COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Preymann v. Ayus Technology Corporation,

2012 BCCA 30

Date: 20120123

Docket: CA039214

Between:

Hans-Christian
Preymann

Appellant

(Plaintiff)

And

Ayus Technology
Corporation

Respondent

(Defendant)

Before:

The Honourable Madam Justice Ryan

The Honourable Mr. Justice Donald

The Honourable Madam Justice Garson

On appeal from:
Supreme Court of British Columbia, July 11, 2011
(
Preymann v. Ayus Technology Corporation
, Vancouver Docket No. S110770)

Counsel for the Appellant:

J.D. Shields

Counsel for the Respondent:

T.S. Kent

Place and Date of Hearing:

Vancouver, British
  Columbia

November 30, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January 23, 2012

Written Reasons by:

The Honourable Madam Justice Garson

Concurred in by:

The Honourable Madam Justice Ryan

The Honourable Mr. Justice Donald

Introduction

[1]

Mr. Preymann, the plaintiff in this proceeding, appeals a judgment of
Mr. Justice Leask which stayed this action on the ground that, although
the British Columbia Supreme Court has territorial competence over the
proceeding, jurisdiction should be declined in favour of the courts of
Austria.  In so ordering, the chambers judge relied on the fact that the
contract between the parties contained a forum selection clause in which the
parties chose Austria as the forum in which to resolve any disputes arising
from the agreement between them.

[2]

The appellant says the forum selection clause contained in the agreement
is ambiguous and ought not to be enforced.  He also contends that, because the
Court
Jurisdiction and Proceedings Transfer Act
, S.B.C. 2003, c. 27 [the
CJPTA
or the
Act
], governs questions of territorial competence and is
silent on the effect of a forum selection clause, the forum selection clause
ought not to be a factor in a courts consideration of territorial competence.

[3]

The respondent contends that the chambers judge did not err in his
reliance on the forum selection clause.

Reasons for Judgment

[4]

The chambers judge found that the British Columbia Supreme Court did
have territorial competence over the proceeding.  However he determined that he
should nevertheless decline jurisdiction on account of the forum selection
clause and stayed the action.  He relied on this Courts judgment in
Viroforce Systems Inc. v. R&D Capital Inc.,
2011 BCCA 260, 336 D.L.R.
(4th) 570.  The chambers judges reasons for declining jurisdiction are set out
at paras. 3  6 of his reasons:

[3]        The plaintiff's position is that the facts support
jurisdiction in British Columbia:  first, the defendant is a British Columbia
company; second, the defendant has its registered and records office in British
Columbia; third, the plaintiff is a shareholder of the defendant company and
has rights pursuant to the
B.C. Business Corporations Act
.  The
plaintiff has British Columbia counsel.  The defendant has British Columbia
counsel.  The business office of the defendant is in British Columbia.  The
president of the defendant is located in Vernon, British Columbia, and he
signed two of the documents in issue.  Execution would be in British Columbia.

[4]        I think the plaintiff's position is summed up in
these two sentences:

This is a simple debt collection matter.  The plaintiff is
entitled to get paid back the funds he lent to the defendant here in British
Columbia.

[5]        The Court heard argument on the jurisdiction of
the B.C. courts and
forum non conveniens
on May 13 of this year and
reserved and requested further written submissions from the parties, which both
provided.  Following the written submissions being received by the Court, a
decision was made by the B.C. Court of Appeal -
Viroforce Systems Inc. v.
R&D Capital Inc.
, 2011 BCCA 260.  In that decision, Mr. Justice Tysoe,
speaking for the Court, said this at paragraph 14:

In my opinion, the Act does not alter the general approach
to be taken when the parties agree to a forum selection clause. If it is determined
or assumed that the British Columbia court has territorial competence, the
issue is whether the court should decline jurisdiction, either because the
forum selection clause ought to be enforced or a consideration of the factors
contained in s. 11 of the Act leads to the conclusion that a court in another
jurisdiction is a more appropriate forum. The existence of a forum selection
clause can, by itself, be sufficient reason for a court to decline
jurisdiction, and it is not simply one of the factors to consider in making a
determination under s. 11. It will not be necessary in all cases to first
determine whether there is territorial competence because it may be clear that
the forum selection clause will govern the outcome of the matter.

The conclusion of the Court is at paragraph 18:

The chambers judge was correct in her conclusion that the
action should be stayed because even if the Supreme Court of British Columbia
has territorial competence, it should decline to exercise the jurisdiction
because the forum selection clause ought to be enforced.

[6]        It is my view that
despite the careful submissions of counsel for the plaintiff, who has politely
suggested that the Court of Appeal is wrong and also pointed out that it is
possible for its decision to be distinguished, I am of the view that on the
facts of this case, I am bound by the decision of the Court of Appeal and, for
that reason, I echo the decision of the chambers judge in
Viroforce
and
I order that the action brought by the plaintiff should be stayed.

Relevant Provisions of the
CJPTA

[5]

The pertinent sections of the
CJPTA
are ss. 2, 3, and 11:

Application of this Part

2
(1) In this Part, court means a court
of British Columbia.

(2) The territorial
competence of a court is to be determined solely by reference to this Part.

Proceedings against a person

3
A court has territorial competence in a
proceeding that is brought against a person only if

(a) that person is the plaintiff in another proceeding
in the court to which the proceeding in question is a counterclaim,

(b) during the course of the proceeding that person
submits to the court's jurisdiction,

(c) there is an agreement between the plaintiff and that
person to the effect that the court has jurisdiction in the proceeding,

(d) that person is ordinarily resident in British
Columbia at the time of the commencement of the proceeding, or

(e) there is a real and
substantial connection between British Columbia and the facts on which the
proceeding against that person is based.

Discretion as to the exercise of territorial competence

11
(1) After considering the interests of
the parties to a proceeding and the ends of justice, a court may decline to
exercise its territorial competence in the proceeding on the ground that a
court of another state is a more appropriate forum in which to hear the
proceeding.

(2) A court, in deciding the question of whether it or a
court outside British Columbia is the more appropriate forum in which to hear a
proceeding, must consider the circumstances relevant to the proceeding,
including

(a) the comparative convenience and expense for the
parties to the proceeding and for their witnesses, in litigating in the court
or in any alternative forum,

(b) the law to be applied to issues in the proceeding,

(c) the desirability of avoiding multiplicity of legal
proceedings,

(d) the desirability of avoiding conflicting decisions
in different courts,

(e) the enforcement of an eventual judgment, and

(f) the fair and efficient
working of the Canadian legal system as a whole.

Facts

[6]

The appellant, Hans-Christian Preymann, is a resident of Salzburg, Austria.

[7]

Joseph Reschreiter, the president of the respondent, resides in Vernon,
British Columbia, but regularly visits Austria.

[8]

The respondent, Ayus Technology Corporation is, according to the
pleadings, a British Columbia company with a registered office in Kelowna,
British Columbia.

[9]

It is pleaded that the parties entered into an agreement dated May 26,
2008, in which the appellant agreed to lend the respondent one million Euros
(the Agreement). The Agreement was amended on May 26, 2010 (the Amended
Agreement).  The agreements between the parties are in German and in the first
instance were translated (presumably in anticipation of this proceeding) by the
respondent.

[10]

The Agreement contains what is both here and commonly referred to as a
forum selection clause, as follows:

Any disputes
between AYUS and/or one of its shareholders as one party and the investors or
an investor as the other party shall be subject to the laws of the Republic of
Austria.  Venue is the factually competent court of the City of Salzburg.

[11]

An Amended Agreement altered the terms of the loan and contained the
following different forum selection clause:

The contractual
parties agree that any disputes arising from this agreement shall be subject to
the exclusive jurisdiction of the factually competent court in the City of
Salzburg, Austria. This agreement is governed solely by the laws of the
Republic of Austria excluding UN Commercial Law.

[12]

The appellant says the word exclusive in the first sentence of the
translated version of the agreement is not found in the original text of the
Amended Agreement.  Owing to its concern about the accuracy of the translation,
the appellant obtained and tendered into evidence two additional translations
of the forum selection clause.  The first translation provides as follows:

For possible
disputes resulting from this agreement, the contractual parties agree that the
City of Salzburg, Austria shall be the competent jurisdiction.  This agreement
is subject exclusively to Austrian law with the exception of the United Nations
Convention on Contracts for the International Sale of Goods.

[13]

The second translation, which the respondent
says should not be accepted as accurate, provides:

The parties
to this contract agree that any disputes arising from it shall be subject to
the jurisdiction of the factually competent court in the City of Salzburg,
Austria.  This agreement is governed exclusively by the laws of the Republic of
Austria, excluding UN Commercial Law.

[14]

The chambers judge did not make any finding of fact as to which of these
is a correct translation.

[15]

It is alleged that the respondent defaulted on the loan after August 1,
2010.

[16]

The appellant commenced proceedings in British Columbia on February 7,
2011.

Positions of the Parties

[17]

The respondent concedes that the British Columbia Supreme Court has
territorial competence over this proceeding.

[18]

The appellant argues that forum selection clauses are not
relevant to territorial competence because the
CJPTA
, a complete code on
questions of jurisdiction, is silent as to forum selection clauses.  He argues
that the
CJPTA
requires a court to first determine whether territorial
competence is established pursuant to ss. 3, 7 and 10 and then to conduct a s.
11 analysis, considering all of the mandatory factors listed therein in order
to determine whether the court should decline to exercise its territorial
competence.  He argues that s. 11s list of mandatory considerations does not
mention forum selection clauses and that the
Act
does not elsewhere
provide that forum selection clauses, selecting a jurisdiction other than
British Columbia, preclude or weigh against the exercise of territorial
competence by British Columbia courts.  The appellant concludes that, as a
result, such clauses should not be considered.  He also notes that, as per s.
2(2) of the
CJPTA
, Part 2
solely determines
questions of the territorial
competence of British Columbia courts.

[19]

In support of his submission that forum selection clauses selecting
jurisdictions other than British Columbia are not relevant to the question of
territorial competence, the appellant submits that this Courts decision in
Viroforce
is wrongly decided as it contradicts authority from the Supreme Court of
Canada:
Teck Cominco Metals Ltd. v. Lloyds Underwriters
, 2009 SCC 11,
[2009] 1 S.C.R. 321.  He argues that
Teck
was not considered or referred
to in
Viroforce
, or alternatively, he argues that
Viroforce
can
be distinguished.

[20]

The thrust of the appellants second argument appears to be that, upon
consideration of the factors enumerated in s. 11(2) of the
CJPTA
, the
chambers judge should have found that a stay was not merited.  He also
makes the related argument that, in this case, consideration of the factors
listed in s.11(2) shows that there is strong cause which justifies declining
to enforce a forum selection clause (see
Z.I. Pompey Industrie v. ECU-Line
N.V.
, 2003 SCC 27, [2003] 1 S.C.R. 450 at paras. 25  27).

[21]

Finally, he argues that, in any event, the amended forum selection clause
in question does not contain the exclusive language that is necessary to render
it enforceable.  He relies on this Courts decision in
Old North State
Brewing Company v. Newlands
(1998), 58 B.C.L.R. (3d) 144, which states at
para. 35 that [a]n ambiguous choice of jurisdiction clause will not be
construed to grant exclusive jurisdiction.

[22]

The respondent counters that whatever translation of the forum selection
clause is used, the clause speaks in mandatory language, if not the language of
exclusivity, and should be enforced.  It says that it does not matter that the
chambers judge did not make a specific finding of fact as to which translation
was correct as the parties clearly intended to resolve disputes in Austria
according to Austrian law.

[23]

The respondent submits that
Viroforce
is not inconsistent with
the
CJPTA
because the
CJPTA
does not preclude application of the
common law pertaining to forum selection clauses.  The respondent submits that
Teck
held that the
Act
is a codification of the common law test for
forum
non conveniens
.  It submits that this does not preclude a court from
considering other relevant issues that may arise in the course of identifying
the appropriate forum for a proceeding, such as when to enforce forum selection
clauses.

Analysis

[24]

On the facts of this case, there is no question that British Columbia
has territorial competence over the proceeding.

[25]

I agree with the respondent that, whichever version of the forum
selection clause is considered, the language is clear that the parties intended
Austrian law to govern and that, in the event of a dispute, Austrian courts would
have jurisdiction over the dispute.

[26]

As already noted, the chambers judge considered this Courts judgment in
Viroforce
to be determinative of the question before him.  The appellant
argues that this Court is not bound by, and ought not to follow
Viroforce
.

[27]

Below I refer to two recent Saskatchewan Court of Appeal judgments that cite
Viroforce
with approval.  It follows that the appellant argues that we
ought not to follow the Saskatchewan decisions either.

[28]

I would not, for the reasons explained below, grant the appeal.

[29]

Before turning specifically to
Viroforce
and the Saskatchewan cases,
I will review
Teck
.
Teck
is pertinent to the question of the
correct interpretation of s. 11 of the
CJPTA
and was not cited in
Viroforce
.  At paras. 21  22 of
Teck
, the Chief Justice speaking
for a unanimous court held that s. 11 was a complete codification of the common
law test for
forum non conveniens
.  She held:

[21]      The first argument is that s. 11 of the
CJPTA
does
not apply where a foreign court has asserted jurisdiction.  I cannot
agree.  The
CJPTA
creates a comprehensive regime that applies to
all cases where a stay of proceedings is sought on the ground that the action
should be pursued in a different jurisdiction (
forum

non conveniens
).
It requires that in every case, including cases where a foreign judge has
asserted jurisdiction in parallel proceedings, all the relevant factors listed
in s. 11 be considered in order to determine if a stay of proceedings is
warranted.  This includes the desirability of avoiding multiplicity of
legal proceedings.  But the prior assertion of jurisdiction by a foreign
court does not oust the s. 11 inquiry.

[22]
Section 11 of the
CJPTA
was intended to
codify the
forum non conveniens
test, not to supplement it.
The
CJPTA
is the product of the Uniform Law Conference of Canada.
In its introductory comments, the Conference identified the main purposes of
the proposed Act, which included bringing Canadian jurisdictional rules into
line with the principles laid down by the Supreme Court of Canada in
Morguard
Investments Ltd. v. De Savoye
, [1990] 3 S.C.R. 1077, and
Amchem Products
Inc. v. British Columbia (Workers Compensation Board)
, [1993] 1 S.C.R.
897 (
Uniform Law Conference of Canada  Commercial Law Strategy
(loose-leaf),
at p. 3).  Further, the drafters of the model Act confirmed that s. 11 of
the
CJPTA
was intended to codify the common law
forum non conveniens
principles
in comments to section 11:

11.1
Section 11 is meant to codify the doctrine
of forum non conveniens, which was most recently confirmed by the Supreme Court
of Canada in
Amchem Products Inc. v. British Columbia
(1993).  The
language of subsection 11(1) is taken from
Amchem
and the earlier cases
on which it was based.  The factors listed in subsection 11(2) as relevant
to the courts discretion are all factors that have been expressly or
implicitly considered by courts in the past. [p. 11]

Section 11 of the
CJPTA
thus constitutes a complete codification of the common law test for
forum
non conveniens
.  It admits of no exceptions.

[Emphasis added.]

[30]

I now turn to
Viroforce
.  The appellant argues that
Viroforce
,
at paras. 13  14, conflicts with
Teck
.  Tysoe J.A. explained how a
forum selection clause fits into the jurisdictional analysis:

[13]      The decision in
Momentus.ca Corp. v. Canadian
American Assn. of Professional Baseball Ltd.
, 2010 ONCA 722 at paras. 35 to
39, 325 D.L.R. (4th) 685, leave to appeal granted [2010] S.C.C.A. No. 473,
contains a useful discussion of the manner in which forum selection clauses fit
into the jurisdictional analysis. It is first determined whether the court in
question has or can assume jurisdiction. If so, the question becomes whether
the court should take jurisdiction. In this regard, the court will decline
jurisdiction for one of two reasons - the enforcement of a forum selection
clause or a determination of
forum non conveniens
.

[14]      In my opinion, the
Act
does not alter the general approach to be taken when the parties agree to a
forum selection clause. If it is determined or assumed that the British
Columbia court has territorial competence, the issue is whether the court
should decline jurisdiction, either because the forum selection clause ought to
be enforced or a consideration of the factors contained in s. 11 of the
Act
leads to the conclusion that a court in another jurisdiction is a more appropriate
forum. The existence of a forum selection clause can, by itself, be sufficient
reason for a court to decline jurisdiction, and it is not simply one of the
factors to consider in making a determination under s. 11. It will not be
necessary in all cases to first determine whether there is territorial
competence because it may be clear that the forum selection clause will govern
the outcome of the matter.

[31]

Two decisions of the Saskatchewan Court of Appeal were released on November
15, 2011:
Microcell Communications Inc. v. Frey
, 2011 SKCA 136, and
Hudye
Farms Inc. v. Canadian Wheat Board
, 2011 SKCA 137.  Speaking for unanimous divisions
of the court in both cases, Jackson J.A. held that, [t]he validity and effect
of a forum selection clause arise as part of the determination of whether the
territory should
decline
territorial competence and not as part of the
determination of whether the territory has competence at all (
Hudye
at
para. 8).  Further, she held that the presence of a forum selection clause is a
weighty factor speaking in favour of declining to exercise territorial
competence unless the plaintiff can establish strong cause for refusing to
enforce such a clause.  (
Hudye
at paras. 8  11 and
Microcell
at paras. 106  115).

[32]

In both judgments, Jackson J.A. indicated her agreement with this Courts
decision in
Viroforce
and rejected the notion that, because the
CJPTA
is silent on the question of the effect of a forum selection clause selecting a
jurisdiction other than British Columbia, such a clause ought not be considered
in a courts decision as to whether to decline to exercise territorial
competence (see:
Hudye
at paras. 8  11 and
Microcell
at paras.
106  115).  She held that forum selection clauses are relevant to that
inquiry.  (I note that she was considering s. 10 of Saskatchewans
Court
Jurisdiction and Proceedings

Transfer Act
, S.S. 1997, c. C-41.1,
which corresponds to s. 11 of British Columbias
CJPTA
.)

[33]

At paras. 112  114 of
Microcell
, Jackson J.A. explained how, in
her view, consideration of a forum selection clause fits within the
forum
conveniens
analysis:

[112]    The effect of a forum
selection clause arises as part of the determination as to whether the
territory should
decline
territorial competence. Declining territorial
competence occurs according to the framework of s. 10 of the
CJPTA
,
which I repeat here for ease of reference:

10(1)  After considering the
interests of the parties to a proceeding and the ends of justice, a court may
decline to exercise its territorial competence in the proceeding on the ground
that a court of another state is a more appropriate forum in which to try the
proceeding.

(2)  A court, in deciding the
question of whether it or a court outside Saskatchewan is the more appropriate
forum in which to try a proceeding, shall consider the circumstances relevant
to the proceeding, including:

(a)        the
comparative convenience and expense for the parties to the proceeding and for
their witnesses, in litigating in the court or in any alternative forum;

(b)        the law to be applied to
issues in the proceeding;

(c)        the
desirability of avoiding multiplicity of legal proceedings;

(d)        the
desirability of avoiding conflicting decisions in different courts;

(e)        the enforcement of an
eventual judgment; and

(f)         the
fair and efficient working of the Canadian legal system as a whole.

Not found among this list is reference to a forum selection clause,
which raises the question whether the presence of a forum selection clause is
but one general factor among many to be considered as part of clause 10(2)(f).
This question, as well, has been answered by the Court in
Viroforce
:

[14]      ... If it is determined
or assumed that the British Columbia court has territorial competence, the
issue is whether the court should decline jurisdiction, either because the
forum selection clause ought to be enforced or a consideration of the factors
contained in s. 11 [Saskatchewan's s. 10] of the
Act
leads to the
conclusion that a court in another jurisdiction is a more appropriate forum.
The
existence of a forum selection clause can, by itself, be sufficient reason for
a court to decline jurisdiction, and it is not simply one of the factors to
consider in making a determination under s. 11.
It will not be necessary in
all cases to first determine whether there is territorial competence because it
may be clear that the forum selection clause will govern the outcome of the
matter. [Emphasis added by Jackson J.A.]

The Court of Appeal noted
Hudye Farms Inc. v. Canada Wheat
Board
, 2011 SKQB 29, [2011] 5 W.W.R. 506 as one example of this approach
and
Hans v. Volvo Trucks North America Inc
., 2010 BCSC 1700 as another.
In both of these lower court decisions, the Courts followed the approach of
determining whether territorial competence should be declined under s. 10 of
the
CJPTA
by applying
Pompey
. This Court affirmed
Hudye
in
a judgment being released today (see: 2011 SKCA 137).

[113]

While there is no specific reference to a
forum selection clause in s. 10 of the
CJPTA
, the effect of a valid
forum selection clause must be considered in the context of a consideration of
the "fair and efficient working of the Canadian legal system as a
whole" (see s. 10(2)(f)). For all the reasons that were articulated in
Pompey
,
great weight should be given to the parties' contractual choice of the
appropriate forum. The way to give sufficient recognition to the forum
selection clause is to place the burden on the person who asserts that the
contract should be ignored and further, to give predominance to the strong
cause test, as defined in
Pompey
.

[114]    I agree with Tysoe J.A.
that there is no reason to interpret the
CJPTA
on the question of the
effectiveness of a forum selection clause any differently than the common law
as represented by
Pompey
. Notwithstanding the enactment of the
CJPTA
,
in the face of a valid, enforceable forum selection clause, the traditional
burden of proof, which is normally on the defendant to convince the Court that
competence should be declined, is on the plaintiff to demonstrate why the forum
selection clause should not be enforced. If it is determined that the Court
should not give effect to the forum selection clause, it is possible to go on
to consider whether territorial competence should be declined on some other
basis. While it is difficult to conceive of a fact situation where that would
be so, it is nonetheless theoretically possible (see:
Viroforce
at para.
14).

[34]

And at para. 12 of
Hudye
, Jackson J.A. summarized the analytical
steps a court should undertake in determining if it ought to enforce a forum
selection clause:

When a defendant applies pursuant to the
CJPTA
for an
order that the Court decline competence over an action, the framework for
analysis takes this general form:

1.         Does
the Province have territorial competence over the matter? If no, the action
cannot continue. It may be appropriate in a given case to bypass this issue and
proceed to the next step.

2.         If the
Province has territorial competence or assuming territorial competence, has the
defendant/applicant established that the forum selection clause is valid, clear
and enforceable and that it applies to a cause of action before the Court? If
no, the application fails.

3.         If the
forum selection clause is valid, clear and enforceable, and it applies to a
cause of action before the Court, has the plaintiff/respondent shown strong
cause why the Court should not give effect to the forum selection clause?

4.         If the
plaintiff/respondent has not shown strong cause why the Court should not give
effect to the forum selection clause, the Court should consider, according to
the application before it, whether it is appropriate to transfer the proceeding
to some other territory pursuant to Part III of the
CJPTA
.

If the answer to the third
question is yes, it remains at least theoretically possible that the defendant
may be able to demonstrate some other basis for the Court to decline competence
pursuant to s. 10 (see:
Viroforce
at para. 14).

[35]

I note that in
Microcell
at para. 89, Jackson J.A. notes
that the Supreme Court of Canada in
Teck
describes s. 10 (s. 11 in
British Columbia) as providing a complete code of relevant considerations in a
forum
non conveniens
analysis.  It is therefore clear that she was aware of both
decisions:
Teck
and
Viroforce
.  She did not find that the cases
conflict.

[36]

The Saskatchewan cases and
Viroforce
are united on the
point that the
CJPTA
does not oust consideration of common law
principles pertaining to forum selection clauses.

[37]

Pompey
was relied on by Tysoe J.A. in
Viroforce
and by
Jackson J.A. in the Saskatchewan decisions.  It is important to note that the
Court held in
Pompey
at paras. 20  21, that applications considering
forum
conveniens
and forum selection clauses should be separate inquiries;
therefore, the Courts statements in
Teck
pertaining to
forum
conveniens
do not mean that the
CJPTA
obviates common law principles
pertaining to forum selection clauses.  In other words, based on
Pompey
,
it could be argued that while s. 11 codifies the common law pertaining to
forum
conveniens
, it did not similarly codify the forum selection clause
analysis.

[38]

In
Pompey
, the Court held that:

[21]  There is a similarity between the factors which are to
be taken into account when considering an application for a stay based on a
forum selection clause and those factors which are weighed by a court
considering whether to stay proceedings in ordinary cases applying the
forum
non conveniens
doctrine...In the latter inquiry, the burden is normally on
the defendant to show why a stay should be granted, but
the presence of a
forum selection clause in the former is, in my view, sufficiently important to
warrant a different test
, one where the starting point is that parties
should be held to their bargain, and where the plaintiff has the burden of
showing why a stay should not be granted.
I am not convinced that a
unified approach to
forum non conveniens
, where a choice of jurisdiction
clause constitutes but one factor to be considered, is preferable
.  As
Peel
,
supra
, notes, at p. 190, I fear that such an approach would
not

ensure that full weight is given to
the jurisdiction clause since not only should the clause itself be taken into
account, but also the effect which it has on the factors which are relevant to
the determination of the natural forum.  Factors which may otherwise be
decisive may be less so if one takes into account that the parties agreed in
advance to a hearing in a particular forum and must be deemed to have done so
fully aware of the consequences which that might have on, for example, the
transportation of witnesses and evidence, or compliance with foreign procedure
etc.

In my view, a separate approach to applications for a stay
of proceedings involving forum selection clauses in bills of lading ensures
that these considerations are properly taken into account and that the parties
agreement is given effect in all but exceptional circumstances.
See
also M. P. Michell, Forum Selection Clauses and Fundamental Breach:
Z.I.
Pompey Industrie v. ECU-Line N.V., The Canmar Fortune
 (2002), 36
Can.
Bus. L.J.
453, at pp. 471-72.

[Emphasis added.]

[39]

Tysoe J.A. clearly had this distinction in mind, in holding that the
forum selection clause analysis remains a common law inquiry.  If
forum non
conveniens
is exhaustively codified in s. 11 (
Teck
) but forum
selection clauses trigger a separate inquiry (
Pompey
), there is no
concern that
Teck
and
Viroforce
conflict.  The appellant urges us
to disregard
Viroforce
because it was decided without consideration of
binding authority (
Teck
).  I do not agree.
Viroforce
holds that
consideration of the enforcement of a forum selection clause is outside the
Act
,
not just one of the s. 11 factors.  This ratio is in conformity with
Pompey
.

[40]

In this case, I note that in any event, whether one follows the
route taken by Jackson J.A. or the common law analysis followed in
Viroforce,
the result is the same.

[41]

Having concluded this analysis of the applicable common law and
statutory principles in mind, I return to the facts of this case.

[42]

First, it is clear that British Columbia has territorial competence over
the dispute.

[43]

The second question is whether the respondent established that the forum
selection clause is valid, clear and enforceable and that it applies to the
cause of action before the court.  I note that the chambers judge made no
explicit finding in this regard, but, as I have already stated, on any of the
translations tendered in evidence, the intent and meaning of the clause is
clear.  The parties clearly intended that Salzburg, Austria, be the chosen
forum.  Indeed, I cannot see how the clauses, however translated, could be
interpreted in any other manner.

[44]

The third question is whether the appellant has shown strong cause as to
why the court should not give effect to the forum selection clause.  The
chambers judge did not undertake this analysis.  The respondent addresses this
issue by noting that in the court below, there was no evidence from the appellant
to support the contention that Austria was not the most convenient forum.

[45]

The pertinent evidence on the question of
forum conveniens
consisted
of the first and second affidavit of Mr. Reschreiter, president of the
respondent, and the affidavit of Ms. Gordon, assistant to counsel for the appellant.
Ms. Gordons evidence primarily relates to the result of an Internet search of
the respondents website, stating that its international head office is
located in Vernon, British Columbia.  The appellant did not adduce any further
evidence on the convenient forum question.  By contrast, Mr. Reschreiter
tendered a detailed account of the circumstances of the parties dealings, most
of which, according to him, took place in Austria.  He noted that both parties
had Austrian counsel who were actively engaged on the file and that most of the
potential witnesses are located in Austria.

[46]

There is no question on this evidence that the appellant failed to show
strong cause as to why the court should not enforce the forum selection clause.
Although the chambers judge did not explicitly consider this evidence, I am
persuaded that he could have reached no other conclusion on the evidence.

[47]

As to the fourth question, neither party applied for an order that the
proceedings be transferred to another jurisdiction.

Conclusion

[48]

I would summarize this analysis in the following manner:

·

In
Teck,
the Court held that s. 11 of the
CJPTA
was
intended to codify the
forum conveniens
common law analysis and admits
of no exceptions.

·

Viroforce
and the Saskatchewan cases are united on the
point that the
Act
does not oust consideration of common law principles
pertaining to forum selection clauses.

·

At common law,
Pompey
decided that applications for a stay
of proceedings based on forum selection clauses constitute a different inquiry
than
forum non conveniens
applications, and that in the case of the
former, strong cause must be shown before the clause will not be enforced.  Both
Viroforce
and the Saskatchewan cases incorporate the strong cause
analysis into their decisions, albeit in different capacities.

·

The Saskatchewan decisions state that consideration of a forum
selection clause is part of the s. 10 analysis in Saskatchewan (s. 11 in
British Columbia).

·

As I have concluded
Viroforce
is not in conflict with
Teck,
it is binding on us.
Viroforce
adheres to the common law analysis, as
described in
Pompey
, which operates independently of s. 11 and
forum
conveniens
.

·

In this case consideration of the forum selection clause on a
common law analysis, or as one of the s. 11 factors, leads to the same result.

[49]

In conclusion, the chambers judge did not err in enforcing the forum
selection clause.  If a dispute involves a contract with a forum selection
clause, once a court has determined that it has territorial competence, it must
consider whether the forum selection clause is clear, unambiguous and
enforceable.  If the clause is clear, then the court must determine if the plaintiff
has discharged the burden of proving that there is strong cause meriting
refusal to give effect to it.  The
CJPTA
scheme recognizes the
importance of facilitating interprovincial and international commerce.  To
interpret the legislation in the manner contended for by the appellant, that is,
to give no effect to private agreements, would frustrate pursuit of that goal.
I decline to adopt such an interpretation of the
Act
.

Disposition

[50]

I would dismiss the appeal.

The Honourable Madam Justice Garson

I agree:

The Honourable Madam Justice
Ryan

I agree:

The Honourable Mr. Justice
Donald


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. B.S.,

2012 BCCA 36

Date: 20120123

Docket:
CA039358

Between:

Regina

Respondent

And

B.S.
(
Youth Criminal Justice Act
)

Appellant

Before:

The Honourable Mr. Justice Lowry

The Honourable Madam Justice Neilson

The Honourable Mr. Justice Groberman

On appeal from:
Provincial Court of British Columbia, November 9, 2009
(
R. v. B.S.
, Kamloops Registry 8166-2)

Oral Reasons for Judgment

Counsel for the Appellant:

P.M. Fullerton

Counsel for the Respondent:

W.J.S. Bell

Place and Date of Hearing:

Vancouver, British
  Columbia

January 23, 2012

Place and Date of Judgment:

Vancouver, British
  Columbia

January 23, 2012

[1]

LOWRY J.A.
: At age 16 the appellant pleaded guilty to four counts
of sexual assault. The offences were serious. The Crown sought, and he was
sentenced, to two years on a youth custody and supervision order, and three
years probation under the
Youth Criminal Justice Act
(
YCJA
), S.C.
2002, c. 1. An order was made under the
Sex Offender Information
Registration Act
, S.C. 2004, c. 10, requiring him to be registered.

[2]

He seeks an extension of time and applies for leave to appeal and, if
leave is granted, appeals the sentence on the ground that it is an illegal
sentence. Under s. 42(15) of the
YCJA
the permissible length of a
youth sentence for different offences is three years. Section 490.011 (2) of
the
Criminal Code
, R.S.C. 1985, c. C046, precludes the order made under
the
Sex Offender Information Registration Act
because the appellant was
not given an adult sentence.

[3]

With the Crowns consent the time for applying for leave to appeal is
extended to 9 November 2011. Leave to appeal is granted and the appeal is
allowed as follows:

a)

The period of probation is reduced
to one year;

b)

The order made under the
Sex
Offender Information Registration Act
is set aside.

Further, any information in the Kamloops
court registry relating to the order made under the
Sex Offender Information
Registration Act
, including the order itself, shall be deleted from the
registry files and destroyed forthwith, the appellants name and any
information relating to him collected pursuant to the order and the provisions
of the
Act
and placed on a national sex offender database and files
shall be deleted from the database and filed forthwith, any information
relating to the appellant collected pursuant to the order including the order
itself in the possession of the RCMP shall be deleted from police files and
destroyed forthwith.

[4]

NEILSON J.A.
: I agree.

[5]

GROBERMAN J.A.
: I agree.

The
Honourable Mr. Justice Lowry


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Westergard v. Buttress,

2012 BCCA 38

Date: 20120123

Docket: CA038547

Between:

Diane Betty
Westergard

Respondent

(Claimant)

And

Sidney William
Buttress

Appellant

(Respondent)

Before:

The Honourable Mr. Justice Lowry

The Honourable Madam Justice Neilson

The Honourable Mr. Justice Groberman

On appeal from: Supreme
Court of British Columbia, October 7, 2010
(
Westergard v. Buttress
, Prince George Registry 0422747)

Oral Reasons for Judgment

Counsel for the Appellant:

C.G. Fletcher

Counsel for the Respondent:

G.A. Petrisor

Place and Date of Hearing:

Vancouver, British
  Columbia

January 23, 2012

Place and Date of Judgment:

Vancouver, British
  Columbia

January 23, 2012

[1]

GROBERMAN J.A.
:
This
is an appeal from a chambers judgment on an application for termination of
child support in respect of the parties daughter, and for review of spousal
support.

Factual Background

[2]

The parties entered into a common-law relationship in 1989, which lasted
until they separated in 2004. They had two children together  a daughter born
in 1991 and a son born in 1997.

[3]

Following the birth of the couples daughter, Ms. Westergard left the
workforce temporarily. She returned to part-time work when the daughter was 1½  years
old. Later, when she became pregnant with the couples son, she took less
demanding employment. After his birth, Ms. Westergard left the workforce
completely to care for her children. She did not return to part-time employment
until 2003, and commenced full-time employment only shortly before the couple
separated in 2004.

[4]

A one-week trial was held in 2005 to deal with custody and access, child
and spousal support, and a claim for unjust enrichment; the judgment is indexed
as 2005 BCSC 622. With respect to spousal support, the judge recognized that
Ms. Westergard should receive support in order to become self-sufficient.
Support was ordered in the amount of $450 per month. With respect to duration,
the trial judge said:

[74]      Ms.
Westergard wishes to be economically self-sufficient. If she pursues her plan
successfully she will achieve that goal in three to four years time. I will,
therefore, order that she receive support payments for four years. On the
fourth anniversary of this order the spousal support order shall be reviewed.
Upon review, Ms. Westergard will bear the onus of showing that spousal support
should continue. The parties may in the meantime make application to vary,
suspend, or terminate this order due to a change of circumstance.

[5]

The terms of the judgment were somewhat modified when they were put into
a formal order. The relevant provisions were recorded as follows:

10.       The
defendant shall pay to the plaintiff spousal support of $450.00 per month
commencing May 1, 2005 and continuing on the first day of every month
thereafter until and including April 1, 2009.

11.       The
spousal support provisions of this Order may be reviewed after May 1, 2009. For
the purposes of the review, the plaintiff shall bear the onus of establishing that
spousal support should continue.

[6]

Thus, the mandatory review was transformed into an optional one, and the
soft termination date of spousal support transformed into a definite one,
subject only to an application for variation or review.

[7]

A consent order in October 2008 changed the end date for the support
order to February 1, 2009. It is common ground that this change was made in
order to account for Ms. Westergards obligation to pay costs to Mr. Buttress
in respect of a court application, and was not intended to reflect any genuine
change in the spousal support regime
per se.

[8]

It is common ground that at the time of the trial, Ms. Westergard was
attempting to obtain a mortgage brokers licence, and that it was her
expectation that once she secured such a licence, she would be able to become
self-sufficient. She did succeed in obtaining a licence, and worked, for a
time, as a mortgage broker. Ultimately, however, she was unable to make a go of
that profession, and had to search for other work. She is now employed in
part-time work as an administrative receptionist in a medical office, making
$17,225 per annum. In October 2010, she applied for the review of the 2005
spousal support order contemplated by that order.

[9]

At the same time, she applied for a change in child support payments.
She continued to be entitled to child support in respect to the couples son,
who was in her custody. The couples daughter had been residing with Mr.
Buttress until June 2010, when she moved out on her own. She had reached the age
of 19 in January, 2010, and had ceased to be a full-time student shortly before
her birthday. It was common ground between the parties that the set-off of
child support that had existed was no longer appropriate, but the parties
disagreed with respect to the date that the set-off should be discontinued. Mr.
Buttress contended it should be at the date that she ceased to reside with him,
while Ms. Westergard contended it should be the date of the daughters 19th
birthday.

The Chambers Judgment

[10]

The
chambers judge who heard the applications provided a compromise solution in
respect of child support, saying:

[12]      In
the circumstances, I conclude that a most fair outcome requires a midpoint to
be taken. The former arrangement, that is whereby the respondent pays $347 per
month, will be in effect up to March 31, 2010. As of April 1, 2010 the
respondent shall pay $691 per month going forward.

[11]

With
respect to spousal support, the judge noted that there was a real expectation
that the claimant would be able to achieve economic self-sufficiency within
three to four years. He noted, however, that:

[24]      The
claimant's career as a mortgage broker has not worked out, partly due, I
expect, to the general economic malaise. She testifies that she continues to
look for full-time career employment, primarily by online checking. She says
she has been unsuccessful to date. She observes that most administrative jobs,
those to which she aspires, require a business degree, which she does not have.
She also says that she has made inquiries about upgrading her qualifications to
enhance her employability.

[12]

With
respect to the review provision of the order, he said:

[28]      I
commence by observing that the claimant's right to claim spousal support from
the respondent has not been extinguished, if that somehow might be thought to
be the situation. The order of Mr. Justice Rogers did not stipulate that
the spousal support obligation ended after four years. Rather, it established a
structure for the first 48 months, and left open what might follow. The
mechanism provided was the review.

[13]

The
judge appears to have been of the view that he should approach the issue of
spousal support afresh, though he acknowledged that he would take into account
the findings and conclusions of Mr. Justice Rogers as to the structural
underpinnings of the relationship of these parties.

[14]

The
judge considered the efforts made by Ms. Westergard to obtain more remunerative
employment. He made the following observations:

[34]      In
terms of the claimant's efforts to achieve self-sufficiency through
appropriately remunerative employment, it is regrettable that she has not
managed to attain that. Undoubtedly, the current economic doldrums and the
somewhat limited scope of her qualifications are factors. That said, while the
evidence provides some support for a contention that she has been looking for
work, I would think it not unreasonable to expect that her efforts can and
should be improved.

[35]      The
search should be active. It should certainly extend to banking-type jobs, an
area where she has previous experience, and it may be that a second part-time
job to complement her current part-time situation should be considered.

[36]      As
well, it may be that, if she feels upgrades to her skill package are required,
she should be pursuing that while she is working in her current part-time
arrangement.

[37]      In
short, the claimant is obliged to make reasonable efforts to achieve
self-sufficiency. In the present case, that entails bringing a serious
determination to the business of finding a job.

[15]

Crucially,
he reached the following conclusion:

[38]      As
for the claimants application, I have concluded that the circumstances at bar
warrant the Court making an order for spousal support. Entitlement has been
established.

[16]

The
judge then turned to quantum, apparently uninfluenced by the original support
order. He made an order for spousal support at the rate of $800 per month. He
did not stipulate an end date, saying That will be informed by events as they
develop. He provided that the support issue may be reviewed at any time after
January 1, 2013, and said For the purposes of that review, the claimant has
the onus of establishing that spousal support should continue.

Analysis

[17]

I
find no error in the judges reasons with respect to the issue of child
support. Section 87 of the
Family Relations Act
, R.S.B.C. 1996,
c. 128 provides that child includes a person who is 19 years of age or
older and, in relation to the parents of the person, is unable, because of
illness, disability or other cause, to withdraw from their charge or to obtain
the necessaries of life. The chambers judge recognized that the daughter
required at least a brief transition period after leaving school in order to be
capable of obtaining the necessaries of life on her own. In my view, the period
of two months that the chambers judge applied was a transition period that was
not unreasonable on the evidence in this case. I find no error on the part of
the judge in choosing that period.

[18]

With
respect to spousal support, while I agree with the appellant that the evidence
provided by Ms. Westergard with respect to her efforts to obtain more
remunerative work was not particularly impressive, I do not agree that the
evidence was such that the chambers judge was compelled to find that she no
longer required spousal support, or that she had reached a stage where she
should have been self-sufficient. It was open to the chambers judge to find
that, despite her efforts at re-training, Ms. Westergard had not succeeded in
attaining self-sufficiency, and continued to be entitled to spousal support.

[19]

The
difficulty that I have with the chambers judges reasons is that he seems to
have considered his jurisdiction on review to be unlimited, and to include a
fresh evaluation of the appropriate quantum of support.

[20]

In
general, review provisions of support orders should be tightly circumscribed,
to indicate the precise issue that is being reviewed
Leskun v. Leskun
,
[2006] 1 S.C.R. 920, 2006 SCC 25. While
Leskun
arose under the
Divorce
Act
, R.S.C. 1985, c. 3 (2nd Supp.), its dicta concerning
review orders have been applied by this court to review orders under the
Family
Relations Act
, as well:
Uren v. Reambeault
, 2010 BCCA 332.

[21]

As
I read the trial judgment in this matter, and particularly para. 74, the judge
did circumscribe the review. His purpose in providing for a review was to allow
a determination to be made as to whether Ms. Westergard had realized her goal
of achieving self-sufficiency and whether she continued to be entitled to
support. To the extent that any review of quantum was contemplated, it could
only be a consequence of Ms. Westergards partial achievement of
self-sufficiency, or her failure to comply with the requirements of s. 96(4) of
the
Family Relations Act
to make reasonable efforts to achieve
self-sufficiency. Any change to quantum of support that was not related to
efforts to achieve self-sufficiency could only be accomplished through a
variation application under s. 96(1) of the
Family Relations Act
.

[22]

In
the result, I would hold that the chambers judge erred in treating his
jurisdiction as including a
de novo
assessment of the appropriate
quantum of support. Having found that Ms. Westergard continued to be entitled
to support, he should simply have reinstated support at the rate provided for
in the original trial order. This does not, of course, leave Ms. Westergard
without a remedy if she considers that there has been a material change in
circumstances  she can bring a proper application for variation, if she
wishes, under s. 96(1) of the
Family Relations Act.

[23]

The
judges decision to provide for a further review of the support order is not
fully in keeping with the general rule that judges should, where possible,
fully and finally determine support obligations, subject only to variation for
material changes in circumstances (see
Leskun
). This said, his decision
to do so was understandable given the limited evidence before him and the
continuing uncertainty as to Ms. Westergards employment prospects. Given these
factors, I would amend the conditions of review to ensure that they are more
tightly circumscribed. In my view, the sole issue to be reviewed should be Ms.
Westergards continued entitlement to spousal support in light of her progress
toward self-sufficiency. To this end, she will have the onus of demonstrating
continued entitlement to support. She should be prepared to provide detailed
evidence to show that she is making reasonable efforts to become
self-sufficient.

Conclusion

[24]

In
summary, I would vary the order of the chambers judge by changing the monthly
spousal support amount back to $450 per month. I would amend the review
provision by limiting it to the issue of Ms. Westergards continued entitlement
to spousal support in light of her progress toward self-sufficiency. In all
other respects, I would dismiss the appeal.

[25]

LOWRY J.A.
: I agree.

[26]

NEILSON J.A.
: I agree.

[27]

LOWRY J.A.
: The appeal is allowed to the extent of varying the
order of Mr. Justice Williams to reinstate the original order of Mr. Justice
Rogers providing for spousal support of $450 a month. The parties will be at
liberty to apply for a review of the order for spousal support after 1 January
2013, such review being limited to the issue of Ms. Westergards entitlement to
continuing support in light of her progress toward self-sufficiency.

(discussion with
counsel re. costs)

[28]

LOWRY J.A.
: Given the success, there has been overall on both
sides, we are not disposed disturb the order for costs in the trial court and
we would order that there be no costs in this Court with each party bearing
their own.

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Lowry


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Ferris,

2013 BCCA 30

Date: 20130125

Docket:  CA039002

Between:

Regina

Respondent

And

Daniel Carl Ferris

Appellant

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Garson

On appeal from:
Provincial Court of British Columbia, February 14, 2011
(
R. v. Ferris
, 2011 BCPC 52, Port Coquitlam Information No. 83926-3C)

Counsel for the Appellant:

B.V. Bagnall

Counsel for the Respondent:

T.C. Gerhart

Place and Date of Hearing:

Vancouver, British
  Columbia

September 11, 2012

Further Material Received:

November 7 and 21,
  2012

Place and Date of Judgment:

Vancouver, British
  Columbia

January
  25, 2013

Written Reasons by:

The Honourable Mr. Justice Frankel

Concurred in by:

The Honourable Madam Justice Newbury
The Honourable Madam Justice Garson

Reasons for
Judgment of the Honourable Mr. Justice Frankel:

Introduction

[1]

Daniel Carl Ferris was convicted by Judge Dyer of the Provincial Court of
British Columbia on charges of production of marihuana and possession of
marihuana for the purpose of trafficking.  He appeals those convictions solely
on the basis that the trial judge erred in dismissing his application for a
stay of proceedings.  In that application Mr. Ferris asserted that his
rights had been violated because he was not charged immediately following his
arrest but, rather, some 12 months later.  His position was, and remains, that
the police and Crown deliberately held back proceeding against him in British
Columbia until a charge in New Brunswick had been dealt with, and that by doing
so, they deprived him of the opportunity to have the charges here resolved sooner.

[2]

For the reasons that follow, I would dismiss this appeal.

General Background

[3]

On April 8, 2009, members of the Royal Canadian Mounted Police Coquitlam
Drug Section executed a search warrant at a residence in Coquitlam.  Mr. Ferris,
who was the only person in the residence, was arrested.  During the search of
the residence the police discovered a marihuana grow-operation in excess of 1500
plants, two firearms, and some money suspected to be counterfeit.

[4]

Shortly after his arrest, Mr. Ferris told the police that a warrant
for his arrest had been issued in New Brunswick.  The police determined that
the warrant related to an outstanding charge of aggravated assault.

[5]

On April 9, 2009, Mr. Ferris appeared before a Provincial Court
judge and was remanded in custody to await transportation to New Brunswick.  He
returned to New Brunswick on April 14, 2009.

[6]

Constable Mick White, the lead investigator on the drug investigation,
began preparing a Report to Crown Counsel on April 8, 2009.  In early June, he
received certificates of analysis confirming that the plants in the residence
were marihuana.

[7]

On June 9, 2009, Mr. Ferris was committed to stand trial in New
Brunswick following a preliminary inquiry.

[8]

On July 6, 2009, Constable White requested an analysis of the firearms and
on July 29th he submitted the suspected counterfeit money for analysis.  He
delivered the firearms to the laboratory on August 6th.

[9]

Constable White was transferred to another investigative section in
early September 2009, but retained responsibility for preparing the Report to
Crown Counsel with respect to Mr. Ferris.

[10]

Also in September 2009, counsel then acting for Mr. Ferris twice wrote
to a lawyer at a law firm that acts as an agent for federal prosecutions in the
Coquitlam area, expressing his concern with respect to the fact that the police
had yet to forward a report to the Crown for the purpose of charge approval.
He stated that he believed the police were delaying submitting a report to
await the outcome of the matter in New Brunswick.  He further indicated that if
charges were laid in British Columbia, he intended to argue that such
pre-charge delay amounts to an abuse of process.  Constable White received
copies of those letters.

[11]

On October 7, 2009, Constable White gave his report to Corporal Raymond
Stanford for review, even though he had not received any information with
respect to the examination of the firearms and suspected counterfeit money.  On
October 18th, that report was forwarded to the federal prosecution agent for
charge approval.

[12]

The police received a firearms report on November 11, 2009.  No report
was ever received with respect to the suspected counterfeit money.

[13]

In November and December of 2009, the federal agent sent the police a
number of requests for additional information.  The record is silent as to the
nature of those requests or how the police responded to them.

[14]

In February 2010, Mr. Ferriss trial before a jury in New Brunswick
ended in a mistrial.  Also that month, Mr. Ferriss Coquitlam file was
transferred to another law firm that acts as an agent for federal prosecutions.
On March 17th, a lawyer with that firm had discussions with the police to
obtain information about the file.  The record is silent as to the specific
nature of those discussions.

[15]

On March 29, 2010, the federal agent approved two drug-related charges, five
firearms-related charges, a charge of theft of electricity, and a charge of
possession of counterfeit money.  An information charging Mr. Ferris with
those offences was sworn on April 6th and a warrant issued for his arrest.

[16]

On June 7, 2010, Mr. Ferris was acquitted in New Brunswick.  He was
then arrested on the British Columbia warrant.  He was transported here on June
11th.  At a bail hearing on July 22nd, a Provincial Court judge ordered him
detained in custody.

[17]

Mr. Ferriss case came on for trial on November 22, 2010.  At the
outset of the proceedings, Crown counsel directed stays of proceedings with
respect to the theft of electricity and counterfeit money charges and Mr. Ferris
pleaded not guilty to the remaining seven charges.

[18]

Counsel for Mr. Ferris then advised the trial judge that Mr. Ferris
was seeking a judicial stay for abuse of process.  After hearing extensive
submissions from both Mr. Ferriss counsel and Crown counsel, the trial
judge decided that the entirety of the Crowns case would be called on a
voir
dire
and that during that
voir dire
the witnesses called by the
Crown could be cross-examined with respect to the stay application.  Mr. Ferris
was entitled to call evidence on the
voir dire
in support of his stay
application.  During the
voir dire
an issue arose as to the
admissibility of a statement made by Mr. Ferris and the trial judge agreed
to determine that issue as well without conducting a separate
voir dire
.

[19]

The Crown called several police officers to give evidence directed to
proving the charges.  During cross-examination of some of those officersin
particular, Constable White and Corporal StanfordMr. Ferriss counsel
sought to elicit evidence in support of the abuse of process application.  In
addition, the Crown presented for cross-examination an officer who had been
involved in arranging for Mr. Ferris to be brought back from New
Brunswick.  Mr. Ferris did not call evidence on the
voir dire
.

[20]

On December 21, 2010, the trial judge dismissed the abuse of process
application.  His reasons are indexed as 2010 BCPC 365.  On February 14, 2011,
the judge convicted Mr. Ferris on the drug-related charges but acquitted him
on the firearms-related charges.  Those reasons are indexed as 2011 BCPC 52.

[21]

Mr. Ferris was sentenced on April 6, 2011.  After determining that 14
months on each charge (concurrent) would be a fit custodial sentence, the trial
judge turned to the issue of what credit should be given for pre-sentence
custody.  He held that in the peculiar, unusual and unique circumstances of
[the] case the starting date for that credit should be May 1, 2010 (i.e.,
approximately six weeks before Mr. Ferris was arrested on the British
Columbia warrant).  Calculating pre-sentence custody on a 1.5:1 basis, the
judge credited Mr. Ferris with 17 months in custody.  As that credit
exceeded 14 months, the trial judge sentenced Mr. Ferris to one day in
custody to be followed by probation for one year.

Voir Dire
Ruling

[22]

The trial judge began his reasons with an extensive review of the
evidence relating to how Mr. Ferriss file had been dealt with up to and
including when he was brought back from New Brunswick.  He referred to evidence
given by Constable White that it was the intention of the police to await
developments in New Brunswick before deciding what to do with potential charges
in British Columbia.  The judge noted, however, that Constable White
acknowledged that a decision whether to proceed here was not his to make.  The
judge also referred to testimony from Constable White to the effect that Mr. Ferris
would have been charged sooner in British Columbia had there been no charge
outstanding in New Brunswick and that he could have submitted his report for
charge approval sooner than he did, albeit with some information missing.

[23]

After reviewing the evidence, the trial judge discussed the legal
principles applicable to abuse of process both at common law and under the
Canadian
Charter of Rights and Freedoms
, Part I of the
Constitution Act
,
1982, being Schedule B to the
Canada Act 1982
(U.K.), 1982,
c. 11.  In the course of that review he referred to the fact that in
British Columbia, unlike in some other Canadian jurisdictions, the Crown must
approve charges before they can be laid by the police.  He noted that there was
no evidence before him to suggest that the charge-approval process followed
with respect to Mr. Ferriss file was other than routine, or that anything
done by the police or the Crown had been unnecessary or unwarranted.  After
stating that he would have found such evidence helpful, the judge continued:

[110]    Where the conduct of
certainly the Crown and I expect the RCMP is called into question as in this
case, evidence as to whether alternative courses of action can be and are
regularly or ordinarily followed in B.C. courts or in the process leading up to
trials could give a yardstick of sorts against which to consider the conduct in
issue.

[24]

The judge then summarized the positions of the parties.  In the course
of reviewing the submissions made by Mr. Ferriss counsel that his client could
and should have been charged immediately following his arrest, the trial judge said
this:

[142]    Constable White said the Report to Crown Counsel in
such cases usually takes three to four months.  The evidence on the
voir
dire
suggests this is the first step in B.C. for the laying of charges,
namely, the preparation of a comprehensive Report to Crown Counsel.  The next
step is having the charges reviewed and approved, as occurred here, by federal
Crown counsel engaged by the federal government in drug prosecutions.  The
evidence in this case is that this is the ordinary course for a grow op drug
prosecution.

[143]
I find that the procedure the police used in this
case at bar relating both to their investigation and seeking charge approval is
what they typically do in the ordinary course of their business relating to
grow operation prosecutions.
They did not follow some special or different
procedure.  I think in essence Mr. Bagnalls argument below in paras. 60
to 63 might be seen as a proposal that Mr. Ferris ought to have been due
to his circumstances treated differently by the police and that their
investigation should have been done in some extraordinary way.

[Emphasis added.]

[25]

Later, under the heading Discussion, the trial judge found that there
had been no undue delay in processing Mr. Ferriss file.  He said, in
part:

[172]    I find that this Report to Crown Counsel, which I
have not seen but which has been described to me in the evidence at the
voir
dire
, was a reasonably detailed and sophisticated piece of work which would
have taken some time to author and indeed review.  White said it was created
over a number of months and of course had to be done when he was not engaged in
performing other police duties.

[173]
All in all, I do not find that there was any
unreasonable delay in the preparation of this Report to Crown Counsel
including the wait from early August to early October 2009 when White was
awaiting two reports and no doubt performing other police duties on other cases.
 Nor do I find the short period of time that Corporal Stanford had this report
during the above review process to have been a delay at all and certainly not
an unreasonable one.  Two dates were given by White as to when the Report to
Crown Counsel first got to Ms. Seto namely on October 18th or 20th, 2009.

[174]    I do not find in the circumstances of this case that
there was an inordinate delay unreasonably caused by Corporal Stanford in his
review or one of unreasonable duration.  I assume review of the Ferris Report
to Crown Counsel was not the only task with which this police officer concerned
himself within the period of time October 7th to 20th, 2009.

[175]    It was suggested by Mr. Bagnall in argument
that the police might have been negligent in for example failing to get the
exhibits to the appropriate location for analysis (see para. 53 of his
written argument).  Implicit in this argument is that there was such delay as
to amount to neglect of his duties as an investigator in so doing.

[176]    I am not prepared to make this finding of fact in
the circumstances of this case nor accede to this argument substantially for
the reasons above set out.

[Emphasis added.]

[26]

The judge further found that there was no undue delay attributable to
the Crowns handling of the file.  He noted there was no evidence before him
with respect to the content of the communications that took place between the
Crown and the police after Mr. Ferriss file was forwarded for
charge-approval consideration:  paras. 181  184.  However, he did find that
after the information was sworn on April 6, 2010, steps could have been taken
to serve that warrant on Mr. Ferris in New Brunswick before June 7th.  The
judge opined that the warrant could have been served by May 1st, which would have
brought the charges to Mr. Ferriss attention as of that date:  para. 190.

[27]

The trial judge rejected Mr. Ferriss argument that the police and
Crown deliberately delayed charging him in British Columbiawhat Mr. Ferris
referred to as gatingand found that his ability to make full answer and
defence had not been prejudiced by any delay:

[192]
I do not find that either the Crown or the police
in the period of time from April 8th, 2009 to June 7th, 2010 acted in such a
way so as to deliberately delay or create delay so as to prejudice or deprive Mr. Ferris
of his rights in any way, including his right to make full answer and defence
to the charges before me or to have a fair trial.

[193]
I do not find in this period either that the
Crown or police acted with some ulterior or improper motive.
On the
contrary, unlike the situation in some cases placed before me, for example,
R.
v. Joudrey
[2010 NSSC 230, 211 C.R.R. (2d) 298],
I do not find their
actions have prejudiced Mr. Ferriss ability to make full answer and
defence to these charges at trial.
There is no evidence offered or
argument made for example that as a result of the effluxion of time due to
their actions alone, a witness for example has died or gone missing, or that
evidence is lost.  In this sense, the fairness of Mr. Ferriss trial has
not been prejudiced in this fashion.

[194]
I am not of the view that it has been shown on
the
voir dire
that what the police and Crown counsel did either alone or
acting in concert was done with a view to gating the accused
or to
purposely evade a responsibility to bring charges laid to his attention in a
timely way so that all such known charges could be disposed of in a timely way
(see
R. v. Parisien
[(1971), 3 C.C.C. (2d) 433 (B.C.C.A.)], at p. 437).

[Emphasis added.]

[28]

Lastly, the trial judge held that even if Mr. Ferris had been able
to establish an abuse of process, either at common law or by reason of a breach
of the
Charter
, he would not have found a stay to be an appropriate
remedy:  paras. 200  202.

Analysis

[29]

Mr. Ferris does not contend that either the police or the Crown
acted with
mala fides
towards him or that they deliberately attempted to
interfere with his rights.  Rather, he submits that because of the New
Brunswick charge, the police and the Crown made a conscious decision to delay processing
his file in British Columbia.  He says that he was prejudiced by that delay because
it precluded him from dealing with the charges here sooner.  For example, he
says that he was deprived of the opportunity to serve his sentence on the
British Columbia charges while awaiting trial on the New Brunswick charge.

[30]

Mr. Ferris points to extracts of the evidence, particularly that of
Constable White, which he says support his position.  In response, the Crown
points to other extracts.  No useful purpose would be served by setting out
that evidence in detail.  Suffice it to say that the evidence can be parsed in
ways favourable to each party.

[31]

My principal difficulty with Mr. Ferriss argument is that he is
asking this Court to review and reassess the evidence and to make findings of
fact that the trial judge was not prepared to make.  In particular, he is
asking this Court to find facts which he bears the burden of proving on a
balance of probabilities.

[32]

A trial judges findings of fact and the inferences drawn from those
findings are entitled to considerable deference on appeal.  The standard of
review is a high one.  I had occasion to discuss that standard in
R. v.
Caron
, 2011 BCCA 56, 269 C.C.C. (3d) 15:

[26]      In both the
Charter
and non-
Charter
contexts a trial judges findings of fact are entitled to considerable
deference on appeal.  As Chief Justice McLachlin and Madam Justice Charron
stated in [
R.v. Grant,
2009 SCC 32, [2009] 2 S.C.R. 353], in considering
whether evidence has been properly admitted under s. 24(2), the trial
judges underlying factual findings must be respected, absent palpable and
overriding error:  para. 129.  In discussing this restraint on appellate
intervention, Mr. Justice Fish summarized the governing principles in
R.
v. Clark
, 2005 SCC 2, [2005] 1 S.C.R. 6:

9          ... Appellate courts may not interfere with the
findings of fact made and the factual inferences drawn by the trial judge,
unless they are clearly wrong, unsupported by the evidence or otherwise
unreasonable.  The imputed error must, moreover, be plainly identified.  And it
must be shown to have affected the result. ...

[33]

In the case at bar, the trial judge heard from the police officers with
respect to how they processed Mr. Ferriss file and why they did what they
did.  However, there was no specific evidence with respect to Crown counsels
involvement in the charge-approval process.  In particular, there was no
evidence concerning the additional information Crown counsel required before
approving charges against Mr. Ferris.

[34]

Also absent is any evidence to support Mr. Ferriss contention that,
in the normal course of how matters of this nature are handled, the charges would
have been approved earlier than they were, i.e., what the trial judge referred
to in para. 110 of his reasons as evidence establishing a yardstick.  In
other words, Mr. Ferris did not call evidence to establish that the police
could and should have forwarded a report to the Crown prior to October 18, 2009,
or that the Crown could and should have approved charges prior to March 29, 2010.

[35]

Based on the evidentiary record before him, it was open to the trial
judge to make the findings that he did.  It is, therefore, not open to this
Court to come to a different conclusion with respect to how and why events
unfolded.  The facts as found by the judge fully support his conclusion that Mr. Ferriss
file was not deliberately held back because of the charge outstanding in New
Brunswick.

Disposition

[36]

I would dismiss this appeal.

The Honourable Mr. Justice Frankel

I agree:

The
Honourable Madam Justice Newbury

I agree:

The Honourable Madam Justice
Garson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Woodhouse v. Canada (Correctional Service),

2012 BCCA 45

Date: 20120125

Docket: CA038246

Between:

John Woodhouse

Respondent

(Petitioner)

And

The Warden,
William Head Institution, a Penitentiary
operated by the Correctional Service of Canada

Appellant

(Respondent)

Before:

The Honourable Mr. Justice Lowry

The Honourable Madam Justice Neilson

The Honourable Mr. Justice Groberman

On appeal from: Supreme
Court of British Columbia, May 27, 2010
(
Woodhouse v. Canada (Correctional Service)
, 2010 BCSC 754,
Victoria Registry 09-2543

Oral Reasons for Judgment

Counsel for the Appellant:

B. Sokhansanj and
  L.M.C. Bell

Counsel for the Respondent:

M. Redgwell

Place and Date of Hearing:

Vancouver, British
  Columbia

January 25, 2012

Place and Date of Judgment:

Vancouver, British
  Columbia

January 25, 2012

[1]

LOWRY J.A.
: These appeals arise out of
habeas corpus
proceedings in the Supreme Court of British Columbia which led to two orders
being made for reasons indexed as 2010 BCSC 754 and 2010 BCSC 1897. The
proceedings were initiated by Allan Woodhouse, who commenced serving a life
sentence for murder in 1974. He was an inmate at William Head Institution. He
was granted full parole in 1990. It was twice suspended in 2009. The first of
the two orders granted Woodhouse
habeas corpus
relief in respect of his
parole for the first suspension; the second granted him leave to amend his
petition to seek relief in respect of the second suspension. The Warden
appeals.

[2]

Woodhouses parole was suspended in March 2009 after he appeared to have
breached the terms of his parole by consuming alcohol. He was taken into
custody. His case was referred to the National Parole Board (the Board)
within the 30-day period required by s. 135(3)(b) of the
Corrections and
Conditional Release Act
, S.C. 1992, c. 20. On June 4, 2009, the Board
revoked his parole.

[3]

Woodhouse challenged the Boards decision in two ways: he commenced the
habeas
corpus
proceeding in the Supreme Court and he appealed the decision to the
Appeal Division of the Board. The hearing of his petition in the Supreme Court
began before Mr. Justice Walker in September 2009 but was adjourned. Before the
hearing was concluded, the Appeal Division of the Board allowed his appeal and
ordered a new hearing before a new panel of the Board. The new hearing took
place in November 2009. The Board cancelled the suspension of parole and released
Woodhouse on full parole. He had been in custody for seven months.

[4]

Within a few days, still in November 2009, Woodhouses parole was again
suspended for reasons similar to the initial suspension. The suspension was,
however, cancelled soon after by his parole officers supervisor. He has since
then remained on full parole.

[5]

The hearing of the petition in the Supreme Court nonetheless continued.
Judgment was rendered in May 2010. The judges reasons run to almost 100 pages.

[6]

As a preliminary issue, the judge was required to decide whether it was
appropriate for a provincial superior court to exercise its
habeas corpus
jurisdiction. In this regard, he assessed whether the provisions of the
Act
provide for a complete, comprehensive and expert procedure for the
administration and review of decisions made by parole officers to suspend
parole. He did so because, in
May v. Ferndale Institution
, 2005 SCC 82,
[2005] 3 S.C.R. 809 at para. 44, the Supreme Court of Canada directed
provincial superior courts to decline to exercise
habeas corpus
jurisdiction where there is in place a complete, comprehensive and expert
procedure for review of an administrative decision.

[7]

The judge concluded the
Act
did not provide a complete and
comprehensive procedure because an offenders parole can be suspended for a
considerable period of time while the parole officers supervisor, the Board,
and the Appeal Division deal with the matter. He pointed to the fact that
Woodhouse remained in custody for seven months before the suspension of his
parole was cancelled. He expressed the view that the statutory procedure was
less advantageous than the availability of the
habeas corpus
remedy in
provincial superior courts.

[8]

The judge then decided that it was appropriate to address the merits of
the petition even though Woodhouse being on full parole rendered the issue of
whether he was entitled to
habeas corpus
relief moot. I do not consider
it necessary to outline the judges reasoning in this regard.

[9]

Although the petition had been restricted to the first suspension of
parole, arguments were also made with respect to the second suspension. The
judge said it was necessary there be an amendment to the petition in order to
deal with the latter suspension and, on further application made in November
2010, the judge granted leave for the amendments to be made.

[10]

The Warden raises four grounds of appeal. I consider it necessary to
address only the first:  the judge erred in deciding to exercise the courts
habeas
corpus
jurisdiction.

[11]

There have been several appellate court decisions on the issue of
whether the provisions of the
Act
contain a complete, comprehensive,
expert procedure for the review of decisions to suspend parole. This Court,
among others, has determined they do:
John v. Canada (National Parole Board)
,
2011 BCCA 188, 270 C.C.C. (3d) 355, leave to appeal refused, [2011] S.C.C.A.
No. 256. In
John
, after quoting from the Saskatchewan Court of Appeals
decision in
R. v.

Latham
, 2009 SKCA 26, 244 C.C.C. (3d) 196, and
the Ontario Court of Appeals decision in
R. v. Graham
, 2011 ONCA 138,
268 C.C.C. (3d) 517, in this regard, I said:

[21]      In addition to
Latham
and
Graham
, the conclusion that the
CCRA
[
Corrections and
Conditional Release Act
, S.C. 1992, c. 20] provides a complete,
comprehensive and expert procedure for the review of NPB [National Parole
Board] decisions is also to be found in the decisions of the Quebec Court of
Appeal in
Lena v. Donnacona Prison
, 2011 QCCA 140; the Saskatchewan
Court of Appeal in
R. v. Ross
, 2009 SKCA 24 (heard and released with
Latham
);
the Nova Scotia Court of Appeal in
L.R.F. v. Canada (National Parole Board)
,
2008 NSCA 56; as well as the decision of the Ontario Superior Court of Justice
in
Elguindy v. Canada (Attorney General)
, 2010 ONSC 1757. Before
May
was decided, the exercise of
habeas corpus
jurisdiction was declined,
because of the nature of the NPB procedure in place, by the Alberta Court of
Appeal in
Armaly v. Canada (Parole Service)
, 2001 ABCA 280, 299 A.R.
188, and by the Ontario Superior Court of Justice in
McGrayne v. Canada
(Attorney General)
, [2002] O.T.C. 191, where
Armaly
was followed.

[12]

I addressed the concern about the time the administrative process can
take as follows:

[42]      This is not to say that
incarceration without timely judicial intervention where warranted is not
always a concern. It is important to keep in mind, however, that, similar to a
detainee in the immigration context, an inmate such as the appellant whose full
parole has been suspended is not simply incarcerated and his liberty denied for
many months. He is engaged in a legislated procedure of review, the purpose of
which is to determine whether the suspension is justified. It consists of an
interview, shortly after the suspension, with the parole officer involved,
followed by a mandatory review by the NPB which is designed to ensure the
suspension is promptly quashed if it is not justified. Thereafter, if it is not
quashed and the inmate has the legislated grounds, there may be an appeal to
the Appeal Division and beyond that an application for judicial review in the
Federal Court. An appeal or judicial review may then lead to a further NPB
review. The procedure, like most of its kind, can, given the demand on
resources, be expected to take some considerable time. But that of itself
cannot mean it is to be short-circuited, so to speak, by affording the inmate
the option of seeking
habeas corpus
relief in a provincial superior
court at any time during the administrative process or, as the appellant
contends, once that process is completed.

[13]

In
Graham
, the appellant relied on the decision that is the
subject of this appeal. The judges reasoning was articulated and specifically
rejected (paras. 11-12). The provisions of the
Act
were said to
constitute the very type of statutory regime envisioned in the
habeas
corpus
exception articulated in
May v. Ferndale Institution
 (para.
16).

[14]

The contention now is that the legislated regime is not complete and
comprehensive with respect to a suspension by a parole officer. This is said to
be so because the review is limited to the considerations set out in s.
135(5)(a) of the
Act.
This contention was addressed directly in
Graham
as follows:

[13]      With respect to a suspension of parole, the statutory
scheme works as follows. A person designated by name or by position, by the
Chairperson of the Board or by the Commissioner may, by warrant, suspend the
parole, authorize the apprehension of the offender, and authorize the
recommitment of the offender until the suspension is cancelled, the parole is
revoked or the sentence has expired: s. 135(1). A parole officer supervisor is
such a person:
Commissioners Directive No. 718: Designation of Persons With
Authority for Suspension Under s. 135 of the Corrections and Conditional
Release Act
, s. 10, June 16, 2008 (available at http://www.csc-scc.gc.ca/text/plcy/cdshtm/
718-cd-eng.shtml. Section 107(1) grants the NPB exclusive jurisdiction and
absolute discretion to grant, terminate or revoke parole, or to cancel a
suspension, termination or revocation of parole. Where the offender is
recommitted, the parole officer supervisor must forthwith review the offenders
case and either cancel the suspension or refer the matter to the NPB for review
within a tight statutorily defined time frame (within 14 days if the offender
is serving a sentence of less than two years; within 30 days in any other
case): s. 135(3). The NPB must then review the case (the Board, for review
purposes) and, within the 90-day period prescribed by the regulations, either
cancel the suspension or terminate or revoke the parole: s. 135(4) and
(5).

[14]      During this review
process, where the offender is serving a sentence of two years or more - as the
appellant is - the Board will take into account the offenders conduct since
his or her release, including whether the possibility of re-offending will pose
an undue risk to society: s. 135(5). The process, then, is not simply
point-in-time. It involves more than a review of whether the parole officer
supervisors decision betrays an error of law or is otherwise wrong on its
merits. But s. 135 is not to be read so narrowly as to preclude the Board from
considering those factors, for - as the application judge noted - the decision
of the parole officer supervisor is itself a part of the process transpiring
since the offenders release. The Board will undoubtedly take into account the
substantive reasons for suspending parole as part of the overall review.

I respectfully endorse what was said there.

[15]

Here, the judge erred when he concluded the provisions of the
Act
do not constitute a complete, comprehensive and expert procedure for the review
of parole decisions. The judge should have declined jurisdiction and should not
have granted Mr. Woodhouse leave to amend his petition.

[16]

I would allow the appeals, set aside the orders the judge made and
dismiss the petition.

[17]

NEILSON J.A.
: I agree.

[18]

GROBERMAN J.A.
: I agree

[19]

LOWRY J.A.
: There will be an order accordingly.

The Honourable Mr. Justice Lowry