COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Ocean Pastures Corporation v. Old Masset Economic
  Development Corporation,

2016 BCCA 12

Date: 20160113

Docket:
CA42267; CA42272

Docket: CA42267

Between:

Ocean Pastures
Corporation and Russ George

Respondents

(Plaintiffs)

And

Old Masset
Economic Development Corporation

Appellant

(Defendant)

And

Haida
Salmon Restoration Corporation, Jason McNamee, Cecil Brown,
John Disney, Blue Carbon Solutions, Inc., John (BC) Doe, John Doe #2

Respondents

(Defendants)

-
and -

Docket: CA42272

Between:

Ocean Pastures
Corporation and Russ George

Respondents

(Plaintiffs)

And

Haida Salmon
Restoration Corporation

Appellant

(Defendant)

And

Old
Masset Economic Development Corporation, Jason McNamee,
Cecil Brown, John Disney, Blue Carbon Solutions, Inc.,
John (BC) Doe, John Doe #2

Respondents

(Defendants)

Before:

The Honourable Mr. Justice Donald

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Goepel

On appeal from:  An
order of the Supreme Court of British Columbia, dated September 24, 2014 (
Ocean
Pastures Corporation v. Haida Salmon Restoration Corporation
, 2014 BCSC
1788, Vancouver Registry Docket S140052).

Counsel for the Appellant,
Old Masset Economic Development Corporation:

A. Paczkowski

Counsel for the Appellant,
Haida Salmon Restoration Corporation:

R. Spigelman

Counsel for the Respondents:

No one appearing

Place and Date of Hearing:

Vancouver, British
  Columbia

December 10, 2015

Place and Date of Judgment:

Vancouver, British
  Columbia

January 13, 2016

Written Reasons by:

The Honourable Mr. Justice Goepel

Concurred in by:

The Honourable Mr. Justice Donald

The Honourable Madam Justice Newbury

Summary:

Appeal from orders dismissing
the appellants applications for security for costs against an impecunious
corporate plaintiff. The chambers judge found that the applicants satisfied the
test for security for costs against the corporate plaintiff but declined to
award security because an individual plaintiff was a shareholder of the
corporate plaintiff. Held: appeal allowed. The chambers judge erred in applying
the special circumstances test to the corporate plaintiff. The presence of an
individual plaintiff does not alter the established test for security against a
corporate plaintiff.

Reasons for Judgment of the Honourable
Mr. Justice Goepel:

INTRODUCTION

[1]

This appeal concerns security for costs. The issue for determination is whether
the existence of an individual plaintiff modifies the test to be applied on an
application for security for costs against an impecunious corporate plaintiff.

BACKGROUND

[2]

Russ George and Ocean Pastures Corporation (OPC) commenced the underlying
action in January 2014. Mr. George is the sole shareholder of OPC.

[3]

OPC owns 48% of the shares in the appellant Haida Salmon Restoration
Corporation (HSRC). HSRC was formed to finance and operate an iron
fertilization project aimed at stimulating plankton growth in the oceans off
Haida Gwaii. The majority shareholder of HSRC is the appellant Old Masset
Economic Development Corporation (OMEDC). Mr. McNamee, Mr. Brown and Mr.
Disney are each directors or former directors of HSRC. Mr. Disney is also a
director of OMEDC.

[4]

The causes of action pleaded by the plaintiffs include breach of
contract, oppression, interference with economic relations, and breach of
fiduciary duty.

THE CHAMBERS
APPLICATION

[5]

In February 2014, the corporate defendants, OMEDC and HSRC, each sought
security for costs against OPC and Mr. George in the amount of $40,132.10. The
individual defendants, Mr. McNamee, Mr. Brown and Mr. Disney, also sought
security for costs in the amount of $35,000. The defendants argued that the
plaintiffs would be unable to pay costs if their action was dismissed because
neither plaintiff appeared to have any assets. Mr. George argued that both he
and OPC had limited resources and would be unable to prosecute their claim if
security was ordered.

[6]

In reasons indexed at 2014 BCSC 1788, the chambers judge first set out
the principles governing an order of security for costs against a corporate
plaintiff, citing the leading authorities of
Kropp v. Swaneset Bay Golf
Course Ltd.
(1997), 29 B.C.L.R. (3d) 252 (C.A.) and
Fat Mels Restaurant
Ltd. v. Canadian Northern Shield Insurance Co.
(1993), 76 B.C.L.R. (2d) 231
(C.A.) [
Fat Mels
].

[7]

He noted that a defendant faces a more stringent test in seeking
security for costs from an individual plaintiff, compared to a corporate
plaintiff, citing
Bronson v. Hewitt
, 2007 BCSC 1751 and
Han v. Cho
,
2008 BCSC 1229.

[8]

He then considered the situation in which an individual plaintiff is
also a shareholder in a corporate plaintiff. Citing
Hawksview Enterprises
Ltd. v. BC Hydro and Power Authority
, 2014 BCSC 226 [
Hawksview
], he
held that the usual test for security for costs against a corporate plaintiff
may not apply when an individual plaintiff is also a shareholder in that
corporation. On this basis, he dismissed HSRC and OMEDCs applications for
security for costs against OPC, reasoning as follows:

[18]      I find that a similar approach [to that in
Hawksview
]
is appropriate on the facts of this case. The applicants have met the test in
relation to the corporate plaintiff, OPC, but only if OPC is viewed in
isolation from the individual plaintiff Mr. George.

[19]      On the evidence before me, any order for security
for costs against OPC would, for all practical purposes, be an order against
the individual plaintiff. Mr. George is the sole shareholder of the company,
which has no current business income and no assets against which it could raise
funds. Realistically, any security posted by the company could only be supplied
by Mr. George.

[20]      On the application by
the defendants HSRC and OMEDC, there are no special circumstances sufficient to
an [
sic
] order that Mr. George post security for costs. His apparent
inability to pay costs is not, on the authorities, a reason for the order and I
am satisfied that an order would stifle the litigation.

[9]

The chambers judge reached a different conclusion regarding the
individual defendants application for security for costs. He found that the
plaintiffs claim against the individual defendants was weak and ordered security
for costs in their favour in the total amount of $8,000. He stayed the action
against the individual defendants until security was posted and ordered that
the action against them would be dismissed if security was not posted within 60
days of the date of his order.

[10]

The plaintiffs did not post the security ordered in favour of the
individual defendants. The action against them has now been dismissed.

[11]

HSRC and OMEDC sought leave to appeal the orders dismissing their
applications for security for costs against OPC. On January 22, 2015, a judge
of this Court granted leave to appeal.

ISSUES ON APPEAL

[12]

On the appeal, the appellants submit that the chambers judge erred in
law in failing to identify and apply the proper legal test governing the
exercise of his discretion to order security for costs against the corporate
plaintiff. In particular, the appellants submit that the chambers judge erred
in:

(a)

applying to the corporate plaintiff the special circumstances test usually
applicable to individual plaintiffs; and

(b)

failing to properly distinguish between the corporate and individual
plaintiffs in this proceeding.

[13]

I would note that, although served, OPC took no role in the appeal.

DISCUSSION

[14]

There is a distinction between the circumstances in which security for
costs will be ordered against corporations as opposed to natural persons.

[15]

The foundation for an order for security for costs against a corporate
plaintiff is s. 236 of the
Business Corporations Act
, [SBC 2002], c. 57,
which provides:

236      If a corporation is the
plaintiff in a legal proceeding brought before the court, and if it appears
that the corporation will be unable to pay the costs of the defendant if the
defendant is successful in the defence, the court may require security to be
given by the corporation for those costs, and may stay all legal proceedings
until the security is given.

[16]

That section traces its origin to at least the
English Companies Act
,
1862, s. 69.

[17]

The legal principles governing an application for security for costs
against an impecunious corporate plaintiff were summarized in
Kropp
at
para. 17:

1.

The court has a complete discretion whether to order security, and will
act in light of all the relevant circumstances;

2.

The possibility or probability that the plaintiff company will be
deterred from pursuing its claim is not without more sufficient reason for not
ordering security;

3.

The court must attempt to balance injustices arising from use of
security as an instrument of oppression to stifle a legitimate claim on the one
hand, and use of impecuniosity as a means of putting unfair pressure on a
defendant on the other;

4.

The court may have regard to the merits of the action, but should avoid
going into detail on the merits unless success or failure appears obvious;

5.

The court can order any amount of security up to the full amount
claimed, as long as the amount is more than nominal;

6.

Before the court refuses to order security on the ground that it would
unfairly stifle a valid claim, the court must be satisfied that, in all the
circumstances, it is probable that the claim would be stifled; and

7.

The lateness of the application for security is a circumstance which can
properly be taken into account.

[18]

Once an applicant for security for costs has shown that a corporate
plaintiff will not be able to pay costs should its claim fail, security is
generally ordered unless the court is satisfied that there is no arguable
defence:
Fat Mels
at 235.

[19]

The principles relating to corporate plaintiffs stand in contrast to the
general rule that poverty should not be a bar to an individual litigant. The
historical evolution of the difference between security for costs as against
corporations and individuals is traced in
Bronson
at paras. 21-34 and
Han
at paras. 12-27.

[20]

Han
summarized the law concerning individual plaintiffs:

[27]      The onus is on the
applicant to establish that he or she will be unable to recover costs [citation
omitted]. The fact that the plaintiff resides outside the jurisdiction, has no
assets within the jurisdiction, or is impecunious, is not sufficient in itself.
The power to order security for costs against an individual is to be exercised
cautiously, sparingly, and only under special circumstances, sometimes
described as egregious circumstances. Such special circumstances could
arise if an impecunious plaintiff also has a weak claim, or has failed to pay
costs before, or refused to follow a court order for payment of maintenance.

[21]

The reason for the distinction between corporate and individual
plaintiffs was set out in
Bronson
:

[41]       For good reason, individual and corporate
plaintiffs have always been treated differently.  Absent special
circumstances, corporate shareholders are entitled to avail themselves of the
protection of a limited liability company to avoid personal exposure for costs:
[citation omitted]. An order for security for costs prevents the principals of
a corporate plaintiff from hiding behind the corporate veil and, as noted by Megarry
V.C. in
Pearson
, protects the community against litigious abuses by
artificial persons manipulated by natural persons.

[42]      With individuals, the
fundamental concern has always been access to the courts. Access to
justice is as important today as it was in 1885 when Lord Bowen declared in
Cowell
that the general rule is that poverty is no bar to a
litigant. Individuals, no matter how poor, have always been granted
access to our courts regardless of their ability to pay a successful
defendants costs. Only in egregious circumstances have individuals been
ordered to post security for costs.

[22]

In the case at bar, the chambers judge recognized that the applicants
had met the usual test for security for costs against the corporate plaintiff
but refused to order security, purporting to follow the decision in
Hawksview
.

[23]

In
Hawksview
, two individual plaintiffs and one corporate
plaintiff claimed damages in relation to a fire that destroyed a lakefront home
and its contents. The corporate plaintiff owned the home as its sole asset. The
individual plaintiffs had lived in the home for several years. One of the
individual plaintiffs was an officer and co-owner of the corporate plaintiff. The
chambers judge acknowledged that the defendants would have been entitled to
security for costs against the corporate plaintiff if the

corporate
plaintiff

was viewed in isolation from the individual plaintiffs. She
held, however, that the usual test for security for costs against a corporate
plaintiff did not apply because of the presence of the individual plaintiffs.
She concluded that, in those circumstances, the defendants applications for
security for costs should be determined together according to the special
circumstances test which generally applies to individual plaintiffs.

[24]

In
Pearson v. Naydler
, [1977] 3 All E.R. 531 (Ch. D.), a decision
referred to with approval in both
Fat Mels
and
Kropp
, Megarry
V.C. specifically rejected the submission that the existence of an individual
plaintiff should shield a corporate plaintiff from an order for security for
costs. At 535, he said:

In the case of a limited company, there is no basic rule conferring
immunity from any liability to give security for costs.
The basic rule is
the opposite; s 447 [of
The Companies
Act, 1948] applies to all limited
companies, and subjects them all to the liability to give security for costs
.
The whole concept of the section is contrary to the rule developed by the cases
that poverty is not to be made a bar to bringing an action. There is nothing in
the statutory language (the substance of which goes back at least as far as the
Companies Act
1862, s 69) to indicate that there are any exceptions to
what is laid down as a broad and general rule for all limited companies. Nor is
it surprising that there should be such a rule. A man may bring into being as
many limited companies as he wishes, with the privilege of limited liability;
and s 447 provides some protection for the community against litigious abuses
by artificial persons manipulated by natural persons.
One should be as slow
to whittle away this protection as one should be to whittle away a natural
persons right to litigate despite poverty. Yet if counsel for the plaintiffs
is right, there is an implied exception or qualification to s 447 which makes
it operate as if there were inserted in some suitable place some words such as
unless the company sues with one or more natural persons as co-plaintiffs or
co-pursuers. I can see no grounds for making any such implication
.

[Emphasis added.]

[25]

I agree with and would adopt those comments. The existence of an
individual plaintiff does not alter the well-established test to be applied on
an application for security for costs against a corporate plaintiff. The same test
applies to all limited liability companies. This test provides a degree of
protection and comfort to a party sued by an impecunious corporation.

[26]

I also note that
Kropp
involved an individual plaintiff who was
the principal shareholder of the corporate plaintiff. That individuals presence
as a litigant did not shield the corporate plaintiff from an order for security
for costs against it.

[27]

Hawksview
was, with respect, wrongly decided and should not be
followed. The chambers judge in this case and the chambers judge in
Hawksview
both fell into error by conflating the claims of the individual and
corporate plaintiff. They failed to recognize

that the claims of the
individual were separate and apart from those of the corporation and would
continue regardless of whether the corporation posted security. The fact that Mr.
George may be the only person who can post security for the corporation does
not impact the principles governing the circumstances in which a corporation may
be obliged to post security.

[28]

The chambers judge was satisfied that, subject to
Hawksview
, security
for costs should be ordered against OPC in the appellants favour. The
appellants each sought security in the amount of $40,132.10. Their draft bill
of costs contemplated a ten-day trial and several interlocutory applications. This
draft bill was prepared early on in the litigation, at a time when the
individual defendants remained involved.

[29]

As noted in
Kropp
, the court can order any amount of security up
to the full amount claimed, as long as the amount is more than nominal. The
draft bill is a guideline. The court has the discretion to order security in
the amount that it considers appropriate.

[30]

I would allow the appeal and order that OPC post security for costs in
the sum of $25,000 for each appellant. I would stay OPCs action against each
appellant until the security in their favour has been posted.

[31]

If security in favour of an appellant is not posted within 45 days of
the date of these reasons, that appellant will be at liberty to bring an application
in the Supreme Court to have OPCs action against it dismissed.

The
Honourable Mr. Justice Goepel

I AGREE:

The Honourable Mr. Justice Donald

I AGREE:

The Honourable Madam Justice Newbury


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Premium Weatherstripping Inc. v. Ghassemi,

2016 BCCA 20

Date: 20160114

Docket: CA42708

Between:

Premium
Weatherstripping Inc.

Respondent

(Plaintiff)

And

Hossein Ghassemi

Appellant

(Defendant)

Corrected
Judgment: A correction was made in the text of para. 7 on March 7, 2016.

Before:

The Honourable Madam Justice Saunders

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Fitch

On appeal from: an
order of the Supreme Court of British Columbia, dated
March 11, 2015 (
Premium Weatherstripping Inc. v. Panahandeh
, 2015 BCSC
841, Vancouver Registry No. S149998)

Oral Reasons for Judgment

Counsel for the Appellant:

C.R. Wardell

Counsel for the Respondent:

A. Spence

Place and Date of Hearing:

Vancouver, British
  Columbia

January 14, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 14, 2016

Summary:

The appeal
from an interlocutory injunction is granted. The injunction ought not to have
been issued on the basis of hearsay evidence when the source of the information
was not provided and the deponent did not depose as to belief in that evidence.
Further, the undertaking as to damages was not given as required, and the court
did not relieve the applicant from that obligation. Interlocutory injunctions
are a special remedy whereby relief is provided to the applicant without
requiring proof, only that there is an arguable case. For that reason, the
procedural requirements intended to guard the remedy of interlocutory
injunctions must be assiduously met.

[1]

SAUNDERS J.A.
: Premium Weatherstripping Inc. (Premium) obtained
an interlocutory injunction in the Supreme Court of British Columbia enjoining
Mr. Ghasssemi from: i) competing with it by way of providing goods that
Premium manufactured; and ii) soliciting any of its customers for the provision
of goods that it manufactured.

[2]

Mr. Ghassemi applied successfully for leave to appeal. The reasons for
leave identify two practice points as issues for appeal - the adequacy of the
affidavits filed in support of the interlocutory injunction and the absence of
an undertaking as to damages. The respondent does not defend the injunction
obtained.

[3]

The issue of costs contested in the factums is now not pursued with the
parties agreeing that each party will bear their own costs of the application
the Supreme Court of British Columbia and in this appeal.

[4]

It is clear, in my view that the order of an interlocutory injunction
must be set aside.

[5]

Rule 22-2 of the
Supreme Court Rules
limits the evidence in an
affidavit to that which is admissible at trial, unless excepted, in these
terms:

(12)
Subject to subrule
(13), an affidavit must state only what a person swearing or affirming the
affidavit would be permitted to state in evidence at a trial.

(13)
An affidavit may
contain statements as to the information and belief of the person swearing or
affirming the affidavit, if

(a) the source
of the information and belief is given, and

(b) the
affidavit is made

(i)   in
respect of an application that does not seek a final order, or

(ii)   by leave of the court under
Rule 12-5 (71) (a) or 22-1 (4) (e).

[6]

By these sub-rules, hearsay evidence (not permitted at trial) generally
may not be included in an affidavit unless sub-rule (13) is met. An
interlocutory injunction, of course comes within the words of sub-rule (13),
an application that does not seek a final order.

[7]

An interlocutory injunction is well understood to be a special sort of
non-final order in that, by its very nature, it restricts the freedom of the
party against whom it is made, without the applicant having had to prove any
allegation beyond the standard of an arguable case. An interlocutory injunction
often becomes the entire remedy in an action, and can endure for a very long
time unless temporal limits are placed upon it. For that reason, assiduous care
in preparation of the application is the standard, including strict compliance
with the requirements for all hearsay evidence that would not be permitted to
be stated at trial to be on information and belief, with the source identified.
There is no room in interlocutory injunction practice for relaxation of that
requirement, in my view.

[8]

In this case the affidavits did not comply with this requirement; the
order appealed must be set aside as having been obtained on the basis of
inadmissible evidence.

[9]

The requirement that an undertaking as to damages be given by the
applicant is of similar importance. Such an undertaking provides an assurance to
the Court of proper intention in the obtaining of the injunction, protects to
some degree against abuse of the remedy, and provides a commitment to make
right any harm done as a result of the granting of the order. In my view, the
order ought not to have issued in the form it did without the court formally relieving
the applicant of the required undertaking.

[10]

In summary, I would allow the appeal and set aside the order of an
interlocutory injunction, with costs as I have described.

[11]

KIRKPATRICK J.A.
: I agree.

[12]

FITCH J.A.
: I agree.

[13]

SAUNDERS J.A.
: The order will go as I have just indicated.

The Honourable Madam Justice Saunders


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Sidhu,

2016 BCCA 23

Date: 20160114

Docket: CA41882

Between:

Regina

Respondent

And

Manjit Singh Sidhu

Appellant

Restriction on Publication:
A publication ban has been imposed
under
s. 486.5(1) of the
Criminal Code
restricting the publication,
broadcasting or
transmission in any way of evidence that could identify a victim or witness.
This publication ban applies indefinitely unless otherwise ordered.

Before:

The Honourable Madam Justice Saunders

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Fitch

On appeal from: an
order of the Provincial Court of British Columbia, dated
May 29, 2014 (
R. v. Sidhu
, 2014 BCSC 1335, Vancouver Registry No. 26562)

Oral Reasons for Judgment

Counsel for the Appellant:

G. Botting

Counsel for the Respondent:

M. Mereigh

Place and Date of Hearing:

Vancouver, British
  Columbia

January 14, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 14, 2016

Summary:

Appeal from
an order dismissing the appellants application to extend the time to file a
notice of appeal from summary conviction by 16 days. The appellant was
convicted in the Provincial Court of one count of sexual assault contrary to s.
271(b) of the Criminal Code, R.S.C. 1985, c. C-46. Held: appeal allowed;
extension of time granted. The summary conviction appeal judge erred in law in
failing to have due regard for all of the factors on an application to extend
the time to bring an appeal, particularly whether granting an extension was in
the interests of justice.

[1]

KIRKPATRICK J.A.
:
The appellant, Manjit Singh
Sidhu, was convicted in the Provincial Court on November 12, 2013 of one count
of sexual assault contrary to s. 271(b) of the
Criminal Code
,
R.S.C. 1985, c. C-46
(a summary conviction
offence). He was sentenced on March 7, 2014, to a 40-day conditional sentence
and 12 months probation.

[2]

Mr. Sidhu filed his application to appeal the summary
conviction on April 23, 2014. The time limit for filing a notice of appeal
expired on April 7, 2014.

[3]

Mr. Sidhus application for an extension of time was
heard in the Supreme Court on May 28, 2014. In brief reasons, the summary
conviction appeal judge dismissed Mr. Sidhus application. The judge was
evidently referred to the three-part test for granting an extension of time to
file an appeal set out in
R. v. Menear
,
[2002] O.J. No. 244 (C.A.). He accepted that Mr. Sidhu had
satisfied the first two factors  a
bona fide
intention to appeal and a satisfactory explanation for the delay in filing the
notice of appeal.

[4]

However, the judge concluded that the appeal was
without merit, stating:

[2]        This case turns entirely upon
assessment of credibility in an alleged sexual assault where the learned trial
judge heard all of the evidence and pronounced upon the lack of credibility of
the accused.

[3]        The trial judge specifically
addressed the principles that are to be considered in the determination of
whether, in the situation of where an accused testifies, a reasonable doubt has
been raised. After doing so, she rejected his evidence and found in favour of
the evidence of the Crown.

[4]        I do
not see this as being a case of the trial judge choosing between the Crown and
the accuseds evidence. There was, in my view, a complete analysis of the
situation before the trial judge on the evidence adduced. I am not satisfied
that there is a meritorious appeal in this matter that is worthy of
investigation.

[5]

The application for an extension of time was accordingly dismissed.

[6]

Mr. Sidhu then sought leave to appeal the decision that
denied the extension of time. On February 6, 2015, a judge of this Court
granted leave to appeal the order of the summary conviction appeal judge.

[7]

In the materials filed on appeal, Mr. Sidhu has not
identified any error on the part of the summary conviction appeal judge which
is, of course, the order appealed from. Rather, he has focused his attention on
the merits of the appeal from the decision of the Provincial Court.

[8]

However, while the summary conviction appeal judge
necessarily addressed the merits of the appeal as a factor to be considered, he
did not address the merits in detail The decision was currently under appeal strictly
procedural in that it denied an extension of time to permit Mr. Sidhu to appeal
the summary conviction. The issue for us is whether the summary conviction
appeal judge erred in refusing to grant an extension of time to file the
appeal.

[9]

In
R. v. Roberge
,
2005 SCC 48, the Supreme Court of Canada summarized the factors to
be considered on an application to extend the time for leave to appeal in that
Court:

6          The power to extend time under
special circumstances in s. 59(1) of the Act is a discretionary one. Although
the Court has traditionally adopted a generous approach in granting extensions
of time, a number of factors guide it in the exercise of its discretion,
including:

1.

Whether the applicant formed a
bona fide
intention to seek leave to
appeal and communicated that intention to the opposing party within the
prescribed time;

2.

Whether counsel moved diligently;

3.

Whether a proper explanation for the delay has been offered;

4.

The extent of the delay;

5.

Whether granting or denying the extension of time will unduly
prejudice one or the other of the parties; and

6.

The merits of the application for leave to appeal.

The ultimate
question is always whether, in all the circumstances and considering the
factors referred to above, the justice of the case requires that an extension
of time be granted.

[10]

To similar effect is this Courts
decision in
R. v. M.A.G.,
2002 BCCA 413, in which Esson J.A. examined the test for an
extension of time to file an appeal in the criminal law context:

[27]
I return to the language of
Macfarlane J.A. in
Smith

(quoted

supra
,

para.
11) [
R. v. Smith
, [1990]
B.C.J. No. 2933 (C.A.)] which for convenience I repeat here:

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

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

[28]
My
first observation is that the list of five factors set out in para. 5 are
points which the court takes into account in deciding whether there are
special circumstances which justify granting an extension. The five factors
should not, although they sometimes are, be treated as an exhaustive checklist
of conditions, all of which the applicant must meet in order to succeed on the
application. The governing principle is that the applicant must establish
special circumstances. In making that determination, the matter must be
approached on the basis that the weight to be given to any factor will depend
on the circumstances of each case.
In my view, it
must follow that in some cases the weight to be given to one or more criteria
will be negligible because it is so heavily outweighed by the weight which must
be given to others.

[11]

The summary conviction appeal judge confined his
consideration to only three of the factors set out in
R. v. Menear
. However,
in Minear, at para. 21, the Court stated:

Depending on the case, the court may take into consideration
other factors such as whether the consequences of the conviction are out of
proportion to the penalty imposed, whether the Crown will be prejudiced and
whether the applicant has taken the benefit of the judgment.
In the end, the
main consideration is whether the applicant has demonstrated that justice
requires that the extension of time be granted.

[Emphasis added.]

[12]

The issue thus devolves to this  whether in all of the
circumstances, and considering the factors to be applied on an application for
an extension of time, does the justice of the case require that an extension of
time be granted.

[13]

Having regard to the relevant considerations, it is
clear that there was a
bona fide
intention to
appeal; the delay was minimal, and was explained; no undue prejudice to the
Crown is raised; and the appeal has reasonably arguable grounds.

[14]

In my opinion, it can be said that the summary
conviction appeal judge erred in law in failing to have due regard to all of
the applicable factors and, most importantly, whether the granting of an
extension of time was in the interests of justice.

[15]

I would allow the appeal, grant the extension of time
for filing the notice of appeal in the summary conviction appeal court to April
23, 2014, and remit the matter to the Supreme Court for the hearing of the
summary conviction appeal.

[16]

SAUNDERS J.A.
: I agree.

[17]

FITCH J.A.
: I agree.

[18]

SAUNDERS J.A.
: The order will be entered in the terms expressed
by Madam Justice Kirkpatrick. I will say that our order will not be filed until
the order giving leave to appeal has first been filed.

The Honourable Madam Justice Kirkpatrick


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Veinotte,

2016 BCCA 21

Date: 20160114

Docket: CA43126

Between:

Regina

Appellant

And

Aaron Gerald
Veinotte

Respondent

Restriction on Publication
:
A publication ban has been
mandatorily imposed under s. 486.4(2) of the
Criminal Code
restricting the publication, broadcasting or
transmission in any way of evidence that could identify a complainant or a
witness. This publication ban applies indefinitely unless otherwise ordered.

Section 16(4)
Sex Offender Information and Registration
Act (SOIRA)
: this section provides that no person shall disclose any
information that is collected pursuant to an order under SOIRA or the fact that
information relating to a person is collected under SOIRA.

Before:

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Fenlon

On appeal from: an
order of the Provincial Court of British Columbia, dated
September 2, 2015 (
R. v. Veinotte
, Cranbrook Docket No. 31360)

Oral Reasons for Judgment

Counsel for the Appellant:

M.A. Mereigh and M.
  Scott

Counsel for the Respondent:

G. Kosakoski

Place and Date of Hearing:

Vancouver, British Columbia

January 14, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 14, 2016

Summary:

The Crown
seeks leave to appeal the one-year mandatory minimum sentence imposed on the
respondent who pleaded guilty to one count of sexual assault contrary to s. 271
of the Criminal Code, R.S.C. 1985, c. C-46. The offence involved an intrusive
but non-violent sexual assault of a 13-year-old girl. Held: leave is granted;
the appeal is dismissed. The sentencing judge did not err in law or in
principle, nor can it be said that the sentence imposed is demonstrably unfit.
A mandatory minimum sentence is not invariably reserved for the least serious
offence and the least culpable offender.

[1]

KIRKPATRICK J.A.
:
On September 2, 2015, a judge
of the Provincial Court imposed a one-year mandatory minimum sentence on the
respondent, Aaron Gerald Veinotte, who pleaded guilty to one count of sexual assault
contrary to s. 271 of the
Criminal Code
, R.S.C. 1985, c. C-46
.
The Crown seeks leave to appeal the sentence and, if leave is
granted, asks that this Court substitute a sentence of two years imprisonment
and a two-year period of probation.

CIRCUMSTANCES OF THE
OFFENCE

[2]

On September 6, 2014, the complainant, A.L., a 13-year-old
M
é
tis girl with a troubled background, took her dog for a walk and
went to Mr. Veinottes home. Mr. Veinotte was 29 years of age and had known
A.L. and her parents for many years. They talked outside and when it became
dark and cold, went inside. They sat on the floor, smoked a marihuana joint and
cigarettes, and listened to music.

[3]

They moved to the bed to watch
television. Mr. Veinotte eventually had sexual intercourse with A.L. In his
sentencing submission, Crown counsel described A.L.s reaction:

She did note that she ignored the part about
how he was older than me. She didnt say that it bothered her. She didnt tell
him to stop. He was 29 and she was 13. She described that he did have
intercourse with her, that she wasnt sure if he ejaculated or not.

She noted that
afterwards they watched some more TV, listened to some music, that she felt all
right. She noted that she had a lot to smoke, that she was really baked, and
after they had intercourse he performed oral sex, as well, and then they had
intercourse again. She noted that she was feeling really good, and she -- that
no one had treated her in that way. She did note that she had sex previously,
and that they did cuddle in the bed after intercourse again.

[4]

A.L. later told the police that she was not frightened
of Mr. Veinotte, but was scared of losing him as a friend and family member.
She did not feel angry, but was disappointed.

[5]

Mr. Veinotte expressed remorse to A.L.s family shortly
after the incident and made a statement to the police in which he admitted the
circumstances of the offence.

CIRCUMSTANCES OF THE
OFFENDER

[6]

Both a psychiatric assessment and a pre-sentence report
were available to the sentencing judge. These reports established that Mr. Veinottes
parents are both of Mikmaq First Nations descent. His mother had a significant
alcohol problem. The psychiatrist speculated that Mr. Veinotte might have fetal
alcohol deficits although Mr. Veinotte has no awareness of those factors and
has managed to obtain his Grade 12 equivalency.

[7]

Mr. Veinotte has no knowledge of his father who was
described as a very violent man who broke Mr. Veinottes arm when he was two
years of age.

[8]

Mr. Veinotte was molested by another male when he was
11 years of age.

[9]

Mr. Veinotte became involved in theft and mischief at
age nine as a result of lack of supervision at home. He first tried alcohol and
marihuana at age 10, and regularly consumed alcohol from age 13 and was
described as an alcoholic. He has in the past been addicted to methamphetamine
and cocaine. Mr. Veinotte has an admittedly thin employment history. It appears
that Mr. Veinottes substance abuse is the primary contributing factor in his
unemployment. Remarkably, Mr. Veinotte ceased consuming drugs or alcohol
shortly after the offence in about September 2014 after he began living at a
religious-based recovery centre. At the time of sentencing he had been
substance free for almost a year.

[10]

Mr. Veinotte has a substantial criminal record
primarily for property offences dating back to 1997, but no previous
convictions for sexual offences.

[11]

The psychiatrist noted that Mr.
Veinotte had some insight into the offence and that substance abuse was a
notable factor in the offence. The pre-sentence report confirmed that Mr.
Veinotte acknowledged the charges and demonstrated sadness and remorse when
discussing the charges, in particular on how this may have impacted the victim.
He also expressed a heightened level of regret at losing his good friend,
A.L.s father, and accepts responsibility and acknowledges the emotional and
mental damage it has caused the victim and her family.

SUBMISSIONS ON SENTENCE

[12]

At the sentencing hearing, the
Crown advocated a sentence of between two and four years in accordance with the
range of sentence expressed in
R. v. G.M.,
2015 BCCA 165, of two to six years.
G.M.
concerned a violent sexual assault involving
anal intercourse.

[13]

During the course of those
submissions, the judge observed:

THE COURT: I was going to
say there  theres lots of sexual assault convictions in this area where
people have received sentences of significantly less than two years.

[14]

In light of the mandatory minimum
sentence, the defence advocated for a sentence of one year.

SENTENCING REASONS

[15]

The judge commenced his reasons by expressing his
frustration with the Crowns decision to proceed by indictment, thereby
effectively precluding the exercise of discretion in the fashioning of what the
judge considered to be an appropriate sentence. By proceeding by indictment, s.
271(a) provides that, if the complainant is under the age of 16 years, the
offender is liable to a minimum punishment of imprisonment for a term of one
year.

[16]

The judge acknowledged the seriousness of the offence.
He was specifically referred to s. 718.01 by Crown counsel in submissions. He
accepted that denunciation and deterrence were the primary sentencing factors.
He acknowledged that Mr. Veinotte had accepted responsibility, entered a guilty
plea, and that the offence constituted a breach of trust between him and A.L.
and her family. It is clear the judge was aware of the local communitys
expectations of an appropriate sentence.

[17]

The judge ultimately imposed the
mandatory minimum one-year sentence together with a one-year probation order,
including a term that Mr. Veinotte abstain from the consumption of alcohol, a
term which Mr. Veinotte said would help him and which had been identified as a
risk factor.

ON APPEAL

[18]

The Crown on appeal contends that the judge failed to
give effect to the new sentencing framework represented by Parliaments
enactment of mandatory minimum sentences for sexual offences against children.
The Crown contends that the judge failed to have regard to s. 718.01 of the
Code
which requires that when a court imposes a sentence for an offence
that involves abuse of a person under the age of 16 years, it must give primary
consideration to the objectives of denunciation and deterrence. The Crown
maintains that the judge did not appreciate that minimum sentences have the
effect of raising sentences across the board for such offences [the making of
pornography offence] to maintain proportionality:
R. v. Worthington,
2012 BCCA 454.

[19]

The Crown further contends that the judge did not impose
a proportionate sentence. The Crown submits that the circumstances of the
offence  two incidents of unprotected sexual intercourse and one incident of
oral sex, on a 13-year-old child whose acquiescence was induced by the
provision of marihuana  called for a sentence greater than one year which the
Crown submits is reserved for the least culpable offender in the least serious
circumstances.

[20]

Lastly, the Crown contends that the sentence imposed
was not fit. The Crown submits that the range of sentences for crimes against
children has been altered in recent years by reason of the mandatory minimum
sentences such that sentences imposed in the past no longer reflect the
appropriate sentence to be imposed in the present.

DISCUSSION

[21]

On December 17, 2015, the Supreme
Court of Canada handed down reasons in
R. v. Lacasse
,
2015 SCC 64, which reinstated a sentence
imposed at trial for impaired driving causing death that had been reduced on
appeal. The majority reiterated what has been said on many occasions:

[11]
This Court has
on many occasions noted the importance of giving wide latitude to sentencing
judges. Since they have,
inter
alia,
the advantage of
having heard and seen the witnesses, sentencing judges are in the best position
to determine, having regard to the circumstances, a just and appropriate
sentence that is consistent with the objectives and principles set out in the
Criminal Code
in this regard. The fact that a judge deviates
from the proper sentencing range does not in itself justify appellate
intervention. Ultimately, except where a sentencing judge make an error of law
or an error in principle that has an impact on the sentence, an appellate court
may not vary the sentence unless it is demonstrably unfit.

[12]      In such cases,
proportionality is the cardinal principle that must guide appellate courts in
considering the fitness of a sentence imposed on an offender. The more serious
the crime and its consequences, or the greater the offenders degree of
responsibility, the heavier the sentence will be. In other words, the severity
of a sentence depends not only on the seriousness of the crimes consequences,
but also on the moral blameworthiness of the offender. Determining a
proportionate sentence is a delicate task. As I mentioned above, both sentences
that are too lenient and sentences that are too harsh can undermine public
confidence in the administration of justice. Moreover, if appellate courts
intervene without deference to vary sentences that they consider too lenient or
too harsh, their interventions could undermine the credibility of the system
and the authority of trial courts. With respect, I am of the opinion that the
Court of Appeal was wrong in this case to reduce the sentence imposed by the
trial judge by basing its intervention on the fact that he had departed from
the established sentencing range.

[22]

In order for the Crown to succeed in this appeal, it
must establish that the sentencing judge made an error of law or an error of
principle that had an impact on the sentence and that the sentence was
demonstrably unfit.

[23]

In my opinion, the Crowns appeal cannot succeed
because it is, in essence, a request that we second-guess the sentencing judge.
The Crown asks us to find that it was an error in principle for the judge to
impose the mandatory minimum sentence because it failed to have regard to the
so-called inflationary floor that such sentences represent.

[24]

The Crowns submission rests on the
minority views of Madam Justice Arbour in
R. v. Morrisey
,
2000 SCC 39, and this Courts decision in
R. v. B.C.M.
,
2008 BCCA 365, in which the Court explained the
effect of mandatory minimum sentences:

[31]
While the
views of Arbour J. are not precedentially authoritative, the sentencing judge
was entitled to adopt them as a logical and appropriate statement of the
interaction between minimum sentences and the traditional sentencing
principles, notably proportionality, which requires that similar offenders
receive similar sentences. A minimum sentence does not oust that fundamental
principle. The search for a fit sentence is still guided by similar sentences
imposed in the past on similarly situated offenders. Nevertheless, a mandatory
minimum sentence introduces a higher starting point and therefore a narrower
range within which that principle will operate. The notion of a fit sentence
must be adjusted accordingly if the principle of proportionality is to remain
operative.

[32]
For example, in this case, the
introduction of the mandatory minimum sentence of one year for making child
pornography significantly shrinks the range of sentencing options. It excludes
consideration of a suspended sentence and probation under s. 731, or a
conditional sentence under s. 742.1 of the
Code.
The only remaining sentencing options are
terms of imprisonment between the statutory minimum of one year and the
statutory maximum of ten years. Thus, the least culpable offender in the least
serious circumstances, who might have received a more lenient sentence prior to
Bill C-2, will now be sentenced to one year in prison. It would be inconsistent
with proportionality if worse offenders in more serious circumstances, who
might have received a one year sentence prior to Bill C-2, continue to be
sentenced to one year under the new regime. The principle that similar
offenders should receive similar sentences requires acknowledgement that a
minimum sentence has a proportionate inflationary effect on the balance of the
sentencing range.

[25]

However, this Court in
R. v. Lloyd
,
2014 BCCA 224, expressed reservation as to the rigid application of
an inflationary floor:

[53]
There is, I think, a need for some caution in accepting the
inflationary floor principle as an invariable rule of interpretation. In
light of the Supreme Court of Canadas view in
R. v. L.M.,
2008
SCC 31 that the maximum sentence is not reserved for the worst offender and
the worst offence, it may be doubted that the minimum sentence should be
reserved for the best offender, as Arbour J. suggested.

[26]

The fallacy inherent in the Crowns argument is that
there is an invariable rule that a mandatory minimum sentence is reserved for
the least serious offence and the least culpable offender. That submission
cannot be logically sustained. It would mean, by comparison, that the maximum
sentence is reserved only for the worst offenders and the worst offences. To
accede to this would eviscerate the fine balancing that sentencing judges are
charged with performing.

[27]

Even if we were to accede to that submission, I cannot
say that, in the circumstances of this offence and this offender, the sentence
imposed is demonstrably unfit.

[28]

The Crown tendered many cases which it suggested
demonstrate the appropriate range of sentences. With respect, few of the cases
are of assistance and many simply bear no comparison at all to the
circumstances at bar.

[29]

As the majority in
Lacasse
stated, the cardinal principle is
proportionality. It is self-evident from the review of the record in this case
that this offence is very serious in that it involved an intrusive but
non-violent sexual assault of a 13-year-old girl. No one would suggest that it
is not serious or that Parliaments intention in mandating a minimum sentence
in a crime against a child should be minimized.

[30]

However, it is also self-evident that Mr. Veinotte had
an exceedingly deprived childhood marred by his own alcohol addiction and drug
use. He expressed his remorse at an early opportunity and pleaded guilty before
the trial. He has
embarked on rehabilitation with
remarkable success given a history of addiction that appears to have spanned
more than half his life.

[31]

In my opinion, this is not an appeal in which
this Court should intervene. I would grant leave to appeal but dismiss the
appeal.

[32]

GROBERMAN J.A.
: I agree.

[33]

FENLON J.A.
: I agree.

[34]

KIRKPATRICK J.A.
: Leave to appeal is granted but the appeal is
dismissed.

The
Honourable Madam Justice Kirkpatrick


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Chang v. Leung,

2016 BCCA 42

Date: 20160115

Docket: CA43053

Between:

Da Wei Chang

Appellant

(Plaintiff)

And

Elizabeth Foo-Yun
Chang Leung, Executrix of the Estate of Hsieu Chang also known as Chen Hsieu
Chang also known as Chang Chen Hsieu, deceased

Respondent

(Defendant)

Before:

The Honourable Madam Justice Saunders

The Honourable Madam Justice Kirkpatrick

The Honourable Mr.
  Justice Fitch

On appeal from: an
order of the Supreme Court of British Columbia, dated
July 30, 2015 (Chang v. Leung, Vancouver Registry No. S078347)

Oral Reasons for Judgment

No one appearing on behalf of the Appellant:

Counsel for the Respondent:

J.D. Whyte

Place and Date of Hearing:

Vancouver, British
  Columbia

January 15, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 15, 2016

The appellant appeals the
dismissal of his property action in a summary trial. The appellant filed no
material in response to the summary trial application, nor did he attend the
hearing of the application or appeal. Held: Appeal dismissed. The appellants
failure to adduce evidence on the summary trial application was properly held
to be fatal to his claim. The remaining grounds of appeal are also without
merit.

[1]

FITCH J.A.
: The appellant, Da Wei Chang, appeals the dismissal of
his action in a summary trial heard July 30, 2015.

[2]

Mr. Chang has not appeared at the hearing of his appeal this morning. He
has been paged on at least two occasions and has not responded to those pages.
We have been advised by counsel for the respondent that he has been in touch
with the Registry this morning and the Registry has not received contact from
the appellant this morning either. We have, however, had the opportunity to
read the reasons of the summary trial judge and the factums that have been
filed on this appeal. In my view, this appeal should be dismissed on its
merits.

BACKGROUND

[3]

The background facts necessary to dispose of this appeal may be briefly
stated.

[4]

The respondent, Ms. Leung, is the executrix of the estate of her mother,
Hsieu Chang. Mrs. Chang died on May 25, 2007. Mrs. Changs husband predeceased
her in 2001. The appellant and respondent are siblings.

[5]

In May 1988, Mr. and Mrs. Chang purchased residential property in
Surrey, British Columbia (the Surrey Property) for $175,000. They supplied
the entirety of the purchase price.

[6]

The Surrey Property was registered in the names of Mr. Chang, Mrs. Chang
and the appellant as joint tenants.

[7]

On January 9, 1998, Mr. and Mrs. Chang severed the joint tenancy by
transferring their interests in the Surrey Property to themselves as joint
tenants, but as tenants in common with the appellant. Thereafter, Mr. and Mrs.
Chang held an undivided two-thirds interest in the Surrey Property as joint
tenants, and the appellant held an undivided one-third interest in the Surrey
Property as a tenant in common with Mr. and Mrs. Chang.

[8]

Mrs. Chang executed her last will and testament on July 10, 2000. In it,
she bequeathed $10 to the appellant with the remainder of the estate to be
divided between her other children. One of her stated reasons for doing so was
that a one-third interest in the Surrey Property had already been given to the
appellant. Mrs. Chang confirmed the will in a codicil executed July 6, 2005.

[9]

Mr. Chang Sr. died on January 11, 2001. His interest in the Surrey
Property passed to Mrs. Chang by right of survivorship.

[10]

In 2004 and 2005, the appellant sought to sell his one-third interest in
the Surrey Property back to his parents or, in the alternative, purchase his
parents interest in the property. The letters proposing this arrangement,
which were authored by the appellant, are addressed to Mother and Father and
Dad. It would seem the appellant was unaware that his father had died in 2001.

[11]

Mrs. Chang died on May 25, 2007. Her interest in the Surrey property
passed to her estate and constitutes virtually the whole of the estate.

[12]

On December 10, 2007, the appellant commenced the action that is the
subject matter of this appeal (the Property Action). He alleged he had been a
party to an oral agreement with Mr. and Mrs. Chang that they would not sever
the joint tenancy in which the Surrey Property was originally held without his
consent. Among other things, the appellant sought a declaration that he is the
sole legal and beneficial owner of the Surrey Property. The Property Action was
commenced nine years and 11 months after the cause of action arose - January 9,
1998, being the date upon which Mr. and Mrs. Chang severed the joint tenancy.

[13]

In May 2008, the respondent applied to prove Mrs. Changs last will and
testament and the codicil in solemn form (the Probate Action). The appellant
contested the Probate Action, challenging the validity of the will on grounds
that Mrs. Chang lacked testamentary capacity and that the will was a product of
coercion and/or undue influence.

[14]

Pending resolution of the Probate Action, the appellants Property
Action was held in abeyance. Resolution of the Probate Action was required
before the respondents authority to defend the appellants Property Action
could be confirmed.

[15]

By reasons for judgment dated June 3, 2013 (indexed at 2013 BCSC 976),
Madam Justice Dardi found that the last will of Mrs. Chang was a valid and
subsisting will which had been proven in solemn form. The appellants appeal
from the order of Justice Dardi was dismissed by this Court on January 21, 2014
for reasons indexed at 2014 BCCA 28. The respondent obtained a grant of probate
of the will on May 15, 2014. The appellants further application for leave to
appeal to the Supreme Court of Canada was dismissed on November 6, 2014.

[16]

On June 27, 2014, counsel for the respondent wrote the appellant noting
that the appellants counsel on the Property Action had withdrawn as solicitor
of record. The respondent re-served her Response to Civil Claim in relation to
the Property Action on the appellant personally and asked that the appellant
supply his List of Documents on or before July 11, 2014. The appellant took no
steps to prosecute the Property Action.

[17]

On January 15, 2015 the respondent served her List of Documents upon the
appellant. Once again, the appellant took no steps to prosecute the Property
Action.

[18]

On July 7, 2015 the respondent filed a summary trial application which
sought dismissal of the appellants Property Action. The application and
supporting materials were delivered to the appellants address for service (the
address of the Surrey Property) on July 12, 2015. The affidavit of service,
which was before the summary trial judge, reflects that these materials were
posted to the gate at the appellants address for service.

[19]

The summary trial application was returnable on July 30, 2015.

[20]

The appellant filed no material in response to the summary trial
application, nor did he attend the hearing.

[21]

The summary trial judge allowed the respondents application and
dismissed the appellants Property Action, with costs. She noted that the
appellants contention he believed himself to be entitled to his parents
interest in the Surrey property on their death was inconsistent with his
efforts to sell his one-third share to them, or acquire their share, in 2004
and 2005. More importantly, she noted that the appellants action was
unsupported by any evidence. Her reasons for allowing the respondents application
for dismissal of the appellants claim were expressed as follows:

I believe that absent any opposition and sworn evidence from
Mr. Chang with respect to the alleged oral agreement, that on several bases the
action should be dismissed.

Firstly, that there is no evidence of a written or oral
agreement, express or implied, between the deceased, Mr. and Mrs. Chang, and
the plaintiff that they would not without his consent sever the joint tenancy.
There is also no evidence  of any consideration that flowed from the plaintiff
to either of his parents  to support that agreement.

It is also an agreement that would necessarily have been
required to be in writing pursuant to Section 59(3) of the
Law and Equity
Act
[because it]  concerned an interest in land. And lastly the limitation
period would have run from the date upon which the severance occurred. And that
was January 9, 1998. The plaintiff [has] provided no evidence that there was a
delay in his discovery that such severance had occurred and therefore there is
no postponement of the limitation period and therefore the last day the
plaintiff could file the action was on January 8, 2004, and he missed that
limitation period by almost four years

So for all -- so on all those
grounds, I find the action of the plaintiff must be dismissed with costs to the
defendant.

[22]

The appellant advances nine grounds of appeal. He is self-represented
and English is likely not his first language. It is difficult to discern the
appellants position in relation to many of these grounds, and I am grateful to
counsel for the respondent who has attempted to group the appellants various
complaints into discrete categories.

[23]

Before dealing with the appellants grounds of appeal, I note at the
outset that the appellant has included material in his Appeal Book that was not
before the summary trial judge, including what purports to be a handwritten
loan agreement relating to the Surrey Property. In addition, the appellants
factum refers to evidence and documents that were not before the summary trial
judge. No application to adduce fresh evidence is before us and I would not
admit this evidence for the first time on appeal.

[24]

Several grounds of appeal relate to the summary trial judges decision
to proceed with the application. First, the appellant appears to take issue
with the proposition that he was properly served with notice of the
respondents summary trial application. He says the respondent played tricky
on document delivery. I see no merit in this ground of appeal. The notice of application
and accompanying materials were left at the appellants address for service in
accordance with Rule 4-2(2) of the
Supreme Court Civil Rules
.

[25]

The appellant argues that the summary trial judge ought to have given
effect to medical notes dated August 22, 2014. I take this to be a complaint
that the summary trial judge ought to have adjourned the application. There is
no merit in this argument. The appellant put no medical evidence before the
summary trial judge, nor did he seek an adjournment of the application.

[26]

The appellant also alleges that the action was unsuitable for
disposition by way of summary trial proceeding. In support of this position he
cites the test applicable on applications for summary judgment. That test had
no application in the circumstances of this case. The appellant chose not to
respond to, or participate in, the summary trial application. In the result,
his argument that the action was not suitable for disposition by way of summary
trial proceedings is asserted for the first time on appeal. Even if we were to
entertain the appellants submission on this point, in the absence of any
evidence supporting his claim, the action was suitable for disposition by way
of summary trial proceeding.

[27]

The appellant submits that the summary trial judge erred by failing to
accept admissible evidence. There is no merit in this complaint as the
appellant offered no evidence in response to the application.

[28]

The appellant also complains about the conduct of the respondents
counsel on the summary trial. He submits that it was improper for the
respondents counsel to refer to the Probate Action. He further submits that
the respondents counsel misled the summary trial judge by advising that the
Probate Action was at an end. Again, there is no merit to either of these
submissions. It was entirely proper for the respondents counsel to refer to
the Probate Action as part of the procedural history of the matter and to
explain why the appellants Property Action was held in abeyance until 2014.
Contrary to the appellants submission, the Probate Action is at an end and the
respondents counsel accurately conveyed this state of affairs to the summary
trial judge.

[29]

Finally, the appellant submits that the summary trial judge did not
properly calculate the limitation date which applied to his Property Action. Clearly,
this was an alternative basis upon which the appellants action was dismissed.
Even assuming error in the calculation of the limitation period, a point not
conceded by the respondent, that error could not possibly have affected the
result for the simple reason that the appellant, having been duly served with
notice of the summary trial application, adduced no evidence to support his
claim.

[30]

In the result, I would dismiss the appeal. Regrettably, the appellants
pursuit of this unsupported action and meritless appeal has caused considerable
delay and expense. I would order that the respondent have her costs of the
appeal against the appellant, with the balance of her legal expenses to be paid
as special costs out of the estate.

[31]

SAUNDERS J.A.
: I agree.

[32]

KIRKPATRICK J.A.
: I agree.

[33]

SAUNDERS J.A.
: The appeal is dismissed. The respondent shall have
her costs of the appeal against the appellant, and the balance of her legal
expenses are to be paid as special costs out of the estate.

The
Honourable Mr. Justice Fitch


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Delorme v. Normand
,

2016 BCCA 28

Date: 20160115

Docket: CA42474

Between:

Donald Edmund
Delorme

Respondent

(Claimant)

And

Linda Joan Normand

Appellant

(Respondent)

Corrected
Judgment: The text on the front cover was corrected on March 5, 2016.

Before:

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Fenlon

On appeal from: an
order of the Supreme Court of British Columbia, dated
December 18, 2014 (
Delorme v. Normand
, Chilliwack Registry No. E9150)

Oral Reasons for Judgment

Counsel for the Appellant:

R.W. Krentz

Counsel for the Respondent:

F. Nudel

Place and Date of Hearing:

Vancouver, British
  Columbia

January 13 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 15, 2016

Summary:

The appellant appeals the
dismissal of her claim in unjust enrichment against the respondent on the basis
that she was entitled to a proprietary interest in a condominium that the
parties lived in together for many years. She claimed that it had become a
joint family venture when she moved into it and contributed to its renovation
and expenses. Held: Appeal dismissed. There is no presumption of a joint family
venture simply because two people live together. The trial judge properly
considered the evidence and made no error in his findings of fact or
application of the doctrine of unjust enrichment.

Introduction

[1]

FENLON J.A.
: The issue on this appeal is whether the trial judge
erred in finding that the appellant, Ms. Normand, was not entitled to a
proprietary interest in a condominium the parties lived in together for many
years.

At Trial

[2]

As the trial judge found (at para. 18), the relationship between
the parties was a long one spanning 17 years. They began living together in
1993, separating for a time in 2003. During that separation, Mr. Delorme
bought the condominium in issue located on Old Yale Road in Abbotsford. The
couple subsequently reconciled and Ms. Normand moved into the property. They
continued to live there for seven years  until June 2010 when their
relationship ended after Mr. Delorme was removed from the property by
police. Ms. Normand continued to reside there until trial and has only
recently vacated the property.

[3]

The trial judge noted at para. 1 of his reasons that:

As originally cast, the parties
claimed against each other for unjust enrichment with respect to various
properties they respectively owned over the course of their relationship. By
the time of the trial, that was distilled into a claim by Ms. Normand to a
condominium owned by Mr. Delorme on Old Yale Road in Abbotsford.

[4]

The trial judge addressed Ms. Normands claim to a proprietary
interest in the Old Yale Road property on the basis of both constructive trust
and joint family venture as that is described in
Kerr v. Baranow
, 2011
SCC 10
.
[I note parenthetically that the trial judge did not consider
whether a single asset can be subject to a joint family venture: see
Ibbotson
v. Fung,
2013 BCCA 171.]

[5]

The trial judge correctly instructed himself on the elements required to
establish an unjust enrichment claim:

[10]      To succeed in an unjust enrichment claim, the
claimant must show that he has enriched or benefitted the respondent, that she
has suffered a corresponding deprivation, and that there was no juristic reason
for the enrichment or benefit. The recognized categories of juristic reason
disentitling recovery include a contract, disposition of law, donative intent,
and other common law, legal or statutory obligations. If the case does not fall
into one of those recognized categories, the onus lies on the defendant to
establish a reason why the benefit should be retained: see
Kerr v. Baranow
,
2011 SCC 10.

[11]      The conferring of mutual benefits may be a relevant
factor in answering that question. As Cromwell J. stated in
Kerr

[109]    As I noted earlier, my view is that mutual benefit
conferral can be taken into account at the juristic reason stage of the
analysis, but only to the extent that it provides relevant evidence of the
existence of a juristic reason for the enrichment. Otherwise, the mutual
exchange of benefits should be taken into account at the defence and/or remedy
stage. It is important to note that this can, and should, take place whether or
not the defendant has made a formal counterclaim or pleaded set-off.

[6]

The trial judge then considered the circumstances of the parties. He
observed that Ms. Normand acknowledged that she did not have a claim to
the Old Yale Road property at the time of its purchase. Rather, she relied on
the contributions she made over the years by paying expenses and paying for renovations.

[7]

The trial judge concluded at para. 12 that Ms. Normand had not
established that Mr. Delorme was enriched by Ms. Normand paying the
strata fees and other incidental expenses. He found that to be equivalent to
two people sharing rent for an apartment they are living in. Neither is
enriching the other.

[8]

The trial judge found Ms. Normand had established an enrichment of
Mr. Delorme insofar as Ms. Normand had paid for countertops and a
jacuzzi which together cost $1,700. But he found those benefits were offset by
benefits Mr. Delorme had provided to Ms. Normand through painting and
renovation work on other properties she owned.

On Appeal

[9]

On appeal Ms. Normand submits that the trial judge erred in finding
that the benefits bestowed on Mr. Delorme were offset by the benefits he
conferred on her, and further erred in ultimately concluding that the Old Yale
Road property was not a joint family venture.

[10]

In my view Ms. Normand is asking this Court to re-weigh the evidence
that was before the trial judge and to come to a different conclusion. Among
other things, Ms. Normand points to the significance of her monthly
financial contributions after she moved into the property. She paid for most of
the groceries and $150 for utilities in addition to $188 for strata fees each
month while Mr. Delorme paid the mortgage of about $260 per month.

[11]

Ms. Normand emphasizes her agreement to co-sign a loan so that
Mr. Delorme could pay off outstanding mortgage arrears, although she
acknowledges that Mr. Delorme ultimately repaid that loan. She emphasizes
that she paid Mr. Delorme $6,000 from the proceeds of the sale of a mobile
home she owned, so that he could pay some legal fees.

[12]

The trial judge, however, expressly considered these contributions by
Ms. Normand. The reasons for judgment are brief, but there is no
suggestion that the trial judge misapprehended the evidence.

[13]

Implicit in the trial judges finding that the parties were not involved
in a joint family venture is the finding that there was a lack of economic
integration. That conclusion is supported by the evidence and facts found by
the trial judge. For example, although the parties had a joint account, it was
used by Ms. Normand only to deposit Mr. Delormes paycheque to assist
him with handling his money. He would owe her for any overdrawn amount on that
account.

[14]

Further, before the parties separated in 2003, they were living in a
condominium on Clearbrook Road which Mr. Delorme had purchased. In
relation to that property, Ms. Normand had paid for the utilities and
groceries and Mr. Delorme had paid the mortgage. However, when the parties
separated for that brief period in 2003, Ms. Normand bought the Clearbrook
property from Mr. Delorme, paying for the full value of the equity and
assuming the mortgage. In other words, she did not assert that she had acquired
an interest in that property in any way through living in it and sharing
expenses.

[15]

Finally, Ms. Normand owned a mobile home and retained the rental
income from that property and all of the proceeds from its sale other than the
$6,000 earlier alluded to.

[16]

The trial judge considered
Ibbotson v. Fung
, which was relied on
by Ms. Normand, but found the circumstances in that case to be significantly
different from those of the parties in this case.

[17]

The Supreme Court of Canada stated at para. 100 of
Kerr v.
Baranow
:

4.         Whether there was a
joint family venture
is a question of fact
and may be assessed by having
regard to all of the relevant circumstances, including factors relating to (a)
mutual effort, (b) economic integration, (c) actual intent and (d) priority of
the family.

[Emphasis added].

The trial judge made a finding of fact that the Old Yale
Road property was not a joint family venture. That finding is entitled to
deference.

[18]

Ms. Normand and Mr. Delorme had a long relationship. But there is no
presumption of a joint family venture simply because two people live together.
In
Kerr
, Justice Cromwell said at para. 88:

[88]      It is critical to note
that cohabiting couples are not a homogeneous group. It follows that the
analysis must take into account the particular circumstances of each particular
relationship. Furthermore, as previously stated, there can be no presumption of
a joint family venture. The goal is for the law of unjust enrichment to attach
just consequences to the way the parties have lived their lives, not to treat
them as if they ought to have lived some other way or conducted their
relationship on some different basis. A joint family venture can only be
identified by the court when its existence, in fact, is well grounded in the
evidence. The emphasis should be on how the parties actually lived their lives,
not on their
ex post facto
assertions or the courts view of how they
ought to have done so.

Summary

[19]

In summary, I find no error in the trial judges findings of fact or
application of the doctrine of unjust enrichment. I would accordingly dismiss
the appeal with costs to the respondent.

[20]

KIRKPATRICK J.A.
: I agree.

[21]

GROBERMAN J.A.
: I agree.

[22]

KIRKPATRICK J.A.
: The appeal is dismissed.

The Honourable Madam Justice Fenlon


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Petersen v. Mulrooney,

2016 BCCA 27

Date: 20160115

Docket: CA42509

Between:

Andrew Petersen

Appellant

(Plaintiff)

And

Kevin Mulrooney
dba Sniperz Outdoor Paintball Adventures

Respondent

(Defendant)

Before:

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Fenlon

On appeal from: an
order of the Supreme Court of British Columbia, dated
December 17, 2014 (
Petersen v. Mulrooney
, 2014 BCSC 2393,
New Westminster Registry No. S143346)

Oral Reasons for Judgment

Counsel for the Appellant:

J. Woods

Respondent appearing In Person:

Place and Date of Hearing:

Vancouver, British
  Columbia

January 11, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 15, 2016

Summary:

The appellant appeals the
decision dismissing his action for damages arising out of an eye injury
allegedly sustained while he was playing paintball. He sought damages against
the owner of the paintball business on the basis that he was given a defective
mask that allowed paint to pass through it and strike him in the eye. Held:
Appeal dismissed. The owner owed the appellant a duty of care. However, the
trial judges findings that the appellant failed to prove a number of elements
essential to establishing a claim in negligence were amply supported by the
evidence.

[1]

FENLON J.A.
: The appellant Andrew Petersen alleges that his right
eye was injured in July 2010 while he was playing paintball at Sniperz Outdoor
Paintball Adventures in Chilliwack  a business owned and operated by the
respondent Kevin Mulrooney.

[2]

The allegation at trial was that
Mr. Petersen was given a defective mask that allowed paint to pass through
it and strike him in the eye. After a three day trial in November 2014,
Mr. Petersens claim for damages for negligence was dismissed:
Petersen
v. Mulrooney,
2014 BCSC 2393.

Errors Alleged

[3]

Mr. Petersen submits that the trial judge made four main errors:

1.         Misapprehending the evidence and making a number
of findings of fact that are plainly wrong; since she relied on those errors to
make an unfavourable credibility assessment about Mr. Petersens evidence,
those errors are said to be material because they could have altered the
result.

2.         Accepting lay opinion evidence to the effect that
it is not possible for paint to travel through a face shield and hit a players
eye when foam is missing from the mask;

3.         Rejecting Dr. Tams opinion that the incident
caused Mr. Petersens eye injury; and

4.         Failing to find that the
paint spray caused the injury when there were no other possible explanations
for how the injury occurred.

Analysis

1.         Misapprehension
of the Evidence

[4]

I turn to the errors relating to misapprehension of the evidence. First,
Mr. Petersen submits that the trial judge incorrectly understood that he was
claiming the
entire
vision loss in the right eye was due to the paint
spray, when in reality he only claimed the incident caused his vision to become
incrementally
worse and led to his eye starting to drift (exotropia).

[5]

While the trial judge does refer at para. 23 to Mr. Petersen
claiming that his vision loss resulted from the injury, in my view she was
referring to the extent of the incremental vision loss Mr. Petersen
attributed to the incident.

[6]

Mr. Petersen candidly admitted that he had a congenital eye
condition which caused significant pre-existing poor vision in his right eye.
It is unlikely that the trial judge understood him to be claiming the entire
vision loss was due to the July 2010 incident.

[7]

The second misapprehension of the evidence Mr. Petersen points to is
the trial judges assumption that Mr. Petersen told Dr. Tam that he
had stopped to buy eye wash after leaving the paintball field when he did not
say he did so in his evidence at trial. In reality, the purchase of eye wash
was one of the assumptions Dr. Tam was asked to make by Mr. Petersens
counsel in providing her expert opinion.

[8]

Third, Mr. Petersen says the trial judge mistakenly thought
Mr. Mulrooney did not accept the type of coupon Mr. Petersen said he
used to pay for the paintball outing (at para. 36).

[9]

The second and third errors of fact alleged form but a small part of the
evidence considered by the trial judge in assessing the credibility of
Mr. Petersen. I will not repeat all of that evidence here. Two examples
are referred to at paras. 50 through 52 of the reasons for judgment:

[50]      In my view, the frailty of Mr. Petersens
evidence was made plain during his cross examination, as even he himself
realized as time went on. Toward the end of his cross examination, in a futile
attempt to emphasize or, in my view, inflate his claims as to the force of the
paint hitting his mask, he alleged that he had suffered a cut to his nose. No
one corroborated such an injury. I do not accept this account by
Mr. Petersen.

[51]      One final point of contradiction was
Mr. Petersens evidence about how he travelled to the BBQ after the
paintballing. At his examination for discovery, he stated that he drove home
there in excruciating pain, which sounded similar to his evidence in direct
about his drive from the BBQ. In cross examination, Mr. Petersen said his
son drove him to the BBQ.

[52]      In conclusion, I give
little, if any, weight to the evidence of Mr. Petersen in terms of his
description of the events on July 10, 2010. Indeed, Mr. Petersen quite
understandably says that he has no idea what happened. In my view, he only
surmises now that since he had paint on the outside of the mask, it must have
been paint that hit his eye.

[10]

When the reasons are read as a whole, it is apparent that the factual
errors identified by Mr. Petersen are relatively minor. In my view they were
not, even taken collectively, material enough to potentially alter the trial
judges assessment of Mr. Petersens credibility.

[11]

Mr. Petersen also raised under this first ground of appeal the trial
judges use of his pleadings and the late filing of his notice of civil claim
to assess the reliability of his evidence. I will address each of these issues
in turn.

[12]

In my view the trial judge did not err when she considered that a
fundamental aspect of Mr. Petersens claim  the mechanism of the injury
changed on the first day of trial. The pleading stated the injury occurred when
a paintball passed through a ventilation hole in his mask and struck him directly
in the right eye. At trial, for the first time Mr. Petersen said he was
injured by paint spray passing through the mask and striking his eye. No
explanation was offered to account for this sudden change or to distance Mr.
Petersen from the earlier version of what happened on the paintball field.

[13]

I turn now to the trial judges mistaken inference, drawn from the
filing of the notice of civil claim almost two years after the incident, that Mr. Petersen
did not initially intend to pursue a claim (at para. 35). Mr. Petersen submits
that the trial judge made a negative finding about his credibility as a result
of that mistaken inference.

[14]

Read in context, in my view the trial judges comments are merely an
attempt to explain why Mr. Petersens evidence contained so many
inconsistencies. Just before referring to the late filing, the trial judge
said:

[34]      I would observe at the
outset that Mr. Petersen's credibility and ability to recall the events in
question were sorely tested during the course of the trial. The same can be
said for the ability of his collateral witnesses, Mr. Collins and Mr. LeMond,
to accurately recall the events of that day.

2.         Accepting
Lay Opinion Evidence

[15]

I turn now to the second ground of appeal: the alleged error in relation
to lay opinion evidence.

[16]

Mr. Mulrooney testified that it was not possible for paint to
travel through one of his rental masks and strike Mr. Petersen in the eye,
even if foam was missing. Similar evidence was given by Mr. Teodosio, an
experienced paintballer. There was evidence before the court that
Mr. Mulrooney had been involved in paintballing as a business owner and
high-level competitor for 30 years. However, neither witness was formally
qualified as an expert.

[17]

Mr. Petersen submits that the trial judge erred in relying on Mr. Mulrooneys
opinion when she said at para. 69 of her judgment:

[69]      In any event, the
uncontradicted evidence of Mr. Mulrooney and Mr. Teodosio is that
foam is not necessary from a safety point of view. It is there for comfort.
Their evidence was that a mask without any foam is still entirely safe and
designed, if properly worn, to prevent any paint from entering the eye area. Mr. Mulrooneys
evidence was that it was not possible for paint to go through a face shield and
travel to hit the eye even if there was a lack of foam.

[18]

In my opinion it is not necessary to determine whether the impugned
evidence falls outside the parameters of admissible lay opinion evidence
described in
American Creek Resources Ltd. v. Teuton Resources Corp.
, 2013
BCSC 1042, upheld by this Court in 2015 BCCA 170. That is so because the trial
judge found as a matter of fact that the mask Mr. Petersen was wearing was
not
missing any foam. At paras. 68 and 80 she said:

[68]      I do not accept Mr. Petersen's evidence
concerning the lack of foam in his mask. Again, I consider that his evidence is
largely reconstructed and intended to
ex post facto
support his claim
here. I accept that there may have been some wear on the foam in these masks
and Mr. Mulrooney confirmed that he would have rented out a mask with some
deterioration in the foam. I accept his evidence, however, that if there was
too much wear on the foam, he would have discarded the mask.

[80]      As I have stated above,
I found Mr. Petersens evidence concerning the foam entirely lacking in
credibility and I reject his evidence.

[19]

After each of these references, the trial judge went on to say that in
any event there was evidence that deterioration of the foam would not affect
the masks safety. However, the evidence of Mr. Mulrooney and Mr. Teodosio
about foam and mask safety did not affect the trial judges preliminary finding
that Mr. Petersen had failed to prove that the mask he wore that day was
missing foam.

[20]

Mr. Petersen also submits that the trial judge misconstrued the
nature of the opinion evidence. She stated that Mr. Mulrooney denied paint
spray could hit the eye through a mask, when in fact Mr. Mulrooney
acknowledged in cross-examination that it was possible. However, it is apparent
from the reasons as a whole that the issue before the court was whether the
force
of any spray that made its way through a mask could cause injury.

[21]

Further, the trial judge expressly acknowledged at para. 57 of her
reasons that paint may have splattered Mr. Petersen in the lower part of the
left side of his face if he was hit on the left side of his mask. Ultimately,
however she did not accept that a paintball striking Mr. Petersen on the left
side from a 90 degree angle could penetrate the mask and continue to travel to
the other side of his face on a straight trajectory in which his right eye
would have been blocked by his nose to end up striking the right eye with enough
force to cause an abrasion injury. Her finding on the improbability of this
mechanism of injury is distinct from the condition of the mask and its
permeability.

3.         Failure
to accept Dr. Tams opinion

[22]

I turn to the third ground of appeal. Mr. Petersen argues that the
trial judge did not properly consider Dr. Tams opinion that the injury
she observed in July 2010, two days after Mr. Petersen played paintball, was
caused during the game.

[23]

Dr. Tams opinion was based on an assumption that Mr. Petersen
was struck in the eye with a paintball about the size of a thumb. She did not
of course observe the incident. She could only accept what her patient told her
and reasonably concluded therefore that the injury was explained or caused by a
paintball hitting Mr. Petersens eye.

[24]

It is trite law that the weight to be given an experts opinion depends
in large part on whether the assumptions made by the expert to support her
opinion accord with the facts proved at trial. Mr. Petersen did not prove
at trial that a paintball hit his eye. Indeed, by the time the trial proper
began, he did not even assert that to be so. He said instead that his eye was
hit by paint spray. It is significant that there was no allegation that the
injury to the eye was chemical in nature, i.e., caused by the composition of
the paint itself. The injury was always described as due to a percussive force,
i.e., something hitting the eye with enough force to cause an injury.

[25]

In support of his argument that the trial judge erred in rejecting Dr. Tams
conclusion on causation, Mr. Petersen at para. 76 of his factum asserts:

At no time was [Dr. Tam] asked
whether or not her opinion would have changed had she been told it was paint
that struck Mr. Petersen in the eye as opposed to a complete paintball.

[26]

However, it was not up to Mr. Mulrooney to elicit from Dr. Tam
evidence that her opinion would remain the same even if paint spray rather than
a paintball had struck Mr. Petersens eye. The onus was on
Mr. Petersen to prove that his eye injury was caused by spray hitting his
eye. Dr. Tams opinion did not address that question. I see no error in
the trial judges decision to accord no weight to Dr. Tams opinion on the
causation issue in these circumstances.

[27]

Finally, Mr. Petersen argues that the trial judge erred in rejecting his
explanation for his eye injury when there was no other explanation for it. The
trial judge was required to assess the evidence and determine on a balance of
probabilities whether the elements of negligence had been made out by Mr. Petersen.
It was open to her to reject the explanation and evidence of Mr. Petersen.
That finding did not depend on her ability to explain how the injury in fact
occurred.

Summary

[28]

The trial judge found that Mr. Petersen proved he suffered an
injury to his right eye in July 2010, and that Mr. Mulrooney owed him a
duty of care. However,  the trial judge found Mr. Petersen did not prove a
number of the other elements essential to establishing a claim in negligence,
including that:

1.

His injury was
caused by paint entering his mask and hitting his right eye (at para. 78);

2.

The mask he wore
was defective (at paras. 79, 80); and

3.

Mr. Mulrooney
breached the duty of care he owed to Mr. Petersen.

[29]

In my view the trial judges findings on these issues are amply
supported by the evidence. I would therefore dismiss the appeal with costs to
the respondent.

[30]

KIRKPATRICK J.A.
: I agree.

[31]

GROBERMAN J.A.
: I agree.

[32]

KIRKPATRICK J.A.
: The appeal is dismissed.

The Honourable Madam Justice Fenlon