------

Docket: CA035618

Between:

Roger William, on
his own behalf and on behalf of all
other members of the Xeni Gwetin First Nations Government
and on behalf of all other members of the Tsilhqotin Nation

Respondent

(Plaintiff)

And

The Attorney
General of Canada

Appellant

(Defendant)

And

Her Majesty the
Queen in Right of the Province of British Columbia
and the Regional Manager of the Cariboo Forest Region

Respondents

(Defendants)

And

B.C. Wildlife Federation
and B.C. Seafood Alliance,
Chief Wilson and Chief Jules, First Nations Summit
and Temexw Treaty Association

Intervenors

---------------------------------------------------------------------------------

Docket: CA035620

Between:

Roger William, on
his own behalf and on behalf of all
other members of the Xeni Gwetin First Nations Government
and on behalf of all other members of the Tsilhqotin Nation

Appellant

(Plaintiff)

And

Her Majesty the
Queen in Right of the Province of British Columbia
and the Regional Manager of the Cariboo Forest Region and
The Attorney General of Canada

Respondents

(Defendants)

And

B.C. Wildlife
Federation and B.C. Seafood Alliance,
Chief Wilson and Chief Jules, First Nations Summit
and Temexw Treaty Association

Intervenors

Before:

The Honourable Madam Justice Levine

The Honourable Mr. Justice Tysoe

The Honourable Mr. Justice Groberman

Supplementary Reasons
to: Court of Appeal for British Columbia,
June 27, 2012 (
William v. British Columbia
, 2012 BCCA 285,
Docket Nos. CA035617, CA035618 and CA035620)

Counsel for the Plaintiffs:

P.S. Rosenberg

J.C. Nelson

Counsel for the British Columbia Defendants:

P.G. Foy, Q.C.

Counsel for the Attorney General of Canada:

B.A. McLaughlin

Written Submissions Received:

October 25, November
  22, November 23 and December 6, 2012

Place and Date of Judgment:

Vancouver, British
  Columbia

January 3, 2013

Supplementary Reasons of the Court

Supplementary Reasons for
Judgment of the Court:

[1]

On June 27, 2012, we released the judgment in these appeals.
Subsequently, the parties sought to make submissions as to the appropriate
costs order. We agreed to accept such submissions in writing, and have now
received and reviewed the parties representations.

Synopsis of the Appeals

[2]

The appeals concerned claims of the Xeni Gwetin First Nations
Government and the Tsilhqotin Nation to Aboriginal title and other Aboriginal
rights in areas described as Tachelached (or the Brittany Triangle) and
the Trapline Territory in the Chilcotin region of the west central interior
of British Columbia.

[3]

The trial judge found that Aboriginal title had been established over part
of the claim area, but held that he could not make a declaration of title
because the pleadings sought only a declaration to the whole of the area, and
not to any portion less than the whole. He dismissed the title claim without
prejudice to the Tsilhqotin Nations right to commence a new action seeking a
declaration of title. The judge also declared that the Tsilhqotin Nation has certain
rights to trap and hunt birds and animals in the claimed area and to trade
skins and pelts taken from it. Finally, he declared that forestry activities in
the claimed area had unjustifiably infringed the Tsilhqotin Nations Aboriginal
rights.

[4]

Three appeals were taken. The plaintiff appealed from the dismissal of
the claim to title. Both British Columbia and Canada opposed his appeal. British
Columbia appealed from parts of the declarations of hunting, trapping and
trading rights and from the declaration that forestry activities had infringed
Aboriginal rights. The plaintiff opposed that appeal, and Canada played only a
very minor role in it. Canada appealed from the declaration that the dismissal
of the title claim was without prejudice to a renewed title claim by the
Tsilhqotin. That appeal was opposed by both the plaintiff and by British
Columbia.

[5]

We dismissed all three appeals. In respect of the plaintiffs appeal, we
upheld the judges order, dismissing the claim to Aboriginal title, although
our reasons differed substantially from his. We held that the pleadings would
have permitted a declaration of Aboriginal title over a part of the claimed
area. We also found, however, that the judge had applied an incorrect test in
determining whether title was established, leading him to accept a
territorial claim rather than requiring that a claim to definite tracts of
land be established. We held that if he had applied the correct test, he would
have dismissed the title claim on the merits.

[6]

In respect of British Columbias appeal, we found no reversible error in
the trial judges reasoning, and upheld his order.

[7]

We dismissed Canadas appeal, ruling that, given the nature of the
action that was pleaded, cause of action estoppel would not bar any future
site-specific title claim that might be brought by the Tsilhqotin.

The Ordinary Costs Order

[8]

Section 23 of the
Court of Appeal Act
, R.S.B.C. 1996, c. 77, sets
out the ordinary rule as to costs. It provides that a party who succeeds on an
appeal is entitled to costs. As the appeals were all dismissed, the ordinary
rule would make each appellant responsible for paying the party and party costs
of those who opposed their appeals.

[9]

Both the plaintiff and British Columbia contend that they were partially
successful on their appeals. While it might be said that certain of their
arguments were accepted, it cannot, in our view, be said that their appeals
were in any sense successful.

[10]

Accordingly, we are of the view that, absent extraordinary
considerations, the appropriate orders for costs would be as follows:

a)

In the
plaintiffs appeal, the plaintiff would be responsible for British Columbias
and Canadas costs;

b)

In British
Columbias appeal, British Columbia would be responsible for the plaintiffs
costs; and

c)

In
Canadas appeal, Canada would be responsible for the plaintiffs and British
Columbias costs.

[11]

It is common ground that certain modifications should be made to this
ordinary order. First, British Columbia and Canada have paid certain
substantial disbursements in respect of the appeals, and do not seek
reimbursement for those disbursements. Thus, they should not be included in any
costs order.

[12]

Second, British Columbia does not seek costs in respect of Canadas
appeal, and so the order should not award it costs in that appeal.

[13]

Beyond these uncontroversial modifications to the usual order, however,
the parties are not in agreement. British Columbia and Canada both say that
given the global result of the appeals, it would be most efficient and fair to simply
order that each party bear his or its own costs in the appeals. The plaintiff,
on the other hand, contends that he should be awarded special costs on all
three appeals, either as a result of bad conduct that he alleges against
British Columbia, or because of the public interest aspects of the appeals.

The Conduct of the Parties

[14]

Rule 61 of the
Court of Appeal Rules
allows the Court to award
special costs. An award of special costs is unusual. Typically, such costs are
awarded where a party has engaged in reprehensible conduct in the litigation,
or, more rarely, in the circumstances giving rise to the litigation (see
Hamilton
v. Open Window Bakery Ltd.
, 2004

SCC 9, [2004] 1 S.C.R. 303;
Garcia v. Crestbrook Forest Industries Ltd.
(1994), 119 D.L.R. (4th)
740, 9 B.C.L.R. (3d) 242 (C.A.)). The plaintiff alleges that British Columbia
engaged in such conduct in respect of forestry practices within the claimed
area. British Columbia disputes that characterization.

[15]

We do not consider it necessary to analyse the extensive record to
determine whether the plaintiffs characterization of events is a just one. If
reprehensible conduct gave rise to the litigation, the argument with respect to
its effect on costs ought to have been made before the trial judge. Even if the
appellants contention that the original litigation was precipitated by inappropriate
conduct on the part of British Columbia were true, it would have little bearing
on the issue of the costs of these appeals. The appeals were based on
legitimate legal differences between the parties arising out of the decision at
trial. There was nothing reprehensible in the events giving rise to the
appeals, nor in the conduct of them.

Special Costs and Public Interest Litigation

[16]

This Court has stated that, in exceptional circumstances, special costs
may be awarded to a successful party in public interest litigation even in the
absence of reprehensible conduct on the part of the unsuccessful party. In
Victoria
(City) v. Adams
, 2009 BCCA 563, 313 D.L.R. (4th) 29, this Court discussed
the considerations and circumstances in which such an award may be made:

[188]    ... the following may be identified as the most
relevant factors to determining whether special costs should be awarded to a
successful public interest litigant:

(a)        The
case involves matters of public importance that transcend the immediate
interests of the named parties, and which have not been previously resolved;

(b)        The
successful party has no personal, proprietary or pecuniary interest in the
outcome of the litigation that would justify the proceeding economically;

(c)        As
between the parties, the unsuccessful party has a superior capacity to bear the
costs of the proceeding; and

(d)        The
successful party has not conducted the litigation in an abusive, vexatious or
frivolous manner.

[189]    The basic question underlying these factors is
whether the public interest in resolving a legal issue of broad importance,
which would otherwise not be resolved, justifies the exceptional measure of
awarding special costs to a successful litigant.

[190]    While similar, or even identical, factors may apply
to various forms of departure from the normal rule, that is not to suggest that
all forms of departure are of equal magnitude. The justification necessary to
grant an exceptional cost award is, in part, related to the magnitude of
derogation from the usual cost structure of the award being considered. An
award of interim costs requires one party to incur liability for the others
costs before the case has been heard and irrespective of the outcome. These are
truly exceptional orders. Likewise, as this Court observed in
Barclay
[
Barclay
(Guardian ad litem of) v. British Columbia (Attorney General),
2006 BCCA
434]

at para. 37, an award of costs to an unsuccessful party represents
a more significant departure than an order that each side bear their own costs.
In terms of this spectrum, an award of special costs to a successful public
interest litigant involves only the level of costs. As a result, such an award,
albeit financially very significant, would be less of a departure from the
normal rule than orders awarding interim costs or costs to an unsuccessful
party.

[191]    Nor should we be taken
to suggest that a successful public interest litigant will automatically be
entitled to special costs. On the contrary, just as the discretion to award
interim costs or costs to an unsuccessful public interest litigant is limited
to cases involving matters of public importance that are highly exceptional,
special costs (even for successful public interest litigants) must be the
exception rather than the norm: see
Finney
[
Finney v. Barreau du Qu
é
bec
,
2004 SCC 36, [2004] 2 S.C.R. 17]

at para. 48. Each case must be
considered on its merits, and access to justice considerations must be balanced
against other important factors: see
Little Sisters Book and Art Emporium v.
Canada (Commissioner of Customs and Revenue)
, 2007 SCC 2, [2007] 1 S.C.R.
38 at para. 35.

[17]

In our view, the plaintiff should not be awarded special costs on any of
the appeals.

[18]

At least three factors distinguish the plaintiffs appeal from
Adams
.
First, the plaintiff, unlike the respondents in
Adams
, was unsuccessful
on the appeal. The Court in
Adams
clearly considered that factor to be
important, remarking that an award of costs to an unsuccessful litigant is even
more exceptional than an award of special costs to a successful one.

[19]

Second, the First Nations in this case cannot be said to have no
personal, proprietary or pecuniary interest in the outcome of the litigation.  A
claim to Aboriginal title is a proprietary claim. This claim was brought in the
expectation or hope that a genuine proprietary or pecuniary benefit would be
gained in the event of success.

[20]

Finally, this litigation has not been taken on by counsel on a
pro
bono
basis, as was the claim in
Adams
. One purpose served by
awarding special costs in cases of exceptional public interest is to encourage
counsel to take on meritorious causes on a
pro bono
basis. This purpose
is absent in the current litigation.

[21]

While we recognize that the plaintiffs appeal raised matters of high
public importance, we are not persuaded that it fits within the exceptional
class of cases where special costs should be awarded.

[22]

In the appeals by British Columbia and by Canada, the plaintiff has been
successful, but the other considerations we have mentioned do apply and militate
against the awarding of special costs. As well, it is our view that the public
interest aspects of those appeals were not such as would justify an award of
special costs.

[23]

In our view, the issues that arose in Canadas appeal were of limited significance
other than to the parties. The appeal did not raise significant issues of
principle, nor was it particularly difficult to defend.

[24]

While greater public importance attached to British Columbias appeal, and
while the appeal was more complex, it remained an appeal that was concerned
with applying fairly well-settled law to specific facts. As this Court
indicated in
Ahousaht Indian Band and Nation v. Canada (Attorney General)
,
2011 BCCA 425, 312 B.C.A.C. 122, an award of special costs on public interest
grounds will ordinarily depend on the case being one that breaks novel ground
or establishes new legal principles. The arguments in British Columbias
appeal, like the arguments in
Ahousaht
, did not meet that threshold.

Increased Costs

[25]

This Court has the ability to award increased costs under Rule 60
(1):

60 (1)   If, because an offer to
settle is made or for any other reason, the court or a justice determines that
there would be an unjust result if costs were assessed under Scales 1 to 3 of
section 3 (1) of Appendix B, the court or justice, at any time before the assessment
has been completed, may order that costs be assessed as increased costs.

[26]

In its written submissions, British Columbia stated that [t]he legal
and factual issues in the Plaintiffs appeal and British Columbias appeal
warrant increased costs, but ... not special costs. It is clear from the
context of the argument, however, that British Columbia was referring to costs
on a higher scale than Scale 1, the scale for matters of ordinary difficulty,
rather than increased costs as those costs are defined in s. 60(2) of
the Rules:

(2)        If costs are ordered
to be assessed as increased costs, the registrar must fix the fees that would
have been allowed if an order for special costs had been made under Rule 61
(1), and must then allow 1/2 of those fees, or a higher or lower proportion as
the court or justice may order.

[27]

The plaintiff notes that the costs order at trial was, effectively, an
order for increased costs. In his reply argument, he says that, in the event
the court does not award him special costs, it should award increased costs.

[28]

The history of the costs award at trial is complicated. On November 27, 2001,
the Supreme Court of British Columbia made an advance costs order requiring
Canada and British Columbia to pay the plaintiffs legal fees at the rate of
50% of special costs as well as 100% of his reasonable disbursements (
William
v. Riverside Forest Products Ltd.
, 2001 BCSC 1641, 95 B.C.L.R. (3d) 371).
This Court dismissed an appeal from that order (
Xeni Gwetin First Nations
v. British Columbia
, 2002 BCCA 434, 3 B.C.L.R. (4th) 231) and later also
dismissed a cross-appeal seeking advance special costs (
Xeni Gwetin First
Nations v. British Columbia
, 2004 BCCA 106, 237 D.L.R. (4th) 754). The
Supreme Court of Canada granted leave to appeal from this Courts 2002 decision
([2002] S.C.C.A. No. 295), but remanded the case back to the trial court to be
dealt with in accordance with its judgment in
British Columbia (Minister of
Forests) v. Okanagan Indian Band
, 2003 SCC 71, [2003] 3 S.C.R. 371. The
trial judge, on reconsidering the matter, affirmed his original order (
William
v. British Columbia
, 2004 BCSC 610, 240 D.L.R. (4th) 547).

[29]

Approximately two months later, the trial judge granted an order
increasing the advance costs award to an award for special costs in advance (
William
v. British Columbia
, 2004 BCSC 963). This Court overturned that order on
appeal (
Tsilhqotin Nation v. British Columbia
, 2006 BCCA 2, [2006] 4
W.W.R. 48). Madam Justice Southin, dissenting, would have replaced the trial
judges order with an order for advance costs on Scale 5 under the former
Rules
of Court
, B.C. Reg. 221/90. The other two judges considered that it was
appropriate to reinstate the trial judges earlier order for advance increased
costs. Mr. Justice Thackray, however, indicated that he considered the order
proposed by Southin J.A. to have considerable merit:

[125]    Were the case at bar
about to be opened at trial, or indeed if it was in its early stages, I would
agree with the result adopted by Madam Justice Southin. However, this trial has
now been underway for three years and defence costs have been funded through
generous court orders and agreements. To at this stage cut this back to party
and party costs would be dramatic and might affect the balance that Mr. Justice
LeBel spoke of in
Okanagan Indian Band
[
British Columbia (Minister of
Forests) v. Okanagan Indian Band
, 2003 SCC 71, [2003] 3 S.C.R. 371]
.

[30]

In the circumstances, it cannot be said that this Court unreservedly
endorsed the order for advance increased costs, and the fact that such an order
was in place for the trial should not be treated as establishing that increased
costs are appropriate for the appeal.

[31]

In our view, the plaintiff has not established that it would be an
unjust result if costs were assessed under Scales 1 to 3 in these appeals. In
saying this, we note that the plaintiff has already had the benefit of
increased costs for the entirety of the trial (and, indeed, of special costs
for a portion of the trial) and that those costs are not in jeopardy in the
appeal process. It is also noteworthy that the plaintiff has not had to fund
the major disbursements necessary for the appeal, and is not being asked to do
so. In the circumstances, we are of the view that a just result can be reached
without granting an order for increased costs. Accordingly, the threshold for
an increased costs award has not been made out.

Award of Costs to an Unsuccessful Litigant

[32]

We are satisfied, in the circumstances, that it is appropriate that the plaintiff
have his costs in both British Columbias and Canadas appeals.

[33]

The situation with respect to the plaintiffs appeal is more
complicated. While, for the reasons given, the plaintiffs application for
special or increased costs is rejected, we do consider that the appeal was of
exceptional public importance, and that consideration must be given to awarding
the plaintiff costs even though he was unsuccessful.

[34]

While it is very rare for a court to award costs to a losing party, the
jurisdiction to do so does exist:
Okanagan Indian Band
at para. 30,
citing
B.(R.) v. Childrens Aid Society of Metropolitan Toronto
, [1995]
1 S.C.R. 315.

[35]

In the case before us, the public interest in having the issue of
Aboriginal title determined by the Court was high. The need for jurisprudential
development in this area was adverted to in the Courts judgment on appeal:

[159]    In accordance with the common law
tradition, the courts have proceeded to develop the law relating to Aboriginal
title incrementally on a case-by-case basis. It is a particularly daunting task
because the issues involved are unique. In developing rules for the proof of
rights and title, the courts have had to develop, as well, an entire
philosophical and jurisprudential framework for the recognition of traditional
rights that came into being before the reception of the common law.

[160]    Even, however, taking into account
the difficulties inherent in this area of the law, jurisprudential development
has been slow. While several full-scale claims for title to large areas of land
have been advanced to the level of the Supreme Court of Canada, none has
succeeded, and considerable areas of uncertainty subsist.

[161]    To some degree, the apparent
reluctance of the courts to go beyond what is needed to resolve the specific
cases is understandable. I have already noted that that is the traditional
manner in which the common law has developed. Further, the stakes in Aboriginal
title claims have been high  cases such as
Calder

[
Calder v. Attorney-General of British Columbia
, [1973]
S.C.R. 313],
Delgamuukw
[
Delgamuukw
v. British Columbia,
[1997] 3 S.C.R. 1010
],
and
Marshall; Bernard
[
R. v. Marshall; R. v Bernard
,
2005 SCC 43, [2005] 2 S.C.R. 220]

involved vast areas of land. The
resolution of such claims can be critical to the future of both the First
Nation involved and the broader Canadian population.

[162]    The technical difficulty of this
area of law has exacerbated the problem, and has led to considerable
frustration. The efforts of the Nisgaa in
Calder
, the Gitksan and
Wetsuweten in
Delgamuukw
, and the Tsilhqotin in this case (to this
point) all consumed enormous amounts of resources, only to have the cases end inconclusively
due to problems with the way they were commenced or pleaded.

[163]    The courts have frequently
emphasized the need for resolution of Aboriginal rights and title issues
through negotiated agreements where possible. The trial judge in this case went
beyond the ordinary role of the court in attempting to set the stage for a
negotiated resolution. Negotiated resolution of issues, however, is not
facilitated by uncertainty in the law.

[164]    It is apparent that all sides have
attempted to resolve the issues in this case, but without success. That is not
surprising, given that the theories of Aboriginal title espoused by the
plaintiff, on the one hand, and the defendants, on the other, are as far apart
as they are. The trial judges decision to provide a non-binding opinion as to
the title area did not, in the end, assist the parties in finding common
ground.

[165]

The present case has been an extraordinary one, both in terms of the
resources mustered by the parties to present their cases and in terms of the
court resources that have been devoted to it. It is in many respects a test
case on the issue of Aboriginal title. It presents a suitable vehicle for
development of the law.

[36]

The decision of the trial judge, affirmed by this Court, that advance
costs be ordered, is a strong indication of the exceptional importance of the
case from a public interest standpoint. Given the extensive record and
comprehensive reasons of the trial judge, this case provided an ideal
foundation for appellate consideration of issues of Aboriginal title.

[37]

The extent to which Aboriginal title exists is of fundamental importance
to British Columbians. The issue is, of course, of particular interest to First
Nations and to governments. It is also, however, of particular importance to
the economy of the Province, given the continued importance of resource
industries, which operate, for the most part, on lands that are subject to
title claims by First Nations.

[38]

British Columbia and Canada contend that the issues in this case were
not novel and did not break new legal ground. They contend that it merely
required the application of the Supreme Court of Canadas decision in
R. v.
Marshall
; R. v. Bernard,
2005 SCC 43, [2005] 2 S.C.R. 220.
While this Court found that the principles in
Marshall
and
Bernard
did govern this case, we are not convinced that that diminishes the importance
of the appeal. The trial judge was referred to the judgment in
Marshall
and
Bernard
, but interpreted it rather differently than did this Court. It is
apparent that further consideration of the reasons in
Marshall
and
Bernard
was required.

[39]

Quite apart from the
need for clarification of the jurisprudence on Aboriginal title generally,
there were special reasons why an appeal in this case was in the public
interest.
The trial judges decision, which indicated that title had
been established, but which denied a declaration of title, created particular
problems. Neither British Columbia nor Canada could appeal the judges decision
on title, which was technically in their favour. Nonetheless, absent an appeal,
the judges reasoning might well have been followed in the British Columbia
Supreme Court. In that regard, it was in the Crowns interest that the matter
be appealed, so that it could argue that the test for title applied by the
trial judge was incorrect.

[40]

In the unique circumstances of this case, the plaintiff ought not to
bear all of his costs of his appeal. An order that he be awarded party and
party costs on his unsuccessful appeal is justified.

[41]

In making this order, we recognize that this case is highly unusual, and
that orders that an unsuccessful appellant be granted costs will be
extraordinarily rare. Such an order will not be made simply because it is
perceived to be in the public interest that jurisprudence develop in a
particular area of law. It must, at the very least, be shown that the
development of jurisprudence in the area is of critical public importance. We
are satisfied that in the unique circumstances of this case, the Court is
justified in taking the extraordinary step of awarding costs to an unsuccessful
litigant.

The Scale of Costs

[42]

Appendix B of the
Court of Appeal Rules
deals with party and
party costs. Section 2(1) provides that costs are ordinarily assessed under
Scale 1, the scale for matters of ordinary difficulty. Section 2(2) allows the
court to instead order costs on Scale 2 (for matters of more than ordinary
difficulty or importance) or on Scale 3 (for matters of unusual difficulty or
importance).

[43]

Only British Columbia has addressed the scale of costs in this matter.
It says that the scale should be Scale 3 in the plaintiffs appeal and in
British Columbias appeal, and Scale 1 in Canadas appeal. We are in agreement
that the appeals by the plaintiff and by British Columbia raised matters of
unusual difficulty and importance, and that Canadas appeal was in respect of
matters of ordinary difficulty and importance. Accordingly, the plaintiff will
have his costs on Scale 3 in his appeal and in British Columbias appeal, and
on Scale 1 in Canadas appeal.

Disposition

[44]

In the result, we make the following orders as to costs:

a)  In the
plaintiffs appeal, the plaintiff will have his costs on Scale 3, payable
jointly by British Columbia and by Canada;

b)  In British
Columbias appeal, the plaintiff will have his costs on Scale 3, payable by
British Columbia; and

c)  In Canadas appeal, the plaintiff
will have his costs on Scale 1, payable by Canada.

The Honourable Madam Justice Levine

The Honourable Mr. Justice Tysoe

The Honourable Mr. Justice Groberman


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Gallagher,

2013 BCCA 5

Date: 20130107

Docket: CA039883

Between:

Regina

Respondent

And

Robert John
Gallagher

Appellant

Before:

The Honourable Mr. Justice Low

The Honourable Madam Justice D. Smith

The Honourable Madam Justice A. MacKenzie

On appeal from British
Columbia Provincial Court, April 18, 2011
(
R. v. Gallagher
, Vancouver Registry 212421-4-C)

Oral Reasons for Judgment

Counsel for the Appellant:

S.G. Vyas

Counsel for the Respondent:

E. Campbell

Place and Date of Hearing:

Vancouver, British
  Columbia

January 7, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 7, 2013

[1]

A. MACKENZIE J.A.
:
On April 18, 2011,
Robert John Gallagher was convicted in Vancouver Provincial Court of breaking
and entering a dwelling house and committing an indictable offence therein,
contrary to s. 348(1)(d) of the
Criminal Code
. He committed the offence
on April 19, 2010.

[2]

At the time of sentencing, Mr. Gallagher was
serving an effective sentence of three years and seven months imprisonment (an
actual sentence of three years after credit for seven months of pre-sentence
custody), imposed on November 9, 2010, for a similar offence committed on
February 9, 2010.

[3]

The sentencing judge concluded an effective
sentence of six years for the two break and enter offences was appropriate.
However, rather than imposing a two-and-a-half year consecutive sentence to Mr.
Gallaghers previous three-and-a-half year sentence, the judge imposed a
concurrent sentence of six years to reflect the seriousness of Mr. Gallaghers
criminal record. The judge stated that a concurrent sentence of six years would
add roughly two-and-a-half years to the sentence that Mr. Gallagher is
presently serving.

[4]

Mr. Gallagher seeks an extension of time to appeal
and leave to appeal the six-year concurrent sentence on the basis the judge
made an error in calculation which resulted in a sentence that is 12 months
longer than the judge intended. He asks this Court to reduce the sentence by 12
months to reflect the original intention of the sentencing judge.

[5]

The Crown concedes the judge made the alleged
calculation error and agrees the sentence should be reduced from six years to
five years to reflect the intention of the sentencing judge.

[6]

Mr. Gallagher and Crown counsel are correct that
the concurrent sentence of six years imposed an additional sentence of
approximately three-and-a-half years, resulting in a total effective sentence
of seven years for the two offences, rather than a total effective sentence of
six years as the judge intended. It appears the sentencing judges calculation
did not take into account the fact that Mr. Gallaghers first sentence was an
actual sentence of three years (after credit for seven months of pre-sentence
custody) and that Mr. Gallagher had already served five months of that
sentence.

[7]

In order to achieve the intended effect of
adding two-and-a-half years to the sentence being served, the sentencing judge
would have had to impose a sentence of five years and 21 days, rather than six
years.

[8]

On that basis, I would grant the extension of
time and leave to appeal, allow the appeal, and reduce the sentence to five
years imprisonment concurrent to the sentence being served.

[9]

LOW J.A.
: I
agree.

[10]

D. SMITH J.A.
: I
agree.

[11]

LOW J.A.
: The
extension of time to appeal is granted. Leave to appeal is granted. The appeal
is allowed and the sentence is reduced to five years imprisonment concurrent.

The Honourable Madam Justice MacKenzie


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Vesuna v. Drysdale,

2013 BCCA 10

Date: 20130108

Docket: CA039247

Between:

Rumi Vesuna

Appellant

(Plaintiff)

And

Alec Drysdale, Her
Majesty the Queen in Right of

The Province of
British Columbia, Sea-Mait Investments Ltd.

and M.L. & H.
Holdings Ltd.

Respondents

(Defendants)

Before:

The Honourable Mr. Justice Low

The Honourable Madam Justice D. Smith

The Honourable Madam Justice A. MacKenzie

On appeal from: Supreme
Court of British Columbia, July 13, 2011
(
Vensuna v. British Columbia (Transportation)
, 2011 BCSC 941,
Powell River Docket S1992)

Oral Reasons for Judgment

Appellant appearing In Person:

Counsel for the Respondents, A. Drysdale & the
  Province of British Columbia:

K. Wolfe and A.
  Davies

Counsel for the Respondent:

I. Fleming

Place and Date of Hearing:

Vancouver, British
  Columbia

January 8, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 8, 2013

[1]

LOW J.A.
:
In
2005, the appellant purchased a fifty-acre land-locked parcel of property near
Powell River, B. C. for $90,000, well below the list price of $175,000. There
was no road access to the property but there was a dedicated road allowance on
adjacent property to the south connecting the property with Highway 101 that
runs east and west. Title to the road allowance by law vests in the Province of
British Columbia. Before purchase, the appellant saw a 1996 plan indicating the
location of the road allowance but it was apparent to the appellant that no
road had been built.

[2]

The
appellant took steps after purchase to obtain the necessary governmental
approval for construction of a road on the allowance to give him road access to
his property. A government representative suggested that there were some
environmental difficulties with the approval he sought because of federal
fisheries law. This arose because the road allowance intersects a
salmon-spawning creek near Highway 101. The government representative suggested
to the appellant that he attempt to obtain an easement over the property to the
east to gain the access he required. That property is owned by the two corporate
respondents, whom for convenience I will describe jointly as Sea-Mait.

[3]

The
appellant was unable to negotiate an easement with Sea-Mait so he brought this
action against Sea-Mait, the Province and Alex Drysdale who is the Provincial
Approving Officer.

[4]

The
appeal is from an order made by Madam Justice Griffin dismissing his action
against all the respondents following a nine-day trial. Her reasons are indexed
at 2011 BCSC 941.

[5]

The
trial judge described the broad issues at trial thus:

[11]      Mr. Vesuna asserts a variety of allegations,
from which emerge two key issues which I will first address:

1.         Is the road or driveway that
runs diagonally across the southwest corner of Lot 3836, from the south border
of Lot 3836 to the west border of Lot 3836, intersecting with the road
allowance, a public or a private road?  For ease of reference, I will refer to
this as the Disputed Road;

2.         Was the Crown negligent in
approving the subdivision that led to the creation of the plaintiffs parcel of
property in 1960, because it is impossible to build a road on the road
allowance?

[6]

In
a rambling factum, the appellant purports to identify, by my count, some 37
legal and factual errors he says were made by the trial judge. Many of these
are merely observations unsupported by analysis that would permit us to
identify arguable error. With considerable validity, both pairs of respondents
contend that the arguments made by the appellant are no more than re-argument
of the case he attempted to make at trial, accompanied by some
mischaracterization of the evidence and assertions of primary facts or
inferences of fact not accepted by the trial judge. They say the appellants
argument is based on the case as he sees it, not as objectively viewed by the
trial judge, and without identification of error by the trial judge.

[7]

The
appellant brought an application for this court to receive fresh evidence
consisting mainly of government documents to add to numerous such documents put
into evidence at trial. This proposed new evidence was available before trial,
it adds nothing of significance to an understanding of the recorded history of
the development and use of the two properties in question and, if received into
evidence, would be incapable of having affected the outcome of this case at
trial. This proposed fresh evidence does not meet the test set out in
R. v.
Palmer
, [1980] 1 S.C.R. 759.

[8]

The
appellant owns District Lot 3504 less Block A that was subdivided out of the
lot in 1960. Highway 101 runs east to west at the south end of Block A and
Block A abuts District Lot 3836 to the east. Sea-Mait owns District Lot 3836. The
road allowance extends north from the highway on the eastern side of Block A to
the appellants property. The eastern edge of the allowance is the western boundary
of District Lot 3836. Sea-Mait is not interested in the allowance and is not
affected by its development or use.

[9]

Access
to Sea-Maits property is gained by an existing road located entirely on
District Lot 3836. It begins at Highway 101 near the southwest corner of the
lot. . It goes northwest from the highway to a point where it abuts the road
allowance on Block A. It is this section of road for which the appellant sought
an easement from Sea-Mait. The trial judge referred to this section of road as
the Disputed Road, as will I. From where it abuts the road allowance, the
road turns to the east and extends deep into District Lot 3836. There is no
dispute that this second section of the road is private.

[10]

As
against Sea-Mait, the appellant claimed that the Disputed Road is a public road
available for regular use by him and by other members of the public.

[11]

The
trial judge cited
Brady v. Zirnhelt
(1998), 57 B.C.L.R. (3d) 144 (C.A.)
in which it was held as follows:

A highway can come into being
in four ways:

1.         exemption from a Crown grant
(now
Highway Act
, R.S.B.C. 1996, c. 188, s. 2 and
Land Act
,
R.S.B.C. 1996, c. 245, ss. 13 and 57);

2.         expenditure of public money on
a travelled road (now
Highway Act
, R.S.B.C. 1996, c. 188,
s. 4) or entry on lands by the Minister of Highways and Public Works for
the purpose of establishing a highway (now
Highway Act
, R.S.B.C. 1996,
c. 188, s. 5(1));

3.         common law dedication of a road
by owner, whether a private owner or the Crown;

4.         dedication by deposit of a
subdivision plan showing a portion of the land as a highway (now
Land Title
Act
, R.S.B.C. 1996, c. 250, s. 107).

[12]

The
appellant claimed that the road in question became a public road under each of
the first three of these ways.

[13]

The
trial judge found that there was no exemption from the Crown grant of District
Lot 3504 in 1913 because a survey sketch attached to the grant did not show any
roads on it.

[14]

District
Lot 3836 was Crown granted in 1949. The trial judge described the evidence on
which the appellant relied to support an argument that there was a common law
dedication of the Disputed Road:

[23]      The key piece of evidence the plaintiff relies on
was found in copies of archival documents that set out an affidavit by Henry
Rhodes, a qualified land surveyor for the Province of British Columbia, sworn
January 6, 1912. His affidavit states that he conducted a survey of Lot 3504 on
December 9-10, 1911. His affidavit attaches his survey notes and drawing.

[24]      The Henry Rhodes 1911 survey notes and drawing
illustrate two short roughly parallel dotted line skid roads crossing from the
southwest corner of what became Lot 3836 into Lot 3504 on the eastern boundary
of Lot 3504, just east of Jefferd Creek, which runs through Lot 3504. The most
southerly of these two skid road markings is noted as being 5.60 chains from
the south boundary of the lot.

[25]      The plaintiff claims
that the southerly skid road marking on Henry Rhodes survey is in the same
location as the Disputed Road.

[15]

The
trial judge then found as a fact that the skid roads did not extend south on
District Lot 3836 far enough to intersect with what is now Highway 101. She
then referred to the records of a survey done in 1960 by a qualified land
surveyor, Victor Cecchi, now deceased. His work was explained to the court by
Rick Rae, a qualified land surveyor with the same firm. The trial judge
described this evidence:

[29]      Mr. Cecchis
survey identifies a logging road with a gate on it, which is the Disputed
Road, running diagonally from Highway 101, at the southern boundary of Lot
3836, across Lot 3836 to the road allowance on the west boundary of Lot 3836,
where it borders Lot 3504. Mr. Rae visited the site and checked and
confirmed the measurements of the logging road. He concluded that point where
the logging road intersected with the road allowance, north of the southeast
corner of Lot 3504, was approximately the same distance and location where the
southern skid road shown in Henry Rhodes survey intersected at the same
boundary of Lot 3504 and Lot 3836. The location was not exact but was within a
couple of metres of Mr. Rhodes 5.60 chains.

[16]

The
judge rejected the argument of the appellant that because the skid roads
apparently were created on public land prior to either Crown grant, they became
and remained public roads. The trial judge in the
Brady
case ([1996]
B.C.J. No. 969) rejected this argument and this court agreed, at para. 20.

[17]

The
Brady
case turned on the use of public funds to build the road in
question and the purpose for which it was built. It was built not only to
benefit the Crown as owner and the pre-emptor, but all those who wished to use
the road, including those who used the old west side road to gain access to
properties beyond.

[18]

The
trial judge found the evidence in the case at bar to fall well short of
establishing what had been established in
Brady
. She said this:

[40]      In contrast, in this case there is no evidence as
to what was the basis for the two skid roads noted on Mr. Rhodes 1911
survey. There was no evidence that the purpose of the skid roads was to provide
access to owners of properties beyond.

[41]      There was also no evidence as to general practices
with respect to skid roads on Crown lands in or around the same period as the
Crown grant for Lot 3504. It is possible that skid roads were for the sole
purpose of skidding logs harvested from Crown lands, and a private party paid
for the use of that Crown land as part of a licence from the Crown. In other
words, skid roads could have been for the purpose of facilitating timber
harvesting, but that commercial purpose might not have amounted to dedication
of the road as a public road.

[42]      There was some evidence
called as to more recent practice regarding skid roads. Essentially, a skid
road is an area which is only partially cleared and through which felled timber
is dragged to take it out of the woods and ultimately to market. The limited
evidence at trial suggested that such a road is more aptly described as a rough
trail to permit skidding and logging equipment to pass through.

[19]

The trial judge discussed at some length the history of the use of
District Lot 3836 before and since it was Crown granted in 1949. This
discussion was based on various Forestry Department documents and other
documents relating to the property, as well as evidence from a couple of
witnesses who had been involved in logging in the area. All this evidence
pointed to the lack of use of the skid roads as a road for members of the
public to cross the lot to get elsewhere. The judge concluded this part of her
analysis as follows:

[68]      As I have mentioned above, the 1911 survey notes of
Henry Rhodes do not show the skid road to run continuously from Lot 3504 across
the corner of Lot 3836, down to the boundary of Lot 1521 (or present day
Highway 101).

[69]      While it is likely that some roads in this province
that started out as skid roads became cleared more extensively, used over time
by the public, and became public roads, that does not mean that every skid road
pre-Crown grant became a public road. Yet this is really the effect of the
plaintiffs argument, without the evidence to support it.

[70]      The Court requires evidence before coming to the
conclusion that a skid road shown on pre-Crown grant land is a public road. Given
the extensive logging history of this province, concluding that a historical
survey showing a skid road is proof that the road is a public road, without
more evidence, could adversely affect many private property owners on whose
lands were once skid roads.

[71]      I conclude that there
is insufficient evidence for me to find that there was a public road existing
across the southwest corner of Lot 3836 into Lot 3504, in the same area as the
Disputed Road, at the time of the Crown grant of either lot.

[20]

The appellant has shown no basis for this court to interfere with the
above conclusion. There was a paucity of evidence capable of supporting the
conclusion that the skid roads were used for anything but the removal of logs.
There is no evidence that they were used by anybody for access across District
Lot 3836 to any other property, including District Lot 3504.

[21]

The trial judge turned to the question of whether any owner after the
date of the Crown grant of District Lot 3836 dedicated the Disputed Road. The
evidence was that one owner, Mr. Henninger, used the road for access to his
house on the property, kept a wire cable across it to block access and required
that permission be obtained for use of the road for logging on District Lot
3504. A subsequent owner replaced the wire with a steel gate that has remained
in place since then.

[22]

The appellant claimed that members of the public, such as occasional
pickers of salal or mushrooms, used the road. But the judge found that this
evidence was extremely weak and, in any event, such use was at best extremely
rare. At para. 77, the judge concluded: The greater weight of the evidence was
that if anyone sought to use the Disputed Road, they recognized it as a private
road and sought and obtained the permission of the owner ... first. There was
no common law dedication of the road to public use.

[23]

In this court the appellant simply repeats the weak arguments he made at
trial without demonstrating any misapprehension of the evidence or any other
error by the trial judge.

[24]

The next topic for the trial judge was the expenditure of public money
on the Disputed Road. Section 42(1) of the
Transportation Act
, S.B.C.
2004, c. 44 provides: ... if public money is spent on a travelled road that is
not a highway, the travelled road is deemed and declared to be a highway.

[25]

In 2006, Sea-Mait granted the Province, represented by the Minister of
Forests and Range a right-of-way over existing roads on District Lot 3836 to
construct certain works on the property as necessary for the operation and
maintenance of an undertaking of the Forest Service. This was accompanied by a
road maintenance agreement, the terms of which included road maintenance by
forestry, the provision to forestry of keys to the gate and the maintenance by
Sea-Mait of drainage structures along the roadway unless damage thereto was
caused by the Ministry of Forests or its agents.

[26]

The contract price to be paid to Sea-Mait was $3,500 annually. The trial
judge concluded that it was likely that public monies were expended on the
Disputed Road.

[27]

The argument of the appellant that this expenditure of public monies for
maintenance of the Disputed Road made the road a highway and, therefore, a
public road under s. 42(1) of the
Transportation Act
is fully answered
by s. 24 of the
Forest and Range Practices Act
, S.B.C. 2002, c. 69. That
section reads:

24        Despite section 42 of
the
Transportation Act
, a road constructed or maintained under this Act,
the
Forest Act
, the former Act as defined in section 1 of the
Forest
Act
or the
Forest Practices Code of British Columbia Act
is not a
public highway unless the Lieutenant Governor in Council declares it to be by
an order in council that he or she may make under this Act.

[28]

There was no evidence of an order in council having been passed to make
the section inapplicable.

[29]

The trial judge analysed the agreements between the Province and
Sea-Mait. She concluded that the parties clearly intended that the forestry
legislation would apply and not the
Transportation Act
. She said this:

[112]    It was clear by the terms of the Right of Way
Agreement that the Crown considered that the road remained a private road, and
not open to public use. The access to the Disputed Road was gated and locked. Also,
the annual fees associated with the Right of Way Agreement were nominal and not
of great benefit to the owner. In light of these circumstances, I find that the
Crowns use of the Disputed Road did not result in the road being travelled
within the intended meaning of s. 42 (1) of the
Transportation Act
.

...

[116]    In the case at bar, there is a contract
demonstrating an intention as between the Crown and corporate defendants to
keep the road private. Failure to give effect to such intention would tread
closely to sanctioning an expropriation without compensation. I find that the
effect of the Right of Way Agreement is to acknowledge that the Crown use of
the private road does not, in and of itself, make the road a travelled road
for the purposes of s. 42(1) of the
Transportation Act
.

Conclusion - Crown Expenditures on
Disputed Road

[117]    On the whole of the evidence, I find that any
expenditures on the Disputed Road by the Crown were pursuant to s. 24 of
the
Forest and Range Practices Act
, and that therefore s. 42(1) of
the
Transportation Act
does not apply to deem the road a public highway.

[118]    Further, in the
circumstances of this case, where the Crown has expressly agreed with the
private property owner that its expenditures and use do not transform an
otherwise private road into a public highway, and where there is no evidence
that the road has been generally used by the public, I find that the Disputed
Road is not a travelled road pursuant to s. 42(1) of the
Transportation
Act
, and so that section does not apply to deem the road a public highway.

[30]

The appellant has presented no argument that calls into question the
conclusion at trial that he failed to prove that the Disputed Road was a public
road on the basis of public expenditure.

[31]

The appellant alleged that the Crown was negligent in approving the
subdivision of District Lot 3504 in 1960 to create Block A with reservation of
the road allowance. On that issue, the judge said this:

[178]    I conclude that the
plaintiff has failed to call evidence that would support a finding that the
Crowns approving officer was negligent in approving the 1960 subdivision plan
concerning Lot 3504.

[32]

The appellant again has not presented any argument that would allow for
appellate interference with this conclusion. There was no evidence of such
negligence. In any event, as the judge found, the appellant led no evidence to
establish that the property, without easy road access, was worth any less than
the amount he paid for it. He paid considerably less than the list price and
property assessments subsequent to the purchase were considerably more than the
amount the appellant paid for the property.

[33]

It should be noted also that the appellant is not without opportunity to
secure access by development of the road allowance. In that regard, the trial
judge made this observation:

[171]    Secondly, the plaintiff
has adduced no evidence to establish that it would be impossible, from an
engineering design perspective, to have constructed a road at the site of the
road allowance in 1960. There has been no expert opinion provided on this point.
In the absence of such evidence, I am unable to accept the plaintiffs argument
that it would be practically impossible or highly dangerous to build a road at
the junction of Highway 101 and the road allowance.

[34]

The trial judge discussed other issues raised by the appellant as follows:

[179]    In addition to the two key issues I have addressed,
the plaintiff raised a number of additional issues, for which the factual
foundation to a large degree overlapped with the facts I have already reviewed,
as follows:

1.         If the Disputed Road is not
public but instead is a private road, does the plaintiff have any enforceable
agreement with the corporate defendants to allow him to use the Disputed Road,
and if so, did the corporate defendants breach that agreement, causing the
plaintiff damages?

2.         Does the Plaintiff have any
kind of easement which would allow him to use the Disputed Road?

3.         Did the corporate defendants
commit an actionable tort, such as nuisance, by locking their gate across the
Disputed Road, preventing the plaintiff from accessing his property via that
road in January 2006?

4.         Did the Crown negligently
misrepresent to the plaintiff that the road allowance provided access to Lot
3504?

5.         Did an employee of the Crown,
Mr. Drysdale, make and then breach an agreement with the plaintiff that
the Crown would engage in a land swap to solve the problem of the use of the
Disputed Road? and,

6.         Did the Crown breach a
fiduciary duty owed to the plaintiff, or did the conduct of its employee,
Mr. Drysdale, in dealing with the plaintiff amount to bad faith or an
abuse of public office?

[180]    The evidence was clear that the plaintiff did not
reach any agreement with the corporate defendants to allow him to use the
Disputed Road. He admitted this in his correspondence with the Crown and in his
evidence at trial.

[181]    The plaintiffs argument that an easement exists
over the Disputed Road appeared to be based on the same factual allegations he
advanced with respect to common law road dedication, or, the existence of an
enforceable agreement with the corporate defendants. These allegations were not
proven.

[182]    There was no evidence to support any duty on the
part of the corporate defendants to have the gate access on their private
property, across the Disputed Road, unlocked so as to allow the plaintiff to
use it in January 2006.

[183]    There were no negligent representations by the Crown
relied upon by the plaintiff to his detriment.

[184]    Mr. Drysdale did
not make any agreement with the plaintiff. There is also no evidence to support
any allegation that Mr. Drysdale dealt with the plaintiff any way that
might found a cause of action. There is no basis in the evidence for any claim
by the plaintiff that the Crown owed a fiduciary duty to him and then breached
that duty.

[35]

No basis has been shown for appellate interference with any of these
conclusions.

[36]

There was evidence that after negotiations with Sea-Mait for an easement
failed, the approving officer invited the appellant to commission an
engineering plan for the building of a road on the road allowance that would
address the environmental problem. It is clear that the appellant is far from
exhausting all administrative options for obtaining physical as well as
dedicated road access to his property. Instead of following up on the approving
officers suggestion, the appellant chose to bring this action based on
extremely weak evidence. He can still explore engineering options for
developing the road allowance.

[37]

The trial judge received written submissions from the parties with
respect to costs. She ordered that the successful defendants recover ordinary
costs from the appellant at Scale B. She also gave certain directions with
respect to the recoverability of certain disbursements. Her costs judgment is
indexed at 2011 BCSC 1618.

[38]

Although the costs judgment led to a second order, the appellant did not
file a separate notice of appeal. He did file an amended notice of appeal to
raise an issue with respect to the costs ordered. The provincial respondents
objected to this approach as being procedurally defective. I do not find it
necessary to address the procedural concern because I find no merit in the
appellants argument with respect to costs.

[39]

The appellant says the trial judge erred in approving certain fairly
substantial disbursements presented by the provincial respondents. In that
regard, the judge said this:

[37]      The Crown defendants claim the travel costs for one
lawyer on their legal team to attend the various interlocutory and trial court
proceedings. I find that the costs claimed in this regard are reasonable. The
proceeding by the plaintiff advanced complicated legal arguments and delved
into the distant historical past. The Crown defendants were entitled to use the
lawyers they considered most suitable to defend the proceeding, even if that
meant that counsel for the Crown defendants had to travel from Victoria to
Powell River to attend court.

[38]      I also note that the Crown has claimed for only one
lawyers travel expenses, even though the complexity of the matter required the
assistance of additional counsel, as well as a legal assistant.

[39]      Pursuant to Rule 14-1(7), I direct that these
travel costs as claimed in the draft Bill of Costs submitted to me by the Crown
be allowed.

[40]      The Crown also claims for the cost of reports
prepared by Mike Hansen, surveyor, and Otto Langer, fisheries biologist. These
reports were served upon the plaintiff before trial. Mr. Hansens report
was introduced into evidence. Mr. Langers report was not. However, the
Crown advises as to the nature of his expert opinion, namely that it concerned
whether or not, at the time the plaintiffs property was subdivided in 1960,
existing fisheries statutes and regulations would have provided a practical
impediment to construction of a driveway on the plaintiffs property.

[41]      I find, based on the claims advanced by the
plaintiff, that it was entirely reasonable for the Crown defendants to seek an
opinion on this issue. Given that the plaintiffs own evidence fell short, it
is not surprising that in the end the Crown defendants elected not to call this
expert evidence. I find that the disbursements incurred by the Crown defendants
in retaining these experts and obtaining their reports, as set out in the draft
bill of costs, are reasonable, and I direct that these costs be allowed.

[42]      In addition, the Crown
defendants claim the tariff item cost of retaining and consulting three
experts, Mr. Langer and Mr. Hansen as aforesaid, and Sharon Goddart. Since
Ms. Goddart is an employee of the Provincial Government, there was no
extra disbursement incurred in retaining her. However, she is an engineer
employed by the Ministry of Transportation and Highways, and she provided an
expert opinion on the issue of whether there were any engineering design
impediments to constructing a driveway from Highway 101 to the plaintiffs
property. I find that this was relevant evidence for the Crown defendants to
obtain in light of the plaintiffs allegations in the case. I find that it was
reasonable for the Crown to retain and consult with these experts, and
therefore I direct that the tariff item 17 costs of doing so be allowed.

[40]

The trial judge was in a much better position than we are to determine
reasonable disbursements in the context of the entire case and I am not persuaded
that there is any basis on which we can set aside the determinations she made
in the above paragraphs.

[41]

In my opinion, this appeal is without merit and I would dismiss it with
costs to both pairs of respondents.

[42]

D. SMITH J.A.:
I agree.

[43]

A. MACKENZIE J.A.
: I agree.

[44]

LOW J.A.
: The appeal is dismissed with costs to both pairs of
respondents.

The
Honourable Mr. Justice Low