COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Dosanjh v. Liang,

2015 BCCA 18

Date: 20150114

Docket: CA041619

Between:

Kuldip Dosanjh

Respondent

(Plaintiff)

And

Xuemei
Liang

Appellant

(Defendant)

Corrected
Judgment: The text of the judgment was corrected on page 2

on January 19, 2015.

Before:

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Bennett

On appeal from: An
order of the Supreme Court of British Columbia,
dated January 31, 2014 (
Dosanjh v. Liang
, 2014 BCSC 162,
New Westminster Docket S137347)

Counsel for the Appellant:

D.P. Davison

Counsel for the Respondent:

H.S. Nirwan

Place and Date of Hearing:

Vancouver, British
  Columbia

November
  26, 2014

Place and Date of Judgment:

Vancouver, British
  Columbia

January 14, 2015

Written Reasons by:

The Honourable Mr. Justice Groberman

Concurred in by:

The Honourable Mr. Justice Lowry

The Honourable Madam Justice Bennett

Summary:

The
plaintiff agreed to purchase residential property from the defendant. The
defendant refused to complete the transaction because she considered the
purchase price to be too low. After initially insisting on completion, the
plaintiff wrote to the defendant, accepted her repudiation and sued for
damages. The trial judge found that the purchaser had not unequivocally
affirmed the contract, and that he was entitled to accept the repudiation and
sue for damages. Over the objection of the vendor, the judge accepted a
property assessment under the Assessment Act as evidence of the market value of
the property. The vendor appealed. Held: Appeal allowed to the extent of
remitting the assessment of damages to the trial court. While the purchaser had
unequivocally affirmed the contract, the vendors conduct amounted to a continuing
repudiation, and the purchaser was entitled to accept the repudiation when he
did. The property assessment was not admissible evidence to establish the
market value, and it should not have been considered by the judge. The court
acknowledges that property assessments are sometimes used as evidence of value
in family law cases; whether or not that is proper practice, it does not extend
to other types of civil litigation.

Reasons
for Judgment of the Honourable Mr. Justice Groberman:

[1]

This appeal arises out of a residential real estate sale that failed to
close. Mr. Dosanjh, the purchaser, alleges that Ms. Liang, the
vendor, repudiated the contract, and that she is liable to him in damages. While
Ms. Liang accepts the trial judges finding that her actions constituted a
repudiation of the contract, she says that Mr. Dosanjh thereafter elected
to affirm the contract rather than accept the repudiation. She says that he
cannot, therefore, claim damages for her breach. She also argues that Mr. Dosanjh
himself breached the agreement by failing to pay a deposit in a timely manner, and
that that breach bars him from recovery.

[2]

The trial judge found that Mr. Dosanjh did not affirm the contract,
and that he was entitled to accept the repudiation and sue for damages. She awarded
Mr. Dosanjh $37,400, which she found to be the difference between the contract
price and the market value of the property on a date three months after the closing
date. She found that it was reasonable to expect that Mr. Dosanjh would
have found another suitable house by that time. The appellant appeals the
judgment, both in respect of liability and damages.

[3]

I am of the view that the judge was correct in finding the appellant
liable for breach of contract. Her assessment of damages, however, was based on
inadmissible evidence, and cannot stand. In the course of the appeal, both
parties agreed that, in the event that the appeal is allowed on the issue of
damages alone, the matter should be returned to the trial court for a new
hearing to assess the quantum of damages.

The Agreement for Purchase
and Sale

[4]

The appellant owned residential property in Burnaby, which she rented to
tenants. In August 2011, the RCMP informed her that her tenants had been using
the property to grow marijuana. Ms. Liang was upset by this news, and
immediately contacted a realtor for the purpose of putting the property up for
sale.

[5]

The realtor arranged for an advertisement on Craigslist, which first
appeared on August 26, 2011. It listed the property for sale for $629,000. The
realtor also arranged for the property to be listed on the Multiple Listing
Service (MLS), but the listing was not to take effect until the following
Monday, August 29.

[6]

Mr. Dosanjh saw the Craigslist listing on the day that it was
published, and contacted the realtor to express interest in the property. He
was given the address of the property, and arranged to meet with the realtor
the following day.

[7]

Mr. Dosanjh viewed the exterior of the house on August 27, but did
not have access to the interior. He then met with the realtor, as planned, and
made an offer to purchase the property. After some negotiations, the parties
reached an agreement that same day, under which Mr. Dosanjh would purchase
the property for $605,000, with an October 1, 2011 completion date.

[8]

Mr. Dosanjhs offer was subject to three conditions inserted for
his sole benefit. First, he was entitled to inspect the property for the
presence of asbestos products, and was entitled to demand that Ms. Liang
arrange for the removal of any such products. Second, he was entitled to have
any oil storage tanks on the property removed by Ms. Liang prior to the
completion date. Finally, the agreement was conditional upon Mr. Dosanjh
obtaining a building permit and municipal approvals by September 15, 2011.

[9]

The deposit clause in the contract read as follows:

DEPOSIT: A deposit of $30,000.00 which will form part of the
Purchase Price, will be paid on the following terms:

Deposit to be paid after subjects
are removed.

All monies paid pursuant to this
section (Deposit) will  be delivered to [the realtor] and held in trust.

[10]

By August 29, Ms. Liang had second thoughts about the deal. Late
that evening, Ms. Liangs realtor sent an e-mail to Mr. Dosanjh as
follows:

I wanted to let you know right away of a situation that has
developed. The owner of 7849 18
th

Ave has contacted me and advised me she will
not proceed with this contract. She explained to me that she was under great
duress in making a decision. She was contacted by the police about the grow [o]p
the previous day and then felt so much pressure in having to make a major
decision within a few hours. I tried to contact her today but her family told
me she is being treated by her doctor at the hospital for anxiety and
depression and has not called me back. Her family told me they have an
appointment with the lawyer on Thursday to discuss this situation. Its all I
know at this point. I am gathering from what I know that the family feels that
the price was unreasonable in the current market place.

I dont know what else I can do
at this point.

[11]

Mr. Dosanjh attempted to contact the realtor by telephone, but was
not immediately successful. On August 30, he sent an e-mail indicating that he
had not observed Ms. Liang to be under stress on August 27, and stating
that he wished to proceed to have an inspector check the property for asbestos
and for oil tanks. Mr. Dosanjh also spoke with the realtor after sending
the e-mail, and told him that he wanted to remove the conditions and to proceed
to complete the purchase.

[12]

The MLS listing resulted in considerable interest in the property, and
on August 30, Ms. Liang increased the asking price on the MLS listing to
$669,000.

[13]

On September 6, 2011, Mr. Dosanjh sent another e-mail to the
realtor, which read, in part:

Although the subject removal date
is September 15, 2011  on August 31st we  told you that we are ready to
remove all subjects. We tried several times but you dont pick up the phone so
we are removing the subjects and sending it to your office. As soon as the
seller signs the subject removal form, we are ready to send the $30,000 deposit
cheque.

[14]

On September 8, 2011, Mr. Dosanjh sent a fax to the realtor in the
same terms. Attached to the fax was a copy of the addendum to the contract that
contained the conditions, upon which he wrote Removal of following subjects
to clauses. On the same day, Mr. Dosanjhs lawyer sent a letter to Ms. Liang
and to the realtor which included the following:

We advise that the Buyer is ready, willing and able to
complete this transaction on the completion date, October 1, 2011.

With respect to the email letter of August 28, 2011 in which
[the realtor] says [t]he owner... has contacted me and advised me she will not
proceed with this contract we ask that you, Ms. Liang, immediately
contact the writer to confirm whether that statement should be viewed as any
anticipatory breach of Contract by the Seller.

We advise that should you fail to
complete the transaction on October 1, 2011 our client will take immediate
proceedings to pursue any and all remedies available  under the Contract
including, but not limited to, the specific performance of the Contract and
damages, or alternatively, damages.

[15]

Ms. Liang received the letter, but did not respond to it. It is not
clear whether the realtor also received the letter; in any event, he did not
respond to it.

[16]

Mr. Dosanjh went to the realtors office with the intention of
dropping off a cheque for the deposit. The receptionist advised him that the
realtor was not in. Mr. Dosanjh did not leave the cheque at the office,
but attempted, unsuccessfully, to contact the realtor by telephone. It appears
that the realtor was, in fact, away from British Columbia between September 4
and September 11, 2011.

[17]

On September 14, Mr. Dosanjhs lawyer couriered a cheque for the
deposit amount to the realtors office during business hours. The courier was
unable to deliver it because the office was closed. On September 15, the lawyer
wrote to Ms. Liang as follows:

We confirm that the deposit of $30,000.00 was sent via
courier in the form of a certified cheque to the offices of [your realtor]. Our
courier advises that the office was closed and that no one was present to
accept the deposit .

Coupled with the letter by the Realtor  of August 29, 2011
in which [he] advised our client that you did not intend to complete this
transaction, and given that you have not responded to our letter of September
8, 2011 which was sent to you by registered mail and because the deposit was
not accepted today, please be advised that our client regards this conduct as
amounting to an anticipatory breach of the contract of purchase and sale and
our client will pursue all available remedies.

This is clear and unequivocal
notice to you that we accept your repudiation of said contract and that this
acceptance ends any obligation on our client to tender the purchase price on
the date stipulated in the contract as a precondition to seeking enforcement in
this action.

[18]

Ms. Liang received the letter on September 19, and did not respond
to it. Mr. Dosanjh immediately commenced an action. Neither party took any
steps to close the transaction on the scheduled completion date.

The Trial Judges Decision

[19]

At trial, Mr. Dosanjh contended that Ms. Liangs realtors e-mail
of August 29, 2011 constituted a repudiation of the contract. Ms. Liang,
on the other hand, argued that the e-mail merely outlined concerns that she
had, and was not a statement that she was refusing to proceed with the
contract.

[20]

The judge found that the e-mail did constitute a repudiation of the
contract. She noted that the realtors e-mail unequivocally stated: The owner
 has advised me she will not proceed with this contract. At para. 47 of
her reasons, she accepted that Mr. Dosanjh was entitled to conclude, from
reading the whole of the e-mail, that Ms. Liang did not intend to proceed.
She also noted that the realtors subsequent telephone conversations with Mr. Dosanjh
confirmed that Ms. Liang would not proceed with the sale.

[21]

The next issue was whether Mr. Dosanjh accepted the repudiation or,
instead, affirmed the contract. Mr. Dosanjh took the position that he accepted
the repudiation in his lawyers letter of September 15, 2011. Ms. Liangs
position was that Mr. Dosanjh had unequivocally and irrevocably affirmed
the contract prior to September 15, and could, as of that date, no longer
choose to accept the repudiation. In support of her position, she relied on Mr. Dosanjhs
e-mail of August 30 and his telephone conversations with the realtor
around that time. She also points to his September 6 e-mail, his September 8
fax, and his attempts to deliver the deposit cheque to the realtors office.

[22]

Ms. Liang argued that, having affirmed the contract, Mr. Dosanjh
was no longer in a position, on September 15, 2011, to accept the repudiation.
Further, she argued that Mr. Dosanjh had himself breached the contract by
failing to tender the deposit when he waived the subject to conditions. She contended
that a party, while himself in breach of a contract, cannot purport to accept
the other sides repudiation and sue for damages.

[23]

The trial judge noted, at para. 55, that the court should be
careful not to find that a party has affirmed a contract without very clear
evidence that he or she has irrevocably chosen to go with the contract. At para. 64,
she characterized Mr. Dosanjhs actions between August 29, 2011 and
September 15, 2011 as assessing the circumstances, considering his options,
attempting to resolve the situation, and trying to ensure that he did what he
had to do to complete the Contract in the event he was able to convince Ms. Liang
to recognize her obligations. She concluded that he did not affirm the
Contract, and that he was still entitled, at the time he communicated his
intentions by his lawyers letter of September 15, 2011, to accept Ms. Liangs
repudiation.

[24]

The judge found it unnecessary to resolve the issue of whether Mr. Dosanjh
was in breach of the contract by failing to pay the deposit on time. She said:

[72]
Mr. Dosanjh
did not succeed in delivering the deposit prior to accepting Ms. Liangs
earlier repudiation. However, even if this amounted to a breach of the deposit
clause in the Contract, Ms. Liang did not do anything to exercise her
right to terminate the Contract pursuant to the terms of the deposit clause or
under the common law. Accordingly, even if Mr. Dosanjh breached the
Contract by failing to pay the deposit when it was due, his repudiation
remained unaccepted and the Contract continued in existence until Mr. Dosanjh
accepted Ms. Liangs earlier repudiation by his letter dated September 15.

[73]      For these reasons, I
find that the Contract was not discharged by Mr. Dosanjhs failure to pay
the deposit.

[25]

With respect to remedy, the judge accepted Ms. Liangs argument
that Mr. Dosanjh could not claim specific performance because he had
accepted the repudiation of the contract. She also found that, as specific
performance was not an available remedy, damages in lieu of specific
performance were also unavailable. In the result, Mr. Dosanjh was not
entitled to damages based on the value of the property at the date of trial.

[26]

The judge recognized that, ordinarily, damages are to be assessed on the
date of the breach, but noted that circumstances may, in some instances,
justify a court in choosing a different date. The judge chose January 2012,
based on her view that Mr. Dosanjh should have located another residential
property to purchase by that time, some three months after the closing date.

[27]

The judge noted that there was evidence to suggest that the $605,000.00
purchase price was materially less than the market value of the property. She
found that Ms. Liangs primary reason for refusing to proceed with the
deal was that she considered the purchase price to be below market value. She
also noted that there was considerable interest in the property as soon as the
MLS listing appeared, and that Ms. Liang increased the list price to
$669,000. The judge concluded, at para. 90, that the increase was
motivated by the fact that the market value [of the property] materially
exceeded the Contract price.

[28]

With respect to the quantification of damages, the judge mentioned that
the plaintiff had obtained an appraisal of the property (as of November 8,
2012). The appraisal did not comply with the requirements for expert evidence,
and it was not tendered as evidence of the value of the property, though it
was, apparently, tendered for the limited purpose of showing that an appraisal
had been obtained. The judge did not use the appraisal as evidence of the value
of the property.

[29]

Instead, over the objections of Ms. Liang, she used the 2013
assessment by the BC Assessment Authority (prepared under s. 2 of the
Assessment
Act
, R.S.B.C. 1996, c. 20) as evidence of the value of the property.
That assessment report attributed values to the property as of July 1 of each of
2011, 2012 and 2013. The trial judge took the arithmetic mean of the 2011 and
2012 values as the appropriate market value of the property in January 2012.

Issues on this Appeal

[30]

On this appeal, Ms. Liang accepts the judges finding that her real
estate agents letter of August 29, 2011 constituted a repudiation of the
contract. She says, however, that Mr. Dosanjh unequivocally and
irrevocably affirmed the contract in his subsequent communications and actions.
She says that it was no longer open to him to accept the repudiation when he
purported to do so in his letter of September 15, 2011.

[31]

She also argues that, whether or not Mr. Dosanjh affirmed the
contract, it was not open to him to accept the repudiation by his letter of
September 15, 2011, because he was, by then, himself in breach of the contract,
having failed to deliver the required $30,000 deposit to her. She also says
that the judge erred in finding that Ms. Liang did not, by her actions,
show that she was accepting Mr. Dosanjhs breach as a repudiation of the
contract.

[32]

Finally, Ms. Liang argues that the judge erred in her assessment of
damages, both by using inadmissible evidence to determine the market value of
the property and by inappropriately choosing January 2012 as the date for
assessment of damages.

Did Mr. Dosanjh
Unequivocally Affirm the Contract?

[33]

The trial judge summarized the general law with respect to a partys
right to accept a repudiation of a contract at para. 50 of her judgment:

The consequences of a repudiation, whether by anticipatory
breach or breach of a fundamental term, are well established. They are referred
to in
Sethna v. 350 Kingsway Development Ltd.
, 2011 BCCA 434, at para. 24,
and

Homestar Industrial Properties
Ltd. v. Philps
(1992), 72 B.C.L.R. (2d) 69 (C.A.), at para. 13, and
may be summarized as follows:

·

A party to a contract has two alternatives if the other party
repudiates the contract: the innocent party may accept the repudiation or
affirm the contract.

·

If the innocent party accepts the repudiation, the contract is at
an end, both parties are relieved of their obligations under it, and the
innocent party may sue for damages immediately without waiting for the time
that the contract should have been performed.

·

If the innocent party affirms the contract, the contract remains
alive in all respects for both parties, and the risk exists that the party
beginning as the innocent party will subsequently commit a breach of its own.

·

If the innocent party wishes to accept the repudiation, he or she
must make his or her election known.

·

Once made, the election is irrevocable.

[34]

Neither party quarrels with these general propositions, which are
well-supported in the case law. As I will indicate, however, the last
proposition  that an election, once made, is irrevocable  requires some
qualification to ensure that it is not inappropriately applied in cases of
repeated or continuing repudiation.

[35]

A court will not find that an innocent party has affirmed a contract in
the absence of clear evidence leading it to that conclusion. The trial judge
expressed the proposition as follows:

[55]

Affirmation
may be express or implied, but the court should be careful not to find that a
party has affirmed a contract without very clear evidence that he or she has
irrevocably chosen to go on with the contract. This is explained in
Chitty

[
Chitty on Contracts,

31st
ed (London, UK: Sweet & Maxwell Ltd., 2012) vol 1]
at 1696-97 as
follows:

[The innocent party] will not be held to have elected to
affirm the contract unless, first, he has knowledge of the facts giving rise to
the breach, and, secondly, he has knowledge of his legal right to choose
between the alternatives open to him. Affirmation may be express or implied. It
will be implied if, with knowledge of the breach and of his right to choose, he
does some unequivocal act from which it may be inferred that he intends to go
on with the contract regardless of the breach or from which it may be inferred
that he will not exercise his right to treat the contract as repudiated.  Mere
inactivity after breach does not of itself amount to affirmation, nor (it
seems) does the commencement of an action claiming damages for breach. The mere
fact that the innocent party has called on the party in breach to change his
mind, accept his obligations and perform the contract will not generally, of
itself, amount to an affirmation

[36]

The judge then cited
Yukong Line Ltd. of Korea v. Rendsburg
Investments Corporation of Liberia
, [1996] 2 Lloyds Rep. 604
.
She
also referred to the following passage from
Abraham v. Coblenz Holdings Ltd.
,
2013 BCCA 512:

[28]

In
my view, an innocent party is not required to communicate its acceptance of a
repudiation immediately. An innocent party must have a reasonable opportunity
to assess the circumstances it finds itself in, to assess its options, and to
explore the possibility of resolving the situation. That is particularly so
where, as here, the tenants had invested a substantial amount of money in the
premises and were not willing to walk away without trying to negotiate a workable
arrangement. What matters is whether, in all of the circumstances, the tenants
acted reasonably in communicating their course of action so as not to prejudice
the other party by inducing it to act as if its repudiation of the agreement
had not been accepted:

Allen v. Robles
, [1969] 3 All E.R. 154
(C.A.).

[37]

I accept that, where a party has repudiated a contract, the opposite
party is entitled to a reasonable period of time in which to decide whether to
affirm the contract or accept the repudiation. I also accept that, at least
until that reasonable period of time has elapsed, a court should be slow to
treat equivocal statements or acts as affirmations of the contract. The courts
solicitude toward the innocent party, however, must not extend to ignoring
unequivocal acts or statements of affirmation made by a party that is aware of
its legal rights.

[38]

In the case before us, I am not persuaded that Mr. Dosanjhs
statements and actions in the aftermath of Ms. Liangs repudiation of the
contract can be interpreted as anything other than an affirmation of the
contract. Immediately after being advised of Ms. Liangs intentions not to
complete the contract, Mr. Dosanjh indicated that it was his intention to
proceed with the purchase. All of his subsequent actions up to September 15,
2011 were consistent only with an intention to treat the contract as an ongoing
one.

[39]

Of particular importance is the lawyers letter of September 8, 2011,
which affirmed that Mr. Dosanjh was ready, willing and able to complete
this transaction on the completion date, October 1, 2011 and indicated that if
Ms. Liang failed to complete, he would pursue remedies including specific
performance. The letter is not consistent with an acceptance of the
repudiation. Further, and most importantly, it is a letter sent at a time when Mr. Dosanjh
had had some time to reflect on the situation, and had obtained legal advice as
to his position.

[40]

Mr. Dosanjhs communications and actions (up until the letter of
September 15, 2011) unequivocally demonstrated an intention to affirm the
contract. There was no evidentiary basis for the judges finding to the
contrary. The evidence establishes that by September 8, 2011 Mr. Dosanjh made
an election to affirm the contract rather than accept Ms. Liangs
repudiation of it.

To What Extent was the
Affirmation of the Contract Irrevocable?

[41]

Normally, after a party has repudiated a contract, the opposite party must
elect whether to affirm the contract or accept the repudiation. If it affirms
the contract, it cannot, later on, re-elect, and choose to accept the
repudiation.

[42]

That does not mean, however, that a party that repudiates a contract is
free to commit fundamental breaches without fear that the contract will be
terminated, nor does it mean that a party guilty of a fundamental breach may
continue to refuse to perform with impunity. Each time a party commits an act
amounting to a repudiation, the opposite party is entitled to elect to affirm
the contract or accept the repudiation. The fact that the innocent party has
previously affirmed a contract does not disentitle it from accepting a new
repudiation of it by the guilty party.

[43]

Equally, a party that has affirmed a contract after a repudiation by the
other party may, if the repudiation is continuing, choose to accept it and
treat the contract as at an end. The issue was explored by Lowry J.A. (Prowse
J.A. concurring) in
Doman Forest Products Ltd. v. GMAC Commercial Credit
Corp.  Canada
, 2007 BCCA 88. After discussing a number of authorities,
including
Fletton Ltd. v. Peat Marwick Ltd.
(1988), 27 B.C.L.R. (2d) 209
(C.A.) leave refused [1988] 2 S.C.R. vi;
Elderfield v. Aetna Life Insurance
Co. of Canada
(1996), 27 B.C.L.R. (3d) 1 (C.A.); and
Bridgesoft Systems
Corp. v. British Columbia
, 2000 BCCA 313, he summarized the law as follows:

[109]

Where a party to an agreement commits a fundamental breach of its terms,
the agreement is repudiated. There has been what amounts to a refusal to
perform. If the repudiation is not accepted, the agreement is affirmed. Where
the breach is ongoing, as distinct from one instance of fundamental
non-performance, there is a continuing repudiation which may, in the absence of
subsequent affirmation, be accepted as long as the repudiation continues. What
in my view is important is that, in order to establish the existence of a
continuing repudiation, particularly when an extended period of time has
elapsed following the affirmation of an agreement, it must be clear beyond
question that there is a continued (
Elderfield
)

or repeated (
Bridgesoft
)

refusal
to perform. The refusal may be manifest in different ways, which may include
silence in response to a request for performance at the time the request is
made, but the refusal must be clear for it is that refusal which is the
repudiation to be accepted.

[44]

In my opinion, the current case is one of continuing repudiation by Ms. Liang.
Mr. Dosanjh and his lawyer undertook extensive communications with Ms. Liang
and her realtor, attempting to ascertain whether Ms. Liang would complete
the transaction. Ms. Liang was unresponsive. Her own silence, combined
with the silence or indifference of her real estate agent, clearly communicated
to Mr. Dosanjh that she would not complete the sale.

[45]

While it became apparent, at trial, that the real estate agent was not
actually avoiding receipt of the deposit, Mr. Dosanjh and his lawyer
reasonably believed that he was doing so. The failure of the realtor to
communicate with them, and his failure to make arrangements for receipt of the
deposit, played a significant role in leaving them with the impression that he
was trying to ensure that the deposit could not be paid.

[46]

In all the circumstances, it is my view that Ms. Liangs
repudiation of the contract was not a single incident, but rather a continuing
fundamental breach of contract. Mr. Dosanjh was, in the circumstances,
entitled to affirm the contract after the initial repudiation on August 29,
2011, and then later, in response to Ms. Liangs continued repudiation, to
treat the contract as at an end.

[47]

In the result, while I differ from the trial judge somewhat in my
analysis of the events, I find that she did not err in finding that Mr. Dosanjh
was in a position, on September 15, 2011, to accept Ms. Liangs
repudiation of the contract.

Was Mr. Dosanjh in
Breach of the Contract?

[48]

Ms. Liang contends that Mr. Dosanjh breached the contract by
failing to pay the $30,000 deposit at the time he waived the conditions that
had been inserted in the contract for his benefit. She argues that this,
itself, constituted a fundamental breach of the agreement, and that she
accepted the breach, thus terminating the contract. In the alternative, she
argues that Mr. Dosanjh was not entitled to accept her repudiation of the
contract at a time when he, himself, was in breach.

[49]

In my view, the issue is simply resolved with reference to the
contractual provisions concerning the deposit. Nothing in the contract required
Mr. Dosanjh to pay the deposit at the time he waived the conditions.
Rather, the deposit was to be paid
after
the conditions were removed. It
can be inferred that the deposit was to be paid before the closing date. Beyond
that, there is little in the contract that sheds light on precisely when the
deposit was to be tendered.

[50]

In my view, the best that can be done with the contractual language is
to interpret it as requiring Mr. Dosanjh to tender the deposit within a
reasonable period once the conditions were waived. Given the unavailability of
the real estate agent, his failure to keep his office open during office hours,
the absence of any communications from Ms. Liang or her realtor on the
issue of the deposit, and Mr. Dosanjhs attempts to tender the deposit, it
is my view that Mr. Dosanjh did not fail to tender the deposit within a
reasonable time period after waiving the conditions. He was, on September 15,
2011, when he gave notice of his decision to accept Ms. Liangs
repudiation of the contract, not in breach of the term requiring him to deposit
funds. The same situation subsisted on September 19, 2011 when Ms. Liang
received his letter.

[51]

I am, therefore, not persuaded that the judge erred in finding that Mr. Dosanjh
was entitled to accept Ms. Liangs repudiation of the contract and sue for
damages. I also agree with her conclusion that he did accept the repudiation,
and did so in a timely manner.

Damages

[52]

Ms. Liang says that the trial judge erred in two respects in
assessing damages. First, she says that the damages crystallized on the date of
the breach, and that the judge erred in awarding damages assessed at a date
three months after the closing. Second, she says that the judge erred in
relying on an assessment by the BC Assessment Authority, which was prepared for
the purposes of municipal taxation, as evidence of the value of the property.

[53]

Ms. Liang points out that the normal rule for damages in breach of
contract is that damages are assessed as of the date of the breach. There are
exceptions to the rule. In particular, where a party is entitled to specific
performance and is awarded damages in lieu thereof, there will be a basis to
assess damages as of the date of trial rather than as of the date of the breach:
Semelhago v. Paramadevan
, [1996] 2 S.C.R. 415.

[54]

In the case before us, Mr. Dosanjh accepted Ms. Liangs
repudiation of the contract on September 15, 2011. As a matter of law, he was
not entitled, thereafter, to seek specific performance. The trial judge,
nonetheless, held that it would be fair to assess damages as of January 2012,
because Mr. Dosanjh could not be expected to find another residence
immediately.

[55]

In my view, the presumption that contract damages are to be assessed as
of the date of the breach is not so easily displaced. It is important that the
law in this area be predictable, and such predictability is not served by
allowing judges unbounded discretion as to the date for assessment of damages.

[56]

In the case before us, there was no evidence of an unusual rise in real
estate prices in Burnaby between September 19, 2011 (the date that acceptance
of the repudiation was communicated) and January 2012. There was also very
limited evidence of any efforts made by Mr. Dosanjh to find an appropriate
residence in Burnaby. In the circumstances, it cannot be said that the ordinary
rule that damages are assessed at the date of breach was displaced.

[57]

A more serious difficulty with the assessment of damages was the trial
judges reliance on the assessment to determine the property value.

[58]

In deciding to admit the assessment as evidence, the trial judge
referred to a number of family law cases in which assessments had been used by
the trial court to determine the value of real property. She purported to rely
on the opening words of Rule 11-7 of the
Supreme Court Civil Rules
, B.C.
Reg. 168/2009, as providing her discretion to admit the evidence.

[59]

There is some difficulty in relying on family law cases for the
proposition that assessments should be admissible evidence to determine the
value of real property. While the rules of evidence are applicable to family
law proceedings, they are often applied in a relaxed manner. I agree with the
recent observations of Kent J. in
Walker v. Maxwell
,
2014 BCSC 2357:

[64]      Of course, one of the stark realities of family law
litigation is that the parties are often unrepresented by counsel and/or are
unable to afford the substantial cost of experts and the procuring of expert
evidence.

[65]

Evidence
in family law cases is subject to the same rules applicable to any other area
of civil law. In reality, however, the technical yields to the practical and
the strict rules of evidence are often ignored or accorded only slight
deference.

[60]

While trial courts have, with some frequency, admitted property assessments
as evidence of property value in family law cases, they have generally done so
either with the agreement of the parties, or, alternatively, where no other
evidence of value has been tendered (e.g.
Chung v. La
, 2011 BCSC 1547). Where
proper expert evidence of value has been tendered, the courts have been
reluctant to consider property assessments as evidence (see, for example,
Hall
v. Mougan
, 2009 BCSC 645).

[61]

In family law cases, a court is often faced with having to assess the
value of real property in a situation where neither side is clearly subject to
any burden of proof. Rather, the court is simply required to estimate the value
of property for the purpose of dividing a family asset. It is not surprising,
in such situations, that a court may grasp at straws in an attempt to reach a
just result. It is simply a matter of doing the best job possible with limited
evidence.

[62]

It seems to me that different considerations arise in non-family cases,
where one party or the other will generally bear the onus of producing evidence
of property value.

[63]

It is not necessary, in this case, to make any pronouncement as to the
scope for admission of property assessments as evidence of property value in family
law cases, and I will refrain from doing so. In my view, however, there is,
absent agreement, no scope for using assessments in place of expert opinion
evidence in cases such as the present one.

[64]

The trial judge erred in her reliance on the opening words of Rule 11-7.
The relevant provisions of the rule are as follows:

11-7 (1) Unless the court otherwise orders, opinion evidence
of an expert, other than an expert appointed by the court under Rule 11-5, must
not be tendered at trial unless

(a) that evidence is included in a
report of that expert that has been prepared and served in accordance with Rule
11-6, and

(b) any supplementary reports
required under Rule 11-5 (11) or 11-6 (5) or (6) have been prepared and served
in accordance with Rule 11-6 (5) to (7).

(6)
At trial, the court may
allow an expert to provide evidence, on terms and conditions, if any, even
though one or more of the requirements of this Part have not been complied
with, if

(a) facts have come to the
knowledge of one or more of the parties and those facts could not, with due
diligence, have been learned in time to be included in a report or
supplementary report and served within the time required by this Part,

(b) the non-compliance is unlikely
to cause prejudice

(i) by reason of an inability to
prepare for cross-examination, or

(ii) by depriving the party against
whom the evidence is tendered of a reasonable opportunity to tender evidence in
response, or

(c) the interests of justice require it.

[65]

Rules 11-6 sets out special requirements for expert opinion evidence. It
is designed to ensure that adequate notice is given of the intention to adduce
expert evidence, and to ensure that expert reports are presented in a
particular form. Rule 11-7 allows the court to dispense with the requirements
of Rule 11-6 in certain limited circumstances (see
Perry v. Vargas
, 2012
BCSC 1537 and
XY, LLC v. Zhu
, 2013 BCCA 352).

[66]

In those limited circumstances, Rule 11-7 allows a judge to admit
opinion evidence at trial where the evidence, though otherwise admissible,
fails to meet the requirements of Rule 11-6. Nothing in Rule 11-7 purports to
allow a judge to admit into evidence an expert opinion that does not meet the
requirements of
R. v. Mohan
,
[1994] 2 S.C.R. 9.

[67]

The basic difficulty with the property assessment as evidence of
property value is that the court had no basis on which to evaluate its cogency.
The court was not able to determine how the assessor went about making the
assessment, and had no basis for determining what weight to give it. This was a
particular problem in this case, as the court had no basis for determining the
effect of the recent use of the property to grow marijuana on the property
value.

[68]

I acknowledge, again, that these sorts of difficulties have not always
been seen as precluding the admission of assessments as evidence of value in
family law cases (see, for example,
Dykman
v. Dykman
, 2011 BCSC
883). Whatever discretion a court may have to admit such evidence in a family
law case, however, it did not have that discretion in the case before us.

[69]

As the trial judge observed, there was some evidence before her to the
effect that the market value of the property in September 2011 was
substantially higher than the contract price. The evidence of how much higher,
however, was minimal. Given that the assessment report was not admissible, the
trial judge was faced with a formidable (perhaps impossible) task in trying to
determine the quantum of damages.

[70]

Fortunately, the parties, recognizing the problem, agree that if the
assessment is found to be inadmissible, it is appropriate for this Court to
remit the matter to the trial court for a new hearing on the issue of quantum
of damages. Given the agreement of the parties on this issue, I would remit the
matter of quantum of damages for a new hearing.

Conclusion

[71]

In my view, the judge was correct in finding that Mr. Dosanjh was
entitled to accept Ms. Liangs repudiation of the contract, and that he
did so in a timely manner. I would not disturb her finding that Ms. Liang
is liable in damages.

[72]

I am, however, of the view that this case did not present a basis for
assessing the damages on a date other than the date of breach. I am also of the
view that the judge erred in relying on contested evidence of property value in
the form of a property assessment.

[73]

Given the position taken by the parties, I would allow the appeal to the
extent of returning the matter to the trial court for an assessment of the
amount of damages suffered by Mr. Dosanjh.

The Honourable Mr. Justice Groberman

I agree:

The
Honourable Mr. Justice Lowry

I agree:

The Honourable Madam Justice
Bennett


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Cliff,

2015 BCCA 15

Date: 20150114

Docket: CA039855

Between:

Regina

Respondent

And

Jamie Michael
Cliff

Appellant

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Tysoe

On appeal from:  An
order of the Supreme Court of British Columbia, dated
June 10, 2011 (
R. v. Cliff
, Vancouver Docket No. 25247).

Counsel for the Appellant:

J. Narwal

Counsel for the Respondent:

F.G. Tischler

Place and Date of Hearing:

Vancouver, British
  Columbia

December 12, 2014

Place and Date of Judgment:

Vancouver, British
  Columbia

January 14, 2015

Written Reasons by:

The Honourable Madam Justice Newbury

Concurred in by:

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Tysoe

Summary:

Appellant was convicted of
second degree murder following a jury trial. Crown led evidence from a witness
in respect of whom trial judge issued a Vetrovec warning. Crown also cross-examined
the appellant on his post-offence conduct, which included giving police a false
name. Although there was evidence the appellant had been drinking, the trial
judge did not instruct the jury on intoxication after defence counsel agreed
such warning was unnecessary. Appellant argued on appeal that trial judge erred
in not instructing the jury on his right to silence, in failing to instruct the
jury that corroboration was not required with respect to the appellants own
testimony, and in not providing instructions on intoxication.

Held: appeal dismissed.
Appellants right to silence was not violated by the Crowns questioning, the
purpose of which was clearly to challenge his credibility rather than to
suggest he had a duty to co-operate with police. Even though appellant had a
similar history to the Vetrovec witness, an anti-Vetrovec warning was not
required. The standard W.(D.) instruction was sufficient to allay any potential
prejudice in these circumstances. Finally, trial judge did not err in failing
to instruct jury on intoxication. There was no air of reality to an
intoxication defence, nor was there sufficient evidence of intoxication upon
which a reasonable jury could infer the appellant did not have the requisite
intent or capacity for murder.

Reasons for Judgment of the Honourable
Madam Justice Newbury:

[1]

Following a trial of some 11 weeks, the appellant Mr. Cliff was
convicted by a jury of the second degree murder of Lana Christopherson and
Andrew Gawley. The murders took place in Vancouver on the morning of October
25, 2008 at about 8:00 a.m. Ms. Christopherson died as a result of
multiple stab wounds shortly after she was attacked in a two-bedroom apartment
rented by Mr. Gawley. He had his throat slit and was doused with gasoline
and set on fire in the same attack. He survived a few months but ultimately
died without being able to identify his killer. He told the police, however,
that after he was stabbed, the assailant told him to Go to sleep, you are
dead. Mr. Gawley managed to call 9-1-1 before the man came back into his
room, poured gasoline on him and lit it on fire.

[2]

It appears that the relationship between Ms. Christopherson and Mr. Gawley
was simply one of roommates, while Mr. Cliff and Ms. Christopherson
had recently lived together. Both were drug addicts and Ms. Christopherson
had assisted the appellant in his business as a drug dealer and seller of
stolen goods. Prior to October 25, police had raided Mr. Cliffs
residence. He had escaped and was hiding out elsewhere lest the police
return to arrest him on drug offences. Ms. Christopherson had remained at
the residence and was in contact with him by phone, email and text. Various
emails written by Mr. Cliff to various friends and associates suggested
that he had begun to suspect her of stealing from him, and that she might even
inform on him to police in order to keep custody of her child. Two days
before the murders, Ms. Christopherson had given him a letter (the
Hey Crazy letter) in which she purported to break off their relationship.

[3]

The case against Mr. Cliff was entirely circumstantial, but was
nevertheless very strong. There was evidence that he and Ms. Christopherson
had been together the night before October 25, 2008 at a meth emporium
operated by a friend, Ms. Montgomery. They had argued and were told to be
quieter. They packed up and took a cab at about 2:30 a.m. to the apartment
building (Earls Court) where Ms. Christopherson was sharing a suite
with Mr. Gawley. A resident of the building saw a man and woman in the fourth
floor hallway at about 4:20 a.m. and later identified Mr. Cliff as the man.
Video surveillance from Earls Court showed the appellant and Ms. Christopherson
entering the building, Mr. Cliff carrying a red carrying case.

[4]

A red gas can was found in the hallway after the attack; it appears this
contained the gasoline by which the fire was set. This container could have
been carried in the case carried by Mr. Cliff in the video surveillance
from Earls Court.

[5]

A blood-stained jacket and shirt belonging to the appellant were later found,
along with the Hey Crazy letter from Ms. Christopherson, in a housing complex
nearby. The shirt tested positive for Mr. Cliffs DNA. When he was arrested
on October 28, he had second-degree burns on his left hand and thighs, and
initially provided a false name. One (and only one) series of footprints
leading from the fifth floor of the building to the ground floor and then
to the back exit were found; Mr. Cliffs left-hand print was found in Ms. Christophersons
bedroom and on the bannister of a stairwell in the building. There was
no evidence of forced entry to Mr. Gawleys suite, #508.

[6]

Counsel agreed at trial that the critical issue was the identity of the
killer(s). The only evidence called by the defence was Mr. Cliffs
testimony. A great volume of his testimony in chief consisted of his
explanation of various email messages he had sent to and received from friends
and associates over the weeks prior to the murders. These were difficult to
decipher, but painted a picture of an erratic and at times paranoid
personality.

[7]

With respect to the events of October 24-25, 2008, the appellant
acknowledged that he and Ms. Christopherson had arrived at Earls Court after
having argued, and that she had given him the Hey Crazy letter breaking off their
relationship. They had arrived carrying his computer equipment, surveillance
cameras, clothing, body armour, alcohol and drugs. He said the red carrying case
contained drugs and he denied bringing a can of gasoline.

[8]

Mr. Cliff testified that when they arrived at Mr. Gawleys
suite, he and Ms. Christopherson were a little bit drunk. They drank a
little more, had sex, and then went to sleep. He said he was woken by two men
whom he first thought were police. One had a gun, and a third was talking to Ms. Christopherson.
They were not wearing masks. The appellant was taken into the living room and
told to sit; he said he did not recognize any of the three men. The assailants
demanded drugs and when Mr. Cliff refused to hand any over, gas was thrown
on him and he was lit on fire. He rolled around the floor and was burned
between his legs and on his hand. The assailants did not try to stop him
rolling around. He finally told the men that it was in the red bag.

[9]

Meanwhile, Mr. Cliff said, he could hear commotion in Ms. Christophersons
room, and then a scream. He heard Ms. Christopherson say Hes going to
kill me and then an explosion occurred. He said he managed to break free and
ran to her room. He saw that she was not moving, although her eyes were open.
He said he did not think there was anything he could do to help her. He ran out
the door into the hallway to an exit, ran down the stairs and jumped over the
back fence to another apartment complex where he shed most of his clothes and
the Hey Crazy letter.

[10]

Mr. Cliff testified that he began looking for a hose because his
legs were burning. He first removed his jacket after emptying the pockets,
then threw off his other wet clothes and left the apartment complex. (His
discarded clothes showed no signs of burning.) By this time, he was in his
underwear. He found a ladys shirt or sweater on someones porch and put it on.
Eventually he found some shoes in the back of a truck. He went into a local
mall where he bought a pair of jogging pants and another shirt. He then caught
a bus to Burnaby, where he transferred to another bus going downtown and went
to the house of a friend where he stayed for one night. He then went to the
house of another friend.

[11]

When asked in chief if he had killed Ms. Christopherson or stabbed Mr. Gawley,
Mr. Cliff said he had not, and that he did not know who the assailants had
been. In his words:

I didnt get to see the one guy and the other two guys, Ive
never seen them before. My friends have been asking me that since Ive been in
jail. They wanted, like, they  like, they want to go after these people. Like,
what do you think?
Like, if I knew who they were, like, Id be doing
something about it. Like, whether it be by the law or not, like, I would want
to be telling my friends or telling somebody. At this point Id probably want
to tell the police
. Like, weve talked about this before. I would  I would
do anything right now. Like, Im willing to cooperate. Like, Im willing to be
as open as I can.

Because you know what?
Being
called a  being called a rat right now to me isnt important
. Like, two
people got killed and its like, I think everybodys looking at me probably
like Im a piece of shit. Like, putting me on the news. My family wont, like,
talk to me. Everybody looks at me like Im a monster. I want people to
know who did it. I dont want people to be scared of me everywhere. [Emphasis
added.]

[12]

The Crowns theory was that Mr. Cliffs testimony regarding three
intruders was a total fabrication. There was no physical or surveillance
evidence to suggest that three men had entered Earls Court or been in suite
508. In cross-examination, Mr. Cliff acknowledged that although the love
of his life had been stabbed and there was a fire in her apartment, he had not
called an ambulance or the police to come to her assistance. Instead, he said, he
had called a friend who was a pretty prominent leader of an organized crime
group and his friend Alison Cain and another friend because he wanted help for
himself. Ultimately, he agreed he had done whatever he could not to get caught
and ... absolutely nothing to help ... Lana. Although the theory of the
defence was that Mr. Cliff himself, as an important drug dealer, was the
high value target of the three intruders, he could provide no explanation for
the fact that Ms. Christopherson and Mr. Gawley (whom Mr. Cliff
said he had never met) had been killed and he, Mr. Cliff, had not been
killed. He acknowledged that the intruders had not chased him down the hall as
he left the apartment; nor had he seen anyone pursuing him as he jumped over
the fence to the other complex  even though he had been an eyewitness to
horrific crimes. He had made no effort to obtain medical attention for his
burns.

[13]

Mr. Cliff testified that when he read about Ms. Christophersons
death in the newspaper, he had felt bad. The following exchange with Crown counsel
then ensued:

Q         Mr. Cliff, if you really, truly thought
there was hope for Lana and if you really and truly loved Lana as you say you
did, you would not have hesitated but to take that cellphone of yours, call
911, call the ambulance so that immediate help could arrive for your lover,
Lana. Isn't that right?

A          I made a mistake, yes.

Q         You made a mistake and on your evidence that
mistake cost Lana her life?

A          I don't want to
think of it that way. But you're right, I could have.

and

Q         And by giving the police a false name, you
thwarted the police efforts to find who you say were the real killers.

A          I'm not sure that I thwarted their efforts to
do that by giving a false name. That had to do with arresting me for
questioning and that had to do with  yeah, potentially if I  if I was willing
to give a statement  that would be assuming a lot of things. To say that,
you've got to assume I'm going to make a statement once I'm arrested and I did
call a lawyer right away. I called [a Vancouver lawyer] and [the lawyer] told
me there's no way I should give a statement whatsoever. My counsel instructed
me and they told me, they go, "Just keep your mouth shut. Sit there. Get
medical attention and then we're going to talk to you."

Then I had to wait. He couldn't
do me  he couldn't be my lawyer. I then got [defence counsel at trial] as
counsel, I called him and then he instructed me upon the same things. So I
haven't  I haven't given the police any statements at all.

Q         By giving the police a false name, the name of
Adam Warkinson when you were arrested on October the 28th, you did anything but
cooperate with the police which you say  said yesterday you really wished you
would do now. Isn't that right?

A          Yes.

There was no evidence of any statement the appellant gave to
police apart from his providing the false name when arrested.

[14]

In cross-examination Mr. Cliff was asked to view the video
surveillance of the front entrance of Earls Court on the day of the attacks.
He agreed that none of the persons shown entering or leaving looked like the
assailants.

Discussions
between Counsel and the Court Regarding Jury Charge

[15]

The trial judge had extensive discussions with counsel concerning his
proposed charge. As noted in the Crowns factum, both counsel agreed, first of
all, that there was no basis for the judge to charge on manslaughter as opposed
to murder, given the nature of the injuries suffered by both deceased and the
fact that gasoline had been brought to the apartment and poured over Mr. Gawley.

[16]

Second, although Mr. Cliff had testified that he and Ms. Christopherson
had finished the booze when they reached her room at 4:00 a.m., counsel were
in agreement that there was no air of reality to the suggestion that Mr. Cliff
had been intoxicated at the time of the attacks (8:00 a.m.) to the extent that
would justify putting the defence of intoxication to the jury. Indeed, experienced
defence counsel agreed there was no reasonable chain of reasoning on the
evidence that could lead [the jury] to manslaughter by intoxication.

[17]

Counsel agreed with the judge that a
Vetrovec
warning should be
given with respect to the evidence of Ms. Montgomery, who in the words of
counsel for the defence at trial ran a crystal meth emporium. Counsel also agreed
with the suggestion that the jury should be charged specifically on three acts
of post-offence conduct  Mr. Cliffs flight from the murder scene, the
discarding of his clothing with Ms. Christophersons blood on it, and the
giving of false names upon arrest. It is important to note that no challenge was
made on appeal regarding the judges instruction on this conduct.

[18]

In the course of the colloquy with the Court, defence counsel asked the
judge to emphasize the fact that the jury must be diligent to contain the
bad character evidence that theyve heard of the accused. He continued:

And that, I think extends to some
of the unlawful, not just the unlawful activities of the accused but the
unlawful possessions of the accused. Or maybe not unlawful but unsavoury
possessions of the accused. So like the smoke bombs and the false ID and the
crossbow, of course. Drugs, as testified to.

The trial judge responded that he was not inclined to spend
a lot of time cataloguing all of the things that they might find to be
disreputable or illegal conduct, not only because he might leave something
out, but because it just has the effect of re-emphasizing it. Counsel replied
Okay and the discussion ended there.

[19]

In his charge, the trial judge gave a
Vetrovec
warning with
respect to Ms. Montgomery in the usual terms, ending with the admonition
that the jury should be reluctant to accept her testimony in the absence of
any supporting evidence or confirming evidence. The judge then immediately told
the jury that:

During the testimony of Lynn
Montgomery, you heard her say that Mr. Cliff may have been someone
involved in drugs. You also heard her say that he had gotten out of jail. You
also have before you evidence of text messages and emails that refer to drugs
or sexual matters or the police. You also heard Mr. Cliff testify about
such things.
I must warn you that you must not use this as evidence that Mr. Cliff
is a person of bad character who was therefore more likely to have committed
the offences for which he is now on trial
. He is charged on the indictment
only with the murder of Lana Christophersen and with the murder of Andrew Gawley.
He is not on trial for any of his past conduct other than the matters set out
in the indictment.
You must not use evidence of other disreputable or even
illegal conduct to infer that he was therefore more likely to have committed
the offences set out in the indictment, nor may you use the evidence to punish Mr. Cliff
for other past misconduct by finding him guilty of the offences charged.

and further:

You should approach his evidence the same way you would
approach the evidence of any other witness, bearing in mind what I told you
earlier about the credibility of witnesses. Please remember that you do not
have to accept or reject all of the evidence of any witness, including Mr. Cliff.
It is up to you whether you accept all of his testimony, part of his testimony,
or none of his testimony.

It is not a question of whether
or not you believe Mr. Cliffs testimony. If his evidence raises a
reasonable doubt in your mind about his guilt, then you must return a verdict
of not guilty.

[20]

In his review of the evidence relating to identity, the judge told the
jury to consider all the relevant evidence and to:

consider Mr. Cliff's
testimony that he did not stab either Lana Christophersen or Mr. Gawley
and his testimony that he did not set Mr. Gawley on fire. Consider his
testimony that three unknown men had entered the apartment, apparently looking
for his drugs, and that they attacked him, causing burns to his body. He says
that these are the men who attacked Lana Christophersen and Andrew Gawley. Consider
Mr. Cliff's testimony that after the attack he tried to pick up Lana and
in doing so got her blood on him. Consider his testimony that when he left the
apartment he did not know whether she was still alive. Consider the cellphone
records and the fact that after he left the apartment he called several of his
associates but he did not try calling Lana and did not call 9-1-1 or an
ambulance. Consider the evidence of the police witnesses that they found no
evidence of forced entry to suite 508.

As already mentioned, the jury convicted Mr. Cliff of
the second degree murder of both Ms. Christopherson and Mr. Gawley.

On Appeal

[21]

In this court, the appellant asserts the following three errors on the
part of the trial judge:

A.         The
learned trial judge erred in failing to instruct the jury that it could draw no
adverse inference from the fact that the Appellant exercised his right to
silence and his right to counsel.

B.         The
learned trial judge erred in his instruction to the jury regarding their
assessment of the Appellants evidence and in particular failed to instruct the
jury that corroboration of the Appellants evidence was not required.

C.        The learned trial judge erred in
failing to instruct the jury on the defence of intoxication or, in the
alternative erred in failing to review and relate the evidence of the
Appellants consumption of drugs and alcohol to the required intent for
second-degree murder.

[22]

Mr. Narwal for the appellant acknowledged that defence counsel at
trial argued
against
the trial judges instructing the jury on
intoxication, and that counsel said nothing about a warning to the jury
concerning the appellants right to silence or about corroborative evidence
in relation to the appellants testimony. Mr. Narwal pointed out that
although this is a factor to be considered by this court on appeal, it is not necessarily
fatal. Mr. Tischler for the Crown did not disagree, but contended that the
position of counsel at trial is a significant demonstration of the
correctness of the trial judges instructions and that it is very rare
that an appellate court will find an error on a matter agreed upon by counsel
and the trial judge. (See, e.g.,
R. v. Shannon
2014 BCCA 250 at para. 12,
citing
R. v. Fontaine
2011 BCCA 140 at para. 13.) I would add
that as the trial judge suggested in this case, defence counsel might also make
a
tactical
judgement that the risks of a trial judges emphasizing certain
evidence in the course of a warning or other instruction outweigh the possible
beneficial effects of such a warning. This is a judgement that generally lies
within the expertise of counsel in consultation with his or her client.

Right to Silence

[23]

Counsel for the appellant submitted that in cross-examining Mr. Cliff
as to his failure to take any steps to protect or assist Ms. Christopherson
after the appellant had fled the apartment, the Crown had trenched on his
right to remain silent. Although Mr. Narwal acknowledged that the Crowns
questions  including those reproduced above at para. 13  had been
intended to challenge the credibility of Mr. Cliffs assertions that he
had loved Ms. Christopherson, counsel contended that the Crown had acted unfairly
in suggesting that Mr. Cliff was required to call police or emergency
services to assist her. As well, it was said, the appellant had not thwarted
the police by giving them a false name when he was first detained.

[24]

Mr. Narwal referred us to
R. v. Snelson
2013 BCCA 550, in
which the trial judge was held to have erred in admitting into evidence the
accuseds statement, in the course of a long interview with police, that
he had not yet decided whether he intended to plead guilty or not. In charging the
jury, the trial judge mentioned the statement and observed that it was both
unambiguous and obviously inconsistent with ... innocence. He gave no further
warning regarding the accuseds right to silence and, as this court found, left
the jury with the impression that they could draw an inference of guilt from
the statement. No such error was made in this case, and indeed as noted
earlier, there was no evidence of
any
statement made to the police by Mr. Cliff.

[25]

We were also referred to
R. v. Chambers
[1990] 2 S.C.R. 1293. In
that instance, the Crown in cross-examining the accused suggested that he had
recently concocted a story involving his co-accused, one Kuko. The Crown then
asked the accused why he had not provided this story when he had been arrested.
Mr. Chambers replied that As a lawyer I would never talk to the
authorities under any condition where theyve laid conspiracy charges and
arrested a whole bunch of people. The questioning continued along these lines
until defence counsel objected and the jury was excused. The trial judge
reserved his ruling on the issue. (See p. 1314.) Evidently, documentary
evidence was available that demonstrated that the accused
had
put
forward the defence that he was pretending to participate in a conspiracy with
Kuko but had never intended to become a party to it. It was unclear exactly
when the Crown became aware of this defence, but it had clearly been conveyed
to Crown counsel prior to commencement of the trial. (Para. 55.)

[26]

The Supreme Court described what occurred next:

Eventually Crown counsel appeared
to agree with the position taken by counsel for the appellant. Both counsel
requested the trial judge to direct the jury to ignore completely the questions
and answers given pertaining to the appellant's silence not only on the issue
of guilt or innocence, but also with respect to the issue of the appellant's
credibility. The trial judge undertook to give these directions. It was on this
basis that defence counsel advised that he would not re-examine the appellant
with respect to the issues arising from his right to silence. Although the
trial judge confirmed that it was his responsibility to give these instructions
to the jury, he neglected to do so. Neither counsel reminded him of his
undertaking at the completion of the charge. Counsel must share with the trial
judge the responsibility for the omission of this important direction. The
remaining question is whether the omission constitutes a reversible error. [At 1315.]

[27]

The Court concluded that unless the Crown could establish a real
relevance and a proper basis for the admission of the questions of the
investigating officers and the evidence as to the accuseds ensuing silence,
that evidence should not have been admitted. Further, without a direction from
the trial judge to the effect that the accused had been under no duty to
disclose the Kuko story to a person in authority when asked, the curative
proviso in s. 613(1)(b)(iii) of the
Code
could not be applied. In
the words of Mr. Justice Cory for the majority:

... As a result of the Crown's
cross-examination, the jury could well have been left with the erroneous
impression that Chambers was under a duty to disclose the Kuko story to a
person in authority. The failure to disclose a defence of alibi in a timely
manner may be considered in assessing the credibility of that defence but that
is a unique situation. As a general rule there is no obligation resting upon an
accused person to disclose either the defence which will be presented or the
details of that defence before the Crown has completed its case.
There was
clearly no obligation resting upon the appellant to disclose either his defence
of double intent or the Kuko story to the Crown or anyone in authority. The
failure to correct such an impression by direction from the trial judge
rendered the right to silence a snare of silence for the appellant.
Without
any direction to ignore these questions and answers, it is impossible to say
that the verdict would necessarily have been the same. [At para. 66;
emphasis added.]

[28]

In my view, however, these cases and others cited by the defence
(including
R. v. White
2011 SCC 13 at para. 168 and
R. v.
Poirier
(2000) 146 C.C.C. (3d) 436 at 442-4) do not assist Mr. Cliff.
The questions addressed to him in cross-examination by the Crown were not aimed
at the fact  he had remained silent in any interaction with the police or
failed to disclose some aspect of his defence; rather, the Crown was attacking
the credibility of his
testimony
that he had loved Ms. Christopherson;
that he had run away from the apartment because he did not think he could do
anything; that he would do anything to co-operate with the police; and that
being known as a rat was not important to him given that two people had been
killed. The Crown was not suggesting that Mr. Cliff had a duty to co-operate
with them, but that his testimony to the effect that he would help the police
if he could, was not believable, given his flight from the scene of the attacks,
the fact he made no effort to call emergency services, the giving of a false name
when he was arrested, and his refusal to name the friend he had called on after
the murders. I do not regard the questions asked by Crown counsel in
cross-examination of Mr. Cliff, or the admission of his testimony in
response, as undermining his right to silence in any material way. His
right to silence did not mean the Crown could not cross-examine him at trial on
his testimony in chief.

[29]

I would not accede to this ground of appeal.

Anti-Vetrovec
Warning?

[30]

Under this rubric, Mr. Narwal submits that since a
Vetrovec
warning was given to the jury concerning their use of Ms. Montgomerys
evidence, and the appellant was, like her, a drug dealer and otherwise
unsavoury character, the trial judge should have told the jury that they should
not
, or need not, look for corroboration of
Mr. Cliffs
evidence before believing him. Instead, as we have seen (see para. 19 above),
the judge told the jury to approach Mr. Cliffs evidence in the same way
as the evidence of any other witness
and
that they should not use
evidence of his illegal conduct to infer that he likely committed the murders.
Near the beginning of his charge, the judge had also given the usual
W.(D.)
warning concerning the matter of credibility in relation to Mr. Cliffs
testimony. The defence contends the jury should have been warned specifically,
however, that corroboration was
not
required with respect to Mr. Cliffs
evidence in order to raise a reasonable doubt.

[31]

Counsel were unable to refer us to any case in which a warning of this
kind has been required or even requested. We were referred to the decision of
the Ontario Court of Appeal in
R. v. Chenier

and Farley
(2006)
205 C.C.C. (3d) 333, which concerned an alleged murder conspiracy on the part
of the two accused. The Crowns case relied largely on the evidence of one
Boisclair, one of the alleged co‑conspirators, and to a lesser extent the
testimony of one Moore. Boisclair testified about several abortive plans to
kill the deceased and about the murder itself, which he said Chenier had
arranged to be carried out by Boisclair and Farley. He testified that Farley
had shot the deceased with a gun provided by Chenier and that he, Boisclair,
drove the get-away car. Boisclair had made a deal with the Crown under
which he was permitted to plead guilty to manslaughter in return for his
testimony against Chenier and Farley. Neither of those men testified at trial,
but the defence position was that it was Boisclair who alone had committed the
murder and that he had fabricated his evidence.

[32]

In his charge in
Chenier
, the trial judge told the jury that in
weighing the testimony of Boisclair and Moore, they should look for whatever
you feel tends to confirm the reliability and truth of their accounts before
deciding what of their evidence to accept. (At 349.) This warning was found to
be inadequate for a number of reasons. In the words of Mr. Justice Blair:

... First, while the trial judge
instructed the jurors to be very careful about accepting the evidence of
Boisclair and Moore without other confirmatory evidence, he did not make it
clear - expressly or by implication - that it was dangerous to convict on the
basis of their evidence alone in the circumstances of this case. Secondly, the
trial judge failed to properly explain the concept of confirmatory evidence in
the context of a
Vetrovec
warning. Finally, the trial judge's
instruction that Boisclair's plea of guilty to manslaughter was of no
evidential value - although correct in the narrow context in which it was
given - may well have misled the jury into giving less weight to the extent of
the benefit that Boisclair and Moore received through their plea bargain than
should have been the case. [At 347-8.]

[33]

Another successful ground of appeal in
Chenier
arose from the
fact that the trial judge gave a
Vetrovec
warning concerning the
evidence of one Gagnon, who was Boisclairs father. He was called
by
the defence
to support the assertion that it was Boisclair who had killed
the deceased because he, Boisclair, had owed money to the deceased. Regarding
Gagnons evidence, the trial judge told the jury:

I would give you the same caution about Andy [Gagnon], who
took the stand near the end of the trial, Boisclair's father
.

His serious criminal and
antisocial background and dysfunctional early life and his time spent in prison
and possible interest in the outcome of the case is also cause for giving his
evidence most careful scrutiny before deciding whether to place any reliance
and if so, what amount of reliance, upon that evidence. [Emphasis added.]

This was followed by a
W.(D.)
-like
instruction in relation to Gagnons testimony, including the following:

However, when you consider the
evidence of Andy Gagnon, called by the defence to support the suggestion that
it was Boisclair who may have killed Earl Joe because he had become indebted to
him and as Gagnon said, had got into deep shit,
you will not be asked or
called on to decide whether you believe Gagnon beyond a reasonable doubt but
only whether that evidence raises a reasonable doubt in your mind whether it
was Farley who shot Earl Joe
or indeed, André Boisclair as Mr. Murphy
suggests and as I think was the obvious inference to be taken from Andy Gagnon's
testimony before you. [Emphasis added.]

[34]

The Court of Appeal rejected the Crowns argument that the impact of any
Vetrovec
direction with respect to Gagnon had been neutralized by the
W.(D.)
instruction. Again in the words of Blair J.A.:

... The rationale behind the
principle that
a
Vetrovec
warning is not to be given in connection
with defence evidence is that the instruction to look for
confirmatory/corroborative evidence impermissibly transfers a burden to the
accused and is contrary to the requirements of
W.(D.)
. Defence evidence
need only raise a reasonable doubt
. In spite of this relationship between
Vetrovec
and
W.(D.)
in the context of defence evidence, however, the purpose of a
Vetrovec
warning and the purpose of a
W.(D.)
instruction are quite
different. The former is designed to help equip the jury to assess the
reliability of, and the weight to be given to, the testimony of a disreputable
or unsavoury witness called to advance the Crown's case. The latter is designed
to help equip the jury to assess whether the Crown has met its onus of proving
the case beyond a reasonable doubt on all of the evidence, once the reliability
or non-reliability of the defence evidence has been determined.
Thus, where
the charge goes beyond what is permissible commentary on the credibility of an
unsavoury defence witness and directly or implicitly instructs the jury to find
independent confirmation of the witness testimony, it is unlikely that
coupling such a direction with a specific
W.(D.)
-like directive will
mitigate the erroneous
Vetrovec
warning respecting the defence witness.
Such was the case here.
[At 353-4; emphasis added.]

Ultimately, the appeal was allowed and a new trial ordered.

[35]

The Court in
Chenier
did not refer to an earlier decision of the
Ontario Court of Appeal,
R. v. Oliver and Morrison
(2005) 194 C.C.C. (3d)
92. The accused in that case were charged jointly with the second degree murder
of a Mr. Pace. The theory of the Crown was that the two accused had
accosted and beaten Pace and were guilty of murder as co-perpetrators or as
aiders and abetters. Oliver did not testify, but Morrison did. He testified
that Oliver and Pace had gotten into a fight which Morrison had been unable to
break up and that he, Morrison, had left the scene. The fight between
Oliver and Pace had continued. Both Oliver and Morrison were convicted of
second degree murder.

[36]

One of the grounds of appeal arose out of the following instruction
given to the jury:

Subject to any specific contrary instructions that I may give
you, you may consider the testimony of Mr. Morrison to help you decide the
case of Mr. Morrison and of Mr. Oliver. You do not consider that
testimony only to help you decide the case of Mr. Morrison.

I would add this caution. Mr. Morrison
has given testimony that tends to show that only Mr. Oliver was involved
in any assault on Mr. Pace. You should consider that testimony with
particular care because he may have been more concerned about protecting
himself than about telling you the truth. Bear that in mind when you decide how
much or little you can believe of or rely on what Mr. Morrison told you
about Mr. Oliver's involvement in deciding this case. [At 107.]

[37]

The defence argued that this caution was akin to a
Vetrovec
warning, which the Court of Appeal agreed is inappropriate in respect of any
defence witness much less the accused. The Crown emphasized that the caution
was
not
a
Vetrovec
warning but had been directed at the jurys
potential use of
Morrisons
evidence to implicate
Oliver
[and
that] the caution protected Olivers fair trial right without
compromising Morrisons equivalent right to a fair trial. (At 107; my emphasis.)

[38]

Mr. Justice Doherty for the Court of Appeal ultimately agreed with
the Crown on this point. He ruled that the instruction had achieved the
appropriate balance:

... The trial judge told the jury
that his "caution" should be borne in mind when considering
Morrison's evidence as it applied to Oliver's involvement in the homicide. He
immediately followed this "caution" with the classic reasonable doubt
instruction from
R. v. W.(D.)
, 63 C.C.C. (3d) 397 (S.C.C.). That
instruction made it clear to the jury that when considering Morrison's evidence
as it related to the case against Morrison, the jury was required to acquit if
that evidence alone, or in combination with other evidence, left them with a
reasonable doubt. [At 108.]

He went on to observe that:

The second point I would make is
this. Where a trial judge determines that the fair trial rights of a co-accused
require a "caution" with respect to the testimony of the other
accused,
the trial judge should expressly tell the jury that the caution
applies only to the case against the co-accused
and has no application when
considering the case against the accused who has testified.
While I am
satisfied that this instruction had that effect, a more express limitation of
the "caution" would have been preferable.
[At 109.]

[39]

Chenier
, then, involved the giving of an
erroneous

Vetrovec
warning, while
Oliver
involved a warning given correctly concerning an
alleged co-conspirators testimony which the Court found would not, given the
W.(D.)
warning, have been misused by the jury. Neither case stands for the proposition
that where a
Vetrovec
warning is
properly
given, the trial judge
must, or should, caution the jury against extending it beyond its clear
boundaries.
Oliver
indicates that a
W.(D.)
instruction can
operate to neutralize any possible misunderstanding of a specific caution,
and I believe the same reasoning applies here. If it were otherwise, the
consequences would be far-reaching: in addition to giving the usual proper cautions,
trial judges would be obliged to assume that their instructions would be
misapplied and would have to warn against applying the cautions to other
circumstances. As stated by Charron J. for the majority in
R. v.
Griffin
2009 SCC 28:

To make too much of the risk that
the jury
might
misuse evidence is contrary to established principles of
law regarding jury trials. As Côté J.A. aptly noted, juries must be trusted to
have the requisite intelligence to perform their duties in accordance with the
instructions given to them by the trial judge. [At para. 72.]

In my view, only a real risk of prejudice to an accused
could justify requiring trial judges to provide a caution of the kind sought
here by Mr. Cliff.

[40]

In my opinion, no such risk existed here. The jury was told that it
should consider the appellants evidence just like that of any other witness;
that Mr. Cliffs disreputable or even illegal conduct after the murders should
not be weighed in determining his guilt; and that even if they did not know
whom to believe, they must acquit if they were left with a reasonable doubt as
to his guilt. It was clear from the charge where the onus lay at all times and
that as long as the jury was left with a reasonable doubt, they could not
convict.

[41]

I would not accede to the second ground of appeal.

Intoxication

[42]

Finally, Mr. Narwal contends that despite the agreement of defence
counsel at trial to the contrary, the trial judge should have instructed the
jury on intoxication or alternatively, should have instructed that the evidence
of drug and alcohol consumption was relevant to the accuseds intent for
murder. In counsels submission, by declining to do so in the absence of an
air of reality to the intoxication defence, the trial judge effectively
required Mr. Cliff to prove that he had been intoxicated to the degree
required to establish the defence of intoxication.

[43]

It is true, of course, that the position taken by defence counsel at
trial on the relevance of intoxication cannot be determinative of this issue.
On the other hand, Mr. Cliffs version of events was that Ms. Christopherson
and Mr. Gawley had been killed by three intruders, not by himself in an
intoxicated state. Thus counsel for Mr. Cliff at trial had to make a
tactical decision whether to assert an intoxication defence as an alternative
to the outright denial that he had killed the deceased. The risks to the
accused of doing so before a jury would have been substantial; counsel chose,
or was instructed, not to run it. Furthermore, Mr. Cliffs evidence
regarding his consumption of alcohol prior to the murders was vague and at best
amounted to a statement that he was kind of drunk. As the Crown points out, Mr. Cliff
was not asked any questions in chief whether he was still feeling the effects
of alcohol consumption when he was allegedly awoken at 8:00 a.m. by the
assailants. Even on his own testimony, he seemed to be well in control of
his actions at the time, exhibiting a single-minded determination to avoid any
contact with police or emergency services.

[44]

In my view, these circumstances preclude any evidentiary basis for a
defence of intoxication which if believed would have allowed a reasonable jury,
properly instructed, to acquit on the basis of lack of capacity or intent. (See
R. v. Lemky
[1996] 1 S.C.R. 757 at 767.) This is an issue that
trial judges are well placed to determine, given that they have seen the
evidence unfold, including in this case the testimony of the accused. The
following observations of Chief Justice McLachlin in
Lemky
seem to apply
in this case:

... the evidence, considered most
favourably for the accused, falls short of supporting such an inference. His
blood alcohol level shortly after the shooting was only slightly over the legal
limit for driving an automobile. He carried out purposeful actions both before
and after the shooting, actions which ranged from ordering drinks at the dance
beforehand to calling his mother and the police immediately afterward. His
conduct before and after the shooting demonstrated an awareness of the
consequences of what he was doing. This demonstrates that he in fact foresaw
the consequences of what he was doing immediately before and after the
shooting. [At para. 20.]

[45]

In the result, I would not accede to this third ground of appeal.

[46]

In light of my conclusions on the other two grounds of appeal, I would
dismiss the appeal, with thanks to both counsel for their able
submissions.

The Honourable Madam Justice Newbury

I AGREE:

The Honourable Mr. Justice
Lowry

I AGREE:

The Honourable Mr. Justice
Tysoe