Citation:

MDSI Mobile Data Solutions Inc. v.
  Federal Express Corp.

Date:
20030107

2003 BCCA 9

Docket:

CA029142

COURT OF APPEAL FOR
BRITISH COLUMBIA

BETWEEN:

MDSI MOBILE DATA SOLUTIONS INC.

RESPONDENT

(PLAINTIFF)

AND:

FEDERAL EXPRESS CORPORATION,

FEDERAL EXPRESS CANADA LTD. doing business as

FEDERAL EXPRESS and the said FEDERAL EXPRESS

APPELLANTS

(DEFENDANTS)

Before:

The
  Honourable Chief Justice Finch

The
  Honourable Madam Justice Newbury

The
  Honourable Mr. Justice Hall

G.B.
  Butler

Counsel for the Appellants

C.J.
  Giaschi

Counsel for the Respondent

Place
  and Date of Hearing:

Vancouver, British Columbia

November
        6, 2002

Place
  and Date of Judgment:

Vancouver, British Columbia

January
        7, 2003

Written Reasons by:

The
Honourable Madam Justice Newbury

Concurred in by:

The Honourable Chief Justice Finch

Dissenting Reasons by:

The Honourable Mr. Justice Hall (Page 20, para. 19)

Reasons for Judgment of the Honourable Madam Justice
  Newbury:

[1]

This appeal is about the
  construction and interaction of the "small print" terms incorporated
  into a standard form waybill used by the "FedEx" defendants in
Canada
,
  and two sections of the Warsaw Convention, an international treaty that
  provides for the liability of international carriers of persons and cargo.

In the court below, the summary trial judge
  ruled that Article 23 of the Convention precluded FedEx from relying on the
  contractual terms in order to limit its liability for damage to its customer's
  cargo. He ordered FedEx to pay the plaintiff the sum of $214,847, the "declared
  carriage value" inserted on the face of the waybill.

I am of the opinion that he reached the
  correct result, and that FedEx's appeal must be dismissed, but I would do so
  for different reasons than those of the trial judge.

Facts

[2]

On or about November
  16, 1998, the plaintiff MDSI Mobile Data Solutions Inc. ("MDSI")
  wished to ship certain valuable computer equipment to a customer in Atlanta,
Georgia
.

A few days beforehand, Ms. Hick, MDSI's
  import/export co-ordinator, contacted FedEx.

Evidently, she had a discussion with someone there about the weight,
  size and value of the two packages to be sent.

FedEx advised Ms. Hick that it would require a special form entitled "FedEx
  International Priority Customs Value Waiver Program Agreement for Canada" to
  be signed and returned by MDSI, in addition to the usual air waybill.

MDSI signed the Customs Waiver agreement on November
  12, 1998 and faxed it back to FedEx.

I will refer below to the terms of this Agreement.

[3]

On November 16, FedEx attended
  at MDSI's premises and picked up the two packages for shipment together with
  the air waybill, which described the cargo as a "FedEx International
  Priority Freight Package".

The face
  of the waybill contained boxes to be completed by the consignor.

Ms. Hicks provided the following information:

Number of packages  2

Total weight  750 kg.

Country of manufacture
U.S.

Total Declared Value for Carriage  $214,847.51

Total Declared Value for Customs  $214,847.51

Above Ms. Hick's signature, the form stated:

By giving us your
  shipment, you agree to the conditions on the back of this Non-Negotiable Air
  Waybill.

Certain international treaties,
  including the Warsaw Convention, may apply to this shipment and limit our liability
  for damages, loss, or delay, as described in the Conditions of Contract.

At the very bottom of the form, the following statement also
  appeared:

Use of this Air Waybill constitutes your
  agreement to the conditions of the contract on the back of this Air
  Waybill.

The terms and conditions of
  service may vary from country to country.

Consult our local office for specific information.

[4]

The Conditions of Contract on
  the back of the form, which appeared in small print, included the following:

AGREEMENT TO TERMS.

By giving us your shipment, you agree,
  regardless of whether you sign the front of this Air Waybill for yourself and
  as agent for and on behalf of any other person having an interest in this
  shipment, to all terms on this NON-NEGOTIABLE Air Waybill, in any applicable
  tariff, and in our current Service Guide or Standard Conditions of Carriage,
  copies of which are available upon request.

If there is a conflict between this Air Waybill and either the tariff,
  Service Guide or Standard Conditions then in effect, the tariff will control
  (the Service Guide or Standard Conditions have secondary priority). . . .

NOTICE CONCERNING LIMITATIONS OF LIABILITY

Air Carriage Notice.

If the carriage of your
  shipment by air involves an ultimate destination or stop in a country other
  than the country of departure, the Warsaw Convention, an international treaty
  relating to international carriage by air, may be applicable,
which treaty
  would then govern

and in most cases limit our liability for loss or

delay
  of or damage to your shipment
.

In
  the
U.S.
, the Warsaw Convention limits our liability to US$9.07 per pound
  (US$20.00 per kilogram), unless you declare a higher value per carriage as
  described below.

The interpretation of
  the Warsaw Convention's liability limits may vary in other countries. . . .

Limitation of Liability.

If not governed by the Warsaw Convention or
  the CMR as described above, our maximum liability for loss, damage or delay is
  limited by this Air Waybill to US$100 per shipment or US$9.07 per pound (US$20.00
  per kilo) (or equivalent local currency), whichever is greater, unless you
  declare a higher value for carriage as described below. . . .

Declared Value Limits.

The highest declared value we allow for a
  FedEx Letter/Envelope and FedEx Pak shipment is U.S. $100 or U.S. $9.07 per
  pound (U.S. $20.00 per kilo) (or equivalent local currency), whichever is
  greater.

For other shipments, the
  highest declared value for carriage will differ from country to country and may
  depend on the contents of the shipment.

Please check our Service Guide, our Standard Conditions of Carriage or
  applicable tariff for an explanation of the declared value limits.

. . .

LIABILITIES
  NOT ASSUMED.

IN ANY EVENT, WE WON'T BE

LIABLE FOR
  ANY DAMAGES, WHETHER DIRECT, INCIDENTAL,

SPECIAL OR CONSEQUENTIAL, IN
  EXCESS OF THE DECLARED

VALUE FOR CARRIAGE
(INCLUDING BUT NOT LIMITED
  TO LOSS OF INCOME OR PROFITS) WHETHER OR NOT WE HAD KNOWLEDGE THAT SUCH DAMAGES
  MIGHT BE INCURRED.

We won't be liable
  for your acts or omissions, including but not limited to incorrect declaration
  of cargo, improper or insufficient packing, securing, marking or addressing of
  the shipment, or for the acts or omissions of the recipient or anyone else with
  an interest in the shipment.

. . .

MANDATORY LAW
.

Insofar as any provision
  contained or referred to in this Air Waybill may be contrary to any applicable
  international treaty, law, government regulations, orders or requirements, such
  provision shall remain in effect as a part of our agreement to the extent that
  it is not overridden.

The invalidity or
  unenforceability of any provision shall not affect any other part of this Air
  Waybill.

[My
  underlining.]

[5]

It is also necessary to quote
  some of the terms contained in FedEx's Service Guide, specifically the following
  from Part 9, headed "Service Conditions":

The following pages contain the Service
  Conditions applicable to the transportation of any package, document, letter,
  pallet, container or other item by FedEx
®. . . .

If
  there is a conflict between the Service Conditions in this Guide and the terms
  and conditions on any FedEx waybill, manifest or other transit documentation,
  the Service Conditions in this Guide will control.

If there is a conflict between the Service
  Conditions and any applicable tariff, the applicable tariff will control.

This Guide supersedes all previous Service
  Guides and other prior written statements concerning the rates and conditions
  of FedEx service to which it applies. . . .

Except as otherwise provided above, any conflict or inconsistency
  between this Guide and other written or oral statements concerning the rates,
  features of service, products, and conditions applicable to FedEx service will
  be controlled by this Guide, as modified, amended or supplemented by FedEx from
  time to time.

* * *

Declared
  Value and Limits of Liability

(a)

"Declared
  value for carriage" is required by FedEx to help determine transport
  liabilities
, while "declared value for customs" is required by
  Customs officials for possible assessment of duties and taxes.

For greater certainty, the declared value
  for carriage of any shipment

represents our maximum liability in
  connection with a shipment
including, but not limited to, any loss, damage,
  delay, shortage, mis-delivery, non-delivery, misinformation or failure to
  provide information.

Exposure to, and
  risk

of, any loss in excess of the
  declared value for carriage is either assumed by the shipper or transferred by
  the shipper to an insurance carrier through the purchase of an insurance
  policy.

You should contact an insurance
  agent or broker if insurance coverage is desired.

We do not provide insurance coverage of any
  kind.

(b)

The
  declared value for carriage amount cannot exceed the declared value for customs
  amount.

. .
  .

(d)

Air
  Carriage Notice.

As used in this Guide, "Warsaw
  Convention" or "Convention" means the Convention for the
  Unification of Certain Rules relating to International Carriage by Air, signed
  at Warsaw, October 12, 1929, or that Convention as amended, whichever is
  applicable to the carriage or "carrier", including the air carrier
  issuing the waybill and all air carriers that carry the goods or perform any
  other service related to the carriage.

When the carriage involves an ultimate
  destination or stop in a country other than the country of departure, the
Warsaw Convention may
  be applicable.

The Convention governs and,
  in most cases, limits our liability in respect to loss of, damage to or delay
  or cargo.

In
Canada
, the Warsaw Convention
  limits our liability to the Canadian dollar equivalent of 250 French francs
  of 65.5
  milligrams gold of millesimal fineness 900 per kilogram, unless you declare
  a higher value for carriage as

described below
.

The interpretation of the Warsaw convention's
  liability limits may vary in other countries.

To the extent not in conflict with the rules relating to liability

for international carriage as established by the Convention, carriage and
  other services performed by us are subject to the provisions

of this
  Guide
and applicable tariffs as amended from time to time, which are
  incorporated in this Guide by reference.

. .
  .

(g)

Declared Value Limits.

All shipments containing items of
  extraordinary value are limited to a maximum declared value for carriage of
  CDN$500.

The maximum declared value we
  allow for customs and carriage per waybill for each FedEx
®
Letter and FedEx
® Pak shipment is CDN$100.

Except as otherwise noted above, the maximum declared value for an intra-Canada
  shipment is limited to CDN$50,000.

For
  international shipments, the maximum declared value for customs and carriage
  will differ from country to country and may depend on the contents of the
  shipment.

If you send more than one package on a
  waybill, the declared value for carriage of each package will be determined by
  dividing the total declared value for carriage by the number of packages in the
  shipment, unless you produce documentary evidence sufficient to support a
  different allocation.

In no event may
  the declared value of any individual package exceed the declared value of the shipment.

. . .

(j)

The maximum declared value for
customs
for
    a FedEx international shipment (other than a FedEx® Letter or FedEx®
Pak) is as
  follows:

CDN$50,000: . . . United
  States . . . .

(l)

Any effort to declare a
  value in excess of the maximum amounts allowed in this Guide is null

and
  void
and the acceptance for carriage of any shipment bearing a declared
  value in excess of the maximum amounts allowed does not constitute a waiver of
  any provision of this Guide as to such shipment.

Even if a higher value is declared our
  liability, if not governed by the Warsaw Convention, is limited to the amount
  of actual damages or CDN$100, which is less.

[
My underlining.]

[6]

It was evidently because of
  para. (j)
above
, which specified a "maximum
  declared value for customs" of $50,000, that FedEx required its customer
  to sign the Customs Waiver Agreement mentioned earlier.

The material terms of that agreement were as
  follows:

As of

11/10/98
("Commencement
  Date"), you agree to participate in FedEx's International Priority Customs
  Value Waiver Program (the "Program").

During your participation in the Program,
the maximum declared value
  for customs of any FedEx
®
International

Priority shipment

transported via FedEx from
Canada
to direct served locations in the
United States
will be increased to    $500,000   ,
subject to the provisions set forth below.

For greater certainty, this Program shall
  apply only to shipments transported via FedEx from
Canada
to
  direct served locations in the
United States
.

This Agreement shall
not affect the maximum
  declared value for carriage for International Priority

shipments.

That is, the maximum declared value for
  carriage for a FedEx® Letter, FedEx® Pak and items of extraordinary value are
  as set out in the FedEx Worldwide Service Guide, as amended from time to time
  by FedEx (the "Guide").

For
  all other FedEx International Priority shipments, although this

Agreement
  allows a maximum declared value for customs greater than that set out in the
  Guide, the maximum declared value for carriage for such shipments cannot exceed
  the declared value for customs amount for such shipments set out in the Guide.

Notwithstanding any provisions of this
  Agreement, the liability of FedEx with regard to any International Priority
  shipment shall be limited as set forth in the Guide. . . .

Except as otherwise provided
  herein, each shipment made under this Agreement is subject to the terms and
  conditions of the Guide in effect at the time of shipment, which terms and
  conditions are incorporated by reference to this Agreement.

FedEx reserves the right to
  modify the Guide at anytime without notice.

[My underlining.]

[7]

For purposes of this narrative,
  I also reproduce below Articles 22(2) and 23 of the Warsaw Convention:

Article 22

(2)

In the carriage of registered baggage and of
  cargo, the liability of the carrier is limited to a sum of 250 francs per
  kilogram, unless the consignor has made, at the time when the package was
  handed over to the carrier, a special declaration of the value at delivery and
  has paid a supplementary sum if the case so requires.

In that case the carrier will be liable to
  pay a sum not exceeding the declared sum, unless he proves that that sum is
  greater than the actual value to the consignor at delivery.

. . .

Article 23

Any
  provision tending to relieve the carrier of liability or to fix a lower limit
  than that which is laid down in this Convention shall be null and void, but the
  nullity of any such provision does not involve the nullity of the whole
  contract, which shall remain subject to the provisions of the Convention.

[8]

According to the discovery
  evidence of a cargo claims specialist employed by FedEx, after picking up MDSI's
  packages on November 16, 1998 FedEx placed them on a flight which left
  Vancouver, stopped briefly in Spokane, Washington and then went on to its
  destination in Memphis.

It was processed
  through Customs and then flown on a second aircraft to Atlanta, where it
  arrived on November 18.

There, a FedEx
  employee noted that one of the packages had sustained "major damage to
  side of unit.

Outside box not damaged."

Although it is unclear from the discovery
  excerpts contained in the appeal record, it appears that MDSI was eventually
  notified and gave formal notice of its intention to "hold FedEx responsible."

[9]

FedEx took the position that
  its liability was limited either to $11,427 (the Canadian currency equivalent
  of 250 francs per kilogram, specified by Article 22(2) of the Warsaw Convention);
  $50,000, the figure appearing in para. (j)
of
the
  Guide quoted above; or $214,847 (Cdn.), the declared value of the equipment as
  stated on the face of the waybill.

MDSI
  on the other hand took the position that the carrier's liability was not so
  limited and sought to recover the full amount of its loss, which was $214,847
  in
U.S.
currency.

(As noted by the
  trial judge, MDSI had neglected to specify
U.S.
currency when inserting the declared value of the cargo on the face of the
  waybill.)

Alternatively, MDSI seeks the
  $214,847 in Canadian funds.

The Trial Judgment

[10]

The question posed for summary
  determination by the court below was whether and to what extent FedEx's
  liability was limited.

The trial judge
  approached the question on the basis that it raised three sub-issues  the
  effect of the "declared value" stated on the waybill and its
  interaction with the contractual terms, quoted above, relied on by FedEx to
  limit its liability; whether Article 8 of the Warsaw Convention had been
  complied with; and whether in the absence of evidence as to how the damage to MDSI's
  cargo had occurred, an inference should be drawn that the damage was caused by "wilful
  misconduct" on FedEx's part.

On the
  latter two questions, the trial judge concluded that the waybill had been
  properly completed for purposes of Articles 8 and 9 of the Convention and that
  there was no basis for an inference of wilful misconduct on the part of FedEx.

He also held that the insertion of "$214,857.51"
  in the box headed "Total Declared Value for Carriage" constituted a "special
  declaration of value" for purpose of the Convention.

No appeal is taken from these conclusions.

[11]

After reciting counsels'
  respective arguments, the trial judge concluded that it was not necessary to
  address the operation and interaction of the various contractual terms quoted
  above, since:

. . .
I consider the quoted provisions of the Guide offend Article 23 of the
  Convention because their effect is to relieve FedEx of the liability prescribed
  by Article 22(2), namely the liability to pay a sum not exceeding the declared
  sum when a special declaration is made.

In my view, the provisions of the Guide on which FedEx relies do not
  serve to relieve it of liability for the declared value: $214,847.

[para. 10]

In the result, he granted MDSI judgment against the defendants for
  that amount in Canadian currency.

(See (2001) 95 B.C.L.R. (3d) 360.)

On Appeal

[12]

On appeal, Mr. Butler for FedEx
  argues that the waybill conditions are clear and unambiguous and should be
  determinative as between these two sophisticated parties.

He urges us to adopt the following line of
  reasoning:

1.

The
  front of the waybill referred the consignor to the conditions of contract on
  the reverse side, and the terms headed "Agreement to Terms" incorporated
  and gave priority to the terms contained in the Service Guide.

2.

As
  stated at para
.(
a) of the Guide, the declared value
  for carriage represented FedEx's maximum liability in connection with the
  shipment.

3.

Under
para. (j)
of
the Guide, the
  maximum declared value for customs of international shipments going to the
U.S.
was
  $50,000 (Cdn.), and under para. (b), the declared value for carriage could not
  exceed the declared value for customs purposes.

4.

In
  the Customs Waiver Agreement, FedEx permitted the maximum declared value of
    the package for customs purposes to be increased to $500,000 "subject to" the
    other provisions of that agreement.

Although
  para. 2 thereof stated that the agreement did not affect the maximum declared
  value for carriage for International Priority
shipments,
it
  also specified that the maximum declared value for carriage could not exceed
  the "declared value for customs amount" set forth in the Guide.

Mr. Butler equates this with the $50,000
  referred to in para. (j)
of
the Guide.

5.

Since
  the maximum declared value for carriage purposes was unaffected by the Customs
  Waiver Agreement, the $50,000 maximum specified in para. (j)
of
the Guide represented the limit of its liability.

6.

The
  prohibition in Article 23 of the Convention was not engaged because the
  reference to an attempt to fix a lower limit than that specified, denoted the "floor" of
  250 francs per kilogram specified in Article 22(2).

The $50,000 limit was higher than that floor,
  consistent with what Mr. Butler contends is the purpose behind Article 23,
  i.e., to permit shippers and their customers to negotiate limits of liability
between
that floor and the actual value. FedEx's policy is to fix its maximum liability
  at $50,000 unless the customer pays a special fee (none was asked for in this
  case) or the shipment comes within one of the other specific provisions of the
  Guide.

[13]

It is steps 4 and 5 of this
  reasoning that I believe are flawed.

Although little is "clear" from all the terms before us, it
  does seem clear that para. (j)
of
the Guide speaks to
  declared values for
customs
purposes.

According to para. (b), the carriage value could not exceed the declared
  value for customs purposes.

That
  provision was not infringed in this case  the customs value and the declared
  carriage value were the same.

The
  Customs Waiver Agreement was said not to "affect the maximum declared
  value for carriage".

This was
  followed by what purported to be an explanatory statement, that for most FedEx
  International shipments, the declared value for carriage could not exceed "the
  declared value for customs amount set out in the Guide." If it was
  intended that this statement would indeed limit the declared value for carriage
  to something less than the amount inserted by the consignor, this was a most
  obscure and unclear way of saying so, and it was inconsistent with the opening
  sentence of the clause. I think the better explanation of the two provisions,
  which must be read harmoniously if possible, is simply that notwithstanding
  the fact that a larger amount than usual was being allowed for customs purposes,
  para. (b)
of
the Guide was still applicable  i.e.,
  the declared value for carriage was not to exceed the customs value stated on
  the waybill.

In this case it did not.

In any event, the Guide did not specify the "declared
  value for customs amount."

The
  waybill did, and it was $214,847 in this case.

[14]

The
    Customs Waiver Agreement also stated that FedEx's liability with respect
    to any International Priority
  Shipment "shall be limited as set forth in the Guide".

The Guide stated in para. (d)
that
where the carriage involved a destination or stop in
  another country, the Warsaw Convention "may be" applicable.

There is no doubt that the Convention was
  applicable in this case. The Guide went on to say that:

The Convention
  governs and, in most cases, limits our liability in respect to loss of, damage
  to or delay of cargo.

In
Canada
,
  the Warsaw Convention limits our liability to the Canadian dollar equivalent of
  250 French francs of 65.5 milligrams gold of millesimal finess 900 per
  kilogram,
unless you declare a higher value for carriage as described below
.

[My underlining.]

Nowhere did the Guide specify a maximum value for carriage that
  would be permitted for the kind of shipment with which we are concerned.

Para
.(
f) dealt with
  cases not governed by the Warsaw Convention and para.(g) dealt with shipments
  of "extraordinary value", which term was described in para. (k)
to
refer to artwork and other valuables not relevant here.

[15]

I do not read the Guide as
  imposing a limit of $50,000 or any other limitation on the shipper's liability.

To the contrary, the various references to
  the Warsaw Convention and to the ability of the shipper to declare a "higher
  value" (i.e., higher than 250 francs per kilogram) indicate that by
  declaring a higher value for carriage on the front of the waybill, it was open
  to the consignor to hold FedEx liable for that amount and not to be held to
  the minimum 250 francs per kilogram stated in the Convention.

It clearly contemplates that the consignor
  may make a special declaration of value at the time of delivering the goods
  to the carrier, in which case the carrier's liability would be in an amount "not
  exceeding the declared sum, unless he proves that the sum is greater than the
  actual value to the consignor at delivery."

[16]

As for para. (l)
of
the Guide, for the reasons set forth above, I find that
  no amount in excess of the "maximum amount allowed in this Guide"
was
specified.

The declaration of value was
  allowed by the Guide, and in any event, an exception was made in various places
  in the Guide, including paras. (d)
and
(e), for
  contracts governed by the Warsaw Convention.

[17]

In light of my conclusion on
  this point, it is unnecessary for me to reach a definite conclusion as to
  whether the trial judge was correct in ruling that the contractual terms stated
  in the Guide offend Article 23 of the Warsaw Convention and that the Convention
  had the effect of rendering such terms null and void.

I tend to agree with Mr. Justice Hall,
  however, that the reference in Article 23 to a "lower limit than that
  which is laid down in this Convention" refers to the 'floor' amount of 250
  francs per kilogram and that the general intention of Article 22(2) is to
  permit the parties to agree on an amount above that floor and below the "ceiling" of
  the declared value amount stated on the waybill.

If that is what FedEx sought to do in this
  case, but it did not do so effectively or clearly, in my respectful view.

[18]

Accordingly, I conclude that
  the terms and conditions contained in the Guide did not limit FedEx's liability
  to an amount lower than the declared Value for carriage stated by MDSI on the
  face of the waybill. I would therefore dismiss the appeal, with thanks to
  counsel for their helpful and thorough submissions.

The Honourable
Madam Justice Newbury

I
  AGREE:

The Honourable
Chief Justice Finch

Reasons for Judgment of the Honourable Mr. Justice Hall:

[19]

I have had the advantage of
  reading in draft the Reasons of Newbury J.A.

In her Reasons, she has narrated the circumstances of this case.

She concludes that the appeal ought to be
  dismissed but I have come to a different conclusion and would allow the appeal.

[20]

Article 23 of the Warsaw
  Convention, incorporated into the law of
Canada
by
  the
Carriage
  of Air Act
, R.S.C. 1985, c. 26 as amended, reads as follows:

Any provision tending to relieve the carrier of
  liability or to fix a lower limit than that which is laid down in this
  Convention shall be null and void, but the nullity of any such provision does
  not involve the nullity of the whole contract, which shall remain subject to
  the provisions of the Convention.

[21]

Since this was a contract for
  international air carriage, it is common ground that the Warsaw Convention,
  ("the Convention"), is applicable.

The scheme of the Convention is that under Article 18(1), the carrier
  is, subject to the very difficult exception stipulated in Article 20, liable
  for damage to or the destruction of cargo transported by air.

Under the provisions of Article 22(2), the
  carrier is entitled to limit its liability for damages to goods to a value
  equivalent to 250 francs per kilogram.

This ability to limit liability is subject to certain exceptions, one
  being the situation where a special declaration of value is made at the time of
  delivery of the goods.

In the case at
  bar, if the 250 franc limit were to be found applicable, the liability of the
  defendant would have been for a sum slightly in excess of $11,000.00.

Although at trial the defendant had argued
  for such a conclusion on the quantum of damages, it sensibly abandoned that
  line of argument on appeal.

The issue on
  this appeal is whether it may limit its liability for damages to the sum of
  $50,000.00, the amount set out in its Service Guide as the amount applicable to
  Canadian and
United States
shipments of
  goods.

[22]

The learned trial judge
  expressed his conclusion on liability for damages thus:

FedEx says that, while it accepted the server
  for shipment with a "Total Declared Value for Carriage" stated on
  the waybill of $214,847, it is now able to limit its liability to $11,427 because
  there was no valid declaration or to [sic] $50,000 if any declaration can be
  said to have been made.

No authority is cited where a provision of this
  kind in any waybill has been considered.

Quite apart from any question of the contractual validity of the
  position FedEx takes
, I consider the quoted provisions of the Guide offend
  Article 23 of the Convention because their effect is to relieve FedEx of the
  liability prescribed by Article 22(2), namely the liability to pay a sum not
  exceeding the declared sum when a special declaration is made.

In my view, the provisions of the Guide on
  which FedEx relies do not serve to relieve it of liability for the declared
  value: $214,847.

(
emphasis
added)

[23]

As appears from the emphasized
  portion, the learned trial judge did not make any finding concerning the
  validity of the contractual provisions relied upon by the appellant in this
  Court seeking to limit its liability for damages to $50,000.00.

The trial judge felt he was only required to
  consider the provisions of Article 23 of the Convention to decide the case

The relevant portion reads as follows:

Any provision tending to relieve the carrier of
  liability
or
to fix a lower limit than that which is laid down in this
  Convention shall be null and void....

(
emphasis
added)

[24]

In my view, the quoted
  provision deals with two distinct situations or subject matters.

One subject matter is the issue of "liability" for
  damages generally.

A carrier is rarely permitted to escape
any
liability for
  damages.

The other subject matter
  concerns an attempt that might be made by a carrier to set a limitation on its
  responsibility for damages at a lower limit than that provided for by the terms
  of the Convention.

Under the provisions
  of Article 23, carriers are prevented from achieving either of these
  objectives.

[25]

An example of an attempt by a
  carrier, (in the end unsuccessful), to entirely avoid liability is demonstrated
  by what occurred in the case of
Connaught Laboratories Ltd. v. Air Canada
(1978), 94 D.L.R. (3d) 586 (Ont. H.C.).

In that case, Air
Canada
had sought to avoid liability for damages arising out of damage occasioned in
  transit to international cargo by seeking to rely upon the following clause
  found in the contract between shipper and carrier:

The carrier shall not be liable for loss,
  damage, deterioration, destruction, theft, pilferage, delay or default or
  misdelivery, or non-delivery not caused by the actual negligence of the
  carrier, not occurring on its own line or in its own service, or for any act,
  default, negligence, failure or omission of any other transportation
  organization.

[26]

Because the damage to goods had
  occurred while another airline was carrying the cargo for a portion of the
  transit, the defendant carrier, Air Canada, sought to argue on the basis of
  that portion of the exculpation clause "not occurring on its own
  line," that it should be relieved of any liability for damage to the
  cargo.

This was found to be
  impermissible because the terminology in the contract was out of accord with
  the requirements of the governing Convention.

Robins J. observed as follows at p. 589:

That limitation on liability does not conform
with
the conditions of international carriage established in
The Warsaw Convention
and may not be
  invoked by Air
Canada
as a defence to Connaught's action.

[27]

If an analogous situation had
  existed in the case at bar, I would agree with the conclusion reached by the
  learned trial judge.

However, I do not
  consider that the relevant provisions in the Service Guide limiting recovery by
  a plaintiff to the sum of $50,000.00 are inconsistent with the terms of the
  Convention in the way inconsistency was found in the
Air Canada
case,
supra
.

If for instance, the appellant carrier here were seeking to limit its
  liability to the sum of $1,000.00, that would be "a lower limit than that
  which is laid down in this Convention," namely, the sum of approximately
  $11,000, based on the standard of 250 francs per kilogram set forth in Article
  22(2) of the Convention.

On the basis of
  the reasoning found in the
Air Canada
case,
supra
, any such attempt would be bound
  to fail because of the provisions found in Article 23 of the Convention.

Such an attempt would be out of accord with
  the statutory requirements.

That is
not however what FedEx seeks to do here when it argues that the
  maximum sum it ought to be found liable for on account of damages to cargo
  damaged in transit should not exceed $50,000.00
.

[28]

So long as a contract between
  shipper and carrier does not evade or conflict with the terms of the
  Convention, I consider that parties to a contract for carriage ought to be able
  to set the terms upon which they are prepared to agree.

In my judgment, they did so in this case and
  the agreement that they stipulated is within the required parameters of the
  Convention.

Where I part company with
  the reasoning of the learned trial judge is that I do not agree that provisions
  limiting the maximum liability for damages to the sum of $50,000 should be
  found to be contrary to Article 23 of the Convention, "because their
  effect is to relieve FedEx of the
liability
prescribed by Article
  22(2)".

The amount of liability
  FedEx was prepared to accept, ($50,000.00), is for a sum greater than the
  minimum amount specified in the Convention.

Thus, I see no breach of the Convention by FedEx.

I would therefore, on this issue, reach a
  different conclusion from that reached by the trial judge.

[29]

Turning to the question of
  whether the language used by FedEx is effective to limit its liability for
  cargo damage to the sum of $50,000.00, I conclude it is effective.

Unlike my colleague, I do not consider that
  there is any particular lack of clarity in the wording found on the waybill or
  in the provisions contained in the Service Guide.

The provisions in the Guide are made
  applicable to the contract of carriage by the conditions of the contract set
  out on the rear portion of the waybill.

On the rear portion of the waybill there is found the following language:

Declared Value Limits.

The highest declared value we allow for a
  FedEx Letter/Envelope and FedEx Pak shipment is U.S. $100 or U.S. $9.07 per
  pound (U.S. $20.00 per kilo) (or equivalent local currency), whichever is
  greater.

For other shipments, the
  highest declared value for carriage will differ from country to country and may
  depend on the contents of the shipment.

Please check our Service Guide, our Standard Conditions of Carriage or
  applicable tariff for an explanation of the declared value limits.

[30]

In her reasons, my colleague
  has set forth the relevant terms of a Customs Waiver Agreement made between the
  parties.

As I see it, the purpose of
  that Waiver Agreement was to facilitate the transport of goods from
Canada
to
  the
United States
by providing for a higher maximum declaration of value for customs
  purposes to accommodate the transportation of higher valued cargo.

I note specifically that the Waiver Agreement
  contains this provision:

Notwithstanding any provisions of this
  agreement, the liability of FedEx with regard to any international priority
  shipment shall be limited as set forth in the guide.

[31]

In my view, that language
  should clearly afford notice to a shipper that the carrier seeks to limit its
  exposure to liability for damages to cargo in the manner set forth in the Service
  Guide.

[32]

This was a contract for the air
  carriage of goods from
Canada
to a
U.S.
destination.

By the
  provisions of paragraph (b) found in the Service Guide under the heading "Declared Value and Limits of Liability," it is stipulated that the
  declared value for carriage amount cannot exceed the declared value for
  customs, a sum stipulated by paragraph (j) in this same section to be "CDN
  $50,000".

That provision, in my
  view, is the reason why the Waiver Agreement became necessary.

However, as I noted above, that Agreement
  specifically provides that it shall not effect any change in "the
  liability of FedEx with regard to any international priority shipment (which)
  shall be limited as set forth in the guide".

By paragraph (a) under this heading "For
  greater certainty, the declared value for carriage of any shipment represents
  our maximum liability in connection with a shipment".

[33]

As I interpret the provisions
  of the Service Guide, there is
a congruence
between
  the declared value for carriage amount and declared value for customs amount

see para. (b), quoted
supra.

The maximum declared value for customs is set
  at CDN $50,000.00, (para. (j), and thus the maximum declared value for
  carriage, which I take from the language employed to be CDN $50,000.00, represents
  the maximum liability that FedEx should be found liable for in this case.

My reading of the combined terminology of the
  waybill and the Service Guide leads me to conclude that the appellant should be
  found liable only for that portion of the financial loss occasioned by the
  destruction of the cargo.

[34]

Generally speaking, it would be
  preferable for a disputed issue of this sort, namely, the validity of the
  limitation of liability provisions, to be resolved in the trial court.

However, I can certainly understand why the
  trial judge elected not to resolve the issue, since he did not consider it
  necessary to do so for the purposes of his decision.

In the circumstances extant here, it seems to
  me it would not be useful to remit the issue to the trial court.

We are not dealing here with an issue such as
  credibility but rather with the interpretation of the provisions of a
  contract.

In my view, it would simply
  impose an added cost burden on the parties to remit the issue in such
  circumstances.

I believe this court can
  appropriately address and resolve the sort of issue presented for decision
  here.

[35]

I would allow this appeal and
  direct that the sum recoverable in damages by the plaintiff respondent be
  varied from $214,847 to $50,000.00.

Having regard to the issues argued at trial, I would not interfere with
  the disposition of costs at trial.

I
  would order that the defendant should be entitled to recover its taxable costs
  of the appeal.

The Honourable M
r. Justice Hall


Citation:

R. v. Lehoux

Date:
20030107

2003 BCCA 19

Docket:

CA029090

Registry:  Vancouver

COURT OF APPEAL
  FOR BRITISH COLUMBIA

ORAL REASONS FOR JUDGMENT

Before:

The Honourable Mr. Justice Esson

January 7, 2003

The Honourable Madam Justice Southin

The Honourable Mr. Justice Hollinrake

Vancouver,
        B.C.

BETWEEN:

REGINA

RESPONDENT

AND:

RAYMOND MICHEL LEHOUX

APPELLANT

R. Lehoux

Appellant
  appearing in person

W. Bansley

appearing
  for the (Crown) Respondent

[1]

ESSON, J.A.
:
  Mr. Lehoux is presently an inmate of a federal penitentiary.  He applied for statutory
  release and was granted parole on certain conditions with respect,
  particularly, to residency.  He refused to abide by those conditions and therefor,
  was not released.

[2]

He then brought proceedings in the nature of
habeas
  corpus
.  The application for
habeas corpus
was heard by Associate
  Chief Justice Dohm who, after hearing the matter, dismissed the application.  In
  doing so, he gave effect to the submission made on behalf of counsel for the
  Crown that there was no jurisdiction to deal with these issues on a
habeas
  corpus
application because there is provision in the statute, the
Corrections
  and Conditional Release Act
, for administrative proceedings which would
  allow these decisions to be reviewed.

[3]

Mr. Lehoux has appealed from that decision of
  the Associate Chief Justice.  We have reviewed the written statement which he
  has provided, and have heard from him.  We are left in no doubt that the
  decision of the Associate Chief Justice was right and that the appeal must
  be dismissed.

[4]

I would dismiss the appeal.

[5]

SOUTHIN, J.A.
: I
  agree.

[6]

HOLLINRAKE, J.A.
:
  I agree.

"The Honourable Mr. Justice Esson


Citation:

Royal Bank v. United Used Auto

Date:
20030107

2003 BCCA 76

Docket:

CA029668

Registry: Vancouver

COURT OF APPEAL FOR BRITISH COLUMBIA

ORAL REASONS FOR JUDGMENT

BEFORE THE
  HONOURABLE

Madam Justice
  Ryan

January 7, 2003

IN CHAMBERS

BETWEEN:

ROYAL BANK OF CANADA

RESPONDENT

(PLAINTIFF)

AND:

IAN G. MOTT and MOE-VILLA INVESTMENTS
  LTD.

APPELLANTS

(DEFENDANTS)

BETWEEN:

ROYAL BANK OF CANADA

RESPONDENT

(PLAINTIFF)

AND:

IAN G. MOTT and MOE-VILLA INVESTMENTS
  LTD.

APPELLANTS

(DEFENDANTS)

H. Mott

Appellant appearing on his own behalf and the

J. Harry

appearing for the Respondent

(review of Registrars decision)

[1]

RYAN,
J.A.
:
This is an application for an order pursuant to Rule 35 of the Court of Appeal
rules, that the bill of costs of PricewaterhouseCoopers and Rashid Aziz be
disallowed in the amounts claimed.

[2]

The
bills of costs in question arise in the context of extended bankruptcy and
receivership hearings which made their way to this Court in the form of a
number of chambers applications.  Mr. Mott, who appears in person, questions
two items set out in the bills of costs which were drawn up at the conclusion
of these proceedings.  He says that the units assigned to them by the Registrar
are excessive.  Mr. Mott said that he did not challenge the units at the time
they were discussed by the parties before the Registrar because he was
uncertain of the procedure.

[3]

As Mr.
Justice Finch, as he then was, said in the case of
Neill v. British
Columbia
(Minister of Transportation and Highways) (1996) B.C.C.A. at para.
23:

In reviewing a registrars decision, the Court will only interfere
where errors of principle have been shown  On contentious issues, the parties
may adduce evidence as to what is reasonable.  But in the absence of evidence,
the registrar is expected to draw on his or her experience in similar cases and
to exercise a large measure of common sense.

[4]

As I
understand the proceedings in front of the Registrar, counsel simply presented
their files to the Registrar and discussed with her how much time was directed
to the applications, the degree of complication, etc., and the Registrar then
came to the conclusion that she did.  Mr. Mott was present and had the
opportunity to say what he wanted at that time.

[5]

I
cannot say that the units assigned in this case are unreasonable.  The
Registrar heard what the parties had to say, applied her experience and her
commonsense to the issues before her and assigned a unit number.  I cannot say
that she erred in principle or that the decision is unreasonable.

[6]

I
would therefore dismiss this application.

[7]

Costs
follow the event unless otherwise ordered.

(discussion with counsel and Mr.
Mott)

[8]

RYAN,
J.A.
: The
order will say that the application is dismissed and that costs in the amount
of $500 are ordered for each respondent.

The Honourable Madam Justice Ryan


Citation:

T. v. T.

Date:
20030107

2003 BCCA 99

Docket:

CA030339

Registry:  Vancouver

COURT OF
            APPEAL FOR BRITISH COLUMBIA

ORAL REASONS FOR JUDGMENT

BEFORE THE HONOURABLE

Madam Justice Ryan

January 7, 2003

Vancouver,
        B.C.

BETWEEN:

J. T.

APPELLANT

(PLAINTIFF)

AND:

D. S. T.

RESPONDENT

(DEFENDANT)

M. Wood

appearing for
            the Appellant

M. Schuman

appearing for
            the Respondent

[1]

RYAN,
          J.A.
: This is an application pursuant to
          s. 10(1) of the
Court of Appeal Act
for an extension
          of time to file an appeal.  It arises as the result of a decision in
        a matrimonial case.

[2]

On July
      15, 2002, Mr. Justice Hunter rendered
        judgment in this family law proceeding.  In his reasons for judgment
      Mr. Justice Hunter stated at paras. 41 and 44:

[41] There was an imbalance in the dollar amount
        of payments made by the parties to maintain family assets between separation
        in October 1999 and February 2001 when the first interim child and spousal
        maintenance order was made, a period of 16 months.  It is difficult to
        calculate the discrepancy in the amounts of payments made by the parties
        to maintain family assets with any precision, from a review of the evidence,
        but I am satisfied that to not make an adjustment would result in unfairness
        to Mrs. T.  I have in mind the mortgage payments, property taxes, house
        and life insurance premiums and the like paid by Mrs. T. during this period.  Counsel
        should be able to agree on these amounts and the necessary credit which
        will result.  Otherwise I direct that this issue be referred to the Registrar
      for hearing and for recommendation to the court.

[44] Mr. T. created a line of credit with Hong
        Kong Bank which has an outstanding balance approximating $10,000 which
        I understand to be a debt incurred by him after separation which was
      used to cover his business expenses and that will be his responsibility.  The
        remaining debts described in the Scott Schedule are debts incurred after
        separation except for some portion of the debt which was incurred by Mrs.
        T. to maintain family assets which I have already referred to.  I will
        leave it to the parties to factor in those amounts to determine the net
        obligation by way of compensation payment from Mr. T. to equalize the value
        of family assets in the possession of the parties pursuant to the formula
        in these reasons for judgment.  There may be other miscellaneous assets
        that require to be factored in and I will leave it to counsel to do that
        calculation.  There is also of course the issue of the chattels which
      has been referred to the Registrar for recommendation to the court.

[3]

On September
      18, 2002, counsel appeared before
        a registrar to settle the term of the order relating to these two paragraphs.  Counsel
        were unable to agree, and the registrar was unable to give effect to this
        portion of the reasons for judgment.  On October 9, 2002, counsel made
        submissions by way of telephone conference for the purpose of settling
        the order with
        respect to this aspect of the judgment.  After oral argument counsel
      submitted written submissions.

[4]

On October
      25, 2002, Mr. Justice Hunter rendered
        an addendum to his reasons for judgment.  He stated at para. 7 of the
      addendum:

[7] I have concluded that it is not necessary
        that there be an accounting between the parties concerning payments made
        by each on the mortgage, for property taxes and for house insurance and
        life insurance and the like between the date of separation in October
      1999, and the date of the first interim child and spousal maintenance order
      which
        occurred in February of 2001  the 16 month period.  I had wrongly concluded
        that Mrs. T. had made significantly greater payments on these items than
        had Mr. T.  This was clearly a misapprehension of the evidence.  Mrs. T.
        income was less than $6,500.00 a year and Mr. T. income exceeded $130,000.00
        in that time frame.  Mrs. T.s payments on the mortgage and for property
        taxes, and for premiums on house and life insurance, for that time frame,
        was minimal by contrast with his.  During the marriage Mr. T. had paid
        most, if not all, of the household expenses including these items.  In
        the circumstances I found against Mrs. T. on her claim for reapportionment
      of family assets.

[5]

On November
      22, 2002, the appellant filed a
        notice of appeal.  While the notice of appeal sets out grounds relating
        only to the reasons articulated in the addendum, counsel wishes to amend
        the notice of appeal to include grounds relating to the judgment rendered
      in July.

[6]

Section
      14(1)(a) of the
Court of Appeal Act
provides:

Only one notice of appeal need be filed where
        only one order will be entered, even though further reasons for judgment
      may be published and further terms pronounced.

[7]

Relying
        on
Burlington Northern Railroad Co. v. Baseline Industries Ltd.
(1992)
        20 C.P.C. (3d) 90, counsel for the respondent takes the position, which
        is not disputed by the appellant, that the time to appeal began to run
        on July 15, 2002, rather than on October 25, 2002, the day the addendum
        was released.  Counsel agree that the appeal from the July 15, reasons
      is therefore out of time.  These reasons are premised on that proposition.

[8]

In
        determining whether to extend the time within which to file a notice of
        appeal the chambers judge should consider the five part test set out in
Davies
      v. Canadian Imperial Bank of Commerce
(1987) 15 B.C.L.R. (2d) 256:

1.   Was there a
bona fide
intention
      to appeal?

2.   When
      were the respondents informed of the intention?

3.   Would
      the respondents be unduly prejudiced by an extension?

4.   Is
      there merit in the appeal?

5.   Is
      it in the interest of justice that an extension be granted?

[9]

Counsel
        for the respondent debated the prejudice to the respondent and the merits
        of the appeal, but his central concern was the formation of the intention
        to appeal and the lack of
bona fides
in deciding to appeal after
        October 25.  Counsel for the appellant conceded that the decision to appeal
        the judgment was not made within 30 days of the filing of first set of
        reasons for judgment, but rather, after the addendum was released.  Counsel
        for the appellant submitted that the addendum changed the complexion of
        the appellants award.  The appellant was prepared to live with what
        she perceived to be the result of the first set of reasons, she was not
        content
      with the result after release of the second set.

[10]

Counsel for the respondent questioned the
bona fides
of
      the reason offered for formulating the intention to appeal sometime after
      October
        25.  He submitted that the addendum merely clarified the original order
        made by the trial judge.  He submitted that the appellant knew all along
        that she had not paid out more money to maintain the family assets than
        the respondent, and that in the end, she would have understood that no
        credit was therefore owing to her in spite of the wording of paragraph
      41 of the July 15 reasons.

[11]

Counsel
      for the appellant disagreed.  She said that paragraph 41 was
        open to a different interpretation.  She understood the trial judge to
        say that because of the imbalance in the financial situation between
        the appellant and the respondent after their separation (the appellant
        was
        forced to go into debt to keep up with her obligations), that the appellant
        should be entitled to a credit for the full amount of money she spent
        preserving the family assets even though the respondent had also contributed
        to that
      maintenance and had paid more towards it than she had.

[12]

I
      accept that the appellant genuinely understood that the amount of her award
      had been reduced by the October 25 reasons and that this brought
        forward her other complaints about the judgment which she now wishes
      to appeal.  I am satisfied that she has explained her failure to form an
      intention to appeal after October 25.

[13]

I
      will not go into any detail with respect to the other factors.  I
        am satisfied that the respondent is not unduly prejudiced by the delay.  I
        am not persuaded that the appeal is bound to fail.  Considering all of
        the factors the question becomes whether it is in the interest of justice
        to grant the extension.  Balancing the factors as between the parties,
        I am of the view that it is in the interest of justice to grant an extension
      of time.

[14]

The
      appellant will have leave to file an amended notice of appeal provided
      that it is filed in the Registry and served by 4
      p.m. Friday, January 10.

_________________________________
The Honourable Madam Justice Ryan

correction:  M
ay
        20, 2003

The date February 7, 2003 should be January
      7, 2003

CORRECTION:  April
        1, 2003

1) In para. 3, line 3 the word was should
      be changed to were.

2) In para. 12, line 4 on pg. 7 the word
      under should be deleted.


Citation:

R. v. Bugle

Date:
20030108

2003 BCCA 17

Docket:

CA029385

Registry:  Vancouver

COURT OF APPEAL
  FOR BRITISH COLUMBIA

ORAL REASONS FOR JUDGMENT

Before:

The Honourable Mr. Justice Esson

January 8, 2003

The Honourable Madam Justice Southin

The Honourable Mr. Justice Hollinrake

Vancouver,
        B.C.

BETWEEN:

REGINA

RESPONDENT

AND:

DENNY TAYLOR ALLAN BUGLE

APPELLANT

P. Briggs

appearing
  for the Appellant

B. Bagnall

appearing
  for the Respondent

[1]

HOLLINRAKE, J.A.
:
  This is an appeal from conviction as a party to the offences of breaking and
  entering a dwelling and commit an indictable offence being extortion (s. 348(1)(b)
  of the
Criminal Code
) and "without reasonable justification
  or excuse and with intent to obtain money, did induce Judith Hobbs to sign a
  motor vehicle transfer document, by making threats to injure Sean Hobbs"
  (s. 346(1.1)(b)).  The appellant was also charged that he "did carry or
  have in his possession a weapon, namely a baseball bat, for a purpose dangerous
  to the public peace or for the purpose of committing an offence" (s.
  188(1)).

[2]

The reasons for judgment of the convicting judge
  are short and to the point and I set them out here in their entirety:

[1]  In the early evening of February 9, 2001,
    three men attended at 3179 Oriole Drive, Westbank, British
    Columbia, a residence occupied by Mr. Sean Hobbs, his
  wife, Judith Gillian Hobbs, and their four children.  The residence is one
  of only two on a dead-end street in the Glenrosa area of Westbank.

[2]  Two of the three men were known to Mr.
  Hobbs, namely, Darryle Sedore and Robert James.  The third man was not known
  to either of the Hobbs.  The third
  man, when first seen by Mr. Hobbs outside the door of the residence, was
  holding a baseball bat.

[3]  Without invitation, the three men entered
  the residence.  Mr. Sedore was very angry and demanded money from Mr. Hobbs.
  Over a period that may have lasted as long as thirty minutes, Mr. Sedore
  demanded money from Mr. Hobbs and demanded that Mr. Hobbs sign a transfer
  document for a vehicle as security for the money.  Matters came to a head when
  Mr. Sedore, in a loud and aggressive manner, demanded that Mr. Hobbs complete a
  transfer document or he would, "break Mr. Hobbs' fucking jaw."  Throughout
  this time, Mr. James and the third person were standing in close proximity
  to Mr. Sedore and Mr. Hobbs and Mrs. Hobbs.

[4]  Mr. Hobbs started to complete the transfer
  form as demanded by Mr. Sedore, and Mrs. Hobbs filled in the seller's address
  and signed the form.  She asked and was allowed to go to the vehicle, which was
  a van, and removed personal items from it.  On her return from the van, she
  provided the keys for the van to Mr. Sedore, and the three men walked up the
  driveway toward the van.  Mr. or Mrs. Hobbs closed and locked the door, and
  Mr. Hobbs called 9-1-1.  While Mr.
  Hobbs was on the phone with the 9-1-1 operator, Mr. James returned to the residence
  seeking jumper cables as the van would not start.

[5]  Within ten minutes of the three men first
  leaving the residence, several police cars converged at the scene and found
    Mr. James and Mr. Sedore standing beside the Hobbs' van at the bottom of
    the hill, which is Oriole
    Drive.  They noted a red truck coming slowly down the
  hill.  The red truck was ordered to stop, and its sole occupant was ordered to
  get out and lie on the ground.  The occupant of the red truck was the accused,
  who was also the registered owner of the red truck.  No other vehicles were
  found on Oriole.

[6]  When the accused was searched, after he
  had laid on the ground as required and then been arrested, the transfer
  document that Mrs. Hobbs had signed was found in his back pants' pocket.

[7]  Neither Mr. Hobbs nor Mrs. Hobbs could
  identify the accused from a photographic line up shown to them on February
  10, 2001.  Mr. Hobbs has made two
  in-court identifications, one at the preliminary hearing and one at trial.  Neither
  of those identifications, which could only be termed to be relatively weak
  identifications, would be sufficient to support a conclusion beyond a
  reasonable doubt that the accused was the third man at 3179
  Oriole Drive on February 9, 2001.

[8]  However, there is considerable
  circumstantial evidence in this case.  Within minutes of the 9-1-1 call, the
  accused was in the immediate area where the Hobbs' van was found,
  together with Sedore and James.  No one else was located in that area with
  the exception of the neighbour to the Hobbs, who was called and testified at
  this trial.

[9]  The accused was driving a truck and was
  the registered owner of a truck which Mr. Hobbs had previously seen Mr. James
  and Mr. Sedore in, and which Mr. Hobbs assumed belonged to Mr. James.  The
  accused had the transfer document in his back pocket.

[10] Three men were in the Hobbs' residence,
    and three men were arrested within minutes in the immediate vicinity of the Hobbs'
  residence.

[11] The accused gave the police an address on
  the Lower Mainland, which was the same address shown on a notice of claim filed
  approximately six weeks later, naming Mr. Sedore as claimant and Mr. Hobbs
  as defendant.

[12] The residence, as I have said, is on a
  dead-end street occupied by only two houses.

[13] The van had not started and it was found
  with its hood up and with jumper cables lying on the ground in front of it.

[14] The only other resident of Oriole Drive,
    the neighbour of the Hobbs, who I have indicated was called,
  did not suggest in her evidence that she knew the occupant of the red truck.

[15] I have carefully considered the evidence
  before me.  I have given particular consideration to the evidence of Mr. and
  Mrs. Hobbs, including their inability to identify the accused, within
  twenty-four hours of the events in question, as the third man who was at, and
  then in, their residence.  I am satisfied that both Mr. and Mrs. Hobbs were
  credible witnesses and that their inability to recount all of the details of
  the night of February 9, 2001, is understandable, given the circumstances they
  found themselves in.  Having carefully considered all of the evidence, I am
  satisfied that the Crown has proven beyond a reasonable doubt that Mr. Bugle,
  the accused in this case, was the third man who initially stood outside the
  Hobbs' home holding a baseball bat and then entered their home on February
  9, 2001.

[16] Mr. Bugle, would you stand up, please?  Consequently,
    on the evidence before me, I find you, Mr. Bugle, guilty as charged on Counts
    1 and 3, as a party to the offence pursuant to s. 21(1)(b) of
  the
Criminal Code
.  I also find you guilty of Count 5 on the
  Indictment.

[3]

Both James and Sedore had been convicted prior
  to the trial of the appellant.

[4]

At the appellant's trial no evidence was called
  on his behalf.

[5]

The errors asserted by the appellant are:

That the learned trial judge erred in finding
  that there was 'some' evidence of identification in finding the appellant was a
  party to the offences at bar.

That the learned trial judge erred in finding
  that both the direct and circumstantial evidence of identification that the
  appellant was a party to the offence of extortion, break and enter with intent,
  and possession of a weapon was sufficient for conviction;

That the learned trial judge erred in finding
  that each of the requisite elements of each of the offences had been proved
  beyond a reasonable doubt.

[6]

The position of the Crown with respect to these
  asserted errors is that on the evidence it cannot be said the trial judge fell
  into any error whatever.

[7]

The appellant asserts the verdict is an
  unreasonable one and not supported by the evidence.  In my opinion, on the
  evidence before the judge, it was open to her to conclude as she did.

[8]

The appellant says the trial judge was in error
  in concluding that the line-up evidence and the in-court identification by
  Mr. Hobbs was "relatively weak" and insufficient to reach a conclusion of proof
  beyond a reasonable doubt and then turning to the circumstantial evidence to
  conclude the Crown had proved its case on this issue.  The appellant says the
  judge ought to have concluded that the identification evidence was not capable
"of any evidential weight whatever."  Counsel says the only evidence
  the judge should have considered was the circumstantial evidence.

[9]

With respect I cannot agree.  I think the judge
  was entitled to consider on the issue of identification the evidence of Mr.
  Hobbs, as weak as it was standing alone.  The judge was obliged to consider all
  the evidence in coming to her decision.  In my opinion, it would have been
  in error for her to have concluded that one area of evidence did not meet the
  requirement of proof beyond a reasonable doubt and thus reject it out of hand
  without further consideration in reaching her conclusion as to whether or not
  the Crown had proved its case.

[10]

I am satisfied it was open to the judge to conclude as she did on
  this identification issue.

[11]

A
    further issued raised by the appellant is that the judge erred in concluding
    that each of the requisite elements of each offence had been proved
  beyond a reasonable doubt.  In particular, the appellant asserts that "the
  Crown must prove that the appellant had knowledge of what his associates (in
  this case Sedore and James) were intending to do" citing
R. v. Low
[1984]
  B.C.J. No. 511 (Q.L.) (B.C.C.A.).  The appellant says "the evidence
  is unreliable and contradictory as to whether or not [the appellant] had any
  meaningful participation in the extorting of the Hobbs's property when he entered
  their house."

[12]

The trial judge did not deal with this submission in her reasons no
  doubt because at trial counsel for the appellant conceded that if the judge
  found that he was one of the three individuals at the house he was guilty of
  all offences.

[13]

I
    think that concession was properly made by defence counsel at trial.  What this trial was all about was identification.  The Crown responds
  to this argument by saying that the only reasonable inference to be drawn from
  the evidence is that the appellant along with James was "present in order
  to reinforce Sedore's threats to do Hobbs harm if he did not satisfy Sedore's
  demands."

[14]

I
    agree.  I have no hesitation in concluding that on the evidence it
  was open to the judge to infer that as the Crown puts it, the appellant
"was either acting in aid of Sedore or had formed an intention in common
  with Sedore (and James) to carry out an unlawful purpose, which purpose was
  carried."

[15]

I would dismiss the appeal.

[16]

ESSON, J.A.
: I agree.

[17]

SOUTHIN, J.A.
: I agree.

[18]

ESSON, J.A.
: The appeal is dismissed.

The Honourable Mr. Justice Hollinrake


Citation:

R. v. Robinson

Date:
20030108

2003 BCCA 25

Docket:

CA028328

Registry:  Vancouver

COURT OF APPEAL
  FOR BRITISH COLUMBIA

ORAL REASONS FOR JUDGMENT

Before:

The Honourable Mr. Justice Esson

January 8, 2003

The Honourable Madam Justice Southin

The Honourable Mr. Justice Hollinrake

Vancouver,
        B.C.

BETWEEN:

REGINA

RESPONDENT

AND:

KIMBERLY GENE ROBINSON

APPELLANT

K. Robinson

appearing
  in person

J. Oliphant

appearing
  for the (Crown) Respondent

[1]

ESSON, J.A.
: This
  is an appeal from a decision of a Supreme Court judge who dismissed Mr.
  Robinsons appeal from his conviction of an offence in respect of certain
  regulations under the
Wildlife Act
.

[2]

The Crown has very fairly indicated that in view
  of the inappropriateness of the particular set of facts to raise the issues,
  and the difficulties created by the uncertainties as to the proper
  interpretation to be given to the provisions of the
Act,
that it
  would not oppose the appeal being granted and an order for an acquittal being
  made.

[3]

I would therefore allow the appeal in those
  terms.

[4]

SOUTHIN, J.A.
: I
  agree.

[5]

HOLLINRAKE, J.A.
:
  I agree.

[6]

ESSON, J.A.
:
  The appeal is allowed.  The conviction is set aside and a verdict of acquittal
  will be entered.

The Honourable Mr. Justice Esson


Citation:

Rotzetter
v.
Rotzetter

Date:  20030108

2003 BCCA 12

Docket:  CA029677

COURT OF APPEAL
          FOR BRITISH COLUMBIA

BETWEEN:

MICHELLE MARIE ROTZETTER

RESPONDENT

(PLAINTIFF)

AND:

YVAN MARCEL ROTZETTER

APPELLANT

(DEFENDANT)

Before:

The Honourable Madam Justice Southin

(In Chambers)

Y. M. Rotzetter

In person

H. Hyslop, Q.C.

Counsel for the Respondent

Place and Date of Hearing:

Vancouver, British
          Columbia

11th
          December, 2002

Place and Date of Judgment:

Vancouver, British
          Columbia

8th
          January, 2003

Reasons for Judgment of the
    Honourable Madam Justice Southin:

[1]

This is an application, in the words
    of the notice of motion:

...
    for an order pursuant to Clause 10(2)(d) of the Court of Appeal Act that there
    be an extension of an additional 65 days for the filing of the Factum, Transcript
    Extract Book and the partial transcripts that were missed from the current
    filing date of October 31, 2002.

Pursuant to the order before the HONOURABLE MADAM JUSTICE Huddart
    in chambers on
August 21, 2002.

[2]

The appeal is from a judgment of Blair
    J. pronounced the 9th April, 2002, 2002 BCCA 522, in a matrimonial cause.

At issue are the terms relating to the residence of the five children
    of the marriage, now ages 4-14, and the division of family assets.

On the 21st August, 2002, Huddart J.A. extended
    the time for filing the appeal books and transcripts to 31st October, 2002.

[3]

The applicant failed to meet the deadline.

He explains why thus:

I
    am representing myself and am unaware of court process and procedures.

I misunderstood Madam Justice Huddart and the
    Appeal Court Rules in the matter of filing transcripts.

I was under the impression that I only needed
    to order, and file, only the transcripts that I was going to refer to in my
    appeal.

This is why there are only
    partial transcripts filed to date.

I
    only became aware of my mistake on November 26, 2002, during a phone conference
    with Hope Hyslop and the Court of Appeal.

I apologize to the courts and Ms. Hyslop for my confusion in this matter.

Attached as Exhibit A, is a fax from Reportex with an approximate date
    when the transcripts will be done.

I
    have completed my Factum and Extract Books for the filing date of 30 days
    after the Appeal Book and would like to file them.

I am aware that if I file my Factum, this would not give the respondent
    adequate time to prepare their Factum because of the missing transcripts.

I would like to sign my consent for the respondent
    to have an extension for filing their Factum, for an appropriate amount of
    time, as Ms. Hyslop feels they need, after they receive the missing transcripts.

[4]

The letter referred to in his affidavit
    says, in part:

a)

You have ordered appeal transcript from us for
    all portions listed in the previous appeal book index as "not transcribed".

My support
staff have
estimated those "not transcribed" portions
    of transcript to total 772 pages, or $4,914.95.

b)

Your bank, the Kamloops Credit Union, has confirmed
    a bank transfer of $4,000 was activated today, November 28, 2002.

The remaining $1,000 will be transferred on Tuesday, December 2, 2002.

[5]

From the material which is before me
    and especially the reasons for judgment of Mr. Justice Blair, I infer that
    the parties to this litigation are not particularly well to do.

The money being spent on this appeal might better
    have been saved for the children's education.

[6]

Ordinarily, when a litigant who has
    brought his appeal timeously, as the applicant did here, has difficulty complying
    with the rules and orders of this Court as to the time for filing the necessary
    papers, the Court will grant the necessary extension.

A litigant is not lightly to be deprived of
    his right of appeal because he does not understand what to him may be the
    arcane procedures of this Court.

[7]

But, on all applications to extend
    time, the overriding consideration must be the interests of justice.

Justice is not a concept which lends itself to scientific analysis.

Among the considerations is the effect
    on the parties of litigation.

The applicant, an intelligent man, is enjoying
    representing himself in this appeal.

What
    the respondent thinks of it all, I do not know, but it was plain to me that
    Ms. Hyslop, her counsel, considers this appeal an exercise in irritating futility.

[8]

About the applicant, the learned judge
    said:

[9]
Neither
Mr. Rotzetter nor Mrs. Rotzetter appear
    to have considered fully the effect on their children by involving them in
    their matrimonial difficulties.

Social
    worker Sandra Wilcox worked with the family and noted that the parents had
    broken most of the rules on divorced parenting, resulting in emotional distress
    to the children.

I consider it likely,
    as suggested by Ms. Fuchs, that the children have to some extent been emotionally
    scarred by the parents' actions.

Both
    Mr. Rotzetter and Mrs. Rotzetter deserve criticism for exposing their anger
    to their children but I find that Mr. Rotzetter, when telling the couple's
    two older children about Mrs. Rotzetter's conduct, was less than honest about
    his own conduct.

[10]
His
lack of forthrightness about his own conduct
    is particularly difficult and I am concerned that he seems incapable of appreciating
    the damage his behaviour has created by undermining the children's relationship
    with their mother.

I further conclude
    that Mr. Rotzetter's many and various complaints about Mrs. Rotzetter are
    based less on reality and more on the bitterness he feels towards her.

[9]

In her reasons [unreported], Huddart
    J.A. said in part:

[7]

I think it is fair to say this will be an exceedingly
    difficult appeal for Mr. Rotzetter with or without counsel.

I advised him during the hearing this morning
    that the Supreme Court of Canada has made it very clear that Courts of Appeal
    should intervene sparingly in any custody order that has been made by a trial
    judge.

This is so because, as the applicant
    recognizes, he can always return to the trial court to ask for a variation
    of an order.

The trial court is in
    a better position than this Court to deal with the matter on current evidence.

This Court has difficulty in doing that when it finds a trial judge
    has made a mistake because circumstances regarding children have a tendency
    to change frequently.

[10]

Having read the reasons for judgment,
    I cannot see any rational possibility that this Court would interfere with
    the judgment of Blair J. even if the Supreme Court of Canada had authorized
    us to interfere whenever we thought it right to do so.

[11]

It is in the interests of the parties
    to this appeal and their children that this litigation should end.

In so remarking, I appreciate that the applicant
    may well consider that what is in his best interests is for him to say and
    not for me.

It is also, however, in
    the best interests of society that a pointless appeal shall not further take
    up the time of this Court which has many litigants knocking at its doors with
    appeals of merit.

[12]

The application is refused.

THE HONOURABLE MADAM JUSTICE SOUTHIN


Citation:

R. v. Dunbar et
  al

Date:
20030109

2003 BCCA 60

Docket:

CA027861

CA027862

CA029457

CA028736

CA019928

Registry:  Vancouver

COURT OF APPEAL
  FOR BRITISH COLUMBIA

ORAL REASONS FOR JUDGMENT

Before:

The Honourable Mr. Justice Esson

January 9, 2003

The Honourable Madam Justice Southin

The Honourable Mr. Justice Hollinrake

Vancouver,
        B.C.

BETWEEN:

REGINA

RESPONDENT

AND:

ALLAN ARTHUR DUNBAR

DARREN DENNIS POLLARD

DOUGLAS MARVIN COOPER

GERRY LEIDING

MALCOM KRAVIT

APPELLANTS

S. Goldberg

appearing
  for the Appellants

C. Sweeney, Q.C.

appearing
  for the (Crown) Respondent re. A. Dunbar, D. Pollard, D. Cooper, G. Leiding

W. Smart, Q.C.

appearing
  for the (Crown) Respondent re. M. Kravit

[1]

ESSON, J.A.
: Mr.
Goldberg, I think you have the drift of the Courts views on your application.
We are all of the view that no grounds have been shown to interfere with the
decision made by Madam Justice Huddart.  We do that without deciding whether
the matter was properly dealt with as a chambers application rather than
administratively and without deciding whether there is power in criminal cases
to have a review of an order made in chambers in the way that has been sought.  Clearly,
in our view, there is no merit in the application before us today which is one
for a review of the order of Madam Justice Huddart.

[2]

SOUTHIN, J.A.
:
If
I may say so, it appears to me that these appeals need to be managed.  We now
have a practice in this Court of pre-appeal hearings and so on, and something
has to be done about it.  Otherwise this whole thing is going to get completely
out of hand.  If Mr. Dunbar has a sound ground for a new trial the sooner he
gets it the better.  He is serving a sentence for first degree murder.  His
appeal should not be delayed by any attempts on your part, Mr. Goldberg, to
engage in remaking the way the legal profession operates.  Mr. Dunbar is
entitled to have his appeal brought on.

[3]

ESSON, J.A.
: That
concludes the hearing of the first application in this case.  You have another
application, Mr. Goldberg?

[4]

MR. GOLDBERG
: I
am going to withdraw that application.

[5]

SOUTHIN, J.A.
:
That sub-section does not apply here.  You just want to make an ordinary garden
variety fresh evidence motion.

[6]

MR. GOLDBERG
:  How
simple.

[7]

ESSON, J.A.
:  Mr.
Sweeney, you looked alarmed.  Is there anything

[8]

MR. SWEENEY
:  I
am trying not to look alarmed.

[9]

SOUTHIN, J.A.
:
Why are you alarmed, Mr. Sweeney?

[10]

MR. SWEENEY
:  I am just sort of
confused.  It seemed that Mr. Goldberg was arguing what I thought I was arguing
by the end of the day.  I do not want to re-open it all up.

[11]

SOUTHIN, J.A.
: No, no.  We will be right
back to square one.

[12]

ESSON, J.A.
: Mr. Smart, I take it, you
have nothing to add?

[13]

MR. SMART
:  No.  In fairness to Madam
Justice Huddart, when we came before her the issue before her was not addressed
to whether it was appropriate that more than one would be heard together and
the issue is being collateral.  Counsel came before her really on the basis it
would be appropriate to be heard.  There is no argument her mind was not
directed to whether that was an efficient way to proceed.  The issue was
whether there should be three or five -- whether the two appeals had to have an
extension or leave to be dealt with the other three or in advance.  That was
the only issue.  In fairness to her, the issues that Madam Justice Southin has
raised about its diverting from the issues of Dunbar was never addressed by her.

[14]

SOUTHIN, J.A.
: No, I did not think they
were.  Mr. Dunbars affidavit of 20 December was not before her, was it?

[15]

MR. SMART
:  Most of the affidavits were
not, so the complications werent there.

[16]

SOUTHIN, J.A.
: No, so the significance
of what happened at Dunbars
trial was not known to Madam Justice Huddart.

[17]

MR. SMART
:  So the question was: should
everybody convene for five matters before one panel or should the two that
still werent ready to proceed, be dealt with in advance?  That was the issue
for her.  In fairness to Madam Justice Huddart, it wasnt quite as it now
appears from the affidavits.

[18]

I
      wonder if I could just add something.  I dont think Madam Justice
Huddart had any material before her but for the notices of appeal that Mr.
Sweeney filed.  So I dont think she had any of the affidavits.

[19]

SOUTHIN, J.A.
:  No, she did not.

[20]

ESSON, J.A.
:  We will add in relation to
Mr. Goldbergs first application that, as I said, we are doing nothing other
than doing nothing to disturb the direction given by Madam Justice Huddart on
that day.  That does not imply that it is a decision of this panel that that
direction should remain in effect and could not be the subject of further
consideration which might be on an administrative basis through the Registry or
the Chief Justice, or by a hearing in chambers.  We are also of the view that
given the complexity of this matter there should be management and we will
indicate that to the Chief Justice.

[21]

We
      are not in a position to make any direction to that effect.  With
those additional remarks that concludes this hearing.

The Honourable Mr. Justice Esson

CORRECTION: February
  5, 2003

In the
Style of Cause Court of Appeal No. CA027457 should be CA029457


Citation:

R. v. Silbernagel

Date:
20030109

2003 BCCA 33

Docket:

CA29095

Registry:
Vancouver

COURT OF APPEAL
  FOR BRITISH COLUMBIA

ORAL REASONS FOR JUDGMENT

Before:

The Honourable Mr. Justice Esson

January 9, 2003

The Honourable Madam Justice Southin

The Honourable Mr. Justice Hollinrake

Vancouver
, B.C.

BETWEEN:

REGINA

RESPONDENT

AND:

LEONARD MICHAEL SILBERNAGEL

APPELLANT

M. Tammen

appearing
  for the Appellant

W. Rubin

appearing
  for the Respondent

[1]

ESSON, J.A.
:
Having heard the very able submissions of Mr. Tammen for the appellant, we are
all of the view that no error has been established which would justify this
Court in interfering with the decision of the trial judge.

[2]

I would dismiss the appeal.

[3]

SOUTHIN, J.A.
: I
agree.

[4]

HOLLINRAKE, J.A.
:
I agree.

[5]

ESSON, J.A.
: The
appeal is dismissed.

The Honourable Mr. Justice Esson


Citation:

Farley v. Pearlson

Date:
20030110

2003 BCCA 37

Docket:

CA028933

Registry:  Vancouver

COURT OF APPEAL
  FOR BRITISH COLUMBIA

ORAL REASONS FOR JUDGMENT

Before:

The Honourable Madam Justice Huddart

January 10, 2003

The Honourable Mr. Justice Mackenzie

The Honourable Mr. Justice Thackray

Vancouver,
        B.C.

BETWEEN:

LUCINE TERESA FARLEY, Administratix

And Trustee of the Last Will and Testament of

COLIN HENRY PEARLSON, Deceased

RESPONDENT

(PLAINTIFF)

AND:

JACQUELINE JUNE PEARLSON

APPELLANT

(DEFENDANT)

H.S. McLellan

appearing
  for the Appellant

W.G. MacLeod

appearing
  for the Respondent

[1]

HUDDART, J.A.
:
  This is an appeal from an order of Mr. Justice Ralph made following a trial,
  that a
  joint tenancy on land on Denman Island had been severed prior
  to the death of one of the registered owners, and that the land was held in
  tenancy in common.

[2]

Despite a stellar effort by counsel on behalf of
  the former wife of one of the former joint tenants of the property, we have
  not been persuaded that the trial judge erred in reaching the conclusion that
  these
  parties agreed to sever the joint tenancy in 1977.  There was evidence to
  support his finding. In these circumstances it is not necessary for us to
  consider the interesting submissions counsel made in this case and about the
  reach and meaning of the decision in
Williams v. Hensman
, [1861]
  1 J. & H. 546, generally thought to be the leading case on the subject.

[3]

The appeal is dismissed.

[4]

MACKENZIE, J.A.
:
  I agree.

[5]

THACKRAY, J.A.
: I
  agree.

The Honourable Madam Justice Huddart


Citation:

R.
          v. Nguyen

Date:
20030110

2003
          BCCA 13

Docket:

CA028961

COURT
          OF APPEAL FOR BRITISH COLUMBIA

BETWEEN:

REGINA

RESPONDENT

AND:

AN NGUYEN

APPELLANT

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Madam Justice Newbury

The
          Honourable Mr. Justice Hall

S.
          Goldberg

Counsel
          for the Appellant

J.
          Duncan

Counsel
          for the Respondent

Place
          and Date of Hearing:

Vancouver,
          British Columbia

5 November 2002

Place
          and Date of Judgment:

Vancouver,
          British Columbia

10 January 2003

Written
    Reasons by:

The
    Honourable Mr. Justice Hall

Concurred
    in by:

The
    Honourable Chief Justice Finch

The
    Honourable Madam Justice Newbury

Reasons for Judgment of the Honourable
    Mr. Justice Hall:

[1]

The appellant, Nguyen, was convicted on February 28, 2001 of the manslaughter
    of Quyet Van Dong.  The appellant and Dong were known to each other. They
    had spent some time drinking together at the apartment of an acquaintance
    that lived in the same housing complex occupied by the appellant and his wife.
    The lady who occupied the apartment where the two men had been drinking said
    that the appellant was a friend of her husband and that he was often at their
    apartment to visit her husband.  She testified that on the evening in question
    the deceased had come to the apartment in the company of the appellant.

[2]

The deceased left the upstairs apartment where various individuals
    were drinking and apparently went downstairs to the apartment of the appellant.
    Some fifteen or twenty minutes later, the appellant returned to his apartment.
    In his testimony, the appellant said he had several beers before he left the
    upstairs apartment.  In his testimony, he described what happened as follows:

THE
    ACCUSED:  After a while, I heard my wife screaming downstair.  I left by the
    backdoor to go downstair.  I opened the door.  I saw Mr. Quyet assaulting
    my wife.  He was holding on to my wife's head around the neck.  I asked him
    what happened.  He told me, "Fuck you.  What are you going to do about
    it?"  Then he lunged at me and we fought.  He tried to grab the knife.
    I pushed him away.  I took hold the knife but he lunged back at me and tried
    to beat me up again.  I stopped him.  I needed to protect my wife and kid,
    myself and my whole.  I had no intention of killing him.  I beg you to judge
    me on that basis.

THE
    COURT:    I'm sorry?

THE
    ACCUSED:  I beg you to judge me on that basis.  He fell down to the floor,
    He crawled to the door.  I went after him.  I was afraid that he would go
    after my wife and kid and try to kill them.  When I went out the door, I saw
    my wife was screaming for help, for the neighbours to help.  I wait there.
    I waited there where he was lying on the ground and the neighbours called
    9-1-1.  After the officer came, I gave the knife to the officers and I surrendered
    myself.

[3]

Police officers gave evidence of being summoned at about 11:00 p.m.
    to the area of the apartment on Fleming Street in Vancouver.  When the police
    got to the scene, they could hear yelling at the rear of the residence and
    when they arrived at the rear of the premises they found the appellant standing
    there with a knife in his hand.  The appellant was instructed to drop the
    knife, which he did, and he was then handcuffed.  The deceased was lying on
    the ground in a pool of blood with apparent stab wounds.  Also present at
    the scene were the wife and child of the appellant.  One item found by the
    police in the trousers of the wounded man was a key that opened the door of
    the appellant's apartment.  It appears from the evidence that the deceased
    was relatively friendly with the family of the appellant and would from time
    to time be at his apartment.

[4]

After the appellant was given a
Charter
warning, he gave
    the police a general account of what had happened.  What he told the police
    generally tracked that portion of evidence I have quoted above.  He said he
    had been drinking upstairs and that his wife had been downstairs with their
    baby.  He heard his wife call out and when he got to his apartment, a fight
    ensued between himself and the deceased.  The appellant admitted stabbing
    the deceased who he said crawled outside to the location where the police
    found him on their arrival at the scene.

[5]

The pathologist who performed the autopsy said that the cause of the
    death of Dong was blood loss occasioned by the stab wounds.  The pathologist
    noted four stab wounds, being one in the back, two in the arm area and a large
    one in the left groin area of the deceased.  The stab wounds to the back and
    to the groin area were significant wounds.  During the autopsy the pathologist
    also noted bruising in the area of the victim's upper right thigh and below
    his right knee, possibly indicative of contact with an object such as the
    toe of a shoe.  The pathologist testified that the victim had a congenital
    deformity to his right hand, which hand appeared somewhat claw-like.

[6]

In his evidence, the appellant said that he had known the victim for
    about three months, having met him in a restaurant in Vancouver.  It appears
    that both the victim and the wife of the appellant were from the northern
    part of Vietnam and therefore the appellant had invited the victim home to
    meet his wife.  The appellant did not know why the victim would possess a
    key to his house but he did note that he had lost a set of keys about a month
    before this incident.  As he described events, he said that when he came into
    the apartment he saw the deceased holding his wife against a sofa and he said
    that the collar of her shirt was somehow disarranged.  The circumstances could
    be suggestive of a possible sexual assault in progress.  The appellant said
    that he thereafter got into a struggle with the deceased and that this struggle
    moved to the kitchen area.  The appellant said that the deceased tried to
    grab a knife from the counter but the appellant got hold of it first and as
    the deceased came at him, he stabbed him.  He claimed he was, throughout the
    incident, defending himself and his wife and child.  He could give no specific
    explanation as to how the deceased received the stab wound in the back.

[7]

It can be seen from the above narrative that there is no issue but
    that the appellant caused the death of the deceased.  The sole issue at trial
    was whether or not his plea of self-defence, either under the provisions of
    s. 34 or s. 37 of the
Criminal Code
could furnish a defence
    to the crime of homicide with which he was charged.  Defence counsel suggested
    to the jury that the appellant should be able to avail himself either of the
    defence of self-defence or the defence of his wife from the assault or assaults
    of the deceased.  Crown counsel suggested in argument to the jury that the
    appellant had acted beyond the bounds of legitimate self-defence.  Counsel
    pointed out that it is not permissible to stab one simply because you are
    angry with the person or because you want revenge.  The defence sought a verdict
    of acquittal and the Crown argued for a verdict of manslaughter as charged.
    Thereafter, the judge gave his instructions to the jury and they retired to
    consider their verdict.

[8]

In the course of their deliberations, the jury submitted two questions
    as follows:

1.
    Scenario of couch scene initial confrontation of accused with the victim from
    the time @ the couch to the fight in the kitchen. Tape or transcript requested
    of the accused of the scenario above.

2.
    Judge's interpretation of "excessive force" under the following
    scenario:

In a scenario where a person in his own home, holding a knife is provoked,
    kicks an intruder for the intruder to back off, but the intruder continuously
    pushes forward provoking, if the normal reaction of the person holding the
    knife is to react by stabbing the intruder more than once, in one reaction,
    is this reaction considered
excessive force
?

[9]

The judge, in response to the queries, arranged to have a portion of
    evidence played back for the jury and, after discussing the matter with counsel,
    the judge then gave further instructions to the jury.  Counsel for the appellant
    submitted to the judge that he could not really answer the second question
    in that this issue was up to the jury to decide whether the force used by
    the appellant was justifiable.

[10]

The
    judge, in his additional instruction, pointed out to the jury that this question
    of excessive force was essentially a question for them to resolve.  The judge
    also reminded the jury that he had instructed them about what force was justifiable
    under s. 37 of the
Code
, namely, "no more than necessary
    force" and he told them that they were required to decide whether the
    stabbing of the deceased by the appellant was no more force than was necessary
    to prevent the deceased assaulting or continuing an assault on the appellant
    or on his wife.  The judge in reinstructing the jury said amongst other things
    the following:

But
    we are not dealing with such trivial little matters here.  We are not dealing
    with a slight push causing someone to fall down and crack his skull.
We
    are talking about a man being stabbed with a knife four times, two of them
    serious, deep wounds
.

And
    I read this to you:

You
    should use your common sense when you consider whether or not the force used
    by the accused on the victim, that is, the stabbing, was no more than necessary.
    Keep in mind that a person does not usually have time for calm deliberation
    in the face of an assault that is true.   (As one distinguished judge said,
    detached reflection cannot be demanded in the presence of an uplifted knife.)

Now, what the judge was talking about there is the aggressor was coming at
    the man with the knife and you could not put the reactions of the person who
    did not have the knife, you could not put his reactions under a nice magnifying
    glass because, in the heat of the battle, you cannot expect him to do nice,
    precise calm things.
But that is not the case here
.

The judge said a person under assault cannot be expected to weigh, with nicety,
    the exact measure of force that is necessary to defend himself.  That is true,
    but in this case, we are dealing with this case and no other case and you
    have to make the findings of fact.  But if you accept that Mr. Dong was lunging
    or coming at the accused, then, as I say, you have the accused standing there
    with the knife and you have Mr. Dong standing there with one arm and no weapon.
    You have to decide is one tit-for-tat, is the force used, the stabbing, proportionate
    to the harm or potential harm he might have expected to have received from
    Mr. Dong.

I said to you that you should consider the following evidence when deciding
    whether you believe or not, or are left with a reasonable doubt that the accused
    did not use more force than was necessary to defence himself.  I referred
    you to the following matters as some of the factors you should consider.

Mr. Dong was no longer assaulting the accused's wife.  The accused had been
    able to repel Mr. Dong earlier on without any apparent injury and also to
    prevent him from grabbing the knife, according to his testimony.  Mr. Dong
    did not have a weapon.  Mr. Dong had the use of only one hand.  Mr. Dong was
    stabled four separate times.  Two of the stabs were forceful enough on their
    own to have been fatal, the one in the back and the one in the groin, very
    deep thrusts of the knife.  Mr. Dong was stabbed in the back on one occasion.
    There was no evidence of any other fighting injuries to Mr. Dong, save to
    the two minor kick marks.  There was little evidence of injury to the accused
    from the fierce fight described by the accused, a fight that he, in effect,
    says put him in fear for his life, in fear for his wife's life and in fear
    for his child's life.  There is really no physical evidence before you of
    the serious assault on the accused other than what he tells you.

(emphasis
    added)

[11]

A
    number of objections were raised to the charge by the appellant in this Court,
    including an argument that the statements of the appellant to police had been
    improperly admitted and that the trial judge should have given a charge to
    the jury about a person (like the appellant), being in peaceable possession
    of real property and acting to repel an intruder, (s. 41 of the
Criminal
    Code
).  In my opinion, there is nothing in either of those arguments.
    The police properly warned the appellant about his rights.  There was no denial
    of his right to counsel.  In any event, what the appellant said to the police
    after his arrest tracked pretty exactly what he said in his evidence at trial.
    With regard to the submission that the trial judge should have given a charge
    to the jury about the provisions of s. 41, I do not consider that such an
    instruction would have had any capacity to add anything to the instructions
    already given on s. 34 and particularly s. 37.  Therefore, I see no substance
    in this submission on alleged non-direction.

[12]

The
    real difficulty in this case arises from the language used in the recharge.
    Just before he gave the quoted portion of the recharge above, the judge had
    said to the jury, "Common sense is, is it a fair fight between the two
    of them?  One man has one hand, the other has two hands and a knife, but those
    are factors."  In the course of his reinstructions, he also said, "You
    have the accused standing there with the knife and you have Mr. Dong standing
    there with one arm and no weapon.  You have to decide is one tit-for-tat,
    is the force used, the stabbing, proportionate to the harm or potential harm
    he might have expected to have received from Mr. Dong."

[13]

With
    respect, it seems to me that those two passages are a species of misdirection.
    The essential question for resolution was whether the jury was left in a state
    of reasonable doubt as to whether or not the appellant in his actions at the
    apartment in stabbing the deceased could bring his actions within the parameters
    of the defences afforded under
Code
ss. 34 and 37.  To
    introduce concepts such as a "fair fight" and "tit-for-tat"
    into the deliberations of the jury, in my respectful view, had the capacity
    to mislead the jury and to divert their attention from what had to be the
    main focus of their task, namely, construing the provisions of sections 34
    and 37 in the context of the facts they found based on the evidence in this
    case.

[14]

Having
    regard to the serious injuries inflicted here, it seems to me that there was
    cogency in the argument of Crown counsel that the force used by the appellant
    was excessive.  A properly instructed jury might well conclude the force used
    was excessive.  However, the essential question in these cases always is,
    what was the perception of events by the accused and was he justified in the
    measures taken to defend himself or those under his protection?  I believe
    the words I have noted that were employed in the additional instructions would
    have the capacity to water down the defences being advanced on the part of
    the appellant.  The result is that the jury may have considered this case
    on an erroneous legal basis because of misdirection in the further instructions
    given by the judge in response to the question of the jury.

[15]

Counsel
    for the Crown respondent urges us to apply the curative provision if misdirection
    should be found.  While, as I have observed, this was a reasonably strong
    case, I do not consider that in the particular circumstances of this case,
    the verdict would necessarily have been the same absent what I have found
    to be misdirection.  In those circumstances, I would not accede to the submission
    that we ought to apply the curative provision.  Since I have concluded that
    there was material misdirection that could have affected the verdict, I would
    allow this appeal and order a new trial.

The
    Honourable Mr. Justice Hall

I AGREE:

The Honourable Chief
    Justice Finch

I AGREE:

The Honourable Madam
    Justice Newbury