COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Birrell
          v. Providence Health Care Society,

2008
          BCCA 14

Date: 20080115

Docket: CA035140

Between:

Margaret Birrell

Respondent

(
Plaintiff
)

And

Providence
    Health Care Society dba Providence Health

Care
    dba St. Pauls Hospital and dba The B.C. Ear Bank,  Vancouver Coastal Health
    Authority dba Vancouver General Hospital dba Vancouver Hospital and dba The
    B.C. Ear Bank,  The University of British Columbia dba The B.C. Ear Bank,
    and John Doe

Appellants

(
Defendants
)

Before:

The
          Honourable Madam Justice Kirkpatrick

(In
          Chambers)

C.L.
          Woods, Q.C.

S.
          Grubb

Counsel for the Appellant, Providence Health Care Society

J.
          Dives

Counsel for the Appellant, Vancouver Coastal Health
          Authority

S.
          Tucker

N.
          Hartigan

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

14 December 2007

Place
          and Date of Judgment:

Vancouver, British Columbia

15 January 2008

Reasons
    for Judgment of the Honourable Madam Justice Kirkpatrick:

[1]

Providence Health Care Society ("Providence") and Vancouver
    Coastal Health Authority ("Coastal Health"), (collectively the "applicants"),
    apply for leave to appeal following the decision of Madam Justice Prowse on
    2 November 2007 that leave is required in this case.

[2]

The applicants apply for leave to appeal the 11 May 2007 order of the
    Supreme Court.  The order was made by the case management judge in an action
    commenced under the
Class Proceedings Act
, R.S.B.C. 1996, c.
    50.  The judge ordered that two plaintiffs, Thomas Little and Robert Corfield,
    be added as plaintiffs to the action; that Margaret Birrell be removed as
    a party to the action; that the applications of Providence and Vancouver Coastal
    for dismissal of the action pursuant to Rule 18(A) be dismissed; and orders
    as to costs.

[3]

The underlying action is a claim in negligence.  The plaintiffs seek
    to have the proceeding certified as a class proceeding.  The claim arises
    out of the operation of the British Columbia Ear Bank from 1974 until 2002.
    The B.C. Ear Bank was operated under the auspices of the division of otolaryngology,
    Department of Medicine, at the University of British Columbia.  The allegations
    of negligence relate to the B.C. Ear Bank's donor screening, its collection
    and distribution of ear bone and tissue from donor cadavers, and its use of
    such products during surgery for the hearing impaired.

[4]

On 19 February 2003, a public health advisory regarding the operations
    of the Ear Bank was issued.  Recipients of Ear Bank products were advised
    by letter from their treating physicians about documentation concerns with
    the Ear Bank.  It was suggested that recipients undergo testing for certain
    diseases, including hepatitis A, hepatitis B and HIV.  The letters advised
    that the risk of infection was extremely low and that no person had ever been
    infected as a result of receiving a product from the B.C. Ear Bank.

[5]

Margaret Birrell underwent an operation at St. Paul's hospital on 6
    July 1994 to repair a left tympanic membrane perforation.  In January 2005,
    she received a letter from her physician informing her of Health Canada's
    advisory regarding Ear Bank operations, indicating that she may have received
    Ear Bank products, and recommending that she undergo certain testing.  As
    it turns out, this letter was in error.  Following the commencement of Ms.
    Birrell's action on 18 February 2005, it was discovered that she did not receive
    any products from the B.C. Ear Bank.  It was conceded at the hearing before
    the case management judge that Ms. Birrell had no cause of action against
    any of the defendants because no duty of care was owed to her by them.  Nevertheless,
    Ms. Birrell took the position that she could continue to be a representative
    plaintiff even if she was not a class member by operation of s. 2(4)
    of the
Class Proceedings Act
, which provides that a representative
    plaintiff need not necessarily be a member of the class if this will serve
    to avoid substantial injustice to the class.

[6]

Ms. Birrell applied on 16 August 2006 to add two new representative
    plaintiffs, Thomas Little and Robert Corfield.  On 27 September 2006, the
    defendants filed an application to dismiss the action pursuant to Rule 18(A)
    of the
Rules of Court
, B.C. Reg. 221/90.  The proposed new plaintiffs
    allegedly received ear bone transplants with products supplied by the Ear
    Bank on, in Mr. Little's case, 19 April 1996, and in Robert Corfield's case,
    in 1991.   Mr. Little received the letter notifying him of the documentation
    problems at the Ear Bank in March 2005.  Mr. Corfield received a similar letter
    in January 2006.

[7]

The allegations of negligence contained in Ms. Birrell's statement
    of claim and in the proposed amended statement of claim of Mr. Little and
    Mr. Corfield focus on the defendants' duty of care to the plaintiffs and to
    other persons who received transplants with tissue or bone supplied by the
    B.C. Ear Bank to ensure that the tissues and bones had been properly screened,
    sterilized and tested before distribution.  The plaintiffs further allege
    that the defendants failed to maintain accurate, complete and legible records
    relating to the tissue and bone at the B.C. Ear Bank.  The plaintiffs particularize
    17 grounds of the defendants' negligence and breach of duty, including allegations
    that the defendants failed to conduct investigations as to the suitability
    of donors before collecting tissue and bone; failed to meet basic safety standards
    of practice for preventing the transmission of infectious diseases; and failed
    to adequately train, inspect and supervise staff in the collection, processing,
    storage and distribution of tissue and bone.  As a result of the defendants'
    alleged negligence, the plaintiffs claim non-pecuniary damages; damages for
    past and future income loss; damages for loss of earning capacity and future
    loss of opportunity; damages for nervous shock, stress and anxiety after being
    informed of the risk of infection and the need for medical testing and monitoring;
    damages for past and future cost of care; and special damages.

[8]

Prior to hearing the application to add the two new plaintiffs and
    the application by the defendants for dismissal of the claim pursuant to Rule
    18(A), the chambers judge was asked to rule on the plaintiff's application
    that these motions be heard together with the application to certify the action
    as a class action.  In reasons given 7 December 2006 (2006 BCSC 1814), the
    judge considered the relevance of the applicability of the
Rules of
    Court
to proposed class proceedings; the fact that the proposed plaintiffs
    may have a valid cause of action against the defendants; the relevant limitation
    periods; and the cost of certification proceedings.  The judge concluded that
    the plaintiff's application to add additional plaintiffs pursuant to Rule
    15(5) and the defendants' application to have Ms. Birrell's application dismissed
    under Rule 18(A) should be heard prior to the certification hearing.  She
    concluded at para. 26:

I have concluded that the possibility of streamlining some issues prior to
    the certification hearing outweighs the disadvantages that might accrue by
    reason of delay due to interlocutory appeals or the interplay between the
    issues on both applications.  In this case, I have concluded that the goal
    of judicial economy will best be achieved by hearing in this order, the applications
    to add plaintiffs and to dismiss the existing plaintiff's claim as against
    the defendants Providence and Vancouver Coastal before the certification hearing.

[9]

At the hearing before the chambers judge on 4 April 2007 on the above-mentioned
    motions, Providence and Vancouver Coastal opposed the application to add Mr.
    Little and Mr. Corfield as plaintiffs on the ground that their claims were
    statute-barred by operation of the ultimate limitation period for claims against
    hospitals contained in s. 8 of the
Limitation Act
, R.S.B.C 1996,
    c. 266.  The defendants submitted that Mr. Corfield's ultimate limitation
    period for claims against hospitals expired in 1997, eight years before the
    filing of Ms. Birrell's writ.  They argued that Mr. Little's ultimate limitation
    period expired in April 2002, three years before the filing of Ms. Birrell's
    writ.

[10]

The chambers judge granted the motion to add the two new plaintiffs.
    At paras. 4348 of her reasons (2007 BCSC 668) she said:

To complicate matters further in this case, the Proposed Plaintiffs received
    notice of the negligent conduct more than six years after the original negligent
    act.  This means that if they were actually infected at the time of their
    transplant, they have no cause of action against the Hospital Defendants by
    virtue of section 8 of the
Limitation Act
they suffered damage at the
    time of the original surgery when they received the infected tissue.  The
    limitation period began to run at the date of the original negligent conduct
    and their actions are statute barred.

However, if they were not infected, as counsel advise, they would be able
    to assert a cause of action against the Hospital Defendants, as they would
    have suffered no damages until receiving notice of the risk of infection,
    causing nervous shock.  Ironically, this means that a person who suffers transient
    shock on receipt of the letter may assert a cause of action, while a person
    who receives the same notice and suffers the same shock, only to go on to
    find out that they have a permanent, infectious and life-threatening illness,
    which will drastically affect them, has no claim for damages.  The plaintiff
    acknowledges this is an absurdity that flows from this interpretation of the
Limitation Act
.

While the absurdity caused by the commencement of the running of the ultimate
    limitation period from the date damage is suffered is acutely demonstrated
    by the present case, the problem has not escaped prior notice.  The British
    Columbia Law Institute in
The Ultimate Limitation Period:  Updating the
    Limitation Act

(Vancouver:  BCLI Report No. 19, July 2002) at 16-18
    has noted that sub-section 8(1) provides that the ultimate limitation period
    starts to run from the date the cause of action arose which, in the case of
    negligence, means that time runs from when the damage occurs.  The BCLI notes
    several problems with this position and recommends amending section 8 of the
Limitation Act
, so that the ultimate limitation period commences from
    the date an act or omission that constitutes a breach of duty occurs, regardless
    of the basis of the cause of action.

However, the Legislature has not acted upon these recommendations.  The wording
    of section 8 speaks in terms of
the date on which the right to bring an
    action arose
.  Despite the strong arguments of the Hospital Defendants,
    to the effect that the nervous shock head of damages relates to the issue
    of discoverability and, therefore, that the ultimate limitation period of
    six years has expired for both the plaintiff and the Proposed Plaintiffs,
    I cannot agree that the plain and clear language of the section allows such
    an interpretation.

In an action for negligence, there is no cause of action and, consequently,
    no right to bring an action until after the plaintiff suffers damages.  In
    the case of a plaintiff who suffers no physical injuries, there is no right
    to sue until harm causing nervous shock creates damages.  If the nervous shock
    never occurs, the plaintiff has not suffered any damages and, consequently,
    never has a right to bring an action.

While I find this interpretation to result in an absurdity that is irreconcilable
    with the scheme and object of the
Limitation Act
, not to mention unjust
    for those who have actually suffered physical harm, I cannot see that the
    right to bring an action for uninfected persons arose at any time before the
    nervous shock was suffered.  Consequently, the ultimate six-year limitation
    period has not expired against the Hospital Defendants if, as counsel agree,
    the plaintiff and Proposed Plaintiffs suffered not physical harm, but only
    nervous shock, as a result of the alleged negligence on the part of the defendants.

[11]

The applicants contend that the chambers judge erred in law:

(a)
    in failing to properly interpret and apply the ultimate limitation period
    contained in s. 8 of the
Limitation Act
, in particular in finding
    that the cause of action did not accrue until receipt of the letters advising
    of the concerns with the Ear Bank, thus postponing the running of the ultimate
    limitation period;

(b)
    in failing to dismiss the action against the hospital defendants pursuant
    to Rule 18(A) given that Ms. Birrell had no cause of action against any of
    the defendants and the proposed substituted plaintiffs also had no cause of
    action against the hospital defendants by reason of the expiry of the ultimate
    limitation period;

(c)
    in allowing a claim which disclosed no cause of action to serve as a litigation
    vehicle for the addition of new plaintiffs whose claims were statute barred;
    and

(d)
    to the extent that the chambers judge was exercising a discretion in the adding
    of the plaintiffs, she did so based upon an incorrect interpretation of the
    ultimate limitation period such that her discretion should be set aside.

[12]

The criteria to be considered in an application for leave to appeal
    are settled:
Power Consolidated (China) Pulp Inc. v. B.C. Resources
    Investment Corp
. (1988), 19 C.P.C. (3d) 396 (B.C.C.A.).  They include:

(i)
    whether the point on appeal is of significance to the practice;

(ii)
    whether the point raised is of significance to the action itself;

(iii)
    whether the appeal is
prima facie
meritorious or, on the other hand,
    whether it is frivolous; and

(iv)
    whether the appeal will unduly hinder the progress of the action.

[13]

As to the second and fourth criteria, I note the remarks made by Madam
    Justice Prowse upon the plaintiff's application to have all future proceedings
    in this Court adjourned until such time as an application for certification
    of the proposed class action had been heard and decided.  As I have noted,
    the case management judge addressed the possibility of an interlocutory appeal
    at para. 26 of her December 2006 reasons.  At para. 7 of Madam Justice Prowse's
    reasons (indexed as 2007 BCCA 574), she noted:

[]
    I do not see anything that has occurred since the case management judge made
    her scheduling decision in December 2006, which indicates that she was in
    error in deciding that these applications should be dealt with, including
    any appeal arising therefrom prior to certification.  On the contrary, one
    of the important issues on appeal is the ultimate limitation period with respect
    to the defendants, Providence and Vancouver Coastal.  Depending on the determination
    of that issue those two parties might well be able to extricate themselves
    from these proceedings.  While the plaintiffs would still be seeking to sue
    U.B.C., a consideration of efficiencies must take into account the interests
    of all parties.

[14]

I respectfully adopt the remarks of Madam Justice Prowse and conclude
    that it is obvious that the point raised by the applicants is of significance
    to the action itself.  Furthermore, as the case management judge herself indicated,
    an appeal from her important ruling would not unduly hinder the progress of
    the action.

[15]

As to whether the point on appeal is of significance to the practice,
    the applicants contend that the proposed appeal is of general importance in
    that it is the only case in which it has been held that the ultimate limitation
    period provided for in s. 8 of the
Limitation Act
does not begin
    to run in cases involving claims for negligence resulting in nervous shock
    until the "nervous shock" is suffered, notwithstanding when the
    act of negligence occurred.

[16]

The applicants further contend that even the chambers judge acknowledged
    that her interpretation of the ultimate limitation period leads to the logically
    absurd result that claims of those who were actually infected more than six
    years ago and who later learned of the difficulties with the Ear Bank and
    who suffered nervous shock would be statute-barred, while those who claimed
    for damages purely for nervous shock would not be statute-barred.  The plaintiff
    contends that the admittedly absurd result referred to by the chambers judge
    is not unknown in the context of legislative interpretation.  As counsel for
    the plaintiff notes, the report of the British Columbia Law Institute in July
    2002 recommended changes to the ultimate limitation period contained in s.
    8 and the Legislature has not, to date, seen fit to enact the recommended
    changes.

[17]

However, in my opinion, the central question to be asked is whether
    the absurdity found by the chambers judge was properly founded on a correct
    interpretation of the legislative scheme.  As the applicants contend, the
    chambers judge's finding has broad implications for all claims involving nervous
    shock and the applicability of s. 8 of the
Limitation Act
to
    such claims.  These arguments strongly support a finding that the proposed
    issues on appeal are of significance to the practice.

[18]

The final question to address is whether the appeal is
prima facie
meritorious or, on the other hand, whether it is frivolous.  The plaintiffs
    contend that the appeal in respect of the ultimate limitation period and in
    respect of the addition of the new plaintiffs is not meritorious.  It is obvious
    that the issues concerning the limitation period and the addition of parties
    are closely interrelated.  I am unable to say that the usual stringent scrutiny
    of applications for leave to appeal a discretionary decision by a case management
    judge (the decision to add plaintiffs) applies in the context of an order
    which addresses an inextricably related legal issue concerning the running
    of the limitation period.  Because I am convinced that leave to appeal should
    be granted, I think it prudent, and in accordance with the usual practice
    of the Court, to simply say that the issues cannot be said to be frivolous
    or unmeritorious.  In other words, the issues identified by the applicants
    raise legitimate questions and deserve appellate consideration.

[19]

It follows, for all of the above reasons, that I am persuaded that
    leave to appeal on the issues identified by the applicants should be granted.

[20]

Leave to appeal has been filed by both Providence (CA035140) and Coastal
    Health (CA035145).  The parties agree that if leave to appeal is granted,
    the appeals be heard at the same time and that only one set of materials need
    be filed.  The parties also consent to an order that if leave to appeal is
    allowed, the motion book on the application for leave to appeal serve as the
    Appeal Book on the appeal.  I so order.

The Honourable Madam Justice Kirkpatrick


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Boutsakis
          v. Kakavelakis,

2008
          BCCA 13

Date: 20080115

Dockets: CA032956, CA032957, CA032958

Docket: CA032956

Between:

George Boutsakis and John Kakavelakis, a Partnership

and Alexis House Café Limited

Respondents

(Plaintiffs)

And

Diane Boutsakis doing business as Crown Travel,

and the said Crown Travel, and George Boutsakis

Appellants

(Defendants)

- and -

Docket: CA032957

Between:

George Boutsakis and John Kakavelakis, a Partnership

Appellants

(Plaintiffs)

And

Alexis House Café Limited

and John Kakavelakis

Respondents

(Defendants)

- and -

Docket: CA032958

Between:

George Boutsakis and John Kakavelakis, a Partnership

Appellants

(Plaintiffs. Defendants by Counterclaim)

And

Alexis House Café Limited, John Kakavelakis

and George Boutsakis and

John Kakavelakis, a Partnership

Respondents

(Defendants, Plaintiffs by Counterclaim)

Before:

The
          Honourable Madam Justice Prowse

The
          Honourable Madam Justice Ryan

The
          Honourable Madam Justice Newbury

D.J.
          Taylor

Counsel for the Appellants

G.K.
          Martin

Counsel for the Respondents

Place
          and Date of Hearing:

Vancouver, British Columbia

November 26 & 27, 2007

Place
          and Date of Judgment:

Vancouver, British Columbia

January 15, 2008

Written
          Reasons by
:

The
          Honourable Madam Justice Newbury

Concurred
          in by:

The
          Honourable Madam Justice Prowse

The
          Honourable Madam Justice Ryan

Reasons
    for Judgment of the Honourable Madam Justice Newbury:

[1]

These appeals, in three separate actions, are brought from orders of
    Madam Justice Baker dated April 12, 2005 following a summary trial of 14 days.
    In addition to being the summary trial judge, Baker J. was the case management
    judge in these and related proceedings from 1997 on, with a respite between
    2001 and 2002, when Madam Justice Boyd assumed that role.  Baker J.s reasons
    (which are indexed as 2005 BCSC 541) are long and detailed, and I do not intend
    even to attempt to recount the extensive facts of this case and the related
    litigation, dating back to 1987, between the Boutsakis and Kakavelakis
    camps  litigation that Baker J. described as having all the hallmarks of
    a bad marriage.

[2]

It may be sufficient to set the stage for these reasons by noting that
    together, Mr. Boutsakis and Mr. Kakavelakis own a commercial building in Vancouver.
     (They have been characterized as partners in connection with the building
    and do not contest that finding.)  In 1980, they leased a portion of the front
    of the building to Mrs. Boutsakis, doing business as Crown Travel, and leased
    a similar portion to Alexis House Café Ltd. (Alexis), a company apparently
    related to or controlled by Mr. Kakavelakis.  He guaranteed Alexis obligations
    under its lease, just as Mr. Boutsakis guaranteed Crown Travels obligations
    under its lease.  The two leases, combined with each partners propensity
    to act in situations of obvious conflict of interest, have given rise to several
    previous court proceedings. The present actions are to some extent parallel
    with each other.  The so-called F action was brought on behalf of the Partnership
    against Mrs. Boutsakis and her husband as her guarantor for various amounts
    allegedly due under the Crown Travel lease; while the S action was brought
    by Mr. Boutsakis on the Partnerships behalf against Alexis for rental arrears
    and other amounts said to be owing under its lease, and against Mr. Kakavelakis
    as its guarantor. Both proceedings are complicated, however, by various other
    claims added by amendments to the pleadings, and the S action by a counterclaim
    that purports to reach various defendants and to advance various allegations
    unrelated to the original claim.  (A second S action is not germane to the
    appeal.)

[3]

It is fair to say that having managed the case for some years, Baker
    J. took a practical approach to the many issues before her, and that in terms
    of procedure, she made every effort to maintain an even hand between the two
    camps, sometimes by overlooking technical deficiencies of the kind that often
    arise where, as here, the parties have acted largely without counsel prior
    to trial.  On appeal, however, it is contended that the summary trial judge
    made several errors of law.  Since most of the grounds of appeal are not likely
    to be of interest to outside parties, I propose simply to deal with them one
    by one, rather than to attempt an integrated narrative and analysis in the
    usual manner.

THE F ACTION (SUPREME COURT FILE NUMBER F892474)

The Arbitration Clause and Court Jurisdiction

[4]

The lease between Crown Travel as tenant and Mr. Boutsakis and Mr.
    Kakavelakis as landlords (whom I shall refer to as the Partnership) contained
    an arbitration clause that read as follows:

6.03
     Failing agreement by the parties, rent shall be determined by arbitration
    pursuant to the provisions of the
Arbitration Act
.  There will be a
    three man panel; one nominated by each party, and the third, who shall act
    as chairman, selected by the two nominees.

The
    reference to rent is to the rent payable during the renewal terms that were
    the subject of Article 6 of the lease generally.  The rents payable for these
    terms became germane to the F action when Mr. Kakavelakis amended his Statement
    of Claim in October 1997, seeking rent that had gone unpaid by Crown Travel
    during the second and third renewal terms, a declaration of arrears and an
    order fixing the rent for those terms, or alternatively, an order referring
    the matter to arbitration.  (Mr. Kakavelakis stated at para. 13 of his pleading
    that Mr. Boutsaskis was joined as a Defendant pursuant to [his] guarantee
    and in his capacity as part Landlord, pursuant to Rule 5(3).)  In the spring
    of 2001, Mr. Kakavelakis sought an order compelling the defendants to appoint
    an arbitrator to participate in the determination of the rental for what he
    called the third and fourth renewal terms, and in default of such appointment,
    asked the Court to do so.  His motion was brought pursuant to s. 17 of the
Commercial Arbitration Act
, R.S.B.C. 1996, c. 55.  Mr. Kakavelakis
    said he had served notice on Crown Travel to appoint its arbitrator but that
    the tenant had refused or neglected to do so.

[5]

In her outline of argument prepared in response to the motion, Mrs.
    Boutsakis countered that there was no dispute between Crown Travel and the
    Partnership concerning the rentals for the second and third terms.  Evidently,
    she relied on the position taken by Mr. Boutsakis, who submitted that there
    was no need to resort to arbitration because there has never been a disagreement
    on the adjustment of rent and that the timing of the application is well
    passed [
sic
] the time frame of the lease.

[6]

Mr. Kakavelakis motion and others came before Boyd J. on July 12,
    2002.  She noted that the pleadings contained no reference either to the arbitration
    clause or to any intention to arbitrate.  In her words:

Here,
    notwithstanding the disagreement, which apparently dates back to 1988, neither
    party, that is, neither Mr. Kakavelakis, the partnership, or, indeed, Ms.
    Boutsakis, on behalf of Crown Travel, ever sought to pursue the appointment
    of an arbitrator.  Rather, it appears that the plaintiff elected to commence
    this action.  [At para. 20.]

Boyd
    J. also noted the long background of the action, during which the plaintiff
    had filed various notices of intention to proceed.  She continued:

So
    the issue is:  Given the extensive period of delay, is the plaintiff entitled
    to pursue the appointment of an arbitrator and the general arbitration of
    these outstanding issues by a three-person panel, in accordance with clause
    6.03 of the lease?  Mr. Martin, counsel for the defendants, reassures me that
    those proceedings, that is, arbitration proceedings, would be most efficient,
    that the arbitration proceedings which have already been conducted,
vis-à-vis
the Alexis lease, should act as a template to any arbitrator and that this
    matter could readily and easily be dealt with in a day before an arbitration
    panel.

I
    have seriously considered whether Mr. Martins view is realistic and I am
    not persuaded, given the history between these parties, that that would be
    the case.  It is quite obvious that these proceedings have been fractured
    amongst many different actions.  In my view, regardless of however long it
    takes to deal with the arbitration, the matter would come back before the
    court for resolution of the action and the common debates which arise in the
    F892474 action and the action which I have already referred to, which continues
    to proceed before the registrar, on various references, as well as taxations.

In
    my view, while I say this with a great deal of hesitation because of the burden
    it creates for this court, the most efficient and best way of dealing with
    this matter would be in the context of a Rule 18A application in this court.
There is strong authority for the proposition that, notwithstanding the
    existence of a mandatory arbitration clause, a party can forfeit the right
    to arbitration, given delay, and, in my view, the delay here has been horrendous.
    In my view, that delay has resulted in a forfeiture of the right of arbitration
.

The
    claim, however, nevertheless remains alive and it ought to be pursued, in
    my view, by way of a Rule 18A application
,
    which would be organized, brought before the court with whatever supporting
    materials are required, answered by the defendants, in whatever way they choose,
    by affidavit, and then determined by a single judge.  That strikes me as less
    expensive, more efficient, and would be done by that judge, not simply in
    the context of the action, but likely in the context of all of the various
    tortured litigation which has been before this court since the 1980s.  [At
    paras. 27-30; emphasis added.]

(For
    some unexplained reason, Boyd J.s order, which was settled by the Registrar
    on November 4, 2002, referred to and was filed in the S action only.)

[7]

In accordance with Boyd J.s direction, Mr. Kakavelakis sought a court
    inquiry in April 2003 to determine Crown Travels rental arrears for the
    first renewal term of the lease, an order fixing the rent payable during the
    second and third renewal terms, and related relief.  In April 2003, the Boutsakis
    defendants filed an Amended Statement of Defence in which the following appeared:

In
    further answer to paragraph 10 of the Amended Statement of Claim, [Mrs. Boutsakis]
    says that there has been no arbitration requested or conducted with respect
    to [her] space and there has been no related arbitration.

They
    also advanced various other pleas of estoppel against the plaintiffs action.

[8]

Madam Justice Baker dealt with the matter of the arbitration clause
    at paras. 202-207 of her reasons.  After quoting from the judgment of Boyd
    J., she continued:

Justice Boyd's decision was not appealed
. In my view, she had already decided that
this court
    has jurisdiction to determine the rental rate applicable during the second
    and third renewal terms
. If I am incorrect in that, then I am of the view
    that the
Commercial Arbitration Act
, R.S.B.C. 1996, c. 55, and the
    reasoning in
Gulf Canada Resources Ltd. v. Arochem International Ltd
.
    (1992), 66 B.C.L.R. (2d) 113 (C.A.);
Stancroft Trust Ltd. v. Can-Asia Capital
    Co.
(1990), 43 B.C.L.R. (2d) 341 (C.A.); and
Granville Shipping Co.
    v. Pegasus Lines Ltd.
[1996] F.C.J. No. 481 (T.D.), and
Bott v. Sorley
[1998] B.C.J. No. 2023 support the conclusion that this court may determine
    the rental rate to apply to the Crown lease during the second and third renewal
    terms, notwithstanding the arbitration clause in the lease.

In effect, the application by Mr. Martin, brought on
    behalf of the Lessor/Partnership, for the appointment of an arbitrator, was
    an application to stay the action against Mrs. Boutsakis
in relation to rent owing during the second and third
    terms. In determining that no order appointing an arbitrator should be made,
    Justice Boyd refused the stay. In such circumstances the court is the appropriate
    forum to determine the rental rate to be applied in the litigation.

This outcome is a fair one. Mr. Kakavelakis, perhaps
    incorrectly in hindsight, believed that he needed Mr. Boutsakis' agreement
    to invoke the arbitration clause in relation to the Crown lease. Mr. Boutsakis,
    I am satisfied, would have thwarted any attempt to do so. At the very least,
    he took no steps to invoke the arbitration clause in relation to the Crown
    lease, while at the same time he initiated the arbitration in relation to
    the Alexis House lease.

Mrs. Boutsakis had an equal right to invoke the arbitration
    clause, but she chose not to. Given that she failed to exercise the right
    given to her to invoke arbitration, she should not be permitted to avoid paying
    a fair rent by reason only that no arbitration took place and that Justice
    Boyd declined to order the parties to go to arbitration.  [At paras. 204-7;
    emphasis added.]

[9]

On appeal, Mr. Boutsakis and Mrs. Boutsakis submit that the summary
    trial judge was wrong to ignore the mandatory arbitration clause.  Counsel
    notes that in other reasons dated February 21, 1997 concerning the Alexis
    lease, the summary trial judge had ruled that the Court could not override
    the arbitration provision the terms of which were almost identical to those
    of the Crown Travel lease; and that the Court had previously authorized Mr.
    Boutsakis to nominate an arbitrator on behalf of the Partnership in light
    of Mr. Kakavelakis clear conflict of interest.  But Crown Travel does not
    seek to have its rent determined by the three arbitrators: it argues not only
    that the Partnership forfeited its right to go to arbitration as Boyd J.
    found, but that the
Court
was also without jurisdiction,
by virtue
    of the arbitration clause
, to proceed to determine the matter.  As a result,
    it is said that no authority can now determine a rent that is any different
    from that paid in the first renewal term of Crown Travels lease  that it
    is entitled to have the rent for the Second Renewal Term, the Third Renewal
    Term and the overholding period fixed at the same rental rate as established
    for the First Renewal Term.

[10]

For their part, the plaintiffs support Boyd J.s finding that although
    it may be too late to invoke the arbitration clause, the action remains a
    live one and that this court should not interfere with the decision to permit
    the Partnership to proceed under Rule 18A with its claim against Crown Travel.

[11]

Neither counsel cited any authorities to this court, but one of the
    cases cited by Baker J.,
Bott v. Sorley
[1998] B.C.J. No. 2023,
    refers to a venerable English case which provides a good starting point.
    In
Doleman & Sons v. Ossett Corporation
[1912] 3 K.B. 257,
    the Court of Appeal considered what was then s. 4 of the
Arbitration
    Act, 1889
, 52 & 53 Vict., c. 49, the terms of which were somewhat
    similar to those of s. 15(1) of our
Commercial Arbitration Act.
S. 15(1) states:

15
(1)
    If a party to an arbitration agreement commences legal proceedings in a court
    against another party to the agreement in respect of a matter agreed to be
    submitted to arbitration, a party to the legal proceedings may apply, before
    or after entering an appearance and before delivery of any pleadings or taking
    any other step in the proceedings, to that court to stay the legal proceedings.

S.
    15(2) also provides that in an application under s. 15(1), the court
must
make an order staying the legal proceedings unless it determines that the
    arbitration agreement is void, inoperative or incapable of being performed.
    This is a more restrictive provision than predecessor statutes have imposed,
    but
Doleman
remains relevant to the question of jurisdiction
    in cases where, as here, no stay has been sought.

[12]

In
Doleman
, the litigants were parties to a contract
    that contained an arbitration clause.  The plaintiffs commenced a court action
    and the defendants did not seek a stay.  Meanwhile, the arbitrator, an engineer,
    proceeded to make an award without the knowledge or consent of the plaintiffs
    and without giving notice to the parties.  The defendants pleaded the award
    as a bar to the plaintiffs claims proceeding in a court of law.  In response,
    the plaintiffs argued that since no order for a stay had ever been sought,
    the courts jurisdiction could not be and had not been ousted, and that the
    arbitrators award was invalid.

[13]

In the course of ruling that the court action could proceed, the majority
    of the Court of Appeal (Vaughan Williams L.J. dissenting) explained that parties
    to a contract cannot oust the jurisdiction of a court of law, but that a clause
    in which they agree to refer their disputes to arbitration is valid and entitles
    the defendant to apply to the court to stay the action before taking any step
    in the proceeding.  If the defendant fails to do so, however, the court retains
    jurisdiction.  Thus Fletcher Moulton L.J. observed:

the Legislature by the
Common Law Procedure Acts
introduced the machinery
    which is now provided for by s. 4 of the
Arbitration Act, 1889
.  It
    enables the defendant to an action brought in breach of an agreement to proceed
    by arbitration to apply to the Court to stay the action, and the Court is
    given power so to do.  Prior to the statutable provisions the Court could
    not refuse to settle any such dispute which was brought before it, because
it not only had the jurisdiction but also the duty to decide that dispute
    if called upon so to do
.  It has under these provisions power to refuse
    its aid to a person who appeals to it in breach of an agreement to decide
    the matter by arbitration.
But the statute very properly requires that
    the necessary application so to do should be made by the defendant immediately
    on appearance and before taking any step in the action.  If the defendant
    allows the action to proceed for a while, he cannot subsequently withdraw
    it from the Courts
.  If the Court thus refuses its assistance to the plaintiff,
    he is driven to have recourse to arbitration as his sole means of obtaining
    redress, and thus the original agreement to submit the matter to arbitration
    is indirectly enforced.

The present position, therefore, of agreements to refer to private tribunals
    may be shortly expressed thus.  The law will not enforce the specific performance
    of such agreements, but, if duly appealed to, it has the power in its discretion
    to refuse to a party the alternative of having the dispute settled by a Court
    of law, and thus to leave him in the position of having no other remedy than
    to proceed by arbitration.
If the Court has refused to stay an action,
    or if the defendant has abstained from asking it to do so, the Court has seisin
    of the dispute and it is by its decision, and by its decision alone, that
    the rights of the parties are settled
.  [At 268-9; emphasis added.]

Farwell,
    L.J. focussed in his reasons on the question of whether the plaintiffs plea
    was a good one and agreed that the action could proceed.  He also reasoned:

It
    is impossible to suppose that the Court, on refusing an application to stay,
    and deciding that the action must go on, means to allow the arbitration to
    go on also with the result that the decision first obtained will prevail,
    or that one or other proceeding will be an idle waste of time and money.
    The result is the same, if the defendant (as here) pleads to the action, and
    disentitles himself to apply under s. 4.  He thereby submits to the jurisdiction
    of the Court, which involves the same consequences as the refusal of an application
    under s. 4, except, perhaps, that in the latter case any attempt to proceed
    with the arbitration might be a contempt of Court, while in the former it
    might not.  [At 273.]

[14]

Doleman
has been cited by many English and Canadian courts in
    holding that where a defendant neglects to apply for a stay until after the
    pleadings have been delivered or other steps have been taken in the proceedings,
    the stay will generally not be granted, and that the court will proceed to
    exercise its jurisdiction  unless the parties  agree otherwise: see
Czarnikow
    v. Roth, Schmidt and Co
. [1922] 2 K.B. 478 (C.A.);
Windsor Construction
    (1962) Ltd. v. International Union of Operating Engineers Local 115 et al
.
    (1968) 1 D.L.R. (3d) 683 (B.C.S.C.));
Hudsons Bay Insurance Co. v.
    Walker
(1914) 19 B.C.R. 87, 16 D.L.R. 275 (B.C.C.A.);
Armstrong
    v. Camroux
[1995] B.C.J. No. 121 (B.C.S.C.); and
Bott v. Sorley
,
supra
.)  In the latter case, Boyd J. aptly summarized the law as follows:

On a review of the Act, (including the historical development
    of that Act when s. 16 was added) and on a review of the authorities, but
    more particularly the decision of the English Court of Appeal in
Doleman
    & Sons v. Ossett Corporation
(1912) 3 K.B. 257, I am satisfied that
    nothing in the Act prevents a litigant, in the face of an existing arbitration
    proceeding, from bringing and maintaining a lawsuit with respect to the same
    subject matter as that involved in the arbitration.  Historically,
    at common law,
the superior Court has always retained the jurisdiction
    over a contract containing an arbitration clause.  Neither an agreement
    to arbitrate, nor the appointment of a specific arbitrator, was effective
    to oust the jurisdiction of the Court.

In these circumstances, it is for the party who has been
    made a party to the lawsuit for the same cause-of-action as that which is
    covered by the arbitration agreement, to apply under s. 15 of the Act to obtain
    an Order that the lawsuit be stayed pending arbitration.
Failure on the
    part of the defendant to seek a stay under s. 15, leaves the Court with sole
    and exclusive jurisdiction to adjudicate the claim
.  [At paras. 19-20;
    emphasis added.]

[15]

In the case at bar, of course, no stay has ever been sought by either
    party  even though Baker J. at para. 205 of her reasons stated that the plaintiffs
    application for the appointment of an arbitrator had in effect been an application
    to stay the action against Mrs. Boutsakis.  The defendants original Statement
    of Defence was filed on June 20, 1989 and the Amended Statement of Defence
    was filed on April 9, 2003 in response to the Amended Statement of Claim filed
    in 1997.  In addition, many other steps in the proceedings have been taken
    by both parties.  This fact, and the fact that Boyd J.s order was never appealed
    lead in my respectful opinion to the conclusion that the summary trial judge
    did not err in exercising jurisdiction over the action notwithstanding the
    existence of the arbitration clause.  I would therefore dismiss this ground
    of appeal.  (I note parenthetically that this makes it unnecessary to deal
    with the appellants further argument that no event triggering the arbitration
    had occurred, so that it could not be said the parties had any arbitrable
    dispute or disagreement.  I will say, however, that this argument simply ignores
    the dealings between the parties and that s. 17 of the
Commercial Arbitration
    Act
provides a mechanism for either of them to initiate arbitral proceedings.)

The Plaintiffs Amended Statement of Claim and the Limitation
    Act

[16]

I turn next to the arguments raised by the appellants concerning the
    plaintiffs amendments to their Statement of Claim, the first of which was
    carried out pursuant to Rule 24(1)(a) as of right in October 1997.  (It
    appears a further amendment was sought in March 2004 and granted at trial
    and that Alexis was added as a plaintiff at that time.)  It seems to be common
    ground that the amendments incorporated new causes of action and sought new
    remedies far beyond the simple claim for arrears of rent advanced in the original
    Statement of Claim filed in 1989.

[17]

The summary trial judge dealt with all amendments to pleadings filed
    by all parties in both the F and S actions, in one section of her reasons,
    at paras. 72-83.  She ruled at para. 81 that all proposed amendments should
    be permitted without conditions limiting the period during which the claims
    may be pursued.  She referred to a limitation argument advanced on behalf
    of the appellants in resisting Mr. Kakavelakis application dated March 31,
    2004 to further amend the Statement of Claim, and continued:

Aside from the fact that allowing an amendment to the
    original claim will allow the Lessor/Partnership and Alexis House to pursue
    claims that would potentially be barred by the
Limitation Act
if a
    new action was commenced, there is no other prejudice to Mr. and Mrs. Boutsakis.
    There is no evidence that documents helpful to them have been destroyed, or
    gone missing, or that witnesses are no longer available. I am not persuaded
    that they have acted to their detriment in the belief that the claims would
    not be pursued.

Where the facts cannot be ascertained because of the
    passage of time, or an appropriate remedy is no longer available because of
    delay in pursuing that remedy, the Lessor/Partnership or Alexis House must
    bear the loss, since they have the onus of proof in relation to the amended
    claims against Mrs. Boutsakis and her guarantor.

Having weighed these factors, I am satisfied that I should
    grant the proposed amendments and that I should not impose conditions limiting
    the period during which the claims may be pursued.  [At paras. 79-81.]

[18]

On appeal, Mrs. Boutsakis/Crown Travel and Mr. Boutsakis submit that
    the summary trial judge erred in permitting any of the new claims referred
    to in the 1997 amendment to be advanced in respect of any time period prior
    to October 14, 1991, i.e., six years before the filing.  I agree that this
    argument can be made notwithstanding that the first amendment was made pursuant
    to Rule 24(1)(a)  i.e., that the fact the amendment was valid procedurally
    does not affect the operation of the
Limitation Act
.  I also
    agree that the applicable limitation period is six years, as provided by s.
    3(5) thereof.

[19]

Mr. Taylor on behalf of the appellants, however, relies on s. 4(4),
    which states:

In
    any action the court may allow the amendment of a pleading, on terms as to
    costs or otherwise that the court considers just, even if between the issue
    of the writ and the application for amendment a fresh cause of action disclosed
    by the amendment would have become barred by the lapse of time.

Section
    4(4) has been the subject of a few decisions of this court, notably
Med
    Finance Co. S.A. v. Bank of Montrea
l 74 B.C.L.R. (2d) 222; 15 C.P.C.
    (3d) 269,
Teal Cedar Products (1977) Ltd. v. Dale Intermediaries Ltd
.
    (1996) 19 B.C.L.R. (3d) 282, and
Letvad v. Fenwick
[2000] 82
    B.C.L.R. (3d) 296; 2000 BCCA 630.  In
Teal Cedar
, the Court
    clarified certain issues arising from previous authorities and emphasized
    that a decision under s. 4(4) is largely discretionary and dependant on various
    factors.  In the words of Finch J.A. (as he then was):

On principle, therefore, it appears to me that the discretion
    to permit amendments afforded by both Rule 24(1) and s. 4(4) of the Act was
    intended to be completely unfettered and subject only to the general rule
    that all such discretion is to be exercised judicially, in accordance with
    the evidence adduced and such guidelines as may appear from the authorities.  Delay,
    and the reasons for delay, are among the relevant considerations, and the
    judge should consider any explanation put forward to account for the delay.  But
    no one factor should be accorded overriding importance, in the absence of
    a clear evidentiary basis for doing so.

In
    concluding that a deliberate decision not to claim within the limitation period
    was fatal to an application to amend, the learned chambers judge relied principally
    upon the judgment of this Court in
Bank of

Montreal v. Ricketts
,
supra
.  That was an application under Rule 15(5)(a)(iii)
    to add as defendants two individuals who were principals of a defendant corporation.  The
    relevant provision of the
Limitation Act
was s. 4(1).  The
    chambers judge granted an order permitting the addition of the new defendants.  This
    decision was reversed on appeal, Chief Justice McEachern dissenting.  The
    two judges who agreed in allowing the appeal, Locke and Gibbs JJ.A., both
    wrote separate concurring reasons for judgment, but neither expressly agreed
    with the reasons of the other.  Although various
dicta
of
    both judgments have subsequently been cited and relied upon, I have had difficulty
    in extracting any clear
ratio

decidendi
from this case.  [At
    paras. 45-6.]

and:

In the exercise of a judge's discretion, the length of
    delay, the reasons for delay and the expiry of the limitation period are all
    factors to be considered, but none of those factors should be considered in
    isolation.  Regard must also be had for the presence or absence
    of prejudice, and the extent of the connection, if any, between the existing
    claims and the proposed new cause of action.  Nor do I think that
    a plaintiff's explanation for delay must necessarily exculpate him from all
    "fault" or "culpability" before the court may exercise
    its discretion in his favour.  [At para. 67.]

In
    a similar vein, Chief Justice McEachern stated in
Teal Cedar
:

Applying the same principles regardless of whether the
    application is to add new defendants, as in
Ricketts
or new causes
    of action, as in
Med Finance
, I believe the most important considerations,
    not necessarily in the following order, are the length of the delay, prejudice
    to the respondents, and the overriding question of what is just and convenient.
    [At para. 74.]

[20]

In
Letvad
, the Court clarified that the reference to
    a completely unfettered discretion described by Finch J.A. at para. 45 of
    his reasons quoted above, is to the fact that the discretion is not fettered
    by the relevant legislation.  Esson J.A. noted that it is, however, fettered
    to the extent that  it must be exercised judicially, in accordance with the
    evidence adduced and such guidelines as may appear from the authorities.
    (Para. 29.)

[21]

Returning to the case at bar, it seems to me that although the summary
    trial judge did not mention the authorities, she did consider many of the
    factors listed in
Teal Cedar
 the reasons for the plaintiffs
    delay, the question of prejudice to the appellants; Mr. Kakavelakis difficulty
    in obtaining Mr. Boutsakis cooperation in enforcing the Partnerships rights
    against Crown Travel; and the overall context of the two actions generally.
    Given the high degree of deference that is to be accorded to a discretionary
    decision of this kind, I see no basis on which this court should interfere
    with her conclusion that both amendments to the Statement of Claim in the
    F action should be permitted and given effect to notwithstanding that between
    the issuance of the writ in 1989 and the 1997 and 2004 motions to amend, fresh
    causes of action advanced by those amendments would have become barred by
    the lapse of time.

[22]

I would therefore dismiss this ground of appeal.

The Determination of Crown Travels Rental Rates

[23]

Having decided that the amendment to the pleadings should be allowed
    and that the Court had jurisdiction to proceed notwithstanding the arbitration
    clause, Baker J. dealt at paras. 208-218 of her reasons with the determination
    of the rental rate payable by Crown Travel during the second and third renewal
    terms of its lease.  She noted that the only evidence presented on this subject
    was evidence of the results of the arbitrations that had been held relating
    to the rates to be paid by Alexis, for virtually identical space (setting
    aside the tenants own improvements) on very similar conditions, during its
    second and third renewal terms.  Noting as well that during the first renewal
    term, all the parties had agreed that Alexis and Crown Travels rental rates
    should be identical, Baker J. concluded at para. 212 that the best evidence
    of a fair rental rate for Mrs. Boutsakis premises during the second term
    is the same rate the arbitrators - experienced real estate assessors  determined
    for the front portion of the Alexis House premises.  At para. 218, she applied
    similar reasoning to the third renewal term.

[24]

On appeal, Mr. Taylor argued strenuously that the summary trial judge
    erred in referring to the Alexis rental rates as the best evidence of a
    fair market value rental rate for Crown Travel, since, as noted by Baker J.,
    there was no evidence and in particular no expert evidence, aside from the
    Alexis rates, of what would be a fair amount for the rental of Crown Travels
    space.  Further, the appellants through counsel object to Baker J.s use of
    the arbitrated rates that were determined in arbitrations between Alexis and
    the Partnership, since Crown Travel did not participate in the arbitration
    and had no opportunity to bring forward evidence or make submissions that
    might have supported lower rates.

[25]

In my view, these arguments cannot prevail.  The appellants had notice,
    through the pleadings and various other proceedings and correspondence, that
    the plaintiffs would be asking the summary trial judge to determine the rental
    rates for the second and third renewal terms payable by Crown Travel, yet
    Mrs. Boutsakis brought forward no evidence, expert or otherwise, as to what
    she believed would be appropriate rates.  Both sides were free to bring forward
    evidence of comparable rentals in the neighbourhood of the subject property.
    The plaintiffs brought forward the rates payable by Alexis.  Those rates had
    been determined by qualified experts in relation to space almost identical
    to that occupied by Crown Travel.  I agree with Baker J. that this was likely
    the best evidence of appropriate rates, and the fact there was no other
    evidence must be laid at the feet of the appellants.  Nor do I see anything
    objectionable in the fact that Crown Travel had no say in the rates payable
    by Alexis.  The same would have been true of any other comparables charged
    for the rental of similar properties unconnected with the parties that could
    have been adduced into evidence.

[26]

I would dismiss this ground of appeal.

The Second Washroom Issue

[27]

The final substantive issue arising in the appeal in the F action
    relates to Crown Travels withholding $200 per month (later reduced to $100
    per month) as a result, it is said, of the removal of one of two washrooms
    from the so-called common area on the ground floor of the building.  (I
    pause to note that the common area was in fact an area not leased or subject
    to any easement to any person, and that in particular, Crown Travel had no
    lease or other written agreement that entitled it to use the second washroom
    exclusively or in common with others.)  Mr. Boutsakis, again obviously in
    a conflict of interest, supported his wifes position and at one point wrote
    to his partner that the claim for abatement was fully justified and that
    her intention was absolutely right.

[28]

The summary trial judge addressed the second washroom issue at paras.
    124-137 of her reasons.  The crux of her analysis was as follows:

Diane Boutsakis was not a party to that lawsuit. She
    has claimed that under the terms of her lease, she was and is entitled to
    the use of two washrooms in the "common area". For significant periods
    of time during the first, second and third renewal terms of her lease, she
    has either refused to pay rent, or arbitrarily paid an amount of rent significantly
    less than that provided for in her lease, on the grounds that rent abatement
    was due to her for the loss of use of a second washroom.

The Crown Travel lease does not contain any provision
    entitling Crown Travel to the use of any washroom, let alone two. I find that
    she has failed to prove, on the balance of probability, any representation
    made to her by the Lessor/Partnership about the use of washrooms that entitles
    her to either rent abatement or damages.

Mrs. Boutsakis had been carrying on business in the building
    before August 1, 1980. She may have assumed that she would continue to have
    access to two washrooms. She may have known of the existence of clause 5.01
    in the Alexis House lease. However, I do not believe that the Lessor/Partnership
    induced her to enter into the Crown lease by a representation that she would
    continue to be able to use two washrooms in the [common] area, or that she
    relied on that representation, or that she relied on it to her detriment.

Mrs. Boutsakis expressly agreed that she took the premises
    without representation of any kind. Clause 5.07 of the Crown lease states:

5.07  Lessee
    acknowledges that the Premises are taken without representation or warranty
    of any kind on the part of Lessor and that they are sufficient for Lessee's
    purposes.

The evidence does not establish that Mrs. Boutsakis has
    suffered any economic loss or that she, her employees or customers have even
    been inconvenienced by having the use of only one washroom in the common area.
     [Paras. 133-7.]

[29]

In this court, the appellants say that their submission was not that
    Crown Travel had been induced to enter the lease by any misrepresentation
    concerning the washroom, but that since Mr. Boutsakis had agreed with Mrs.
    Boutsakis position, Crown Travel ought not to be prevented from relying
    on the conduct, and communications of one of the partners of the Lessor.
    Alternatively, they submit that it was an implied term of the lease that amenities
    in the common area at the time the lease was entered into, would remain
    as part of the amenities throughout the balance of the lease terms.  As the
    appellants state in their factum:

An
    officious bystander would have had no trouble concluding that it was obviously
    in the contemplation of and part of the agreement between the parties that
    the two washrooms in the common area which existed when [Mrs. Boutsakis] entered
    into her Lease would remain available to her, as tenant, for the duration
    of her tenancy.

[30]

In support, the appellants cited this courts decision in
Olympic

Industries Inc. v. McNeill
(1993) 86 B.C.L.R. (2d) 273, where
    reference was made to the well-known cases of
Reigate v. Union Mfg.
    Co. (Ramsbottom), Ltd
. [1918] 1 K.B. 592 (C.A.) and
Luxor (Eastborne),
    Ltd. v. Cooper
[1941] A.C. 108, 1 All E.R. 33 (H.L.).  Both cases
    make it clear that a term will be implied in an agreement only where both
    parties would have said, Of course, so and so will happen; we did not trouble
    to say that; it is too clear.  Lord Wright in
Luxor
went on
    to say:

This
    does not mean that the court can embark on a reconstruction of the agreement
    on equitable principles, or on a view of what the parties should, in the opinion
    of the court, reasonably have contemplated.  The implication must arise inevitably
    to give effect to the intention of the parties.

These
    general observations do little more than warn judges that they have no right
    to make contracts for the parties.  Their province is to interpret contracts.
    [At 137.]

In
Olympic Industries
, the Court also added the following concerning
    the burden of proof on the party who seeks to have a term implied in order
    to give business efficacy to it:

The question as to what the parties must have intended
    as a matter of necessity is a question of fact to be decided in the circumstances
    of each case.  The party who seeks to have a term implied into the
    contract bears the onus of persuading the court of that necessity.  It
    is not sufficient to show that it would be reasonable or logical to imply
    such a term, or that the parties would probably have agreed upon such a term
    if they had put their minds to it, or, that having put their minds to it,
    chose not to express it.  A higher burden of proof must be met,
    upon the authorities referred to above.  [Para. 31.]

[31]

Dealing first with the appellants alternative argument, I see no basis
    on which a court could reasonably conclude that the parties must be taken
    to have agreed that Crown Travel would have a right to continued access to
    the second washroom as a matter of giving business efficacy to its lease.
    Such a result would involve implying a license or easement with respect to
    space not otherwise referred to in the lease  a step that simply does not
    follow from the circumstances of this case.  Further, Crown Travels argument
    that it should be able to rely on Mr. Boutsakis conduct in consenting to
    the abatement of rent payable by Crown Travel overlooks Mr. Boutsakis clear
    conflict of interest in dealings with his wife, and the fact that Mr. Kakavelakis,
    who as a partner was entitled to bind the Partnership, had been steadfast
    in his opposition to the Boutsakis position.  I see no error in the trial
    judges recognition of Mr. Boutsakis conflict of interest, which disentitled
    Mrs. Boutsakis from relying on his statements even if she had done so to her
    detriment  which the summary trial judge found had not occurred.

[32]

I would therefore dismiss this ground of appeal.

Costs

[33]

I will deal with costs at the end of these reasons.

THE S ACTION (SUPREME COURT FILE NO. S035202)

Claims and Counterclaims

[34]

There were in fact two S actions, one with Docket No. S021480, which
    was commenced in March 2002.  It is described in general terms at paras. 53-57
    of Baker J.s reasons and need not concern us here.  The second action, Docket
    No. S035202, was commenced in September 2003 and was brought in the name of
    Mr. Boutsakis and Mr. Kakavelakis against Alexis and Mr. Kakavelakis.  Since
    the pleadings were filed by the law firm that has acted in this appeal for
    Mr. and Mrs. Boutsakis, however, we may assume that Mr. Kakavelakis did not
    participate in instructing counsel and that Mr. Boutsakis did so, on behalf
    of the Partnership.

[35]

It will be recalled that the summary trial judge allowed various amendments
    to the pleadings in the two actions.  It appears that a Statement of Counterclaim
    was filed on November 10, 2003 by the defendants against Mr. and Mrs. Boutsakis,
    and that on the last day of trial, March 31, 2004, a further amendment was
    sought.  The summary trial judge described the claims and counterclaims as
    follows:

This action was commenced on September 29, 2003, and
    the Statement of Claim was amended on March 1, 2004. The Plaintiff is described
    as George Boutsakis and John Kakavelakis, A Partnership, and the Defendants
    are Alexis House and John Kakavelakis. This action repeated claims for rental
    arrears; property tax, and interest and penalties on property tax; and insurance
    premiums during the terms of the lease. In addition, the Lessor/Partnership
    claimed for rent owing after the expiry of the lease on July 31, 1996, and
    in the alternative, claimed against Alexis on grounds of unjust enrichment.
    The action also includes claims related to property tax and insurance premiums
    during the period Alexis House has been over-holding after the expiry of the
    lease.

A Counterclaim was filed by John Kakavelakis and Alexis
    House, naming Diane Boutsakis and George Boutsakis as defendants by counterclaim.
    During the hearing of the summary trials, the defendants amended their counterclaim.
    In the Counterclaim, Alexis House and Mr. Kakavelakis claim for rent owing
    by Diane Boutsakis for the period after the Crown lease expired on July 31,
    1996; claim for rent for additional space alleged to have been appropriated
    by Diane Boutsakis in 1980, and used continuously and exclusively by her after
    1980; and claim for damages based on various alleged breaches of the lease.
    The counterclaim also contains a claim for monies alleged to be owed by Diane
    Boutsakis to Alexis House on account of hydro and water paid for by Alexis
    House and allegedly used by Diane Boutsakis in connection with the operations
    of Crown.  [At paras. 58-9.]

[36]

The purported Statement of Counterclaim, then, was a mixture of claims
     at paras. 6 and 7, claims in respect of space allegedly appropriated by
    Mrs. Boutsakis, presumably a wrong against the Partnership; at paras. 8 and
    9, claims by Alexis against Mrs. Boutsakis in respect of utilities; at para.
    11, a claim (for improperly charging for plate glass insurance) by Alexis
    stated to be against Mr. Boutsakis, but obviously against him
qua
partner
    and therefore against the Partnership; and at paras. 10, 12, and 14-17 of
    the
Amended
Counterclaim, allegations against Mr. Boutsakis for rent
    retained or not collected from a third tenant and for failing to defray the
    cost of property tax appeals taken on behalf of the Partnership against  the
    City  claims advanced for Mr. Kakavelakis benefit
qua
partner.  Baker
    J. added the Partnership as a plaintiff to the Counterclaim as part of her
    order following trial.

[37]

On appeal, the appellants submit that the counterclaim, before and
    after amendment, was not a proper one in that it did not come within the terms
    of Rule 21(8) of the
Supreme Court Rules
.  It provides:

Where
    a defendant sets up a counterclaim that raises questions between that defendant
    and the plaintiff along with any other person, the defendant may join that
    person as a party against whom the counterclaim is made.

The
    appellants submit that at least some aspects of the counterclaim do not come
    within the terms of the Rule  i.e., that some of the counterclaim raises
    a question between the defendant and Third Parties or strangers to this action,
    namely Diane Boutsakis and George Boutsakis.  The Counterclaim does not in
    certain instances raise claims that involve both the landlord
and
the
    Defendant by Counterclaim.  They say the subject matters of the counterclaim
    are essentially foreign to the existing action and should have been advanced
    in a separate proceeding commenced by the issuance of a separate writ.

[38]

We were referred to
Abney v. Silcorp Ltd.

et al
.
    [1999] B.C.J. No. 2420, the circumstances of which were somewhat similar to
    those here.  Particularly apt is the Courts reasoning,
per
McEwan
    J., that:

The term counterclaim, in ordinary use, implies a reflexive
    action, one that comes back upon the original claimant. While a counterclaim
    may be filed where the original claimant and others are involved, the plain
    meaning of the language of the Rule precludes a counterclaim against others
    altogether.  In this regard I am not persuaded by Hung Fook's argument
    that, because Form 15 does not specify "counterclaim against the plaintiff",
    the rule must be permissive of "counterclaims" including or not
    including the plaintiff. The phrase "against the plaintiffs" would
    be a redundancy attached to a proper counterclaim.  [Para. 14.]

McEwan
    J. concluded that the counterclaim filed in
Abney
set up a
    completely separate action in that it made no claim against the plaintiff
    and should originally have been brought by the issue of a distinct writ.
    (Para. 17.)  He declined, however, to grant a declaration that the counterclaim
    was a nullity, relying on Rules 2(1) and 2(3) to find that the pleading was
    at least an originating process and could therefore be salvaged under Rule
    2(3).  He ordered that the purported counterclaim be severed and stand as
    the originating process in a new action, which was to be amended to conform
    in form to the Rules respecting pleadings and to be heard at the same time
    and place as the original action.

[39]

In the case at bar, it is clear that the claims of Alexis against Mrs.
    Boutsakis in respect of certain utilities allegedly appropriated by her
    were not a proper counterclaim.  The same is true of the claims by Mr. Kakavelakis
    (
qua
partner) against Mrs. Boutsakis, even if one accepts that Mr.
    Kakavelakis, who was sued
qua
the guarantor of Alexis lease, could
    counterclaim in a different capacity: see
Halsburys Laws of England
(4th ed., 1999) vol. 42, at para. 488.  The claim regarding plate glass insurance,
    on the other hand, does appear to be a truly reflexive pleading.  The position
    with respect to the counterclaims of Mr. Kakavelakis against Mr. Boutsakis
qua
partner is less clear, especially since the Partnership was added
    both as a plaintiff in the original Statement of Claim and as a plaintiff
    by Counterclaim.  This result is unusual to say the least.

[40]

Mr. Kakavelakis arguments as set forth at paras. 31 and 32 of his
    factum were not responsive to the appellants argument based on Rule 21(8).
    However, he did note the similarity, or symmetry, between the positions of
    Mr. Boutsakis and Crown Travel on the one hand, and himself and Alexis on
    the other.  Each of the Partners was a lessor but was in an obvious position
    of conflict.  The disputes which were the subject of the counterclaim were
    long-running and the court below was making an effort to determine them fairly
    by hearing them all at once on their merits, notwithstanding procedural defects.
    In these unusual circumstances, it seems to me that although Baker J. may
    have erred in a technical sense in permitting all aspects of the counterclaim
    to stand in the form filed, form should not be permitted to prevail over substance,
    and that the claims at paras. 6, 7, 8, 9, 10, 12, and 14-17 of the amended
    pleadings filed March 31, 2004 should to the extent necessary be regarded
    as severed and as standing as originating process in separate actions.  I
    would therefore allow the appeal in respect of the approval of the Amended
    Counterclaim in its entirety, but would leave the claim at para. 11 (regarding
    plate glass insurance) in place, sever the balance of the claims and order
    that they be taken as standing as originating actions that have been dealt
    accordingly with by the summary trial judge.

The Limitation Act as Applied to the Counterclaim

[41]

As noted earlier, the summary trial judge permitted all the applications
    before her at trial to amend the pleadings and rejected the argument that
    the added claims should be restricted to those arising in the six-year period
    ending as at the date of the filing.  At paras. 157-8 of her reasons, she
    referred specifically to the Counterclaim in the S action:

In Action S035202, Alexis House and Mr. Kakavelakis filed
    a Counterclaim naming Diane Boutsakis and George Boutsakis as defendants by
    counterclaim. As earlier stated, I have granted leave for the amendments proposed
    to the Counterclaim during trial. I am also directing that "John Kakavelakis
    and George Boutsakis, a Partnership" be added as a plaintiff by counterclaim
    in Action S035202.

The Amended Counterclaim alleges that since July 31,
    1996, Mrs. Boutsakis has remained in the premises as an over-holding tenant.
    In the Counterclaim, most of the claims advanced in Action F892474 are also
    made in relation to the over-holding period.

[42]

The appellants again argue that the summary trial judge erred in permitting
    the counterclaim to be filed in circumstances where the new claims alleged
    were barred in whole or in part by the
Limitation Act
.  Both
    in the appellants factum and in counsels oral arguments, it was assumed
    that the same considerations apply to the counterclaim as to the other amendments
    to pleadings discussed earlier in these reasons.  However, where a counterclaim
    is involved, it is s. 4(1) of the
Limitation Act
that applies,
    rather than s. 4(4).  Section 4(1) states that if an action has been commenced,
    the lapse of time limited for bringing an action is no bar to proceedings
    by counterclaim, including the adding of a new party as a defendant by counterclaim,
with respect to any claims relating to or connected with the subject matter
    of the original action
.

[43]

Section 4(1) was considered by a five-judge panel of this court in
Lui v. West Granville Manor Ltd.
(1987) 11 B.C.L.R. (2d) 273.
    Mr. Justice Lambert for the majority reviewed the previous authorities and
    concluded at para. 49 that the legislative purpose underlying s. 4(1) was
    to eliminate any limitation defence in all proceedings described in paras.
    (a)  (d) of that section.  Section 4(1) must be considered to bear the meaning
    that carries that purpose into effect.  (At 295.)  Further, his Lordship
    stated at para. 71:

The legislative purpose must surely have been to permit
    those proceedings which are brought within the applicable limitation period
    to go ahead, and to permit
all subordinate proceedings which are dependent
    on the main proceedings
to go ahead with them, but to
prevent any proceedings
    which are truly independent from using bogus subordinate status to avoid a
    limitation period
which would otherwise be applicable.

Although
    the Court was dealing with third party proceedings in
Liu,
it
    was suggested at para. 85 that similar considerations applied to counterclaims
    against a new party and to other additions of parties.

[44]

The question in this case is therefore whether there is a real and
    substantive connection between the original action and the counterclaims
    in this case.  As I have indicated above, the only true counterclaim in this
    instance was that made by Alexis in para. 11 of the Statement of Counterclaim
    as filed, dealing with the Partnerships charging Alexis for plate glass insurance
    when allegedly, the only tenant with plate glass was Mrs. Boutsakis.  Section
    4(1)(a) of the
Limitation Act
has the effect of permitting that
    counterclaim to proceed even if it would be otherwise statute-barred, as it
    is clearly related to the original claims against Alexis for amounts due under
    its lease.  As for the other aspects of the counterclaim, I do not, for
    the reasons already given, regard them as sufficiently related to or connected
    with the subject matter of the plaintiffs action as to engage s. 4(1).  These
    claims are instead truly independent ones and as stated in
Lui
,
supra
, cannot be used to avoid limitation periods that would otherwise
    apply.  To this extent, I would allow the appeal, with the result that the
    claims advanced at paras. 6, 7, 8, 9, 10, and 12 of the so-called Statement
    of Counterclaim (filed March 10, 2003) may be extended back only six years
     i.e., to November 10, 1997.  In respect of
new
claims advanced in
    the
Amended
Counterclaim (filed November 31, 2004), i.e., those at
    paras. 13-19, I would order that they may extend back no further than March
    31, 1998.

Claims of the Partnership against Alexis

[45]

The summary trial judge dealt with the above-captioned claims at paras.
    302-312 of her reasons.  At para. 308 she noted Mr. Boutsakis assertion that
    a new contract had been formed between Alexis and the Partnership to pay
    a higher rate of rent from and after July 31, 1996 (when the lease expired),
    than that paid during the last renewal term.  She observed:

He asserted that this contract was formed when he wrote to Alexis House informing
    them of the new rental rate and advising that unless Alexis House agreed to
    pay that rate, Alexis House should immediately vacate the premises. Alexis
    House did not reply to the letter and did not vacate the premises. Mr. Boutsakis
    alleges that by its silence, and by remaining in the premises, Alexis House
    agreed to pay higher rent.

In my view, no new contract was created in this way.
Alexis House had no obligation to reply to the letter, and its silence
    cannot be interpreted as assent. Similarly, the fact that Alexis declined
    to vacate the premises does not signify its agreement to pay higher rent
.
    Alexis House was and is an over-holding tenant by virtue of clause 5.05 of
    the Alexis House lease and until steps were taken to effectively terminate
    that over-holding tenancy, and evict Alexis House, it was and is entitled
    to rely on clause 5.05.  [At paras. 308-09; emphasis added.]

[46]

The appellants submit in their factum that the question of whether
    conduct unaccompanied by any verbal or written undertaking, can constitute
    an acceptance of an offer so as to bind the purported acceptor to the fulfilment
    of the contract is an objective one:
St. John Tug Boat Co. Ltd. v. Irvine
    Refining Ltd
. [1964] S.C.R. 614.  The Supreme Court of Canada in that
    case cited the well-known statement of Lord Blackburn in
Smith v. Hughes
(1871) L.R. 6 Q.B. 597:

If,
    whatever a mans real intention may be, he so conducts himself that a reasonable
    man would believe that he was assenting to the terms proposed by the other
    party and that other party upon that belief enters into the contract with
    him, the man thus conducting himself would be equally bound as if he had intended
    to agree to the other partys terms.  [At 607.]

In
    the absence of a governing provision in the lease, a case could be made for
    the proposition that by staying in the leased premises notwithstanding Mr.
    Boutsakis letters, Alexis should be taken to be consenting to the terms set
    forth in the letter.  However, by clause 5.05 of the Alexis lease, the tenant
    and the Partnership had agreed that:

Overholding

If
    Lessee holds over after the expiration of this lease, this holding over shall
    not operate as a renewal or extension of this lease, but shall result only
    in a tenancy from month to month which lessor may terminate on one months
    previous notice and which shall be otherwise subject to all other terms, conditions
    and agreements in this lease.)

I
    agree with Baker J. that by virtue of this provision, the parties must be
    taken to have agreed its terms would apply in the event of any overholding.
    This is a simple matter of the parties having agreed ahead of time on the
    legal effect of overholding by the tenant.  This makes it all the more difficult
    for Mr. Boutsakis to override that clause unilaterally by correspondence with
    Mr. Kakavelakis.  A reasonable bystander would be unlikely, in the face of
    clause 5.05, to impute an agreement on Alexis part to jettison that clause
and
assent to the terms proposed by Mr. Boutsakis.  I would dismiss
    this ground of appeal.

The Claim for Double Rent

[47]

The appellants originally advanced an argument on appeal that that
    s. 15 of the
Commercial Tenancy Act
, R.S.B.C. 1996, c. 57, ought
    to apply to entitle the Partnership to double rent from Alexis for the period
    of its overholding.  However, they abandoned this ground of appeal.

Interest at Rates Higher than Specified in the Court Order Interest Act

[48]

The summary trial judge dealt at paras. 181-185 of her reasons with
    the interest rate to be paid on all arrears of all kinds by all parties.
    In connection with the S action, she noted that Mr. Boutsakis had taken
    the position that he and Mr. Kakavelakis had agreed that arrears of rent owing
    by both tenants would bear interest at 10%  an allegation disputed by Mr.
    Kakavelakis.  Baker J. continued:

Mrs. Boutsakis has taken no position, but there is no evidence she agreed
    to this rate of interest on arrears. There is no term in the lease providing
    for the payment of interest on arrears. In judgments and orders relating to
    previous disputes among these parties, the court has consistently awarded
    court order interest on sums found to be owed.

The evidence does not establish a contractual right to
    interest on any sums found to be outstanding among the parties to this litigation.
    No interest rate higher than payable under the
Court Order Interest Act
,
    R.S.B.C. 1996, c. 79 is warranted. Mr. Boutsakis' various claims for an interest
    rate different from or higher than the prevailing rates under the
Court
    Order Interest Act
are dismissed.  [At paras. 181-82.]

[49]

In their factum, the appellants urge that there was evidence before
    the Court to the effect that Mr. Boutsakis on behalf of the Partnership had
    incurred interest costs at rates higher than those provided under the Act
    and that to do justice between the parties, the rate payable by Alexis (and
    guaranteed by Mr. Kakavelakis) to the Partnership should be adjusted to a
    higher rate.

[50]

It is readily apparent from the summary trial judges reasons, however,
    that both sides were found to have wrongfully withheld rent and to have dealt
    with each other improperly over the years.  Singling out Mr. Boutsakis carrying
    costs would not be in keeping with the balance achieved by the summary trial
    judge in dealing with the claims between the two camps.  The summary trial
    judge has not been shown to have exercised her discretion under s. 1(1) of
    the
Court Order Interest Act
on a wrong principle or incorrectly.
    I would dismiss this ground of appeal.

Arrears of Property Taxes

[51]

As the summary trial judge noted at para. 248 of her reasons, the two
    partners were in agreement on one thing  that their tenants should be required
    to pay their proportionate share of the interest, penalties and other costs
    paid or outstanding to the City of Vancouver in respect of their premises.

[52]

The summary trial judge did not agree.  In her analysis:

The lease requires Mrs. Boutsakis to "pay to the Lessor" her share
    of the property taxes. She has no obligation to pay directly to the City.
    The payment of property taxes in the first instance is the responsibility
    of the Lessor/Partnership as owner of the land and building. If it fails to
    pay its taxes when due, and thereby incurs interest charges, penalties, and
    other associated costs, those remain the responsibility of the Lessor/Partnership.
    Mrs. Boutsakis' obligation is to pay 20% of what the property taxes were without
    reference to interest or penalties imposed by the City. The same is true of
    Alexis House's obligation to pay property taxes based on the Alexis House
    lease.

There is also a practical difficulty with the claim advanced
    by the Lessor/Partnership against Mrs. Boutsakis and against Alexis House,
    and that arises from the fact that at times all three tenants have been in
    arrears of property taxes owed to the Lessor/Partnership. It would not be
    possible, in my view, to determine which, if any, tenant's default resulted
    in the Lessor/Partnership defaulting on its obligation to pay taxes.  [At
    paras. 249-50.]

Baker
    J. ruled that Mrs. Boutsakis was liable to pay interest on any arrears of
    property taxes owed by her to the Partnership during the terms of the Crown
    lease and the overholding period, to be calculated in accordance with the
Court

Order Interest Act
.

[53]

On appeal, the appellants take the position that since the partners
    agreed that the interest calculations relating to arrears of property tax
    attributable to late or non-payment by tenants, was to mirror the charges
    levied by the City of Vancouver and paid by the Partnership, the summary
    trial judge erred in deciding to determine the issue.  With respect, the fact
    the two partners may now agree that their tenants should pay a particular
    amount of arrears cannot override the terms of the leases, if they provided
    otherwise.  The summary trial judge found that they did, i.e., that each tenant
    was required to pay the specified percentage of all realty taxes or other
    taxes levied against the Lessor in lieu of realty taxes without reference
    to interest or penalties that might result from default on their part or the
    Partnerships part.  I see no basis on which such a term could be implied.

[54]

Alternatively, counsel for the appellants argued that having breached
    its contractual obligation (contained in the lease) to pay its share of the
    taxes, Alexis is liable for the damages flowing naturally therefrom, and that
    such damages would include the arrears levied by the City.  This argument
    assumes that penalties and other charges were losses that could be expected
    to flow directly from the tenants breach of its obligation, but the summary
    trial judge included at para. 250 of her reasons that such a chain of causation
    could not be found on the evidence before her.  We were not referred to any
    evidence on appeal that would indicate this finding is clearly wrong, and
    accordingly, this ground must also fail.

COSTS IN BOTH ACTIONS

[55]

The summary trial judge concluded at para. 313 of her reasons that
    there had clearly been divided success among the parties. She therefore ordered
    that each party pay her, his, or its own costs of the summary trial proceedings
    and related references and accountings.  The appellants submit that she thereby
    erred, that the Partnership had very substantial success against the respondents
    and that the Partnerships claims occupied a relatively smaller portion of
    the time taken at trial.

[56]

As the summary trial judge noted at para. 66, the parties had originally
    estimated that the trial would take two to four days, but in the end it took
    14 days, distributed over a five-month period, and there were several adjournments
    before the proceedings got underway.  The summary trial judge also noted that
    Mr. Peter Kakavelakis, the son of John Kakavelakis, had occupied a good deal
    of the trial time in attempting to explain various computer-generated spreadsheets
    he had prepared, but that most of his calculations were based on assumptions
    with which the Court did not agree.  As a result, it was necessary to make
    certain references to the Registrar even post-trial.  These factors would
    normally have weighed in favour of a costs award against the Kakavelakis parties;
    but at the end of the day, Baker J. felt it best to order that the parties
    bear their own costs.  Costs orders are, of course, best made by the trial
    judge (in this case, also the case management judge), who knows exactly what
    tactics and positions were taken by the parties at trial and the extent to
    which they contributed to the length of the proceedings.  Again, I see no
    basis on which we could conclude that Baker J. erred in the exercise of her
    discretion in this regard, and I would dismiss this ground of appeal.

[57]

In the result, I would allow the appeal only to the extent described
    at paras. 40 and 44 of these Reasons.  A cross-appeal is to be dismissed by
    consent.

Costs

[58]

Although the appellants have prevailed in my reasons on two points,
    one of those points is without substantive significance and the other will
    have only minor effect. Thus I regard the respondents as having been largely
    successful in this appeal. I would award them 80% of their costs in this appeal
    as against the appellants.

The
    Honourable
Madam Justice Newbury

I Agree:

The Honourable
Madam Justice Prowse

I Agree:

The Honourable
Madam Justice Ryan