COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Budget
          Rent-A-Car of B.C. Ltd. v. Vancouver International Airport Authority,

2009
          BCCA 22

Date: 20090123

Docket: CA035349

Between:

Budget
    Rent-A-Car of B.C. Ltd.

Appellant

(
Plaintiff
)

And

Vancouver
    International Airport
Authority and Hertz Canada Limited

Respondents

(
Defendants
)

Before:

The
          Honourable Madam Justice Prowse

The
          Honourable Mr. Justice Chiasson

The
          Honourable Madam Justice Neilson

R.G.
          Ward and E.L. Bosma

Counsel for the Appellant

D.
          Curtis and A. Borrell

Counsel for the Respondent,
Vancouver International Airport

H.H.
          Van Ommen and J. Cytrynbaum

Counsel for the Respondent,
Hertz Canada Limited

Place
          and Date of Hearing:

Vancouver, British Columbia

26 & 27 November 2008

Place
          and Date of Judgment:

Vancouver, British Columbia

23 January 2009

Written
          Reasons by
:

The
          Honourable Mr. Justice Chiasson

Concurred
          in by:

The
          Honourable Madam Justice Prowse
The Honourable Madam Justice Neilson

Reasons
    for Judgment of the Honourable Mr. Justice Chiasson:

Introduction and background

[1]

In 1995, Budget Rent-A-Car of B.C. Ltd. (Budget) and Hertz Canada
    Limited (Hertz) were granted rent-a-car concessions by the Vancouver International
    Airport Authority (YVR).  They each entered into concession leases, which
    provided space in the airport terminal and a land lease on which they were
    to construct improvements for the operation of their car rental businesses.
     The land was comprised of Quick Turn Around (QTA) and Service Centre areas.
     This appeal concerns the latter.

[2]

The leases were for a total of 10 years.  The improvements once constructed
    were the property of YVR.  Their capital costs were to be amortized over 15
    years.  YVR could order the removal of a building with no cost to it.  If
    a concessionaire were not granted a new concession at the expiration of the
    term of the lease, YVR was obliged to pay the concessionaire one-third of
    the unamortized capital costs of improvements.  Other than this requirement,
    concessionaires were not entitled to be compensated for the costs of improvements.

[3]

In late 2004, YVR issued a Request for Proposals (RFP) seeking bids
    from car rental companies for concessions to replace the existing regime.
    The bidders were called proponents.  Bids were subject to an evaluation
    process and successful proponents were ranked, the ranking giving them the
    right to land in a descending amount of area.

[4]

Both Hertz and Budget were successful proponents.  Hertz ranked second;
    Budget ranked last.  This meant that Hertz had the right to an increased area
    of land and Budgets holding was reduced.

[5]

Under their 1995 leases, Budget and Hertz had contiguous properties
    that fronted on McDonald Road.  At the front of its property, Budget constructed
    an office building.  In a drawing in the RFP, the building was designated
    temporary.  It became clear that temporary buildings were to be removed.
    Budget and Hertz also had permanent buildings on their leased land.  The
    RFP required them to keep those buildings which determined, in part, where
    their leased land would be located.

[6]

Hertz decided to expand its area by leasing the front part of Budgets
    land.  Budget kept the rear portion on which there was a permanent building
    and obtained a separate parcel which fronted on McDonald Road.

[7]

Budget was required to remove its office building from the front section
    of its land.  Relying on s. 1.6 of the RFP, Budget claimed $455,151.21, being
    one-third of the capital costs of the building and one-third of the capital
    costs of soil and site preparation costs of the land taken over by Hertz.
    Section 1.6 stated, in part:

The
    QTA and Service Centre lands have improvements.  During the first five years
    of the Land Lease, the successful Proponents will not be required to pay any
    cash rent to [YVR] for the improvements.  If a successful Proponent displaces
    an existing concessionaire, the successful Proponent shall be required to
    reimburse the displaced concessionaire an amount equal to one-third the capital
    cost of those improvements.  This payment must be made before March 1, 2005.
     Part 3, Schedule F sets out in detail the capital costs of the QTA and Service
    Centres.  Part 3 also includes drawings of the QTA and Service Centre lands.
     Proponents are expected to take the cost of such improvements into consideration
    when making their choice of QTA and Service Centres.

[8]

In its statement of claim, Budget contended it was displaced from its
    improvements by Hertz and Hertz had a contractual obligation to pay compensation.
    It also claims YVR had a contractual obligation to require that Budget be
    compensated by Hertz.

[9]

Budget sought summary judgment pursuant to Rule 18A of the
Rules

of Court
.  Hertz conceded it was liable to pay soil and site
    development costs less a set-off for over-holding rent.  Based on his construction
    of the 1995 lease and the RFP and on the fact Budget knew its office building
    was to be removed before it bid, Mr. Justice Silverman concluded Budget was
    not entitled to compensation for the loss of its office building.  The chambers
    judge did not determine whether there was a contract between Budget and Hertz.
    Taking into account the set-off for over-holding rent, in supplemental reasons,
    the judge awarded Budget $3,642.25 for the capital costs of soil and site
    preparation.  The judges principal reasons are indexed as 2007 BCSC 1186;
    his supplemental reasons are not reported.

[10]

Budget appealed, contending the judge erred in his construction of
    the documents and miscalculated the amount of soil and site preparation costs
    because he refused to consider evidence relevant to it.

[11]

For the reasons that follow, I would allow the appeal to the extent
    of increasing the payment to Budget from Hertz for reimbursement of soil and
    site preparation capital costs to $48,876.78 and otherwise would dismiss this
    appeal.

Relevant provisions

[12]

I set out and paraphrase relevant provisions of the 1995 lease and
    the RFP in order to place the chambers judges decision into context.

[13]

Pursuant to s. 3.4 of the 1995 lease, Budget agreed to design, install
    and construct on the Service Centre Land, such improvements as may be necessary
    for [its] operations.  Section 10.2(a) specified that [a]ll fixtures, alterations,
    additions, improvements and buildings installed or constructed on the land
    immediately became the property of YVR without compensation to Budget, subject
    only to the provisions of s. 3.5.

[14]

Section 3.5 of the 1995 lease stated:

If
    the Tenant has duly performed all of its obligations under this Lease and
    the Concession Lease and if, within six months following the expiration of
    the Term, the Landlord has not granted to the Tenant a new vehicle rental
    concession at the Airport the Tenant shall transfer to the Landlord the Improvements,
    free and clear of all liens, charges and encumbrances (save those in favour
    of the Landlord) and the Landlord shall pay to the Tenant an amount equal
    to the unamortized portion of the Initial Capital Cost. For the purposes of
    this Section 3.5, the Initial Capital Cost shall be amortized on a straight
    line basis over a 15 year term, or the useful life of the improvement, whichever
    is less, all as determined by the Airport Authority, and shall include interest
    capitalized during the construction period of the Improvements in accordance
    with generally accepted accounting principles at a rate not to exceed eight
    percent (8%) per annum.

The
    language of the section is curious in that it speaks of Budget transferring
    to YVR improvements it already owns, but nothing turns on this.

[15]

Section 10.2(b) of the 1995 lease gave YVR the right to require Budget
    by notice to remove any fixture, alterations, additions, improvements or buildings
    at its expense.

[16]

Notice was required to be in writing pursuant to s. 14.12(a).  The
    section also provided for permissive modes of delivery of notice.

[17]

Section 1.6 of the RFP has been quoted above.

[18]

Section 7.4 of the RFP stated that successful proponents that had existing
    permanent buildings were required to take their own buildings.

[19]

Other provisions will be addressed in my recapitulation of the judges
    reasons and in my discussion of the issues.

The reasons of the chambers judge

[20]

The judge began by referring to Budgets argument that YVR was bound
    contractually to ensure Hertz paid compensation to it and because Hertz had
    not paid, YVR was obliged to do so.  Budget also contended Hertz was liable
    directly to it.

[21]

The judge noted that Hertz conceded it was liable to pay Budget for
    soil and site preparation costs.  In para. 34, the judge observed that, apart
    from quantum, he expressly was not addressing the soil and site preparation
    costs claim.

[22]

In para. 26, the judge set out the core of the building costs compensation
    issue:

Budget
    argues that, having taken over the lands, Hertz had the option of occupying
    Budgets facilities or of having them removed.  Hertz disagrees, and argues
    that Budget had a contractual obligation to remove its facilities and Hertz
    had no contractual obligation to keep them, unless it chose to enter into
    an agreement to that effect with Budget.  It did not choose to enter into
    such an agreement, and had no contractual or other kind of obligation to do
    so.

[23]

In para. 27, the judge made a finding of fact that YVR gave Budget
    notice to remove its office relying on the terms of the 1995 lease and that
    such notice was acknowledged and understood by Budget prior to its submitting
    its bid on or about December 23, 2004.

[24]

It was costly and time consuming to remove the office building which
    resulted in Budget delaying turning over the property to Hertz.  This was
    the basis of the over-holding rent claim by Hertz.

[25]

The judge discussed a number of the provisions of the 1995 lease and
    the RFP and then addressed the distinction between temporary and permanent
    facilities.  Budget had adduced evidence its principals considered the office
    building to be permanent and expert evidence on the point.  Budget also
    relied on its course of dealings with YVR to establish the building was permanent.

[26]

On the basis of evidence and argument, the judge concluded in para.
    60 that Budget was not entitled to compensation for the capital cost of its
    office.  He stated in para. 61 that Budget based its claim for compensation
    on s. 3.5 of the 1995 lease and the Compensation Clause, s. 1.6, of the
    RFP.

[27]

In para. 66 the judge stated:

One
    reason Budget is not entitled to compensation is as previously stated, that
    is, the clear wording of s. 3.5 of the 1995 Lease prohibits compensation in
    the circumstances where they have been granted a new concession.

[28]

The judges second reason was that Budget had accepted the designation
    of its office as temporary and knew it had to be removed before it bid (para.
    67).  In this context, the judge reviewed the section of the RFP that required
    proponents to advise YVR of any errors in the RFP and that stated proponents
    accepted the provisions of the RFP.  This latter proviso was expressed also
    in the 2005 lease.

[29]

The judge turned to the issue whether Budget was displaced.  He concluded
    in paras. 79 and 80 that Budget was displaced, but not by Hertz because [t]he
    Compensation Clause is intended to provide compensation for displacement from
    facilities, not from land.

[30]

The judge stated it did not make commercial sense to require Hertz
    to pay Budget for a building Hertz did not want and did not use.  He considered
    that this would be a penalty to Hertz and a windfall to Budget.

[31]

The judge left the parties to try to agree on the quantum of compensation
    for soil and site preparation costs.  They did not do so and the judge addressed
    that issue in supplemental reasons released November 13, 2007.

[32]

In its statement of claim, Budget stated it claimed one third of its
    capital costs "as set out in Schedule F to the RFP".  In its statement
    of defence, Hertz stated it was obliged to pay only one third of the capital
    cost of soil and site preparation as set out in Schedule F.  The judge held
    in para. 11 that the amount based on Schedule F was $33,789.20.

[33]

Budget sought to rely on the affidavit of its accountant, Mr. Cummings,
    to explain its actual soil and site costs.

[34]

In para. 16, the judge stated the evidence did not allow him to conclude
    it was known by the parties that there were capital costs not in Schedule
    F.  He declined to consider the affidavit of Mr. Cummings.  The judge determined
    that Budget should be held to its pleadings and its claim constrained by the
    content of Schedule F (para. 17).  Deducting for over-holding rent resulted
    in a net award to Budget of $3,642.25.

Positions of the parties

[35]

In its factum, Budget contends the judge erred by holding it was not
    displaced by Hertz:

in the sense
    that the word is used in [s. 1.6 of the RFP] on the basis that:

A.
    The Compensation Clause was intended to provide compensation for displacement
    from facilities, not from land;

B.
    Section 3.5 of the 1995 Lease prohibits compensation in circumstances where
    a proponent is granted a new concession;

C.
    YVR gave notice to Budget that it was required to remove Budgets administration
    Buildings prior to Budget submitting its bid;

[36]

It asserts the judge erred by refusing to award compensation for soil
    and site preparation costs in the amounts set out in Schedule F to the RFP.
     Budget also states the judge erred in concluding there was no contract between
    it and YVR.

[37]

Hertz contends the RFP is not a contract and does not give rise to
    contractual obligations between it and Budget.  It also states the judge did
    not err in his conclusion Budget was not displaced by Hertz or in his determination
    of compensation for soil and site preparation costs.

[38]

YVR asserts the judge did not err concluding Budget was not entitled
    to compensation for the removal of its office, deciding Budget was limited
    to the amounts in Schedule F for recovery of its soil and site preparation
    costs or in finding there was no contract between YVR and Budget.

Discussion

Introduction

[39]

The chambers judge did not determine whether there was a contract between
    Hertz and Budget.

[40]

The judge stated the claim advanced by Budget against YVR was that
    YVR was bound contractually to ensure Hertz paid compensation to Budget and
    because Hertz had not paid, YVR was obliged to do so.  That is the position
    taken by Budget on this appeal.

[41]

In his supplementary reasons, when discussing soil and site improvement
    costs, the judge stated, while YVR was obliged to require Hertz to pay Budgets
    costs, it was not obliged to be successful .  The judge concluded YVRs
    obligation was met by YVR requiring Hertz to pay displaced proponents in
    its contract between YVR and Hertz, and in correspondence and documentation
    between YVR and Hertz (para. 35).  I take the reference to contract to
    be a reference to the 2005 lease between YVR and Hertz, which in s. 4.9(a)
    contained a requirement to pay to a displaced tenant one third of the unamortized
    capital costs of improvements.

[42]

The judge also considered whether YVR was directly contractually bound
    to Budget without consideration of whether  Hertz has paid  and stated
    there is no basis in the evidence for concluding that such a contract exists
    (para. 37).

[43]

The judge appears to have concluded YVR had a best efforts contractual
    obligation.  Although he did not state on what basis this obligation arose,
    having decided it was met by the provisions of the lease, the obligation only
    could arise out of the RFP, which is the position advanced by Budget on this
    appeal.

[44]

I begin by considering whether the RFP was a contract between Budget
    and YVR.  I next shall consider whether it was a contract between Budget and
    Hertz.

RFP − whether a contract between Budget and YVR

[45]

In its factum, Budget cites no authority to support its contention
    the RFP was a contract between it and YVR, but relies on provisions of the
    RFP.  In oral argument, counsel for Budget relied on
M.J.B. Enterprises
    Ltd. v. Defence Construction (1951) Ltd.
, [1999] 1 S.C.R. 619, and
    asserted that when the process of submitting proposals closed, a contract,
    contract A, was formed.  The terms of the contract were said to be those of
    the RFP.

[46]

In
M.J.B. Enterprises
, Iacobucci J., for the Court, stated
    at para. 15 that any discussion of contractual obligations and the law of
    tendering must begin with this Courts decision in [
Ontario v. Ron Engineering
    & Construction (Eastern) Ltd.
, [1981] 1 S.C.R. 111].  In that
    case, Estey J. held that the tendering process involved two contracts: contract
    A, which was formed when a tender was submitted in response to a call for
    tenders; contract B, the contract that was entered into as a result of the
    acceptance of a tender.  He described contract A as a unilateral contract.
    As noted in
Elite Bailiff Services Ltd. v. British Columbia
,

2003 BCCA 102, Iacobucci J. expressly did not endorse that characterization
    of contract A (para. 18).  He affirmed that the submission of a tender can
    give rise to contractual obligations, but stated whether such obligations
    arise depends on the terms and conditions of the call for tenders.  The inquiry
    is whether the parties intended to initiate contractual relations by the
    submission of a bid in response to the invitation to tender (para. 23).

[47]

In
M.J.B Enterprises
, the Court determined a contract
    had been formed, stating at para. 23:

In
    the present case I am persuaded that this was the intention of the parties.

At a minimum, the respondent offered, in inviting tenders through a formal
    tendering process involving complex documentation and terms, to consider bids
    for Contract B. In submitting its tender, the appellant accepted this offer.
    The submission of the tender is good consideration for the respondents promise,
    as the tender was a benefit to the respondent, prepared at a not insignificant
    cost to the appellant, and accompanied by the Bid Security.

[48]

In
Ron Engineering
, the Court concluded contract A had
    been formed, stating at 119:

There
    is no question when one reviews the terms and conditions under which the tender
    was made that a contract arose upon the submission of a tender between the
    contractor and the owner.

[49]

The gloss that Iacobucci J.

put on the decision in
Ron
    Engineering

was explained in
Martel Building Ltd. v.
    Canada
, 2000 SCC 60, [2002] 2 S.C.R. 860:

80.       In
M.J.B. Enterprises Ltd. v.
    Defence Construction

(1951) Ltd.,
[1999] 1 S.C.R. 619, this Court
    confirmed that
Contract A also
    imposes obligations on the owner. It further explained that
Ron Engineering
does not stand for the proposition that
Contract A will always be formed, nor that the irrevocability
    of the tender will always be a term of such contract.
Whether the tendering
    process creates a preliminary contract is dependant upon the terms and conditions
    of the tender call
.

[Emphasis added]

[50]

These comments lead to a consideration of the terms and conditions
    of the RFP.

[51]

The parties rely on various provisions of the RFP to support their
    respective positions.  In my view, the answer is in s. 13.1(a) which states:

This
    RFP does not constitute an offer.  No agreement shall result upon submission
    of Proposals. [YVR] shall not be under obligation to enter into any agreement
    with anyone in connection with this RFP and responses received.  [YVR] will
    not have any obligation to anyone in connection with this RFP unless [YVR]
    executes and delivers an agreement in writing approved by [YVRs] senior management.

This
    section tracks the analysis in
M.J.B. Enterprises
.  It is difficult
    to see how the draft-person could have made the intention of YVR more clear.

[52]

It is asserted that the last sentence of s. 13.1(a) imposes RFP obligations
    on YVR because it entered into a lease with Budget.  I do not agree.  While
    the word agreement is not defined, it must be construed in the context in
    which it is being used.  It is an agreement to be bound by obligations in
    connection with the RFP.  The proviso is not met by entering into the lease
    unless the lease contains an agreement to the terms of the RFP, which it did
    not.

[53]

In my view, the RFP was not a contract between Budget and YVR.  Section
    1.6 has no contractual force between these parties.

RFP − whether a contract between Budget and Hertz.

[54]

Prima facie
, it is difficult to conceive that the RFP could be a
    contract between Budget and Hertz when it is not a contact between Budget
    and YVR.  As is stated in s. 1.1, [t]he purpose of the RFP is to assist [YVR]
    in selecting proponents for the operation of  Vehicle Rental Concessions.
    The thrust of the document is to inform proponents what may be available to
    them and what they must do to be eligible for consideration as concessionaires.

[55]

Budget relies on
The Satanita
, [1895] P. 248 (C.A.),
    affd [1897] A.C. 59 (H.L.), and cases that have applied the so-called community
    of interest doctrine.

[56]

The Satanita
arose out of a collision between two racing yachts.
    It was a claim for damages unrestricted by the English
Merchant Shipping
    Act
limitation on quantum based on the tonnage of a vessel.  The Court
    held there was a contract between each of the owners of the yachts based on
    their individual agreement with the organizers of the race to abide by prescribed
    racing rules.  The rules included a commitment to compensate for any damages
    that ensued as a result of a violation of the rules.

[57]

The Court of Appeal stated there was a relationship between each competitor
    and the race committee when the competitor signed-up for the race.  Lord Esher
    M.R. described this as a relation (p. 255).  Lopes L.J. stated there probably
    was a contract with the [race] committee in certain cases (p. 260).  Rigby
    L.J. held a contract arose with the committee at the moment that the yacht
    owner signed the document, which it was necessary to sign in order to be a
    competitor (p. 262).

[58]

All judges stated there was no contract between the competitors when
    they signed-up for the race, but a contract arose when they began racing under
    the rules.

[59]

The focus of the House of Lords was on the applicability of the statutory
    limitation on quantum.  All Lords agreed it did not apply and all agreed,
    with limited analysis, that there was a contract between each of the competitors.

[60]

In the context of building schemes and shopping centres, courts have
    developed the so-called doctrine of community of interest.  In
Salmon
    Arm Pharmacy Ltd. v. R.P. Johnson Construction Ltd.
(1994), 94 B.C.L.R.
    (2d) 169 at paras. 23-24, 46 B.C.A.C. 249, Finch J.A., as he then was, stated:

[23]
    The doctrine of "community of interest" appears to be an exception
    to the fundamental rule that only the parties to a contract have standing
    to enforce its terms (privity of contract). The doctrine does not appear to
    afford a basis for creating or imposing substantive obligations or enforcing
    a contract against a stranger to the contract.

[24]
    The doctrine of "community of interest" apparently derives from
    the English common law relating to "building schemes":  see
Scharf
    v. Mac's Milk Ltd
., [1965] 2 O.R. 640 (C.A.) at pp. 645-647, and applied
    in more recent times to shopping-centre leases. Consideration as to whether
    or not the doctrine is applicable seems to arise only where:

(a)        one tenant seeks to enforce a
    contractual obligation owed by another tenant to the landlord;

(b)        both tenants have restrictive
    covenants in their leases which limit the use to which the tenants can put
    their premises; and

(c)        both tenants have the benefit of restrictive covenants
    by which the landlord promises not to allow the use of any portion of the
    shopping centre for a purpose which competes with that of another tenant.

The
    doctrine of "community of interest" appears to allow one tenant
    to insist that another tenant live up to its contractual obligations because,
    although there is no privity of contract between the tenants, each has made
    parallel contractual commitments which are designed for their common advantage.

The
    Court declined to apply the doctrine because the contractual commitments were
    not parallel.

[61]

In
Scharf v. Macs Milk Ltd.
, [1965] 2 O.R. 640 (C.A.),
    the Ontario Court of Appeal referred to
Elliston v. Reacher
,
    [1908] 2 Ch. 374, affd [1908] 2 Ch. 665 (C.A.), for the proposition that
    participants in a building scheme could enforce against each other covenants
    each had with the common vendor of the land.  At 646, Schroeder J.A. quoted
    from
Elliston
:  the plaintiffs would in equity be entitled
    to enforce the restrictive covenants entered into by the defendants or their
    predecessors with the common vendor .  In
Scharf
, the trial
    judge and the Court of Appeal stated the covenant inured for the benefit of
    the plaintiff.  There was no discussion whether there was a contract between
    the participants.

[62]

In
Progas Ltd.
    v. AEC West Ltd.
, 2001 ABQB 549, Clark J. referred to the House of
    Lords decision in
The Satanita
and to this Courts decision
    in
McCannell v. Mabee-McLaren Motors Ltd.
, [1926] 1 D.L.R. 282
    (B.C.C.A.), when discussing implied contracts and to the building scheme and
    shopping centre cases in his discussion of community of interest.

[63]

In
McCannell
,
    this Court held that a contract between Studebaker and one of its automobile
    dealers also brought about a contractual relationship between each of the
    dealers. The contract stated in part:

It
    is understood and agreed that this paragraph shall be construed as an agreement
    between dealer and all other Studebaker dealers who have signed a similar
    agreement and that nothing herein contained shall be construed as a liability
    on the part of Company to dealer for territorial infringement by any other
    dealer.

[64]

Hertz and YVR state this clause in
McCannell

distinguishes
    the case from cases like
The Satanita
, but it is clear from
    a reading of the judgments that while the Court was well aware of the provision,
    it did not base the decision on it.  At 286, MacDonald J.A. quoted Lopes L.J.
    in
The Satanita
:

I
    have no doubt that there was a contract. Probably a contract with the committee
    in certain cases, but also a contract between the owners of the competing
    yachts amongst themselves, and that contract was an undertaking that the owner
    of one competing yacht would pay the owner of any other competing yacht injured
    by his yacht all the damages arising from any infringement or disobedience
    of the rules. In my opinion, directly any owner entered his yacht to sail,
    this contract arose and it is clear that the owners of the
Valkyrie
and the
Satanita
did enter their respective yachts and did sail.

[65]

The community of interest doctrine appears to have been applied in
    the context of preventing a participant in a venture like a building scheme
    or shopping centre from taking steps unfairly to compete with another member
    of the venture when the participants have agreed not to do so.  Equity intervenes.
The Satanita
principle is based on contract and provides a right
    of recovery to which the participants have agreed each is entitled.

[66]

I agree with the respondents position that an examination of the authorities
    suggests that obligations and the right to enforce them arises out of the
    contracts between participants and the organizer, be it vendor of land,
    owner of a shopping centre or racing committee.  In this case, whether the
    analysis is based on equity or contract, rights and obligations do not derive
    from the RFP.

[67]

In summary, the RFP is not a contract.  This conclusion is based
    on construing the RFP in light of the tendering cases and
The

Satanita
.  The analysis mandated by those cases does not
    stop with merely looking at the relationship involved  yachts in a race;
    proponents or bidders seeking a contract.  As in all matters of contract
    the core inquiry is the intention of the parties.  In this case, the
    proponents were competing for concessions at the Vancouver Airport.
    None of them was guaranteed a concession even if its bid was ranked high.
    The terms of any lease of the airport lands was subject to negotiation.
    The RFP envisioned a commitment for compensation if improvements were lost
    because an existing concessionaire was displaced by another proponent, but
    the draft lease contained a specific proviso, s. 4.9, dealing with that.  Although
    the language and substance of  s. 1.6 of the RFP and s. 4.9 was not identical,
    it is clear to me that if there were any community of interest among the successful
    proponents it arose, not from the RFP, but from the leases into which they
    all entered and which legally obliged each to compensate displaced concessionaires.
    Section 1.6 has no contractual force.

Alternative

[68]

My conclusions there is no contract obliging Hertz to compensate Budget
    for the capital cost of its removed office building and no contract obliging
    YVR to compensate Budget for the costs of the removed building or soil and
    site preparation costs disposes of this aspect of the appeal, but because
    the case was argued and decided by the judge on the construction of the RFP
    and 1995 lease, I provide my analysis of the relevant provisions of each.
    In addition, while agreeing with the judges conclusion that Budget was not
    entitled to compensation for the loss of its building, I do not agree with
    his reasons for reaching that conclusion.

[69]

The 1995 lease, which had a ten-year term, obliged Budget to construct
    facilities to enable it effectively to carry on business.  These improvements
    were the property of YVR once constructed.  Budget could be directed to remove
    an improvement with no cost to YVR.  The capital costs of improvements were
    amortized over 15 years.  Apart from s. 3.5, Budget was not entitled to compensation
    for its capital costs.  That section provided for reimbursement of the unamortized
    capital costs of improvements if Budget were not granted a replacement concession.

[70]

The judge gave two reasons for dismissing Budgets claim:  one, Budget
    was not entitled to compensation under s. 3.5 of the 1995 lease; two, before
    Budget made its proposal, it knew the office building had to be removed.
    In my view, neither reason adequately addressed the issue before him.

[71]

It is common ground Budget was granted a replacement concession, which
    disentitled it from compensation under s. 3.5.  Budget did not claim under
    the 1995 lease.  The judges discussion of that lease was helpful background,
    but could be nothing more.  In this case, it could not be a basis for denying
    Budget recovery.

[72]

In my view, whether Budget knew its office building had to be removed
    before it delivered its proposal is irrelevant to the proper construction
    of s. 1.6 of the RFP.  If Budget were entitled to compensation, the fact it
    knew its building was to be removed would not alter that fact.

[73]

Budget based its claim on s. 1.6 of the RFP, which for convenience
    I again reproduce in part:

The
    QTA and Service Centre lands have improvements.  During the first five years
    of the Land Lease, the successful Proponents will not be required to pay any
    cash rent to [YVR] for the improvements.  If a successful Proponent displaces
    an existing concessionaire, the successful Proponent shall be required to
    reimburse the displaced concessionaire an amount equal to one-third the capital
    cost of those improvements.  This payment must be made before March 1, 2005.
    Part 3, Schedule F sets out in detail the capital costs of the QTA and Service
    Centres.  Part 3 also includes drawings of the QTA and Service Centre lands.
    Proponents are expected to take the cost of such improvements into consideration
    when making their choice of QTA and Service Centres.

[74]

In drawing D of the RFP, buildings were marked as temporary building
    or simply as building.  It became apparent during the RFP process that buildings
    marked temporary were to be removed at no cost to YVR.  Minutes dealing with
    questions and answers make this clear.

[75]

Evidence was adduced at the chambers hearing and argument advanced
    whether Budgets building which was marked as temporary was in fact a temporary
    building.  It my view, this line of inquiry was irrelevant.  YVR had the right
    to direct that improvements be removed at no cost to it.  In the context of
    analyzing the rights of the parties, labelling buildings as temporary merely
    identifies them for removal whether they were in fact temporary or permanent.

[76]

Similarly, there was considerable discussion on the meaning of the
    word displace.  In paras. 79 and 80, the chambers judge had this to say:

[79]
    YVRA gave Budget notice, as it was entitled to do pursuant to s. 10.2(b) of
    the 1995 Lease, to remove its facilities.  Budget was contractually required
    to comply.  Therefore, it is correct to say that it was forced to vacate by
    virtue of its contract with YVRA, and by virtue of YVRAs notice given under
    that contract.  However, it is not correct to say that it was displaced by
    Hertz or by Hertz status as a successful proponent.

[80]
    The Compensation Clause is intended to provide compensation for displacement
    from facilities, not from land.  Hertz status as a successful proponent entitled
    it to take possession of and lease the land around and under Budgets facilities.
    But it did not entitle it to take possession of or lease the facilities themselves.
    Therefore, by leasing the land under Budgets facilities, Hertz did not displace
    Budget as that term is used in the Compensation Clause.

With
    respect, I do not agree entirely with these comments.

[77]

In my view, displacement clearly refers to the land.  The buildings
    were owned by YVR.  Budget leased the land.  Hertz was being granted a lease
    over part of that land.  When Hertz obtained the legal right to occupy that
    land, Budget was displaced from the land.  If that displacement resulted in
    Budget losing an improvement, it was entitled to compensation from Hertz.

[78]

This leads to a consideration of the construction of s. 1.6.  In my
    view, on a plain reading of the provision:

·

the first sentence advises proponents
    that there are improvements on the lands;

·

the second sentence envisions
    a new concessionaire using existing improvements, but not being obliged to
    pay rent for the first five years; obviously this assumes there are existing
    improvements on the land;

·

the third sentence requires a
    new concessionaire to pay one-third of the capital costs of existing improvements
    to the previous concessionaire; again, this obviously assumes there are existing
    improvements on the land;

·

if there are no improvements
    on the land, the new concessionaire does not have to pay rent and does not
    have to pay anything to the previous concessionaire.

Construed
    in this way, the issue becomes:  was Budgets office building on the land
    when Budget was displaced from the land?

[79]

The judge concluded Budget was given notice to remove its office building
    late in 2004. Budget challenges this conclusion.  It my view, it is amply
    supported by the evidence, but it is common ground that, at a minimum, written
    notice was given in correspondence in mid-February 2005.  Budgets lease expired
    and Hertzs lease began at the end of February.  In my view, that is the date
    when Budget was displaced.  Prior to the end of February it had the legal
    right to occupy the land.  By that time, notice to remove the office building
    had been given and Hertz was not obliged to compensate Budget for it.

[80]

It was Budgets position that the scheme of the 1995 lease and 2004
    RFP entitled it to recover the capital costs of improvements either through
    amortization based on use or by compensation if it were to lose the use of
    the improvement.  Budget asserts that the policy of s. 3.5 of the 1995 lease
    was carried into the RFP and it would be unconscionable for it not to recover
    its capital cost once it lost the use of the office building.

[81]

Budget states, correctly in my view, that even if notice of removal
    was given under the 1995 lease and the office building removed, if it were
    to meet the criterion of s. 3.5  no renewed concession  it would be entitled
    to recover the unamortized capital cost of its office building.  Counsel for
    Budget extended this proposition and asserted that notice to remove was completely
    irrelevant to Budgets claim under the RFP.  He contended that even if the
    building were removed a considerable time before the RFP was issued, although
    as a successful proponent Budget could not claim compensation from YVR under
    s. 3.5 of the 1995 lease, it would be entitled to compensation from Hertz
    under the RFP.  In my view, this ignores the full scheme of the 1995 lease
    and RFP.

[82]

Compensation under s. 3.5 of the 1995 lease occurs when a leaseholder
    loses its position as a concessionaire:  it has no building and has no concession.
    It recovers the unamortized costs of the building it lost.  If it were compensated
    under s. 3.5 of the 1995 lease, it would not be entitled to be compensated
    under s. 1.6 of the RFP.  Section 1.6 provides for reimbursement and the leaseholder
    would have used or recovered all of its capital cost.

[83]

While Budget was displaced from a portion of the land it occupied,
    it was not entitled to compensation under s. 3.5 because it obtained a new
    concession.  Any perceived unfairness in not being compensated for one-third
    of the capital cost of the office building must take into account the advantage
    of continuing to do business at the Vancouver Airport.  There is no unfairness
    or lack of business sense in the scheme.

[84]

In my view, on a proper construction of s. 1.6 of the RFP, Hertz was
    not obliged to compensate Budget for the loss of its office building.

Liability for soil and site preparation costs

[85]

In its statement of claim, Budget alleged a contract between it and
    Hertz, partly oral and partly in writing.  Insofar as it was in writing, Budget
    stated the agreement was comprised of the RFP, Budgets proposal and Hertzs
    proposal.  Hertzs proposal was not in evidence.

[86]

Budget claimed compensation, stating:

It
    was a material term of the Hertz Agreement that to the extent that Hertz displaced
    Budget from any improvements by taking possession of land which had previously
    been in Budgets possession, Hertz would compensate Budget pursuant to the
    figures set out in Schedule F.

[87]

As noted, in its statement of defence, Hertz stated it was obliged
    to pay only one third of the capital costs of soil and site preparation as
    set out in Schedule F.

[88]

In its statement of defence and at trial, Hertz provided no legal basis
    for the concession.  In its factum and at the hearing, Hertz based its concession
    on s. 4.9 of the 2005 lease between it and YVR which states:

If the Tenant:

(a)
    takes over a QTA or Service Centre facility from a previous tenant, the Tenant
    shall pay to the displaced tenant one third of the unamortized capital cost
    of the improvements by such method as agreed by the parties before the Tenant
    takes possession of the QTA or Service Centre leasehold; or ...

[89]

Although Budget did not claim compensation based on the 2005 lease,
    I am prepared to take Hertzs concession as given and do not opine on the
    construction of s. 4.9.

[90]

It was not suggested that YVRs obligation to ensure that Hertz paid
    compensation derived from the 2005 lease.  My conclusion the RFP did not constitute
    a contract between Budget and YVR disposes of Budgets claim that YVR is obliged
    to ensure the Budget is compensated by Hertz.  There is no such obligation
    on either a best efforts or stand-alone basis.

Compensation for soil and site preparation costs

[91]

Because the legal basis for Hertzs obligation to compensate Budget
    for soil and site preparation costs was not articulated, presumably relying
    on the pleadings, the parties and the judge proceeded on the basis the recoverable
    costs were as set out in Schedule F to the RFP.  There was no finding the
    RFP contractually bound Budget and Hertz and I have concluded it did not do
    so.  Section 4.9 of the 2005 lease, which is the legal basis on which Hertz
    concedes it is liable, does not refer to Schedule F.

[92]

The judge appears to have been of the view that Budget sought the capital
    cost of soil and site improvements not contained in Schedule F and based on
    the pleadings and submissions of both parties, concluded Budget should be
    limited to costs in that document, which he concluded totalled $33,789.20.
    This was based on the first page of Schedule F, which is entitled Service
    Centre Soil and Site Preparation.

[93]

The judge appears to have concluded Budget should be held to its pleadings
    because it was not common knowledge that there were soil and site preparation
    costs not stated in Schedule F.  Hertz contends it relied on Schedule F and
    would be prejudiced if Budget were entitled to recover for costs not in the
    Schedule.

[94]

On the assumption Schedule F is relevant to the claim as now being
    considered, there is some merit to Hertzs position because s. 1.6 of the
    RFP states that the capital costs are set out in detail in Schedule F.  On
    the basis the claim now being considered, it is questionable whether Schedule
    F is a controlling document, but, in any event, the simple answer is that
    Budget does not claim costs not included in Schedule F.  This is made clear
    in the affidavit of Gary Cummings.

[95]

I do not opine on whether Schedule F is controlling.  Although it is
    somewhat legally unorthodox to rely on Schedule F in the circumstances of
    the claim as it now is being considered, I am prepared to do so because it
    was the basis on which the parties advanced the case in chambers and on appeal.

[96]

Because of the conclusion he reached, the judge did not consider the
    evidence of Mr. Cummings.  In my view, he erred, but I am not at all certain
    it was made clear to him that Mr. Cummings was not adding costs, but merely
    providing guidance on the content of Schedule F.

[97]

Mr. Cummings is a Certified General Accountant who has been employed
    by Budget as a general ledger accountant since 1992.  In response to a May
    10, 2004 request, Mr. Cummings provided capital costs information to YVR which
    was to be included in the RFP and which was reproduced in Schedule F.  After
    Budget was displaced, Mr. Cummings reviewed Schedule F and the invoices that
    supported the numbers in it.

[98]

Mr Cummings identified the capital cost of the office building from
    numbers on the second page of Schedule F, which was entitled:  Other Service
    Centre Construction Costs.  He identified the capital cost of soil and site
    improvements from numbers on both the first and second pages of Schedule F.
    These numbers were presented for payment to Hertz.  They totalled $425,374.96
    made up of $90,290.61 for the soil and site cost and $335,084.35 for the capital
    cost of the office building.

[99]

Taking into account additional information and correcting some errors,
    Mr. Cummings reviewed his calculation prior to the hearing before Silverman
    J.  He provided two calculations for soil and site preparation based on the
    inclusion or non-inclusion of a fire-access road.

[100]

In my view, it is appropriate to take into account the fact Budget
    uses the access road.  Based on Mr. Cummings calculations, doing so gives
    a soil and site preparation capital cost of $79,023.73, from which must be
    deducted over-holding rent of $30,146.95, resulting in $48,876.78 being the
    amount payable by Hertz to Budget.

[101]

At the hearing of the appeal, Budget asserted that the numbers on the
    first page of Schedule F referred only to common site costs, essentially pre-loading
    the site, and that numbers on page two had to be taken into account as was
    done by Mr. Cummings.  Hertz contended this could not be true because the
    per-square-metre figures differed among the concessionaires.  Counsel for
    Budget stated this issue had not been explored previously and had no explanation
    for the differences.

[102]

I am not prepared to draw any conclusions from the differences.  They
    appear not to have been dealt with in the evidence.  There may be an explanation:
     for example, there might have been different volumes of pre-load material
    and different compaction required at different places on the site.  I accept
    the uncontradicted evidence of Mr. Cummings.

Conclusion

[103]

In my view, the RFP was not contractually binding on either YVR or
    Hertz and Budget was not entitled to compensation based on s. 1.6.  Alternatively,
    if the RFP were contractually binding, on a true construction of s. 1.6 in
    the circumstances of this case, Budget was not entitled to compensation for
    the loss of its office building.  Based on the concession of Hertz, Budget
    was entitled to compensation for its soil and site preparation capital costs
    in the amount of $48,876.78.

[104]

I would increase the award to Budget to $48,876.78 and otherwise dismiss
    this appeal.

The
    Honourable Mr. Justice Chiasson

I agree:

The Honourable Madam Justice Prowse

I agree:

The Honourable Madam Justice Neilson


COURT OF APPEAL FOR
BRITISH COLUMBIA

Citation:

R. v. Gregory,

2009 BCCA 26

Date: 20090123

Docket: CA036047

Between:

Regina

Respondent

And

Aaron Ronald Gregory

Appellant

Before:

The Honourable Mr. Justice
  Mackenzie

The Honourable Mr. Justice
  Chiasson

The Honourable Mr. Justice
  Bauman

Oral Reasons for Judgment

J.M. Duncan

Counsel for the Appellant

E. Campbell

Counsel for the (Crown) Respondent

Place and Date:

Vancouver
, British Columbia

23 January 2009

[1]

Mr. Gregory appeals his
conviction in Provincial Court on February 27, 2008, on three counts of
possession of stolen property: a motor vehicle and two motor vehicle licence
plates that were in the motor vehicle.  He contends the trial judge:

1.
misapprehended the evidence when applying the principles established by
R.
v. W.(D.)
, [1991] 1 S.C.R. 742, to the facts of this case;

2.
erred taking judicial notice of facts not in evidence without notice to Mr.
Gregory;

3.
erred convicting Mr. Gregory where there was no or insufficient evidence he had
guilty knowledge;

4.
erred convicting Mr. Gregory when the evidence raised a reasonable doubt on the
issue of identity.

Background

[2]

On January 10, 2007, R.C.M.P.
Constable MacNeill was on patrol in an unmarked police car in Prince George, British Columbia.  He passed a pick-up truck travelling in the opposite direction and
decided to follow it.  The officer testified that as the vehicles passed, he
looked into the truck and recognized Mr. Gregory.  The officer knew Mr. Gregory
from previous face-to-face encounters and from seeing him on a video when Mr.
Gregory was the victim of a home invasion and beating.

[3]

Constable MacNeill followed the
pick-up truck into an apartment buildings outdoor parking lot where the
vehicles again passed each other travelling in opposite directions.  The
officer testified he again made eye contact with Mr. Gregory.  He could not
ascertain the licence number of the pick-up truck because it had no front plate
and the rear plate was obstructed with snow.

[4]

Constable MacNeill radioed for
assistance and advised the dispatcher he had observed Mr. Gregory driving the
motor vehicle.  He then drove around the apartment building and returned to the
parking lot.  The pick-up truck was empty and parked at a right angle
straddling three marked parking spaces.

[5]

The officer then heard on the
police radio that another officer, Constable McClarty, had arrested Mr. Gregory
a couple blocks from where the vehicle was abandoned.  Constable McClarty
heard the discussion between Constable MacNeill and the dispatcher.  Mr.
Gregory was known to Constable McClarty.  Constable MacNeill went to the arrest
location and confirmed the person there was the person he had observed in the
pick-up truck.  In court, Constable MacNeill identified Mr. Gregory as that man.

[6]

Constable McClarty observed the
clothing of Mr. Gregory.  He stated he was wearing a one-piece blue coverall,
which he described as summer-weight, no gloves and no hat.  With the wind chill,
the temperature was minus 20 degrees.

[7]

Constable McClarty is a police-dog
handler.  He instructed his dog to undertake a dog-track.  The dog picked-up a
scent and located a cache of clothes: a white and beige jacket and a small
baseball cap.  They were soft and not frozen.  The dog then continued its track
which ended in the apartment buildings outdoor parking lot approximately 20
feet from the pick-up truck.  The dog there lost the scent.  Constable
McClarty, who was qualified as an expert in dog-handling, described the area
around the truck as contaminated because police and a tow-truck driver were
active there.

[8]

Mr. Gregory denies he was in the
pick-up truck; denies he fled the area where the truck was parked and denies he
dumped the clothing the dog found.  He asserts that when he was apprehended by
Constable McClarty, he was walking from a Tim Hortons location carrying a
coffee and a bagel on his way to visit a friend.

Trial judgment

[9]

Facts were agreed which
established the pick-up truck and licence plates were stolen.  The trial judge
concluded he did not believe Mr. Gregory and he did believe the two police
officers.  The judge decided the clothing found by the dog was Mr. Gregorys
clothing and that he fled the location where the truck was parked.  He
concluded Mr. Gregory had possession of the truck and licence plates and the
elements of the offence were established.

[10]

The judge dealt with
W.(D.)
in
paras. 80  81 and 83 as follows:

[80]
In a trial, the responsibility throughout is with the Crown.  They have the
burden to prove their case beyond a reasonable doubt.  Looking at that case of
R.
v. W.(D.)
, and it is quoted extensively in our case law, and referring
to
R. v. Sherman
or
R. v. Miller
, decisions of Mr.
Justice Romilly of the Supreme Court, the decisions of
R. v. W.(D.)
,
that decision, rather, and the subsequent case law, first, as I assess
credibility, and that is the primary function here; I have to determine from
the evidence I have the credibility that I can place on the testimony of the
various witnesses.  I first look to the evidence of the accused, the evidence
that you presented in your testimony, and it is my determination that I cannot
accept your evidence, and I have made that determination based, as I say, on a
number of factors: the criminal record, the contradictions that appear in the testimony,
and as I view it, the inconsistencies in your own testimony regarding, for
instance, distances and how long you were on the streets.

[81) The principle in
W.(D.)
is that if I believe the evidence of the accused, I just acquit.  The next
principle is that if I do not believe the testimony of the accused but I still
have reasonable doubt, then I still must acquit, and then the third term,
perhaps, from our Court of Appeal case,
R. v. H.
, is if,
considering all the evidence, I am unable to decide whom to believe, I must
acquit.  Then thirdly, or the last term, is that on the whole of the evidence,
in other words, whether or not I believe you or not believe you, if on the
whole of the evidence I am left in a reasonable doubt, then I must acquit.

. . .

[83]
As I say, I have looked at the evidence. I have examined the evidence, and
although this is a case of being mindful of credibility, I am still required to
look at all the evidence and make an assessment in terms of its credibility,
its reliability, and its consistency, either with consistency with other pieces
of evidence or consistency within itself, and in my view, after I have made
that full assessment, and being mindful of the case law as set out in
R.
v. W.(D.)
, in my view, my conclusion is that the Crown has proved their
case beyond a reasonable doubt on all three counts and I find you guilty, Mr.
Gregory, of the charges as set out in Information 23991.

Discussion

Misapprehension of evidence

[11]

In his factum, Mr. Gregory
addressed his contention the judge misapprehended the evidence in the context
of the judges consideration of the principles of
W.(D.)
.  He
asserts the judges misapprehension of the evidence led him to decide not to
believe Mr. Gregory and to decide to believe the officers.

[12]

In
R. v. Lohrer
, 2004
SCC 80, [2004] 3 S.C.R. 732 at para. 1, Binnie J. provided guidance for the
required analysis, quoting from Doherty J.A. in
R. v. Morrissey
(1995),
97 C.C.C (3d) 193 (Ont. C.A.):

Where
a trial judge is mistaken as to the substance of material parts of the evidence
and those errors play an essential part in the reasoning process resulting in a
conviction, then, in my view, the accuseds conviction is not based exclusively
on the evidence and is not a true verdict.

[13]

Mr. Gregory focuses on two
matters:  his clothing and his statement he was walking from Tim Hortons to
visit a friend.

[14]

Mr. Gregory testified he was
wearing pants, a pair of long-johns, winter boots, insulated coveralls, two
t-shirts and a sweater.  The police officers stated Mr. Gregory was under-clothed
for the weather conditions.  The judge accepted their evidence.

[15]

It was common ground Mr. Gregory
was wearing coveralls. Constable McClarty described them as summer clothes.  In
cross-examination, Constable MacNeill appears to have agreed they were winter-type.
Mr. Gregory states in his factum that in para. 76, the judge [p]ointed to a
contradiction in Mr. Gregorys claim to be wearing winter clothing on his feet
but not on the upper part of his body.  I do not read the judges reasons as doing
so.

[16]

The judge stated I do noteyou
hadheavy winter boots on, but in my view, it was contradictory to have heavy
winter clothing on your feet but not on the upper part of your body.  After
the phrase I do note, the judge wrote as you said.  It is apparent to me,
he was accepting Mr. Gregorys evidence he wore winter boots, but was not
accepting the rest of his evidence concerning clothing.  As he was entitled to
do, he preferred the evidence of the officers and noted it was not consistent
to wear winter boots and less protection for the upper body. This was
consistent with Mr. Gregory having discarded his coat and hat.

[17]

As to the coat, Mr. Gregory
contends the judge misapprehended the evidence because the coat was size large
and at a minimum he wears size extra-large.  In court, Mr. Gregory was wearing
a double extra-large shirt. The judge was aware of this evidence.  He also was
told by the officers that Mr. Gregory had put on considerable weight between
the time of his arrest and the trial.

[18]

A further misapprehension is said
to be the judges comment in para. 71 that Constable McClarty denied Mr.
Gregory had a coffee with him.  The following is the exchange between Constable
McClarty and counsel on cross-examination:

A          His
Tim Hortons coffee?  No, I dont recall.

Q.        Isnt
it true that he had a Tim Hortons coffee in his hand, when you stopped him.

A          I
dont recall.  Now that you mention that, I remember some Timbits maybe being
on his person or something though.  I dont know.  Aarons shaking his head no,
I dont recall a coffee, no.

In
my view, it is not an unreasonable reading of this evidence as denying Mr.
Gregory had a coffee.  It certainly was an interpretation open to the trial
judge.

[19]

Mr. Gregory also contends the
judge erred in his assessment of the evidence of Mr. Gregory by taking judicial
notice of the distance he would have walked had his story about being at Tim
Hortons been true.  He contends this amounts to a misapprehension of the
evidence and seeks to introduce fresh evidence to contradict the judges
statement of the distance.

[20]

The Crown states defence counsel
invited the judge to undertake his own assessment of the distance.  At trial,
Crown counsel contended the distance that Mr. Gregory would have had to walk
was more than a mile.  The following comment was made by defence counsel:

MR.
DUNCAN: . . ., her comment that its certainly more than a mile.  Theres no
evidence of that.  The best we have is the map guide and if Your Honour wishes
to take -- get another Mapquest guide to see how long it is from Central to
Lacoma, I have no objection to that.

[21]

In para. 77, the judge stated he
had examined a city map and determined the distance was 1.9 miles or
approximately three kilometres.  It is not clear to me that he, in fact, took
judicial notice of the distance although he stated he was doing so.  In these
circumstances, I do not consider the judges observation that the distance was
1.9 miles to be reviewable error.

[22]

In addition, the point related to
the improbability of Mr. Gregory walking any significant distance, clothed as he
was, in minus 20 degree weather.  The fresh evidence seeks to establish the
distance is approximately two kilometres.  In my view, the evidence would not
meet the test in
R. v. Palmer
, [1980] 1 S.C.R. 759, because it is
not likely the evidence would affect the outcome.

[23]

Repeatedly, appellate courts have
been admonished that findings of credibility are not scientific.  This Court is
not entitled to inject its view of the facts over that of a trial judge unless
there is palpable and overriding error.

[24]

In this case, the judges
determination he did not believe Mr. Gregory was based on a number of factors.
He stated in para. 72:

[72]
In my view, the evidence regarding the coffee and the bagel having been
purchased at the Tim Hortons at the location that was described as Central and
5th is not reliable. I make that conclusion based, one, on my view of your
credibility. Your credibility is lessened, to some extent, by the record. I
take that into account. That is an important consideration, in my view. I also
observed you as you testified in court and your demeanour during the trial, and
in my view, there were times when your testimony was casual and exaggerated,
and I take some support for that determination from your testimony about the
coffee. You stated that when stopped by the officer you stated, Do you want my
bagel and coffee? and then you later offered the evidence that the coffee was
still warm, as I recall your testimony, at the detachment, and in my view, that
is improbable evidence of what could have occurred on that January 10
th
date.

And
in para. 80:

. .
. I cannot accept your evidence, and I have made that determination based, as I
say, on a number of factors:  the criminal record, the contradictions that
appear in the testimony, and as I view it, the inconsistencies in your own
testimony regarding, for instance, distances and how long you were on the
streets.

[25]

In my view, the judge did not
misapprehend the evidence.  He was aware and referred to the testimony of Mr.
Gregory and the officers.  He found much of Mr. Gregorys story implausible and
did not interpret the evidence of the officers as urged by Mr. Gregory.  I
would not accede to his first and second grounds of appeal.

Guilty knowledge

[26]

Mr. Gregory contends there is no
clear pathway to conviction concerning the judges conclusion Mr. Gregory was
in possession of the stolen property.  The judges discussion and conclusion on
this issue is in para. 82.  He stated he had determined Mr. Gregory was in the
stolen pick-up truck, although Mr. Gregory denied this.  The stolen licence
plates were in the truck.  He concluded Mr. Gregory had control of the truck
and plates.

[27]

Mr. Gregory states this is not
enough.  Mr. Gregory had been observed driving the truck with a female
passenger.  It is asserted he may merely have been driving a vehicle she had in
her possession and the plates may have been hers or someone elses.  The Crown
asserts this is mere speculation and states the following in its factum:

61.       The
distinction between a reasonable inference and speculation was the subject of
comment in
R. v. Wild
, [1971] S.C.R. 101, 4 C.C.C. 40 at 47,
where Martland J., for the majority, approved the trial judges comments in
R.
v. McIver
, [1965] 4 C.C.C. 182 (Ont. C.A.) [1966] S.C.R. 254 as
follows:

the case is to be decided
on the facts, that is, the facts proved in evidence and the conclusions
alternative to the guilt of the accused must be rational conclusions based on
inferences drawn from proven facts.  No conclusion can be a rational conclusion
that is not founded on evidence.  Such a conclusion would be a speculative,
imaginative conclusion, not a rational one.

In
my view, the observation is apt in this case.

[28]

In addition, the Crown contends
the judges finding Mr. Gregory fled the scene supports his conclusion he had
possession of the truck and plates.  I agree and would not accede to Mr.
Gregorys third ground of appeal.

Identity

[29]

Mr. Gregory contends there was a
reasonable doubt of his identity as the person driving the pick-up.  In my
view, the contention is not sustainable in this Court.

[30]

The trial judge accepted the
evidence of the officers.  He was entitled to do so.  There was ample evidence
to support their identification of Mr. Gregory.  Both knew him from previous
occasions.  Both named him immediately in their communications with the
dispatcher.  Constable MacNeill confirmed Mr. Gregorys identity as the driver
of the pick-up truck at the arrest scene and in the courtroom.  There is no
basis on which this Court properly could intervene in the judges conclusion
Mr. Gregory was the person seen driving the stolen pick-up truck.

Conclusion

[31]

Mr. Duncan has said everything
that could be said to support this appeal, but I would dismiss this appeal.

[32]

MACKENZIE J.A.
: I agree.

[33]

BAUMAN J.A.
: I agree.

[34]

MACKENZIE J.A.
: The appeal is dismissed.

The Honourable Mr. Justice Chiasson


COURT OF
APPEAL FOR BRITISH COLUMBIA

Citation:

Hassan v. Hunter Hill
  Housing Co-Operative,

2009 BCCA 35

Date: 20090129

Docket: CA036714

Between:

Zahara
Hassan

Appellant

And

Hunter Hill
Housing Co-Operative

Respondent

Before:

The Honourable Madam
  Justice Newbury

The Honourable Madam
  Justice Kirkpatrick

The Honourable Mr. Bauman

Oral Reasons for Judgment

Appellant appearing In Person

L.L. Afonso

Counsel for the Respondent

Place and Date:

Vancouver
, British Columbia

29 January 2009

[1]

NEWBURY, J.A.
: Ms. Hassan seeks to vary an order of
Madam Justice Prowse in chambers, made on January 15, 2009.  She dismissed
Ms. Hassan’s application for leave to appeal and for a declaration of
indigent status.

[2]

Ms. Hassan was seeking
to appeal in turn an order of Mr. Justice Brine dated November 27 of last year,
in which he granted the application of Hunter Hill Housing Co-Operative for an
order of entitlement to vacant possession of a residential unit occupied by Ms.
Hassan and her children since 2001.  Brine J. also dismissed an appeal of
Ms. Hassan from a decision of the Co-operative terminating her
membership.  Under s. 171 of the
Cooperative Association Act
,
S.B.C. 1999, c. 28, any right of a member to possession or occupancy of
residential premises that is dependent on his or her membership in a housing
cooperative, which is the case here, is terminated on the termination of the
membership.

[3]

The termination
decision was made at a duly called meeting of the Co-operative at which Ms.
Hassan spoke.  The Directors of the Co-op subsequently passed a similar
resolution at a meeting where she also spoke.  She was advised of her right
to appeal to the Supreme Court of British Columbia under s. 37(3) of the
Act
,
and did so after obtaining counsel.

[4]

Ms. Hassan did not
appear at the hearing before Brine J.  Proceeding on affidavit evidence,
he found that the rules of natural justice had been met.  That is, Ms.
Hassan had had notice of the hearing, had known the case to be met, had had an
opportunity to meet it and had been advised of her right to appeal.  Brine
J. was satisfied that the Co-operative’s decision to terminate her
membership and to seek vacant possession were “appropriate”.
He therefore granted the Co-operative the declarations sought, to take effect
January 31, 2009.  I note that s. 172(3) of the
Act
states:

(3) If the court determines that the person's membership was terminated
in accordance with the principles of natural justice, the court must make an
order of possession in favour of the housing cooperative.

[5]

Before Madam Justice
Prowse, Ms. Hassan appeared in person and the Co-operative was
represented.  Ms. Hassan insisted that she had made all of the payments
that she was required to make.  However, this had been contradicted by
affidavit materials filed before Brine J. in the court below.  Madam
Justice Prowse observed that Brine J. had found that in fact, Ms. Hassan had
failed to meet many of those payments and that there was no prospect Ms. Hassan
was to succeed in challenging that finding.

[6]

Madam Justice Prowse
also dealt with an argument that Ms. Hassan had failed to appear in Supreme
Court because she had not had notice of what time she was required to
appear.  There is affidavit evidence on this point, and at the end of the
day, Madam Justice Prowse said that she was satisfied “all proper steps
were taken to ensure that Ms. Hassan had notice of that hearing”.

[7]

Madam Justice Prowse
found “with some concern and some regret”, that there was no valid
ground of appeal on the basis of no notice or on any of the other grounds
advanced by Ms. Hassan.  The proposed appeal was also very fact-specific,
did not turn on an issue of public concern and in Madam Justice Prowse’s
view, it was not in the interest of justice that it proceed.  She declined
to extend the January 31 date, and indicated that if Ms. Hassan intended to
seek a review of her order, she should do so immediately and such a review
should be expedited.

[8]

Before us today, Ms.
Hassan has argued the same points she argued below.  However, in order to
succeed in a review of an order of a judge in chambers, the applicant must show
that the judge was wrong in law in principle or misconceived the facts:
Frew
v. Roberts
(1990), 29 B.C.R. (3d) 34 and
Ward v. Clark
[2001] B.C.J. No. 901.

[9]

I am not persuaded Ms.
Hassan has met this onus.  It was for the Supreme Court judge to find the
facts, which he did, and Madam Justice Prowse found no basis in which Ms.
Hassan would have a realistic chance of showing such findings were clearly
wrong.  We have been shown no reason today to find that there was any real
merit to the proposed appeal or that the appeal should be heard in the interest
of justice.  Rather it appears that as Madam Justice Prowse stated, Ms.
Hassan would be bound to fail on the grounds she is advancing.

[10]

I acknowledge that
being expelled from a housing co-operative will be hard on Ms. Hassan and her
family; however, the Co-operative has given her every opportunity to remedy her
default and clearly has complied with the rules of natural justice.  As I
have indicated, the
Act
is clear that the Court must in the
circumstances make an order for possession.

[11]

I have inquired whether
the Co-operative might consider extending the time somewhat since January 31 is
two days away and I would ask that counsel take that request back to her
client.

[12]

In the result, however,
I would dismiss the application for review.

[13]

KIRKPATRICK, J.A.
I agree.

[14]

BAUMAN, J.A.
: I agree.

[15]

NEWBURY, J.A.
: The application is dismissed.

(discussion with
counsel)

[16]

NEWBURY, J.A.
: Yes, that would be fine.

“The Honourable Madam Justice
Newbury”


COURT OF APPEAL FOR
BRITISH COLUMBIA

Citation:

Booty v. Hutton,

2009 BCCA 29

Date: 20090130

Docket: CA036259; CA036260

Docket: CA036259

Between:

Charlein Booty

Respondent

(
Petitioner
)

And

Gordon Stanford Hutton
(Allen Hutton, Agent)

Appellant

(
Respondent
)

 and

Docket: CA036260

Between:

Gordon Stanford Hutton
and Allen Hutton

Appellants

(
Plaintiffs
)

And

Charlein Booty

Respondent

(
Defendant
)

Before:

The Honourable Mr. Justice
  Donald

(In Chambers)

A. Hutton

Appearing in person

D. H. Unterman

Counsel for the Respondent

Place and Date of Hearing:

Vancouver
, British Columbia

January 19, 2009

Place and Date of Judgment:

Vancouver
, British Columbia

January 30, 2009

Reasons for Judgment
of the Honourable Mr. Justice Donald:

[1]

Allen Hutton, as agent for Gordon
Stanford Hutton, applies for an extension of time to apply for a review of the
order of 14 October 2008 of Mr. Justice Frankel, in chambers, dismissing his
application for leave to appeal.

[2]

Charlein Booty applies for a
declaration that Allen Hutton is a vexatious litigant and for an order quashing
the proceedings as vexatious.  In the alternative, she applies for security for
costs in the Supreme Court and in this Court.

[3]

Allen Hutton, son of Gordon
Stanford Hutton, deceased, conducts this litigation as agent of his fathers
estate.  Whether he is the estates legal representative has not yet been
determined.  For clarity, I refer to father and son as Gordon and Allen and
I intend no disrespect in using their given names.

[4]

Charlein Booty is the sister of
Gordon.  Gordon was the executor of their fathers estate.  Ms. Booty
successfully claimed in a contempt proceeding that Gordon did not administer
the estate properly and, on 20 November 1996, she received a judgment for
$40,000 plus costs from Madam Justice Boyd.

[5]

Gordon brought an appeal,
CA022525, but did not pursue it.  It was dismissed as abandoned on 21 May 1998
pursuant to s. 25(5) of the
Court of Appeal Act
, R.S.B.C. 1996, c. 77.

[6]

Gordon died in 2004.

[7]

Allen is convinced that Madam Justice
Boyds judgment is a miscarriage of justice.  In that belief, he brought an
application in September 2004 to set aside her order.  That was dismissed by
Mr. Justice Shabbits in oral reasons (22 September 2004), Vancouver A932373
(B.C.S.C. Chambers), on the holding that he lacked jurisdiction to overturn
another Supreme Court judges decision.

[8]

Allen also applied at the same
time for production of documents relating to two estates in the Hutton family,
which documents he asserted would show the wrongness of Madam Justice Boyds
order.  Mr. Justice Shabbits held that production of documents bearing on the
validity of the order was a matter for the Court of Appeal.

[9]

On 12 January 2005, Mr. Justice
Holmes adjourned Allens applications to review and set aside or stay the
orders of Mr. Justice Shabbits so that the application could be brought before
Shabbits J.

[10]

On 5 June 2008, Shabbits J.
dismissed the applications to review and stay his earlier orders:  (5 June
2008), Vancouver A932373/S016658 (B.C.S.C. Chambers).  He ruled that the formal
orders as settled reflected the relief that he pronounced in his reasons for
judgment.  It is from this decision that the appeal is taken.

[11]

Allen applied for an order
dispensing with the requirement to serve the notices of appeal on Ms. Booty.
This was refused by Madam Justice Rowles, in chambers, on 14 August 2008.  In
the course of her reasons, she remarked:

[7]
I would add that it appears to me that Mr. Huttons applications have no merit
and it may be time for an order to be made preventing him from bringing any
further appeal proceedings without leave from a justice of this Court.

[12]

Leave to appeal was dismissed by
Mr. Justice Frankel, in chambers, on 14 October 2008.

[13]

The time limit for applying to
vary an order of a single justice is seven days.  Allen filed his application
on 17 November 2008, about three weeks late.  His explanation is that he was
unaware of the short time requirement and proceeded as quickly as he could.

[14]

It seems obvious that the review
of Frankel J.A.s order refusing leave is bound to fail on the ground that
Allen has appealed the wrong order of Shabbits J., i.e., instead of
appealing the substantive order, he appealed the refusal to vary that order.
The only issue that can arise in respect of the latter is whether the order
conformed with the reasons, and there is no apparent disparity.

[15]

Allen hopes that the appeal will
open up the whole miscarriage issue as he sees it.  He is certain to be
disappointed in that expectation.

[16]

My view of the merits, which is in
accord with Rowles J.A.s assessment mentioned earlier, is not by itself a
sufficient ground for refusing to extend time; nor, for that matter, is it
enough for a vexatious litigant order.

[17]

The delay of three weeks in
bringing the variance application is not inordinate.  A single judge should not
refuse an extension on account of lack of merit alone:
Dadashzadeh v. British Columbia (Motor Carrier Commission)
, 2003 BCCA 463, 35 C.P.C. (5th) 276
(Chambers), Rowles J.A.

[18]

I cannot say that the application
for an extension of time or other processes taken so far in the Court of Appeal
rises to the level of vexatious conduct.  While a pattern of persistent
vexatious behaviour is beginning to emerge, it is inchoate at this point:
Koch
v. Mitchell
, 1999 BCCA 16, 118 B.C.A.C. 176.

[19]

If the review application goes
before a division of this Court and is dismissed, Allen must accept that the
order of Boyd J. can no longer be challenged.  Any further litigation in that
regard will likely result in a vexatious litigant order.

[20]

Turning to the application for
security for costs, Ms. Booty asks for security in the amount of $3,921.99
unpaid costs in the Supreme Court and $2,500 in this Court.

[21]

The authority to order security
for trial costs can be found in s. 10(2)(b) of the
Court of Appeal Act
.
In
Aikenhead v. Jenkins
, 2002 BCCA 234, 166 B.C.A.C. 293 at para. 30,
Madam Justice Ryan, in chambers, stated the three principles to be considered
in the exercise of discretion in ordering security for trial costs:

1.         The
onus is on the applicant to show that it is in the interest of justice to order
posting for security of a trial judgment and/or of trial costs.

2.         The
applicant must show prejudice if the order is not made.

3.         In
determining the interests of justice the chambers judge should consider the
merits of the appeal and the effect of such an order on the ability of the
appellant to continue the appeal.

[22]

In my opinion, an order for
security for trial costs is appropriate.  The appeal has no merit.  Allen has
not paid outstanding costs from 2004, 2005 and June 2008, despite having the
ability to pay.  He owns a home in Vancouver and a farm in Saskatchewan.
Posting security will not impede his opportunity to pursue the appeal.

[23]

Although Allen has real property,
he denies having any income.  Recovery of appeal costs is likely to be
difficult.  Given the absence of merit in the appeal and the demonstrated
refusal to pay other court costs, I consider it in the interest of justice to
order security for appeal costs.

[24]

The estimate of $2,500 for
proceedings to date plus the hearing of the variance application is not
unreasonable.

[25]

In the result, I extend the time
to file the application to vary to the date of filing.  I direct that the
variance hearing be set down on the date that security for costs is posted, and
that the hearing itself be no later than one month from that date.  I order
security for costs in the amounts stated and stay the proceedings until
security is posted.

The Honourable Mr. Justice Donald


COURT OF APPEAL FOR
BRITISH COLUMBIA

Citation:

Pemberton Benchlands
  Housing Corporation v. Sabre Transport Ltd.,

2009 BCCA 30

Date: 20090130

Docket: CA035912

Between:

Pemberton Benchlands
Housing Corporation

Appellant

(
Plaintiff
)

And

Sabre Transport Ltd.

Respondent

(
Defendant
)

Before:

The Honourable Madam
  Justice Levine

The Honourable Mr. Justice
  Tysoe

The Honourable Madam
  Justice D. Smith

J.A. Henshall

Counsel for the Appellant

J.R. White

Counsel for the Respondent

Place and Date of Hearing:

Vancouver
, British Columbia

January 9, 2009

Place and Date of Judgment:

Vancouver
, British Columbia

January 30, 2009

Written Reasons by
:

The Honourable Madam
  Justice Levine

Concurred in by:

The Honourable Mr. Justice
  Tysoe

The Honourable Madam Justice
  D. Smith

Reasons for Judgment
of the Honourable Madam Justice Levine:

Introduction

[1]

The appellant, Pemberton
Benchlands Housing Corp. (PBH), appeals from the order of Ehrcke J.,
following a summary trial under Rule 18A, dismissing its action against the
respondent, Sabre Transport Ltd. (Sabre).  (His reasons for judgment may be
found at 2008 BCSC 294.)

[2]

PBH sought a declaration that it
had entered into a fixed price construction contract with Sabre, specific
performance of the contract, and in the alternative, damages in lieu of
specific performance for breach of contract.  The trial judge found that PBH
had not established that the parties had entered into a fixed price
construction contract.  PBH claims on appeal that the trial judge erred in his
substantive conclusions, and in summarily dismissing its action.

[3]

In my opinion, the appellant has
not raised any reviewable error.  As further explained in the reasons that
follow, I would dismiss the appeal.

Background

[4]

PBH was incorporated in April 2003
to carry out a joint venture to acquire and develop lands near Pemberton, British Columbia.  Its shareholders were Glacier Creek Development Corporation
and Whistler Service Park Ltd., each owning 50 per cent.  Glacier was owned by
Mr. Serge Côté, and Whistler was owned by Mr. Art Den Duyf, who also owned the
respondent, Sabre.  Glacier was a real estate development company, and Sabre
provided road and civil construction services.  The dispute in these
proceedings concerned the terms and price under which Sabre was to provide site
servicing for the development.

[5]

PBH claimed that the construction
contract was partly written and partly oral.  It alleged that the written terms
were included in two documents:  a CCDC2 form of construction contract
together with an attached 20-page document (referred to by the trial judge as
the Tabulation), or alternatively, only in the Tabulation, which provided for
a fixed price of $2,859,765.  One of the alleged oral terms was that the
contract included a contingency reserve of $500,000.

[6]

In defence, Sabre claimed it
agreed to provide construction services under an oral or implied contract for
time and materials.  It counterclaimed for judgment for $3,351,542.42 for
contract work completed up to May 31, 2005, plus additional amounts for work
completed after that date.

[7]

Sabre applied under Rule 18A for
an order dismissing PBHs action, or alternatively, dismissing PBHs claim that
the parties had entered into a fixed price contract, and for leave to proceed
with its counterclaim.

[8]

The only issue on the summary
trial was whether the construction contract was for a fixed price of $2,859,765
plus a contingency reserve of $500,000.  The trial judge dismissed PBHs
action, and gave leave to Sabre to proceed with its counterclaim.

Reasons for Judgment

[9]

The trial judge considered the two
documents PBH alleged contained the written terms of the contract.  He found
(at para. 24) that the CCDC2 form was not part of any contract between PBH and
Sabre, based on the evidence of Mr. Côté.  Mr. Côté was the president and a
director of PBH.  He testified that he did not know if Mr. Den Duyf had signed
the document, although his signature appeared on it; the CCDC2 form was not
agreed to by PBH and Sabre; and PBH had not used it as a contract.  There was
evidence that Mr. Den Duyfs signature on the CCDC2 form was forged (at para.
22).

[10]

The trial judge then considered
the Tabulation, which he described as follows (at paras. 18-19):

The
second part of Document 345 is an appended 20-page list of construction items
and prices.  For convenience I shall refer to this second part of Document 345
as the Tabulation.  On its first page, it has the heading:

Sabre
Transport

Project:
Pemberton Benchlands, Pemberton, B.C.

Construction
Contract

Authorized
Signature: Pemberton Benchlands Housing _____

Authorized
Signature: Sabre Transport _____

Job
No. 416

December
8, 2003

It then lists in detail items of work, materials and
prices under various sections such as Storm Sewer, Sanitary Sewers,
Waterworks, Roadworks, and so on.  On the bottom of the last page is a
total of the earlier sections, with the words, Construction Cost Summary
$2,859,765.

[11]

The trial judge summarized PBHs
argument that the Tabulation contained the written terms of a fixed contract (at
para. 27):

In support of its theory that the Tabulation contains
the written terms of a fixed price contract, the plaintiff relies on the
following facts:  the Tabulation is headed Construction Contract; it is
signed by Dave Paterson next to the words, Authorized Signature:  Sabre
Transport; it itemizes the work to be done; and the final words on the last
page are Construction Cost Summary $2,859,765.

[12]

Sabres submissions were as
follows (summarized at para. 33):

The defendant counters with the following
submissions:  first, that Dave Paterson did not sign the Tabulation as a
construction contract; second, that even if he did sign it as a contract, he
had no authority to bind Sabre because only Art Den Duyf, as its president,
could do that; third, that even if the Tabulation was a binding contract, the
fact that it consists merely of a twenty-page list of work and prices without
any specific contractual terms demonstrates on its face that it is a time and
materials contract, not one for a fixed price; and finally, the defendant
submits that the conduct of the parties is inconsistent with the existence of a
fixed price contract.

[13]

After reviewing the evidence
surrounding the creation of the Tabulation and the circumstances under which it
was signed by Mr. Paterson, the trial judge found (at para. 40):

The plaintiff relies on the Tabulation as being the
written portion of a fixed price contract that was partly written and partly
oral.  It is clear that Mr. Côté signed that document on behalf of PBH and that
Mr. Paterson, the project manager for Sabre, signed it on the line beside the
words Authorized Signature: Sabre Transport.

[14]

The trial judge noted (at para.
41) that there was fundamental divergence in the evidence about what was said
and done when the document was signed.  PBHs representatives, Mr. Côté and
Mr. Prall, maintained that Mr. Paterson agreed on behalf of Sabre to the price
for the civil work at $2,859,765.  Mr. Patersons evidence was that when
signing the Tabulation he made it clear to Mr. Côté that it was not a contract
and that the $2.85 million was not a contract amount.

[15]

The trial judge accepted Sabres
submissions that it should nonetheless succeed on the summary trial on the
ground that even if Mr. Paterson thought he was signing a contract (which he,
of course, denies), he had no authority to bind Sabre, and therefore, the
Tabulation is not a contract between PBH and Sabre (para. 42).

[16]

The trial judge found (at para.
43) that Mr. Den Duyfs uncontradicted evidence was clear that Mr. Paterson
did not have authority to sign the document on behalf of Sabre.  He concluded
that Mr. Paterson had no actual authority to sign the Tabulation as a contract
binding on Sabre.

[17]

He went on to reject PBHs
argument that Mr. Paterson had apparent authority to sign the Tabulation as a
contract enforceable against Sabre.  He noted that PBH did not develop the
argument or provide any authorities.  He analyzed the issue and concluded (at
paras. 45-46):

In
Rockland Industries, Inc. v. Ameranda Minerals Corp.
of Canada
, [1980] 2 S.C.R. 2, the Supreme Court of Canada referred to the
criteria set out in
Freeman & Lockyer v. Buckhurst Park Properties
(Mangal) Ltd.
, [1964] 2 Q.B. 480 at pp. 505-06 for relying on the apparent
authority of an agent:

If the foregoing analysis of
the relevant law is correct, it can be summarised by stating four conditions
which must be fulfilled to entitle a contractor to enforce against a company a
contract entered into on behalf of the company by an agent who had no actual
authority to do so. It must be shown:

(1)  that a representation
that the agent had authority to enter on behalf of the company into a contract
of the kind sought to be enforced was made to the contractor;

(2)  that such
representation was made by a person or persons who had "actual"
authority to manage the business of the company either generally or in respect
to those matters to which the contract relates;

(3)  that he (the
contractor) was induced by such representation to enter into the contract, that
is, that he in fact relied upon it; and

(4)  that under its
memorandum or articles of association the company was not deprived of the
capacity either to enter into a contract of the kind sought to be enforced or
to delegate authority to enter into a contract of that kind to the agent.

In the present case, the plaintiff has not shown that
anyone with actual authority for Sabre, such as Mr. Den Duyf, made
representations to Mr. Côté or anyone else at PBH that Mr. Paterson was
authorized to enter into a 2.85 million dollar fixed price construction
contract on behalf of Sabre.  The first two necessary conditions for relying on
apparent authority have not, therefore, been established in the evidence.

[18]

In the result, he found (at para.
48) that PBH had not established that the alleged written terms of the contract
were signed by anyone with either actual or apparent authority to bind Sabre,
and dismissed PBHs claim that Sabre had entered into a fixed price
construction contract with it.  As PBHs other claims were dependent on PBH
proving a fixed price construction contract, he dismissed PBHs action, and
granted leave to Sabre to proceed on its counterclaim (at paras. 49-50).

Positions of the Parties on Appeal

[19]

The appellants primary ground of
appeal is that the trial judge erred in not finding that Mr. Den Duyf actually
authorized Mr. Paterson, and represented by his conduct that Mr. Paterson had
authority, to sign a fixed price construction contract in the form of the
Tabulation.

[20]

The appellant argues that actual
authority derived from Sabres obligation under the joint venture agreement to
enter into a fixed price contract for services within the range of $3.1 to $3.5
million, as determined by engineering estimates.  It says that Mr. Den Duyf
agreed to this term, and then left Mr. Paterson to carry out the obligation,
determine the details, and enter into a contract that was not outside the
range.  The appellant did not further specify how Mr. Den Duyfs agreement to
the joint venture agreement resulted in actual authority to Mr. Paterson to
enter into the agreed-upon contract.

[21]

The appellant argues further that,
in any event, by leaving Mr. Paterson to carry out all of Sabres part of the
deal, Mr. Den Duyf by his conduct represented that Mr. Paterson was authorized
to enter into the contract required by the joint venture agreement.  That
conduct included making Mr. Paterson responsible for attending all the
meetings, advancing the project, and carrying out the work as the construction
superintendent and foreman.  The appellant says that Mr. Patersons position
implied that he had authority to sign the contract.  In addition, the appellant
maintains that Mr. Patersons authority was implied since he knew about the
requirements to obtain financing and that the Tabulation was prepared for the
purpose of presenting a fixed price contract as demanded by the bank.

[22]

The respondent argues that Mr.
Côtés evidence was that he knew that Mr. Paterson had limited authority, and
acted accordingly.  There was no evidence that a construction superintendent is
customarily authorized to enter into multi-million dollar contracts.  Mr. Côté
delivered the financing documents to Mr. Den Duyf for his signature, the
financial statements of PBH were delivered to Mr. Den Duyf, and he signed all
the cheques.  Mr. Côtés evidence was that Mr. Den Duyf signed but did not read
the financing documents, the financing documents were not in evidence, and Mr.
Côtés evidence as to what the bank required was contradictory hearsay.  At one
point he said the bank required a contract supported by contractors bids, and
at another point he said it required a fixed price contract.  He also said that
the Tabulation was submitted as a budget, without the $500,000 contingency, to
save bonding expense with the Village of Pemberton.  Thus, the respondent says,
Mr. Côtés evidence as to what the bank required was contradictory, and was
consistent with Mr. Patersons evidence that the Tabulation was not intended as
a fixed price contract.

[23]

As to the obligation under the
joint venture agreement, Mr. Den Duyfs position, on behalf of the respondent,
is that he was aware of the obligation and thought Sabre would be negotiating a
fixed price contract, but the parties never got there.  Mr. Den Duyf did not
know about the Tabulation until after the litigation commenced, in 2005.  The
respondent also points out that Whistler, not Sabre, was the party to the joint
venture agreement, and bound by the obligation to enter into a fixed price
contract.  As this last argument was not raised at the trial, I do not intend
to consider it on the appeal.

[24]

The other issue raised by the
appellant is whether the matter was appropriate for judgment under Rule 18A.
The appellant says that it will defend the counterclaim on the basis that there
was a fixed price contract, and the risk of inconsistent conclusions on this
issue could embarrass the court.  It will also rely on the joint venture
agreement that is in issue in other proceedings.  Thus, the appellant claims,
this summary trial will not result in more efficient and less expensive
proceedings.  The respondent says that the question of whether there was a
fixed price contract is
res judicata
, and the trial of its claim for
time and materials will be simplified as a result.

Analysis

[25]

In their factums and at the
hearing of the appeal, both parties reviewed the evidence supporting their
respective positions, without much reference to the trial judges findings of
fact.  The appellant did not expressly allege that the trial judge made any
palpable or overriding error in his consideration of the evidence, or that he
erred in law in his understanding or application of the legal principles
relating to ostensible authority.  At best, the appellants argument amounts to
an allegation that the trial judge misapprehended the evidence by failing to
find that Mr. Den Duyf represented by his conduct that Mr. Paterson had the
authority to sign a fixed price contract.

[26]

It is not the role of this Court
to retry the case.  The Court is a court of review and a court of error.  Where
no error is alleged, the Court has no task to undertake in reviewing the
judgment appealed from.

[27]

The trial judge considered the
principles of ostensible authority, had all of the evidence relied on by both
parties before him, and concluded that there was no evidence that contradicted
Mr. Den Duyfs statement that Mr. Paterson did not have authority to sign the
Tabulation.  While he did not expressly summarize the evidence of Mr. Den
Duyfs conduct by reference to whether it amounted to representations
concerning Mr. Patersons authority, he is presumed to know the law (that
conduct may amount to a representation) and the evidence supported his
conclusion.  Nothing in the appellants argument raises a reviewable error.

[28]

Nor did the trial judge err in
deciding this case at a summary trial.  Both parties consented to the matter
being decided under Rule 18A.  In fact, the appellant brought its own
application for judgment under Rule 18A, and, according to the respondent, both
parties urged the trial judge to decide it.  The parties positions at the
summary trial are not determinative of whether the matter is suitable for
disposition under Rule 18A (see
Bacchus Agents (1981) Ltd. v. Dandurand (Philippe)
Wines Ltd.
, 2002 BCCA 138 at para. 28), but they explain why the question
of whether the matter was suitable for disposition under Rule 18A was not
argued before the trial judge.

[29]

The issue of whether there was a
fixed price contract, based on the two documents the appellant relied on, was a
discrete issue in this action.  The fact that the appellant, on appeal, relies
on the terms of the joint venture agreement, and the joint venture agreement is
in issue in other proceedings, does not complicate the matter so that the Rule
18A judgment is unsuitable, inefficient, or unjust: see Rule 18A(8)(b)(i) and
(ii) and 18A(11)(a)(ii).  This case is not like
B.M.P. Global Distribution
Inc. v. Bank of Nova Scotia (c.o.b. Scotiabank)
, 2003 BCCA 534, (2003), 19
B.C.L.R. (4th) 347, where new issues arose on appeal that could not be resolved
based on the record.  There is no new issue on appeal here  just a variation in
the manner in which the issue at the trial was argued.  The resolution of
whether there was a fixed price contract appears to simplify this action.

[30]

The respondent raised a further
argument at the hearing  that the inconsistent evidence of Mr. Côté shows that
the appellant did not think that the Tabulation was a fixed price contract, and
even if Mr. Paterson was authorized to sign it, it was only a budget and not a
contract.  The trial judge did not make that finding, and it is not necessary
to do so to decide this appeal.

Conclusion

[31]

The appellant has not identified
any reviewable error in the reasons or order of the trial judge.

[32]

It follows that I would dismiss
the appeal.

The Honourable Madam Justice Levine

I Agree:

The Honourable Mr. Justice Tysoe

I Agree:

The Honourable Madam Justice D. Smith