COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

J.
                Michael Jensen Boat Sales Ltd. v. McAfee,

2004 BCCA
            48

Date: 20040122

Docket: CA029715

Between:

J. Michael
      Jensen Boat Sales Ltd.

Respondent

(
Plaintiff
)

And

Roger McAfee,
      Edward Belzberg and
Jayberg Enterprises

Appellants

(
Defendants
)

Before:

The Honourable
            Mr. Justice Braidwood

The Honourable
            Madam Justice Levine

The Honourable
            Mr. Justice Smith

Oral Reasons for Judgment

G. Power

Counsel for the Appellant

G. Dureault

Counsel for the Respondent

Place and
            Date:

Vancouver, British Columbia

January 22, 2004

[1]

BRAIDWOOD,
          J.A.
: The appellants appeal from a decision of
          the Honourable Mr. Justice Lowry granting judgment against the them for
          (US)$95,000 based on a finding of intentional interference with the contractual
          relations of the parties arising out of the interference with the sale
        of the motor vessel.

[2]

The
        appellants, in their written material, raise a number of grounds of appeal,
      namely, that the learned trial judge erred:

1.    in refusing
        to consider the legal effect of a Release filed as an exhibit at the
      trial;

2.    in not
      permitting the pleadings to be amended to include the defence of estoppel;

3.    in admitting
        transcript evidence of a proceeding in a foreign jurisdiction without
      first determining if such evidence was either necessary or relevant;

4.    in making
      findings of fact not supported by admissible evidence;

5.    in fixing
        liability on points of law not plead, not argued at trial and not supported
      by evidence adduced at trial;

6.    in law
        in not adequately addressing the issue of damages and the evidence required
        to find such damage, given the onus of proof required of the plaintiff;
      and

7.    in arriving at a decision that was against the
      evidence and the weight of the evidence.

[3]

The
      respondent sets out the grounds of appeal as follows:

1.    Should
        this Court interfere with the discretionary decision of the learned judge
        in refusing, in the absence of such an application being put forward, to
        permit the defendants pleadings to be amended in support of an argument
        of estoppel raised at the conclusion of the trial of this matter.  If
        so, did such exercise of judicial discretion prevent the fair consideration
        by the court below of all issues going to the merits of this matter;
        and

2.    Did the learned judge err in law or fact when
        he decided this matter to be a clear case of there having been an intentional
        interference with contractual relations that gives rise to liability
      on the part of each appellant.

[4]

I
        am of the opinion there is no merit to the first two grounds of appeal
        as advanced in the factum of the appellants.  The trial judge neither
        restricted cross-examination on the release to which the appellants were
        not parties
        nor did he restrict the appellants from applying to amend the pleadings
      to claim estoppel.

[5]

During
        the opening statements at trial, the Court gave the following invitation
      to the appellants:

. . . I mean the point is that you want to argue about an estoppel.  I
        wouldnt have thought that you would argue at the beginning of a trial
        and that you would argue at the end.  I dont think you can argue it at
        all unless it has been pleaded.  Now, I think you have to consider your
        position . . . I would have thought that is the end of it unless there
        is an application to amend and then we have to consider what flows from
      there.

The appellants ignored this invitation and no application
      was made at any time during the trial.

[6]

The
        release would be irrelevant in any event because the applicants are not
        parties.  Further, it could not be considered unless the pleadings were
        amended to advance the defence of estoppel.  It would be unjust to allow
      the amendment now.

[7]

The
      balance of the grounds of appeal were not advanced before us.

[8]

Accordingly,
        based on the above reasons I am of the opinion that this appeal should
      be dismissed.

[9]

LEVINE,
        J.A.
: I agree.

[10]

SMITH,
        J.A.
: I agree.

The Honourable
      Mr. Justice Braidwood


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

R.
                v. Essiambre,

2004 BCCA
            47

Date: 20040122

Docket: CA030021

Between:

Regina

Respondent

And

Ronald
      Wayne Essiambre

Appellant

Before:

The Honourable
            Mr. Justice Braidwood

The Honourable
            Madam Justice Levine

The Honourable
            Mr. Justice Smith

Oral Reasons for Judgment

D. Turko

Counsel for the Appellant

C. Deedman

Counsel for the (Crown) Respondent

Place and
            Date:

Vancouver, British Columbia

January 22, 2004

[1]

SMITH,
          J.A.
: The appellant appeals from his conviction
          for breaking and entering entered following a trial before Mr. Justice
        Hutchison and a jury.

[2]

His
        first point is that the trial judge erred in his instruction to the jury
        on the doctrine of recent possession.  I understood counsel during the
        course of submissions to concede that there was no error in the charge
        on recent possession.  In the event that I misunderstood counsels position
        I am satisfied that the trial judge made no error.  He charged on recent
        possession.  He subsequently recharged at the request of defence counsel
        in order to give a more expansive discussion of the appellants explanation
        for the possession and counsel expressed contentment with the re-charge.  Further,
        when the jury asked for clarification of the doctrine of recent possession
        with the agreement of counsel he instructed the jury in accordance with
      the suggested charge in CRIMJI.

[3]

In
      my view, he instructed the jury correctly.

[4]

The
        second ground raised by the appellant is that the trial judge usurped the
        jurys function by telling the jury that the possession was extremely
      recent.

[5]

I
        cannot agree.  First, this was merely an expression of opinion by the trial
        judge, not a finding of fact.  The trial judge made it abundantly clear
        to the jury that questions of fact were for them to decide and that they
        were not to be bound by his opinions or by those of counsel.  Further,
        on the evidence, his characterization of the possession as extremely recent
        was accurate.  Moreover, defence counsel accepted that the possession was
        recent and, indeed, described it as recent in his address to the jury.  Recency
        was simply not a live issue.  The issue for the jury, as the case was presented,
        was whether the appellants explanation raised a reasonable doubt.  Accordingly,
        I am not persuaded that the trial judge erred by usurping the jurys
      function.

[6]

The
        next ground raised by the appellant is that trial judge erred by failing
        to tell the jury that, when considering the accuseds explanation, they
        should also consider questions such as the opportunity for transfer of
        the property to the accused, the ease of transfer of the property and
      such similar questions which relate to whether the explanation might reasonably
      be true.

[7]

The
        accused testified and gave his explanation of how he obtained the property.  This
        was part of his explanation for the possession which the trial judge correctly
        told the jury that they must consider and to determine whether it might
        reasonably be true.  I am not persuaded that he committed any error as
      counsel has alleged.

[8]

Finally,
        the appellant contends that the jurys rejection of his explanation was
        unreasonable.  I see no merit in this submission.  There was an overwhelming
        body of evidence implicating the appellant in the crime, which the jury
        was entitled to accept.  Further, it is obvious that, on considering the
        accuseds explanation, they did not conclude that it might reasonably be
        true.  This conclusion was reached, at least in part, on findings based
        on credibility which are entirely within the province of the jury.  I
      would reject this ground of appeal as well.

[9]

In
      the result, I would dismiss the appeal.

[10]

BRAIDWOOD,
        J.A.
: I agree.

[11]

LEVINE,
        J.A.
: I agree.

The Honourable Mr. Justice Smith