COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Marchi v. Nelson (City of),

2020 BCCA 1

Date: 20200102

Docket: CA45997

Between:

Taryn Joy Marchi

Appellant

(Plaintiff)

And

City of Nelson

Respondent

(Defendant)

Before:

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Fitch

The Honourable Mr. Justice Hunter

On appeal from:  An
order of the Supreme Court of British Columbia, dated
March 8, 2019 (
Marchi v. Nelson (City of)
, 2019 BCSC 308,
Rossland Docket S12245).

Counsel for the Appellant:

D. Grunder
D.K. Daroux

Counsel for the Respondent:

D.L. Romanick
G. Allen

Place and Date of Hearing:

Vancouver, British
  Columbia

November 12, 2019

Place and Date of Judgment:

Vancouver, British
  Columbia

January 2, 2020

Written Reasons by:

The Honourable Mr. Justice Willcock

Concurred in by:

The Honourable Mr. Justice Fitch

The Honourable Mr. Justice Hunter

Summary:

The appellant suffered an
injury she attributed to inadequate clearing of snow by the respondent
municipality. Her action for damages was dismissed. The trial judge accepted
the respondents submission that it owed no duty of care to the appellant
because its decisions with respect to snow removal were bona fide policy
decisions. He alternatively found that, if the decisions were operational in
nature, negligence was not made out under the standard tort analysis, in part
because the appellant was the author of her own misfortune. Held: Appeal
allowed. It was an error to accept the respondents characterization of its
impugned conduct without engaging in the analysis called for by Just v. British
Columbia, [1989] 2 S.C.R. 1228 and to characterize the
appellants conduct as the proximate cause of her injury, contrary to the
approach embodied in s. 8 of the Negligence Act, R.S.B.C. 1996,
c. 333.

Reasons for Judgment of the Honourable
Mr. Justice Willcock:

[1]

The appellants action against the respondent, the City of Nelson, for
damages arising out of a serious injury she sustained when she fell in a
snowbank on Baker Street was dismissed for reasons indexed as
2019 BCSC 308.

[2]

She appeals that decision, arguing:

a)

the trial judge made factual errors: holding that all witnesses who
testified about the practices and standard of care were called by the
appellant, when that was not the case; finding that the practice employed in a
comparable community was irrelevant based on a misapprehension of the
circumstances in that community; and finding the City had exceeded its snow
clearing budget in the three years before the incident when that was not the
case;

b)

the trial judge erred in law by providing functionally insufficient
reasons for judgment, substantially reproducing large portions of the
respondents submissions (40 of 46 paragraphs of the judgment reproduce the
respondents written submissions); and misstating and failing to consider the
appellants argument at trial or the jurisprudence referred to by the
appellant;

c)

the trial judge erred in law by failing to distinguish between policy
and operational decisions and failing to consider and establish an appropriate
standard of care; and

d)

the trial judge
erred in law in finding the plaintiff was the author of her own misfortune and
failing to properly address the plaintiffs negligence as contributory rather
than a complete defence.

[3]

For reasons set out below, I am of the view the trial judge erred in the
manner in which he addressed the Citys duty of care, the standard of care and
the appellants own negligence. In my view, it is not necessary to address
misapprehensions of the evidence or the purported inadequacy of the reasons for
judgment. I would order a new trial.

[4]

The appellants claim was founded upon an allegation that the City
created a hazard when it cleared snow on the downtown streets following a heavy
snowfall overnight on January 45, 2015. The city work crews plowed
the snow on the 300 block of Baker Street early in the morning on
January 5. They did so in such a manner as to create snowbanks or windrows
at the edge of the street along the sidewalk. At about 5 PM on January 6,
the appellant parked in an angled spot on the street and, seeing no other means
of getting onto the sidewalk, tried to cross the snowbank. As she did so, her
right foot dropped through the snowbank and onto something that bent her
forefoot up. The snow locked her leg in place. She fell forward, suffering
serious injury to her leg.

[5]

The appellant contended the City should have left openings in the
snowbanks to permit safe access from the street onto the sidewalk. She relied
upon evidence of the practices in neighbouring municipalities, Castlegar,
Rossland and Penticton, to establish there were reasonable and preferable ways
to clear the streets so as to ensure safe access onto the sidewalks. Her
complaint related not to the Citys priorities or budget decisions but, rather,
to the manner in which its work crews dealt with the accumulation of snow,
given the available resources.

[6]

The judge described the contest at trial as follows:

[2]

The
only issue to be determined is liability. The parties have agreed on damages. The
position of the City of Nelson (the City) is that it did not owe the
plaintiff a duty of care in the circumstances. This is because the decision [
sic
]
respecting plowing and removal of snow and snowbanks on Baker Street were
bona
fide
policy decisions and as such the City owed no duty of care.

[3]

Governments do not
owe a duty of care in tort if it can be established that their actions are
bona
fide
.  [Emphasis added].

[7]

The highlighted portion of this quotation is not an accurate description
of the law. The trial judge appears to have adopted the submission of the City
but abridged it in a manner that omits the crucial reference to the insulation
of
policy decisions
, in particular, from judicial scrutiny. The City had
submitted: Governments (including local governments) do not owe a duty of care
in tort if it can be established that the governments actions (or omissions)
are a result of
bona fide
policy decisions
 (emphasis
added).

[8]

The reasons for judgment are, in my view, marked by a failure to
identify the types of governmental decisions that should be insulated from
judicial scrutiny.

[9]

The trial judge began by referring to the Citys Streets and Sidewalks
Snow Clearing and Removal Policy which sets out the priorities and the
procedure for plowing, sanding and clearing city streets. That policy says
nothing about whether windrows should be left along the edge of sidewalks or
whether the street clearing crews should create any means of access from the
street to the sidewalk in the downtown shopping area.

[10]

The judge noted, in a passage taken verbatim from the respondents
submissions, (submissions at para. 20, reasons for judgment at para. 5):

[5]         In addition to the written policy there are
unwritten policies and policy decisions respecting snow removal. The relevant
ones are:

a)

When
the City experiences a snow event, it follows the street plowing, sanding, and
clearing priorities first, as set out in the written policy.

b)

In
addition to the street plowing, sanding, and clearing priorities, the City also
has employees out plowing, sanding and removing snow from the designated
sidewalk route, as outlined in the route map appended to the written policy.
These are collector sidewalks that bring people through town so that you can
walk from one end of town to the other. The City also clears sidewalks in front
of City Hall, and other City owned properties.

c)

City
crews address the various stairs located in the City, with the focus first
being on the downtown core. They will also address crosswalks, sidewalk
letdowns, key bus stops and handicapped parking stalls.

d)

When
removing snow from the downtown core, crews first push snow into piles in the
parking spots and then haul it out of downtown.

e)

Snow
removal (i.e. the removal of snowbanks) in the downtown core starts at the 400
block of Baker Street, where the main bus stop is located, and proceeds towards
Hendryx Street (eastwards), following the bus route.

f)

The
focus on snow removal/hauling in the downtown core is on Baker Street; however,
when the downtown core starts to get busy with vehicle traffic and pedestrians
(typically around 11:00 a.m.), to ensure safety, the City workers will move to
removing/hauling snow from other areas, such as the civic centre, the clinic,
the fire hall, the police station, and around schools, and return to Baker
Street as soon as possible.

g)

The
City does not remove/haul snow from the downtown core overnight due to noise
complaints received in the past, as well as the cost of overtime.

h)

Inspections are undertaken
by Ms. MacDonald [the Citys Works Superintendent], who completes road
patrol throughout the day to ensure the streets are safe, and crews are working
in a timely and efficient manner. Once Ms. MacDonald leaves for the day,
the lead hand will take over the task of road patrol.

[11]

The judge then paraphrased paras. 3637 of the respondents
submissions:

[7]

The policy decisions
made by the City were
bona fide
, according to the City. The decisions
could not be characterized as made in bad faith or so irrational as not to be a
proper exercise of discretion. These decisions were governed by factors
including budgetary social and economic factors, which included the
availability of manpower and equipment.

[12]

Finally, he held, adopting wording in paras. 52, 54 and 55 of the
respondents submissions:

[14]

The
Citys actions were the result of policy decisions. The City made policy
decisions about the sequence in which it clears snow from its roadways. They
are dictated by the availability of manpower, and resources.

[15]

The
City followed its policy decisions. The City could not remove the windrows from
downtown without creating a dangerous situation on the tops of the steep and
snowy streets in Nelson in the winter as it would mean diverting equipment from
plowing and clearing in favour of removing snow from downtown.

[16]

According to the City, it
owed no duty of care in the circumstances.

[13]

The distinction between governmental policy and operational decisions is
subtle. In my view it was an error to simply accept the Citys submissions that
all decisions made with respect to snow removal, whether made by the City
Council, the Works Superintendent or the street crews, were policy decisions.

[14]

As the Supreme Court of Canada noted in
Just v. British Columbia
,
[1989] 2 S.C.R. 1228 (per Cory J., for the majority at 1239):

The functions of government and government
agencies have multiplied enormously in this century. Often government
agencies were and continue to be the best suited entities and indeed the only
organizations which could protect the public in the diverse and difficult
situations arising in so many fields. They may encompass such matters as
the manufacture and distribution of food and drug products, energy production,
environmental protection, transportation and tourism, fire prevention and
building developments. The increasing complexities of life involve
agencies of government in almost every aspect of daily living. Over the
passage of time the increased government activities gave rise to incidents that
would have led to tortious liability if they had occurred between private
citizens. The early governmental immunity from tortious liability became
intolerable. This led to the enactment of legislation which in general
imposed liability on the Crown for its acts as though it were a person. However,
the Crown is not a person and must be free to govern and make true policy
decisions without becoming subject to tort liability as a result of those
decisions.
On the other hand, complete Crown immunity should not be
restored by having every government decision designated as one of
"policy". Thus the dilemma giving rise to the continuing
judicial struggle to differentiate between "policy" and
"operation".
Particularly difficult decisions will arise in
situations where governmental inspections may be expected.

The dividing line between "policy"
and "operation" is difficult to fix, yet it is essential that it be
done
.

[Emphasis added.]

[15]

Cory J., at 1241,
drew some assistance from the following passage from the judgment of Mason J.
in the High Court of
Australia decision,
Sutherland Shire Council v. Heyman

(1985),
60 A.L.R. 1 at
3435
, in identifying the criteria
to which reference may be made in drawing the critical
distinction:

The distinction
between policy and operational factors is not easy to formulate, but the
dividing line between them will be observed if we recognize that
a public
authority is under no duty of care in relation to decisions which involve or
are dictated by financial, economic, social or political factors or constraints
.
Thus budgetary allocations and the constraints which they entail in terms of
allocation of resources cannot be made the subject of a duty of care.
But it
may be otherwise when the courts are called upon to apply a standard of care to
action or inaction that is merely the product of administrative direction,
expert or professional opinion, technical standards or general standards of
reasonableness
. [Emphasis added by Cory J.]

[16]

Cory J. concluded:

The duty of care
should apply to a public authority unless there is a valid basis for its
exclusion. A true policy decision undertaken by a government agency constitutes
such a valid basis for exclusion. What constitutes a policy decision may vary
infinitely and may be made at different levels although usually at a high
level.

[17]

The appellant relies upon a passage from The Honourable Allen M. Linden,
Tort Liability of Governments for Negligence (1995) 53:4 The Advocate 539,
to the effect that immunity should cover only narrowly defined government
activity:

Such activity is normally
concerned with large issues (macro decisions, if you will), not routine items
(micro decisions).

[18]

The appellant submits:

It would be unreasonable to call
in particular the decision taken by the lead hand on the evening of January 5, 2015
a policy decision. The evidence of [Ms. McDonald] is that the city can
have the evening crew stay until [4 AM] after a snow event. She explained that
the decision not to keep the crew that evening to do further snow clearing was
made by the lead hand. Clearly, that was a discretionary operational decision
and not a policy one.

[19]

Further, the appellant argued, relying on the evidence of practices in
other municipalities, that there were methods of clearing snow that were simple
and inexpensive that might have been adopted in Nelson by
administrative
direction and that would have satisfied the standard of reasonableness
without requiring any change in the Citys policies as
dictated
by financial, economic, social or political factors or constraints.

[20]

Certain of the impugned decisions of the street clearing crew may
properly have been characterized as operational in nature. Arguably, the
decision not to further extend the hours of snow clearing and the decision not
to move snow into particular parking spots, leaving access to the sidewalk open
in other areas along the street, were operational. In my view, it was an error
on the part of the trial judge to accept the Citys submission that all its
snow removal decisions were policy decisions without engaging in the analysis
called for by
Just
.

[21]

After concluding that the City owed no duty of care to the appellant,
the trial judge went on to consider whether, if he was wrong, and the City did
not have a policy defence, it would be liable if its conduct were subjected to
the standard tort analysis.

[22]

That analysis by the judge, in my opinion, is equally flawed. The trial
judge erroneously believed the appellant called three witnesses, from the works
departments of Castlegar, Rossland and Penticton, who occupied positions
similar to the Citys Works Superintendent. In fact, two of those witnesses
were called by the respondent. The appellant sought, in part through
cross-examination, to establish a standard of care in the manner described by
David G. Boghosian in
The Law of Municipal
Liability in Canada,
at para. 2.96, p. 2.54:

Evidence of the practice of
similarly situated municipalities concerning the activity in issue is relevant
in determining the standard of care expected in the circumstances. Proof that a
defendant failed to conform with the custom or practice will raise a strong
presumption of negligence on his or her part whereas conformance with a custom
or practice will usually, although not necessarily, exonerate the defendant.

[23]

The judge considered the evidence that different practices in those
similarly situated municipalities avoided the creation of windrows at the edge
of downtown sidewalks but gave it little weight. He held:

[35]       The most significant difference is that in
Rossland they permit snow to pile up in parking spaces where it can be removed
later.
This did not occur to Ms. MacDonald who said that the way the
snow was removed in Nelson was the way it has always been done.
I have
reviewed the principles of Policy and those set out in
Occupiers Liability
Act
.

[36]

The City
followed its policy. The policy was to clear snow in accordance with long established
practices
. The attempt to compare the practices in Nelson with those of
other places was not very useful. Each of the municipalities faced difficult
conditions.
Nothing in the evidence showed that the policy of the City was
unreasonable or the result of a manifest lack of appreciation for the risks
involved. The policy is rational
. It is very difficult to fault the City on
a policy basis.

[Emphasis added.]

[24]

Thus, even the standard tort analysis was coloured by the trial
judges view that a policy defence was available to the City and that
rationality, rather than reasonableness, was the applicable standard.

[25]

Further, in my view, the trial judge was led into error by accepting the
Citys submission that fault had not been established because the appellant was
aware of the risk presented by the snow bank and was the author of her own
misfortune. Substantially adopting portions of paras. 1434 and 146 of
the respondents submissions, the judge held:

[40]       To establish factual causation the plaintiff
would have to prove that the requisite standard of care was to have removed the
snowbanks on Baker Street to a point between January 5, 2016 (sic) and
January 6, 2015 which was not possible under any standard of care,
short of perfection.

[41]

Beyond this, the City
would also have to be liable for legal causation.
The Citys fault must be
the proximate (or reasonably foreseeable) cause of the accident
. [Emphasis
added.]

[26]

The trial judge accepted (at para. 44) what he described as the
Citys summary of the situation:

Despite clearly seeing the
snowbank, and wearing inappropriate shoes, and having the time to consider
other options, and in fact considering (but ultimately rejecting) other
options, and appreciating the various risks of stepping on the snowbank, and
not doing anything to test whether the snow was indeed compacted and could bear
her weight, the plaintiff took her right foot off the snow patch on which she
was standing (in order to avoid the puddle) and stepped into the snowbank,
ultimately injuring herself
.

[27]

In support of the proposition that the appellants negligence was the
proximate cause of her injury and that afforded the City a defence, the City
and the trial judge relied on two trial decisions:
Robson v. Spencer,
2006 BCSC 1240
and
Wickham v. Cineplex Inc.
, 2014 BCSC 850. The former had
not been cited in any other trial decision before it was relied upon by the
respondent in this case and adopted as authority for the trial judges
analysis. The proximate cause causation analysis in
Robson
is
unnecessary and in my view, for reasons set out below, wrong in principle. The
latter judgment,
Wickham
, is not authority for the proposition for which
it is cited. The trial judge in that case, Sigurdson J., dismissed the
plaintiffs claim because negligence had not been made out. His observation
that the plaintiff was entirely responsible for her injury should be seen in
light of his conclusion that there was no fault on the defendants part:

[
62]

In all of these circumstances, and keeping in mind that the standard is
not one of perfection, I find that even though arguably the defendant might
have acted differently, it took the care that was reasonable to see that a
person using its premises is reasonably safe.

[28]

In my view, it was an error on the part of the trial judge to adopt the
proximate cause analysis urged upon him by the City, for reasons this Court
expressed in
Skinner v. Fu
, 2010 BCCA 321.
In that case, in similar circumstances, Garson J.A. held:

[
18
]

In my view the judge erred in the way he framed the analysis.
Proximate cause or effective cause are sometimes confusing terms.

[
19
]

The use and misuse of the term proximate cause was discussed by Smith
J.A. in
Chambers v. Goertz
, 2009 BCCA 358
at para. 29
:

Proximate cause is
a phrase ill-suited to the task of identifying culpable causes in
negligence
. It implies that the law recognizes only one
cause and that this sole cause must be close in time and space to the event. As
I have explained, these implications are not correct - every event has multiple
historical factual causes. The phrase proximate cause is most often used in
tort law synonymously with remoteness, that is, to inject some degree of
restraint on the potential reach of causation:
R. v. Goldhart
, at para. 36.
It suggests a limit on the scope of liability. There is also a doctrine of
proximate cause in insurance law, where the term has been used to signify the
main or dominant or effective cause of a loss, since the insurer has contracted
to pay for the loss only if, or unless, it was caused by an event specified in
the insurance policy. It must be noted that the term's usefulness in insurance
law has also been questioned: see
C.C.R. Fishing Ltd. v. British Reserve
Insurance Co.
,

[1990]
1 S.C.R. 814
at 823,
69 D.L.R. (4th) 112
,
[1990] 3 W.W.R. 501
;
Derksen v. 539938 Ontario Ltd.
, 2001 SCC 72
,
[2001] 3 S.C.R. 398
at para.
36
,
205 D.L.R. (4th) 1
.

[
20
]

The judges use of the term proximate cause in this case, diverted
the analysis from the correct approach, the but for test. The judge must have
employed a
last clear chance
analysis when he used
the term proximate. That term implies a finding of no liability based on a
determination that the appellant could have entirely avoided the accident if
only he had been more attentive to the road ahead of him. The judge found that
the defendant was
negligent
. Indeed he could hardly
have found otherwise. The respondent did create an unreasonable risk of harm by
remaining stationary in the way he did.

[29]

It follows that it was not open to the judge to treat his finding that
the appellant assumed the risk of crossing the snowbank as dispositive of the
question of the respondents negligence. Such reasoning is clearly precluded by
s. 8 of the
Negligence Act
, R.S.B.C. 1996, c. 333, which
reads:

This
Act applies to all cases where damage is caused or contributed to by the act of
a
person even if another person had the opportunity of avoiding the
consequences of that act and negligently or carelessly failed to do so.
[Emphasis added.]

[30]

For these reasons, in my view, the trial judge did not appropriately
consider and identify the acts or omissions on the part of the City that should
have been subject to judicial scrutiny and he did not correctly apply the
standard tort analysis in relation to any such acts or omissions. I would
allow the appeal, set aside the order dismissing the appellants action and
order a new trial.

The Honourable Mr. Justice
Willcock

I agree:

The Honourable Mr. Justice Fitch

I agree:

The Honourable Mr. Justice Hunter


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Independent Investigations Office of
British Columbia v. Vancouver (City)
Police Department,

2020 BCCA 4

Date: 20200106

Docket: CA45719

Between:

Independent
Investigations Office of British Columbia
(Chief Civilian Director Albert Phipps)

Respondent

(Petitioner)

And

Cst. Mike Bains,
Cst. Spencer Green, Cst. Scott Plummer,
Sgt. Pat Gormley, Cst. Beau Spencer, Cst. Dave Gooderham,
Cst. Thomas Dobranowski

Appellants

(Respondents)

Before:

The Honourable Mr. Justice Harris

The Honourable Madam Justice Dickson

The Honourable Mr. Justice Butler

On appeal from:  An
order of the Supreme Court of British Columbia, dated
October 18, 2018 (
Independent Investigations Office of
British Columbia v. Vancouver (City) Police Department
,
2018 BCSC 1804,
Vancouver Docket S172705).

Counsel for the Appellant:

M.K. Woodall

Counsel for the Respondent:

M.E. Sandford, Q.C.

A. Tolliday

Counsel for the Intervenor,
British Columbia Police Complaint Commissioner:

D.K. Lovett, Q.C.

Place and Date of Hearing:

Vancouver, British
  Columbia

December 2, 2019

Place and Date of Judgment:

Vancouver, British
  Columbia

January 6, 2020

Written Reasons by:

The Honourable Mr. Justice
  Harris

Concurred in by:

The Honourable Madam Justice Dickson

The Honourable Mr. Justice Butler

Summary:

This is an appeal of certain
declarations made by the Supreme Court as a result of considering the meaning
of a police officers duty to cooperate fully with the Independent
Investigations Office when it is investigating a police incident involving
death or serious personal injury. Police officers who were witnesses to a fatal
shooting by the police demanded certain disclosure before submitting to an
interview. Held: Appeal dismissed. The judge did not err in concluding that the
terms of the interview process are to be determined by the Independent
Investigations Office and an attempt by an officer to impose conditions on how
and when the interview will be conducted is inconsistent with the duty to
cooperate fully.

Reasons for Judgment of the Honourable
Mr. Justice Harris:

[1]

The issue on this appeal involves the interpretation of the duty
of police officers to cooperate fully with the Independent Investigations
Office of British Columbia (IIO), a civilian‑lead oversight agency
responsible for conducting investigations into police actions resulting in
death or serious bodily harm. That duty is found in in the
Police Act
,
R.S.B.C. 1996, c. 367 [
PA
].
The IIO is created and governed by Part 7.1 of the
PA
, which
includes the following provision:

38.101    An
officer must
cooperate fully
with

(a)

the chief
civilian director in the chief civilian directors exercise of powers or
performance of duties under this Act, and

(b)

an IIO
investigator in the IIO investigators exercise of powers or performance of
duties under this Act.

[Emphasis added.]

BACKGROUND

[2]

The issue on appeal arises out of an incident on November 10, 2016,
when a man was fatally shot by one of several officers who attended the scene
of a robbery. The IlO began an investigation and the IIO directed the
appellants, each of whom is a member of the Vancouver Police Department (VPD),
to attend for compulsory interviews, as witness officers not subject
officers. This distinction is of some practical significance because the
officers were witnesses to the incident and were not being investigated for
their potential role in causing the death.

[3]

Prior to the interviews, counsel for the appellants asked the IIO for
access to the following contemporaneous records of the incident specific to
each appellant: (a) computer assisted dispatch records that record entries that
the officer made or was able to see during the incident; (b) audio recordings
or transcripts that record oral communications that the officer made or was
able to hear during the incident; (c) incident video that shows events that the
member participated in or observed during the incident. The IIO was not
prepared to provide the witness officers with the requested pre-interview
disclosure, but was prepared to provide some limited materials on the day of
the interview, before the interview. When the IIO refused to provide the
requested disclosure, the appellants declined to be interviewed. Although much
of the record relates to the correspondence passing between the parties, I
accept that the officers request for disclosure was made on the basis of a
good faith belief that they were entitled to the requested disclosure and the
request was intended to be consistent with, and not frustrate, their duty to
cooperate fully with the investigation.

[4]

The IIO brought a petition in the
Supreme Court of British Columbia to compel the appellants to attend the
interviews without the pre‑interview disclosure they requested. That
application succeeded: 2018 BCSC 1804. The judge granted an order in
the nature of
mandamus
requiring the appellants to attend the interviews
and respond in good faith to questions put to them by the IIO. In addition, the
judge made the following declarations:

(a)      the duty on witness
officers to fully co-operate with the IIO under s. 38.101 of the
PA
includes the duty to attend interviews related to IIO investigations as and
when the petitioner directs;

(b)      attendance of witness
officers counsel and union representatives at IIO interviews is at the
discretion of the IIO;

(c)      the providing of
pre-interview disclosure to witness officers is at the discretion of the IIO;
and

(d)      the appellants failed or
refused to comply with their statutory duty under s. 38.101 of the
PA
to co‑operate fully with the IIO.

[5]

The appellants complied with the
mandamus
order and attended the interviews. Any issue arising in connection with
mandamus
is moot, and is not at issue in this appeal. The IIO investigation into the
shooting incident was completed with no charges being brought.

[6]

The appellants appeal only against
the declarations. They seek to quash the declarations, but do not seek any
declarations in substitution from this Court. The issues on appeal are whether
the judge erred:

(a)      by declaring that the duty
on witness officers to fully co-operate with the petitioner includes the duty
to attend interviews related to investigations as and when the petitioner
directs;

(b)      by declaring that providing
pre-interview disclosure to witness officers is at the discretion of the
petitioner; and

(c)      by declaring that the
attendance of witness officers counsel and union representatives at IIO
interviews is at the discretion of the petitioner.

[7]

The interpretative exercise is informed by the history and purpose of
the establishment of the IlO and the powers conferred on it. Contextually
relevant also is that the
PA
provisions are supplemented by a memorandum
of understanding respecting investigations, which was entered into in January 2012
by the IIO and all of the police agencies in British Columbia and executed by
the Chief Constable of the VPD in accordance with his powers under the
PA
.
In addition, the Police Complaint Commissioner (PCC) also plays a role in
investigating complaints into police conduct. The role of the PCC is also
governed by the
PA
. The following provisions, which existed before the
IlO, are relevant to interpreting the section at issue:

101  (1)  A
member must
cooperate fully
with an investigating officer conducting an
investigation under this Part.

(2)  Without
limiting subsection (1), at any time during an investigation under this
Part and as often as the investigating officer considers necessary, the
investigating officer may request a member to do one or more of the following,
and the member must fully comply with the request:

(a)  answer
questions in respect of matters relevant to the investigation and attend at a
place specified by the investigating officer to answer those questions;

(b)

provide
the investigating officer with a written statement in respect of matters
relevant to the investigation;

(c)

maintain
confidentiality with respect to any aspect of an investigation, including the
fact of being questioned under paragraph (a) or being asked to provide a written
statement under paragraph (b).

(3)  A member
requested to attend before an investigating officer must, if so requested by
the investigating officer, confirm in writing that all answers and written
statements provided by the member under subsection (2) are true and
complete.

(4)  Unless the
discipline authority grants an extension under subsection (5), the member
must comply with any request under subsection (2) within 5 business
days after it is made.

(5)  If
satisfied that special circumstances exist, the discipline authority may extend
the period within which the member must comply with a request under subsection (2).

178      A member has a
duty to cooperate
with the
police complaint commissioner in the police complaint commissioner's exercise
of powers or performance of duties under this Act and with any deputy police
complaint commissioner or other employee of the police complaint commissioner
who is acting on behalf of the police complaint commissioner.

[Emphasis added].

[8]

The issue, as framed by the judge, was: as between the IIO and the
respondents, who defines what cooperate fully under s. 38.101 of the
Police
Act
means? The IIOs position was that the duty to cooperate described in
s. 38.101 did not confer discretion on the witness officers to determine
the terms of their cooperation. The witness officers position was that
s. 38.101 did not empower the IIO to unilaterally impose interview terms
related to disclosure that are not acceptable to witness officers. Instead, the
IIO and police officers must together determine what the process ought to be
for IIO investigations. The witness officers also argued that a dispute
resolution clause in the memorandum of understanding revealed an intent to
remove disputes from the jurisdiction of the court.

[9]

First, the judge held that the memorandum of understanding is not
intended to have legislative authority. The memorandum of understanding does
not and cannot have the effect of ousting the courts jurisdiction to address
the duties of witness officers under the
PA
. The memorandum of understanding
does not assist in interpreting the obligations on witness officers to cooperate
fully with the IIO.

[10]

Second, the judge held that the witness officers have an obligation to
cooperate fully with the investigation. Witness officers do not have discretion
to determine the bounds of the interview process. The judge reached this
conclusion by considering the common law duty of police officers to assist in
law enforcement and police officers duties as members of a self-governing
profession to cooperate with their governing bodies. The judge also relied on
the purpose of the legislative scheme to provide an independent and
transparent investigative body for the purpose of maintaining public confidence
in the police and the justice system along with the minimum procedural
requirements expected at the investigation stage.

[11]

In short, the judge concluded: it is the IIO, not the witness officers,
who determine what cooperate fully under s. 38.101 of the
Police Act
means.

ARGUMENT ON APPEAL

[12]

The appellants contend that, properly interpreted, the legislature did
not intend to confer on the IlO the unilateral power to determine the content
of the duty to cooperate fully in an investigation. The content of that duty,
they contend, does not include a right to withhold the kind of pre‑interview
disclosure they sought in this case, since to do so in the circumstances of
this case is illogical, not supported by evidence and arbitrary. The duty to
cooperate is not a duty to submit to arbitrary terms imposed by the IlO.

[13]

In asserting these positions, the appellants contend that the kind of
pre‑interview disclosure they sought is consistent with and supportive of
their duty to cooperate fully with the investigation. In short, the purpose of
the disclosure is to ensure that the information they would provide in the
interview is the most accurate reflection of what happened, as they witnessed
it, untarnished by misperception or faulty recollection. The specific
disclosure of the contemporaneous recording of each particular officers
participation in the event is the best means of fulfilling the investigations
truth‑seeking function, avoiding potential factual error, and promoting a
scheme of investigation best able to ensure a transparent investigation capable
of maintaining public confidence. In proceeding in this way, the potential
prejudice inherent in committing to a mistaken version of events that can
follow the witness in subsequent proceedings can be avoided. Neither the
purpose nor the effect of such disclosure is to protect a police officer or to
provide an opportunity to manufacture or manipulate evidence.

[14]

In support of the argument that the legislature did not intend to confer
on the IlO the unilateral power to determine the content of the duty to
cooperate fully, the appellants point to the specific and detailed duty set out
in s. 101 of the
PA
, dealing with complaints set out above, and the
duty to cooperate regime found in the Ontario legislation that governs that
provinces Special Investigations Unit (SIU). The SIU is Ontarios equivalent
of the IIO, and was evidently the model that the British Columbia legislature
considered before amending the
PA
to create the IIO. The provisions found
in the Ontario regulation that set out details of the duty to cooperate could
have been, but were not, adopted in a similar form in s. 38.101. The
implication to be drawn from this is that the legislature deliberately left the
content of the duty to cooperate fully with the IlO to be worked out by the
respective agencies, each of whom is expert in investigation techniques and capable
of ensuring that proper arrangements are worked out to ensure effective and
accountable oversight of police conduct causing death or serious personal
injury. This conclusion is supported also, the appellants argue, by the
existence of the memorandum of understanding which was entered into at the time
the IlO was created to govern interactions, investigations, and which provided
for a dispute resolution mechanism.

ANALYSIS

[15]

I turn then to consider the arguments on appeal. The starting point is
the commonplace recognition that the words of a legislative enactment are to be
read in their entire context, and in their grammatical and ordinary sense,
harmoniously with the scheme of the Act, its objects, and the intention of the
legislators.

[16]

The plain terms of the statute impose the duty to cooperate on police
officers. The duty is owed to IlO investigators. It is a duty to cooperate
fully with those investigators. It is expressed as a mandatory, not a qualified,
duty. Nothing in the wording of the statute supports the inference that police
officers can withhold their cooperation with the investigation, if they
disagree with the terms on which it is being conducted. I agree with the judge
that at its most straightforward the issue is who, as a matter of statutory
interpretation, decides what is required in order to cooperate fully with the
investigation. I agree with her conclusion, that it is the IlO.

[17]

It is clear that the exercise of a statutory power must be exercised in
a manner consistent with and to further the purposes of the statute. While the
power to define the cooperation required of police officers in an investigation
cannot be exercised for a purpose collateral to the statutory objective, I can
see nothing in the record before us that could support the inference that the
demands made by the IlO were arbitrary or capricious. Rather, the conflict
between the parties reflects a disagreement about the best, most reasonable, or
most efficient means of investigating this particular incident. Should demands
be made, in other circumstances that are properly viewed as arbitrary because
they are inconsistent with the objectives of the legislation, a remedy would
lie.

[18]

In my opinion, the broad and general definition of the duty to cooperate
fully in s. 38.101, by contrast with the more prescriptive and specific
articulation of the duty to cooperate elsewhere in the
PA
and other
legislation, does not support an inference that the legislature intended that
the scope and content of the duty to cooperate would be resolved by discussion
among interested parties and perhaps included in a memorandum of understanding.
To the contrary, the broad definition discloses a legislative intention to
confer on the IlO a broad power to determine the terms on which an
investigation will be conducted and to define what is required of police
officers in discharging their duty to cooperate fully with an investigation as
part of civilian oversight of investigations into police conduct.

[19]

Moreover, although the duty to cooperate fully is more specifically
outlined in s. 101 of the
PA
in relation to police complaints, I am
not persuaded that the specificity in this latter section assists in defining a
limited scope or content of the duty to cooperate fully in s. 38.101. In
my opinion, it does not provide a basis for inferring that the duty in s. 38.101
is more limited or circumscribed than that found in s. 101.

[20]

This interpretation is consistent with the objects of the legislative
scheme. The purpose of the scheme is to ensure civilian oversight of
investigations into police conduct causing death or serious personal injury.
The mechanism to achieve this is the IlO. The IlO is a product of, and a
response to, public inquiries into alleged police misconduct involved in the
deaths of Mr. Frank Paul and Mr. Robert Dziekanski; the Davies Commission
Inquiry and the Braidwood Inquiry. Both reports recommended the establishment
of an independent investigation office to avoid the appearance of the police
investigating the police. It is instructive that Mr. Braidwood recommended
that witness police officers must promptly make themselves available for IlO
interviews. It is common ground that an important objective of an independent
and transparent investigative body is the maintenance of public confidence in
the police and the justice system as a whole.

[21]

Josiah Wood, Q.C., in his February 2007 Report on the Review of the
Police Complaint Process in British Columbia, also expressed a concern that
police witnesses promptly submit to interviews and that they cooperate with
investigations to ensure public confidence in a transparent and accountable
process: see paras. 165 to 167 inclusive. Similar concerns were also
expressed the 2005 Police Act Reform White Paper, at page 12.

[22]

I agree with the judges conclusion that the officers public legal duty
to cooperate fully with the IIO is part of a legislative scheme that is
intended to provide an independent and transparent investigative body for the
purpose of maintaining public confidence in the police and the justice system,
and that only minimal procedural requirements can be expected at the
investigation stage: para. 144. I also agree that witness officers fail to
comply with their duty to cooperate by demanding certain conditions  such as
pre-interview disclosure, the presence of counsel, the presence of union
representatives, assurances that there will be no derivative use of their
accounts, and that the interview be scheduled to accommodate annual leave,
weekly leave, particular shifts or on some other basis  as a pre-condition to
their cooperation: para. 144.

[23]

I believe the judge summarized the point well when she said:

[145]    Whether or not the witness officers were acting in
good faith or making up excuses about their non‑attendance for interviews
is not a consideration. The IIO has the obligation to investigate the Canadian
Tire incident and the witness officers have an obligation to cooperate fully
with that investigation. The witness officers do not have the discretion to
determine the bounds of the interview process.

[146]    To address the issue as
described by counsel for the respondents: it is the IIO, not the witness
officers, who determine what cooperate fully under s. 38.101 of the
Police
Act
means.

[24]

In the result I would dismiss the appeal and decline to quash the
declarations. In the circumstances, it is unnecessary to comment further on the
declarations set out in the order.

The Honourable Mr. Justice Harris

I agree:

The Honourable Madam Justice Dickson

I agree:

The Honourable Mr. Justice Butler


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

K.F.M. v. K.G.T.,

2020 BCCA 10

Date: 20200106

Docket: CA46217

Between:

K.F.M.

Appellant

(Claimant)

And

K.G.T.

Respondent

(Respondent)

Before:

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Hunter

The Honourable Madam Justice Griffin

On an application to
vary:  An order of the Court of Appeal for British Columbia, dated September 18,
2019 (
K.F.M. v. K.G.T.
, 2019 BCCA 339,
Vancouver Docket CA46217).

Oral Reasons for Judgment

The Appellant, appearing in person:

K.F.M.

Counsel for the Respondent:

M.G. Perry

Place and Date of Hearing:

Vancouver, British
  Columbia

January 6, 2020

Place and Date of Judgment:

Vancouver, British
  Columbia

January 6, 2020

Summary:

The appellant seeks a review
of a decision denying him leave to appeal an interim order under the Family Law
Act conferring sole authority on the respondent to make health-related
decisions concerning their son pending trial. Held: Application dismissed. The
leave judge did not commit an error of law or principle and did not
misapprehend the evidence.

[1]

HUNTER J.A.
: On July 5, 2019, an order was made in the Supreme
Court of British Columbia that granted the respondent, K.G.T., the sole
authority on an interim basis to make decisions related to the health of the
parties eight-year-old child. The order was made in the context of high
conflict family litigation between the parties, who separated in October 2011
and have been engaged in disputes over the parental responsibilities for their
child for much of the intervening eight years. The trial of this longstanding
litigation is now scheduled for July of 2020.

[2]

Although the transcript of the chambers judges reasons refers to
s. 45(f) of the
Family Law Act
, S.B.C. 2011, c. 25, it is
apparent that the order was made by reference to s. 41(f) of that
Act
.

[3]

The child resides with his mother, K.G.T. His father, K.F.M., has
parenting time of eight hours per week in accordance with interim orders made
and varied throughout the eight years of litigation. For clarity in these
reasons, I will refer to the applicant K.F.M. as the Father, and the respondent
K.G.T. as the Mother.

[4]

The basis of the July 5 order was a concern that the parties child
required psychological counselling but the Father was refusing to consent to
the referral to a child psychiatrist recommended by the childs general
practitioner. A physician had been retained to prepare a s. 211 Child
Custody, Parenting Capacity and Parenting Time report, but it was not anticipated
that the report would be completed until a few months before trial. The Supreme
Court chambers judge who heard the Mothers application considered the Fathers
reasons for not consenting to counselling and other mental health
recommendations to have no merit. The effect of the order was that pending
trial, the Mother would make all decisions concerning the childs physical and
health treatments.

[5]

The Father wishes to appeal this July 5 order. Because the July 5 order
grants interim relief under the
Family Law Act
, leave to appeal is
required. The Father sought leave to appeal before a judge of this Court in
chambers, but his application was dismissed for reasons indexed at 2019 BCCA
339. He seeks a review of that decision by a division of this Court pursuant to
s. 9(6) of the
Court of Appeal Act
, R.S.B.C. 1996, c. 77.

[6]

At the outset, it is important to note that a review of a
decision of a chambers judge is not a re-hearing of the application. The
standard to be applied by a division of this Court on a review application was
summarized by Madam Justice Dickson in
Lungu v. British Columbia (Human
Rights Tribunal)
,
2016
BCCA 136
,
in these terms:

[8]        A review
application brought before a division of the court under s. 9(6) of the
Act
does not provide an opportunity for a rehearing of the original chambers
application. The standard of review is whether the justice sitting in chambers
was wrong in law, wrong in principle, or misconceived the facts. In the absence
of such an error, the court will not interfere with the chambers judges
exercise of discretion:
DeFehr v. DeFehr,

2002
BCCA 139
at para.
6
.

[7]

Thus, the question for this Court is whether in exercising his
discretion not to grant leave to appeal, the chambers judge was wrong in law,
wrong in principle, or misconceived the facts.

[8]

With this standard in mind, I turn to the decision of the chambers
judge, who for clarity I will refer to as the leave judge. The leave judge
began by reviewing the circumstances in which the order had been made. A series
of applications was before the Supreme Court chambers judge on July 5. The
Father had sought an order varying the interim parenting time order to increase
his parenting time and to entitle him to travel with the child in the summer. The
chambers judge was not prepared to change the parenting time order. That part
of the July 5 order is not in issue in this Court.

[9]

In addition, the Mother sought a series of orders relating to the
allocation of parental responsibilities. The Father objected to those
applications being heard on July 5 due to insufficient notice, and the chambers
judge gave effect to this objection in respect of all of the Mothers
applications except the application concerning the childs health-related
treatments. The chambers judge explained his reasoning for proceeding with that
application in these terms:

[6]        Having read and
considered the materials before me, in the circumstances I am satisfied that
there is some urgency to the respondents application, but only as it relates
to the childs health-related treatment and,  accordingly, I am allowing the
respondent to bring her application in that regard by way of short notice. The
balance of the respondents application will have to be heard on a later date
convenient to the parties and Madam Justice Fleming, who is the case management
judge assigned to this matter and who is familiar with these proceedings.

[10]

The leave judge then reviewed the chambers judges assessment of the
evidence. He summarized the chambers judges assessment in this way:

[11]      The chambers judge expressed serious concern about
the childs mental health. He understood that [the Father] was convinced that
the situation is one involving parental alienation by [the Mother]. Given that Dr. England
had been retained to assess the entire situation and prepare a full s. 211
parenting assessment, the judge considered that no change in parenting time
should be ordered until that assessment had been completed. Accordingly, he
dismissed [the Fathers] application.

[12]      The chambers judge
found no merit in [the Fathers] reasons for not consenting to counselling and
other recommended mental health modalities. Given this, and the judges
concerns about the childs mental health, he granted the order sought by [the
Mother].

[11]

The leave judge then turned to the law relating to leave to appeal, and
cited the test in this way:

[
13
]      The party seeking
leave to appeal bears the burden of showing that leave should be granted:
British
Columbia Teachers Federation v. British Columbia (Attorney General)

(1986),
4 B.C.L.R. (2d) 8
at 11 (C.A.) (in Chambers)
. The criteria to be
applied are well-established:

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

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

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

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

See also
Goldman,
Sachs & Co. v. Sessions,

2000
BCCA 326
at para.
10
(Saunders J.A. in Chambers)
. The overarching concern is the interests of justice and the four
criteria are all considered under the rubric of the interests of justice:
Movassaghi
v. Aghtai,

2010
BCCA 175
at para.
22
(D. Smith J.A. in Chambers)
and the cases cited therein.

[12]

This test is well accepted in this Court, and I can see no error in the
leave judges statement of the applicable law.

[13]

The leave judge went on to point out the high hurdle faced by appellants
who seek appeals of interim orders in family matters:

[
16
]      The
courts jurisdiction to vary interim orders made in family matters is
extremely limited, and it will only interfere with such orders in
exceptional circumstances:
N. (T.) v. N. (J.C.),

2013 BCCA 432
at para.
10
(Levine J.A. in Chambers);
F. (J.G.) v. B. (C.L.),

2003 BCCA 382
at para.
10
(Huddart J.A. in Chambers).

[14]

This principle is also well accepted in this Court.

[15]

The leave judge then considered the grounds for appeal, which comprise
35 numbered paragraphs in the amended notice of application for leave to
appeal, but which the leave judge summarized in this way (para. 20):

a)         whether the chambers judge erred in
allowing [the Mothers] application to proceed on short leave, despite her
non-compliance with the service requirements in the
Supreme Court
Family Rules
and despite the informal protocol
established by the case management judge; and

b)         whether
the chambers judge misapprehended the evidence and erred in his assessment of
urgency.

[16]

The leave judge reviewed the submissions of the Father and concluded
that he had not identified a good arguable case of sufficient merit to warrant
scrutiny by a division of this Court. The Father submits that the judgment
refusing leave contains factual inaccuracies and does not give effect to what
he characterizes as the breach of his procedural rights in hearing the Mothers
application on short notice. The alleged breach of procedural rights concerns
the decision of the chambers judge to hear and decide the application
concerning the childs health needs, without the Mother having given proper
notice under the Rules. The leave judge considered that the procedural issue
was not one that satisfied the requirement of a point of significance to the
practice or the parties. I would go further. In my view, there is no reasonable
prospect that a division of this Court would interfere with the exercise of a
chambers judges discretion to hear this application on short notice given the
material that was before the judge.

[17]

The applicant has put a number of authorities before us in support of
his review application, but I consider it necessary to address only one,
Williamson
v. Williamson
, 2016 BCCA 87.
Williamson
was one of those rare cases
where this Court did interfere with an interim order relating to family
litigation, but the circumstances were very different. The mother in that case
had sought an order for inpatient counselling for the children of the marriage,
but the application had been dismissed by a judge of the Supreme Court. The
mother then brought an identical application before a different judge, who
granted the order, apparently on the mistaken belief that the first judge had
not made a decision on the first application. This Court held that the second
judge had erred in hearing the mothers application without first finding there
was a material change in circumstances from those prevailing at the time the first
application was dismissed.
Williamson
did not involve an emergent
situation of mental health needs of the child requiring an interim order to
break an impasse between the parents.

[18]

In the case at bar, the chambers judge was of the view that there was
urgency in addressing the childs mental health needs. Although the Father
disputes that assessment, there was ample evidence before the chambers judge to
justify this conclusion. There is no reasonable possibility that a division of
this Court would interfere with that determination.

[19]

In my view, the refusal of leave to appeal was an appropriate exercise
of the leave judges discretion, and I can see no error that would justify
interfering with the order. Accordingly, I would dismiss the application to discharge
or vary the order refusing leave to appeal.

[20]

The leave judge also dismissed a second application brought by the
Father for an order that he be permitted to file materials without paying court
fees, generally referred to as a no fees order, as he did not consider that the
position being argued by the Father had merit, which is a prerequisite to a no
fees order. For the reasons I have outlined in relation to the leave
application, I can see no error in that decision.

[21]

As a result, I would dismiss the application to discharge or vary the
order refusing leave to appeal and refusing a no fees order. Costs of this
application are payable to the respondent.

[22]

GROBERMAN J.A.
: I agree.

[23]

GRIFFIN J.A.
: I agree.

[24]

GROBERMAN J.A.
: The application to discharge or vary the order is
dismissed.

The
Honourable Mr. Justice Hunter


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Leonard v. The Manufacturers Life Insurance
Company,

2020 BCCA 5

Date: 20200106

Dockets:
CA43565; CA46063; CA46065

Dockets: CA43565; CA46065

Between:

Francoise Leonard
and Leanne Ranniger

Appellants

(Plaintiffs)

And

The Manufacturers
Life Insurance Company,
Manulife Financial Corporation,
Benesure Canada Inc., Broker Support Centre Inc.,
Credit Security Insurance Agency, Tacamor Holdings Inc.,
Davis + Henderson Limited Partnership and John F. Lorriman

Respondents

(Defendants)

- and -

Docket: CA46063

Between:

Francoise Leonard
and Leanne Ranniger

Respondents

(Plaintiffs)

And

The Manufacturers
Life Insurance Company,
Manulife Financial Corporation,
Benesure Canada Inc., Broker Support Centre Inc.,
Credit Security Insurance Agency,

Appellants

(Defendants)

Tacamor
Holdings Inc.,
Davis + Henderson Limited Partnership and John F. Lorriman

Respondents

(Defendants)

SEALED
IN PART

Before:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Harris

The Honourable Madam Justice Dickson

Re:  An
application to vary an order of the Court of Appeal for British Columbia,
dated October 19, 2019 (
Leonard v. The Manufacturers Life
Insurance Company
,
2019 BCCA 375).

Counsel for the Appellants:

R.W. Cooper, Q.C.
B.W. Lemer

Counsel for the Respondents, The Manufacturers Life
  Insurance Company, Manulife Financial Corporation, Benesure Canada Inc.,
  Broker Support Centre Inc., and Credit Security Insurance Agency:

D.G. Cowper, Q.C.
T.A. Posyniak
S. Irving

Counsel for the Respondent, Davis + Henderson
  Limited Partnership:

A.L. Crimeni

Counsel for the Respondent, John F. Lorriman:

G.D. Henry

Counsel for the Intervenors, in the Ehouzou Action
  and the Benmouffok Action:

C. Lévesque

Counsel for the Proposed Intervenor, Tim Stringer:

E.F.A. Merchant
I.S. Brar

Place and date of Hearing in Chambers:

Vancouver, British
  Columbia

October 16, 2019

Place and date of Judgment in Chambers:

Vancouver, British
  Columbia

October 18, 2019

Notice of Motion Received from Counsel for the Proposed
  Intervenor, Tim Stringer:

November 6, 2019

Written Submissions Received from Counsel for the Proposed
  Intervenor, Tim Stringer:

November 21, 2019
November 28, 2019
November 29, 2019
December 5, 2019
December 16, 2019

Written Submissions Received from Counsel for the
  Intervenors, in the Ehouzou Action and the Benmouffok Action:

November 26, 2019

Written Submissions Received from Counsel for the
  Respondents, The Manufacturers Life Insurance Company, Manulife Financial
  Corporation, Benesure Canada Inc., Broker Support Centre Inc., and
  Credit Security Insurance Agency:

November 27, 2019
December 2, 2019
December 11, 2019

Place and Date of Decision:

Vancouver, British
  Columbia
January 6, 2020

Written Reasons by:

The Honourable Mr. Justice Harris

Concurred in by:

The Honourable Madam Justice Saunders

The Honourable Madam Justice Dickson

Summary:

This was an application to
extend the time to apply to vary the order of a single justice of the Court of
Appeal. Held: Application dismissed.

Reasons for Judgment of the Honourable
Mr. Justice Harris:

[1]

Mr. Stringer applies to review and vary an order of Justice Abrioux
insofar as it relates to costs. As this matter arose at about the time this
Court was dealing with the substantive appeals in these proceedings, we
instructed the parties that we would deal with it on the basis of written
submissions.

[2]

In order to apply to vary the order, Mr. Stringer first needs an
order extending the time to make his application. The application to extend
time was filed November 6, 2019. Justice Abriouxs order was
pronounced on October 18, 2019. Justice Abrioux delivered Oral
Reasons for Judgment, including an order for costs, after hearing submissions
of counsel. The deadline for applying to vary Justice Abriouxs order was
October 25, 2019. The oral reasons were posted on the Court of Appeal
website on October 28, 2019. The application to vary Justice
Abriouxs order was filed some 12 days late.

[3]

The application before Justice Abrioux was filed on
October 7, 2019. Mr. Stringer sought the following orders:

a)       that the time limit for
applying for intervenor status is extended;

b)       that he is granted leave to
intervene, file a factum of up to 20 pages, and make oral submissions at
the hearing of the appeals;

c)        that he is permitted to
adduce additional evidence on appeal; and

d)       that no costs be made in
favour of, or against him, in respect of this application or the appeal itself.

[4]

It will be apparent that the application before us is the second
application within a short period of time seeking to extend the time to make an
application.

[5]

Mr. Stringers application to intervene in the appeals should have
been filed by August 14, 2019. As noted, it was filed October 7, 2019.
Justice Abrioux dismissed the application to extend time. I set out the
operative part of his judgment:

[37]      I do not accept Mr. Stringers submission that
the parties failed to give him notice of the proceedings before Grauer J., as
required by ss. 2(2)(b) and 3.1 of the
Class Proceedings Act
. This
was the same argument rejected by Grauer J. in relation to the
Ehouzou
and
Benmouffok
plaintiffs on February 15, 2019, based on his
prior order approving the method of disseminating notice through nation-wide
advertisement in the
National Post: Leonard v. The Manufacturers Life
Insurance Co.
(February 15, 2019) Vancouver Docket S131263
at paras. 6‑7. In my view, Mr. Stringer received the same
notice as the
Ehouzou
and
Benmouffok
plaintiffs.

[38]      Based on the following, I also find that Mr. Stringer
was notified of the proceedings before this court. I am mindful of the evidence
adduced by the Manulife Defendants and Mr. Lévesque, on behalf of the
Ehouzou
and
Benmouffok
plaintiffs, regarding the alleged lack of notice now
being advanced on Mr. Stringers behalf by his counsel. This includes:

(a) in an email dated March 14, 2019, Mr. Merchant,
on behalf of Mr. Stringer, requested a fee‑sharing arrangement with Mr. Lévesque
to work together as
intervenors
in these appeals;

(b) in an email dated May 15, 2019, an email was
sent to Mr. Merchant by counsel for the Manulife Defendants, which
informed him that the decision of Grauer J. had been appealed to this
court and provided copies of the filed notices of appeal;

(c) in another email, dated June 18, 2019, Mr. Merchant
informs Mr. Lévesque that he cannot be in Vancouver on July 8. That
date is in reference to Mr. Lévesques application for intervenor status
in these appeals before Savage J.A. on July 8, 2019;

(d) Mr. Merchant sent a further email on July 16, 2019
to counsel for the Manulife Defendants stating: I have not heard what the
outcome was on July 8. If he (i.e. Mr. Lévesque)
got
intervener status

he thinks it is important to him
and he will feel
strengthened.

[Emphasis added by Justice Abrioux.]

[39]      These communications establish that Mr. Stringer,
through his counsel, Mr. Merchant, was aware of the appeals well before
the deadline to apply for intervenor status on August 14, 2019.

[40]      During the hearing of this application, counsel for
Mr. Stringer conceded that counsel was aware as of the end of July 2019
that the deadline to apply for intervenor status was August 14, 2019.
Similarly, counsel conceded that while Mr. Stringer did not receive formal
notice of the proceedings before Grauer J. or the proceedings at issue in
this court, informally he was aware and chose not to apply to intervene for
reasons he could not disclose.

[41]      There is an abundance of evidence on the record on
this application to confirm this concession. In fact, in that regard, I accept
the description offered by counsel for the Manulife Defendants that, since at
least the application before Truscott J. in 2015, Mr. Stringer,
through his counsel Mr. Merchant, has been shadowing the proceedings in
British Columbia, including those pertaining to these appeals.

[42]      Based on these circumstances, the application for
an extension of time to apply for intervenor status is denied. A late
application for leave to intervene should be denied if it makes it impossible
for the parties to address the matters sought to be raised by the intervenor:
Saulteau
First Nations v. British Columbia (Oil & Gas Commission)
, 2004 BCCA 240
at para. 8. The timing of the application is a factor to be
considered. In
Saulteau
, as is the case here, the application was
brought shortly before the date fixed for the hearing of the appeal. In
contrast, late applications for intervenor status have been allowed where the
delay was inadvertent and the proposed intervenor always expressed its
intention to intervene:
FortisBC Inc. v. Shaw Cablesystems Ltd.
, 2010 BCCA 606.
Quite the opposite occurred in this case.

[43]      Simply put, there has
been no persuasive rationale advanced by Mr. Stringer to explain the delay
for bringing this application; in particular, the materials filed in support of
the application are, in my view, inadequate to support the relief sought.

[6]

Justice Abrioux went on to explain that he would have dismissed the
other applications in any event of his refusal to extend time. He observed that
the proposed intervention would raise a new issue that could result in the
adjournment of the appeals. In dismissing the application to adduce fresh
evidence, Justice Abrioux commented:

[51]      In my view, contrary to
what is set out in his memorandum of argument, it is clear that Mr. Stringer
was aware of the application before Truscott J., had notice of the application
before Grauer J., was aware of the proceedings in this court, and has
waited until the eve of the hearing of these appeals before seeking leave to
intervene and an order permitting him to adduce fresh evidence on appeal. There
is also no mention of what fresh evidence Mr. Stringer would seek leave to
adduce at the hearing of the appeals. For these reasons, I would also deny
making an order permitting Mr. Stringer to adduce evidence.

[7]

Justice Abrioux engaged in a discussion with counsel about costs before
ruling:

[54]
ABRIOUX J.A.
: Costs may be awarded for or
against intervenors, although courts take a restrained approach with costs in
this regard:
Faculty Association of the University of British Columbia v.
University of British Columbia
, 2009 BCCA 56 at paras. 45.

[55]      In my view, the
respondents who filed materials and/or addressed the Court at the hearing of
the applications, including Mr. Lévesques clients, are entitled to their
costs from Mr. Stringer. I make that order.

[8]

Mr. Stringer intends to argue on his variation application, if time
were extended, that Justice Abrioux erred in principle in awarding costs in the
face of the prohibition in the
Class Proceedings Act
, R.S.B.C. 1996,
c. 50, set out in s. 37:

37

(1)
Subject
to this section,
neither
the Supreme Court nor
the Court of Appeal
may
award costs
to any party
to an application for certification under
section 2 (2) or 3, to any party to a class proceeding or
to
any party to an appeal
arising from a class proceeding
at any stage of
the application
, proceeding or
appeal
.

(2)
A court referred to in subsection (1) may only
award costs to a party in respect of an application for certification or in
respect of all or any part of a class proceeding or an appeal from a class proceeding

(a)
at any time that the court considers that there has
been vexatious, frivolous or abusive conduct on the part of any party,

(b)
at any time that the court considers that an improper
or unnecessary application or other step has been made or taken for the purpose
of delay or increasing costs or for any other improper purpose, or

(c)
at any time that the court considers that there are
exceptional circumstances that make it unjust to deprive the successful party
of costs.

(3)
A court that orders costs under subsection (2) may
order that those costs be assessed in any manner that the court considers
appropriate.

(4)
Class members, other than the person appointed as
representative plaintiff for the class, are not liable for costs except with
respect to the determination of their own individual claims.

[Emphasis added.]

[9]

The test to extend time is well known. The following factors guide the
analysis:

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 of time?

4)       Is there merit in the
appeal?

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

[10]

The decisive factor is whether it is in the interests of justice to
grant the extension: see
First Majestic Silver Corp. v. Santos
, 2014 BCCA 214
at para. 57.

[11]

Mr. Stringer contends that when the oral reasons were pronounced,
Justice Abrioux did not specify the particulars or indicate to whom costs were
to be awarded. He says there was a lack of clarity on the costs issue. He
contends that in one sense the order in question was made on October 18.
On the other hand, in the absence of the written reasons, and given the
uncertainty as to the nature of the costs order, Mr. Stringer was not in a
position to know until after October 28 whether there was any need to
apply to vary the same. He then goes on to suggest that the intention to
appeal was crystallized very shortly after receiving the written reasons. Other
parties were advised of the intention to apply to extend time on November 5, 2019
which was, he says, at minimum eight days after the release of the decision,
and at most 18 [sic] days after the oral pronouncement of the decision. He
contends that the delay is
de

minimus
and that the hearing
of this application has had no impact on nor caused any delay of the appeal
proper. Finally, he argues that the issue on the proposed variation application
is meritorious because s. 37 clearly establishes a no‑costs regime
applicable to the application.

[12]

I am unable to accede to the submissions and for the following reasons
would dismiss the application to extend time.

[13]

In the first instance, it is clear that the order is pronounced when it
is made. Time began to run from October 18, 2019. At the conclusion
of the reasons dismissing the applications, counsel made submissions about
costs. It is clear that those submissions referred to the costs regime
established by the
Class Proceedings Act
.

[14]

It seems clear to me that Mr. Stringer was aware from October 18, 2019
that he was subject to a costs award. Moreover, he had submitted that no costs
could be awarded to any party by virtue of s. 37 of the
Class
Proceedings Act
. In the circumstances, I do not think that any adequate
explanation of the delay has been offered. The suggestion that he was in no
position to evaluate his appeal rights is without merit, and ignores the fact
that he did not file his application within the time stipulated even assuming
time began to run when the oral reasons as transcribed were posted on the
website.

[15]

Secondly, I am not persuaded that the proposed application has merit.
The Court does not lightly interfere with a discretionary decision. It is
uncontroversial that the standard of review on an application to discharge or
vary a discretionary decision requires a demonstration that there has been an
error in principle or the justice was wrong in the legal sense or the justice
misconceived the facts or relevant information was not brought to the justices
attention. I am not persuaded that the applicant has any reasonable prospect of
persuading a division that Justice Abrioux erred in the manner described.

[16]

The implications of s. 37 were argued before the justice. That
section contains exceptions to the general prohibition against awarding costs.
Assuming, without deciding, that the section applies to the application before
Justice Abrioux, a number of exceptions to it are set out in ss. 37(2). On
my review of the record and the reasons for judgment, it is apparent that the
order of costs is supportable under those exceptions. The reasons for judgment
comment extensively on counsels conduct in asserting a lack of notice and
expressly reject that assertion.

[17]

Justices are presumed to know the law. Given that the implications of s .37
were argued and a ruling made immediately thereafter, it must be accepted that
the justice did not overlook s. 37. Since an application to vary is an
application, in this case, to discharge or set aside the order it would need to
be demonstrated that it was necessarily an error in principle to make it. This
is the only plausible basis to attack the order. As I have said, I think the
order is supportable as a result of the combined effect of the principle the
justice expressly referred to and the exceptions to s. 37(1).

[18]

In my view, it is not in the interests of justice to extend time to
apply to vary the order. This results from an absence of a satisfactory
explanation for the delay in filing the application and the lack of merit in
the proposed application to vary.

[19]

I would dismiss the application to extend the time to file the
application.

The Honourable Mr. Justice Harris

I agree:

The Honourable Madam Justice Saunders

I agree:

The Honourable Madam Justice Dickson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Malak v. Hanna,

2020 BCCA 6

Date: 20200107

Dockets:
CA44856; CA44858

Docket: CA44856

Between:

Raoul Malak, Ansan
Traffic Group Ltd.,
Ansan Industries Ltd. d.b.a. Ansan Traffic Control,
Lanetec Traffic Control Inc.,
Western Traffic Ltd. d.b.a. Flaggirls Traffic Control, and
Island Traffic Services Ltd.

Respondents

(Plaintiffs)

And

Philip Keith
Jackman, Valley Traffic Systems Inc.,
and Trevor Paine

Appellants

(Defendants)

And

Remon Hanna

Respondent

(Defendant)

Docket:
CA44858

Between:

Raoul Malak, Ansan
Traffic Group Ltd.,
Ansan Industries Ltd. d.b.a. Ansan Traffic Control,
Lanetec Traffic Control Inc.,
Western Traffic Ltd. d.b.a. Flaggirls Traffic Control, and
Island Traffic Services Ltd.

Respondents

(Plaintiffs)

And

Remon Hanna

Appellant

(Defendant)

Before:

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Goepel

The Honourable Madam Justice Griffin

Supplementary Reasons
to
Malak v. Hanna
, 2019 BCCA 106.

Counsel for the Appellants, P.K. Jackman, Valley Traffic
  Systems Inc., and T. Paine

T.J. Delaney

Counsel for the Appellant, R. Hanna:

D.W. Burnett, Q.C.

Counsel for the Respondents:

R.A. McConchie

Written Submissions Received:

November 6, 20, 26,
  and 29, 2019

Place and Date of Judgment:

Vancouver, British
  Columbia

January 7, 2020

Supplementary Reasons of the Court

Summary:

Application with respect to
costs.  Four appellants were found jointly and severally liable for defamation.
Three of them appealed together and the fourth appealed separately.  The
appeals, which raised different issues, were heard together and allowed in
part.  The three appellants succeeded on most of their issues while the
remaining appellant had very limited success.  A new trial was ordered on
limited issues.  Held: As the three appellants were substantially successful
they were entitled to costs on their appeal.  It was not appropriate to make
the fourth appellant responsible for those costs by means of a Sanderson order
or a Bullock order.

Supplementary Reasons for
Judgment of the Court:

[1]

In reasons for judgment indexed as
Malak v. Hanna
, 2019 BCCA 106,
we dealt with two appeals brought by four appellants from a trial in which they
were found jointly and severally liable with respect to numerous publications
of defamatory statements.  The trial judge found those appellants had engaged
in a campaign of vilification against the respondents, Raoul Malak and his
companies. The first appeal was brought by Philip Keith Jackman, Trevor Paine,
and Valley Traffic Systems Inc. (VTS) (CA44856).  Mr. Jackman owns VTS and
Mr. Paine is its vice-president.  The second appeal was brought by Remon Hanna
(CA44858).  The appeals were heard together.  Both were allowed in part.

[2]

These reasons concern the issue of costs in CA44856.  For convenience we
will refer to the respondents in that appeal collectively as Mr. Malak.

[3]

Messrs. Jackman and Paine and VTS take the position they are entitled to
costs on their appeal.  Mr. Malak takes the following alternative positions:

(a)   as success was divided, the
parties should bear their own costs;

(b)   as a new trial was ordered on
the basis of the adequacy of the trial judges reasons, the parties should bear
their own costs;

(c)    if Messrs. Jackman and Paine
and VTS are entitled to costs, then costs should be apportioned on a
percentage-of-success basis and set off;

(d)   if Messrs. Jackman and Paine
and VTS are entitled to costs, then a
Sanderson
order should be made against
Mr. Hanna requiring him to pay those costs (see
Sanderson v. Blyth Theatre
Co.
, [1903] 2 K.B. 533 (C.A.)); and

(e)   if Messrs.
Jackman and Paine and VTS are entitled to costs from Mr. Malak, then a
Bullock
order should be made against Mr. Hanna allowing Mr. Malak to recover those
costs as a disbursement in CA44858 (see
Bullock v. London General Omnibus
Co.
, [1907] 1 K.B. 264 (C.A.)).

[4]

In our reasons allowing the appeals in part, we: (a) set aside all the
liability findings against Mr. Paine and VTS, and all but one of the liability
findings against Mr. Jackman; and (b) ordered a new trial limited to whether
VTS is vicariously liable for Mr. Hannas actions and whether Mr. Jackman and
Mr. Paine are liable for those actions on the basis they participated with Mr.
Hanna in a common design.

[5]

We consider this outcome to constitute substantial success by Mr.
Jackman, Mr. Paine, and VTS.  It is well-established that a party that achieves
substantial success on appeal is entitled to costs and that substantial success
does not require success of all issues:
Doucette v. McInnes
, 2012 BCCA
235 at para. 19, 322 B.C.A.C. 170;
Stein v. Stein
, 2007 BCCA 187 at
para. 8, 68 B.C.L.R. (4th) 104;
Canadian Centre for Bio-Ethical Reform v.
South Coast British Columbia Transportation Authority
, 2018 BCCA 440 at
paras. 46, 18 B.C.L.R. (6th) 375.

[6]

In support of his submission that the parties should bear their own
costs, Mr. Malak cites
Ciolli v. Galley
, 2011 BCCA 106 at para. 34,
302 B.C.A.C. 15.  Ms. Ciolli was injured in several motor vehicle
accidents and the damages actions she commenced were tried together.  This
Court allowed the defendants appeals and ordered a new trial on the ground
that the trial judge erred in not giving the jury an even-handed summary of the
evidence or adequate instructions.  The Court further held that the fairest
course was to order the parties to bear their own costs of the appeal.
However, as pointed out in
Harder v. Poettcker
, 2017 BCCA 107 at para.
8, 96 B.C.L.R. (5th) 242, the result in
Ciolli
was that the parties were
returned to square one.  That is not the result of the appeal in the present
matter.

[7]

As to a
Sanderson
or
Bullock
order, we would not exercise
our discretion to make Mr. Hanna responsible for the costs awarded against Mr.
Malak in CA44856.  This is because Mr. Hanna did nothing to warrant his having
to pay those costs: see
Grassi v. WIC Radio Ltd.
, 2001 BCCA 376 at
paras. 33, 89 B.C.L.R. (3d) 198;
Moore v. Wienecke
, 2008 BCCA 162 at
paras. 4450, (2008), 290 D.L.R. (4th) 509.  Of note is that the two appeals
raised different issues.  The only common issues were the challenges to the
findings of common design and vicarious liability.  However, in that regard,
Mr. Hanna did no more than adopt the arguments advanced by Messrs. Jackman
and Paine and VTS.

[8]

In the result, we order costs in favour of Messrs. Jackman and Paine and
VTS in CA44856.  In addition, we order that Mr. Hanna is entitled to set off
his costs relating to this application against the costs ordered against him in
CA44858.

The Honourable
Mr. Justice Frankel

The
Honourable Mr. Justice Goepel

The Honourable
Madam Justice Griffin


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

McKibbon v. BDO Canada Limited ,

2020 BCCA 7

Date: 20200107

Docket: CA46145

IN
THE MATTER OF THE BANKRUPTCY OF
William Edward McKibbon

Between:

William Edward
McKibbon

Appellant

(Bankrupt)

And

BDO Canada
Limited, Dustin Joslin, and Stewart Rennie

Respondents

(Trustee)

Before:

The Honourable Madam Justice Garson

(In Chambers)

On appeal from:  An
order of the Supreme Court of British Columbia, dated
May 30, 2019 (
McKibbon (Re)
, 2019 BCSC 848, Vernon Docket 52581).

Counsel for the Appellant:

A. Calvert

Counsel for the Respondents:

S.D. Dvorak

Place and Date of Hearing:

Vancouver, British
  Columbia

November 22, 2019

Place and Date of Judgment:

Vancouver, British
  Columbia

January 7, 2020

Summary:

The applicant applies for
leave to appeal pursuant to s. 193(e) of the Bankruptcy and Insolvency Act
on the question of whether fraudulent intent is required to revoke the
discharge of a trustee under s. 41(8) of the Act
.
Held: Application
granted. The applicant raises an arguable case on the question of statutory
interpretation.

Reasons for Judgment of the
Honourable Madam Justice Garson:

[1]

Mr. McKibbon applies for leave to appeal pursuant s. 193(e) of
the
Bankruptcy and Insolvency Act
, R.S.C. 1985, c. B‑3 [
BIA
].
He also seeks an order that the time to file and serve the notice of motion for
leave to appeal and the motion book be extended to September 18, 2019. The
respondents consent to the application for an extension of time but oppose the
application for leave to appeal.

[2]

The underlying appeal is a challenge to an order discharging a trustee
in bankruptcy. Mr. McKibbon submits that to revoke the discharge of a
trustee in bankruptcy under s. 41(8) of the
BIA,
proof of
fraudulent intent is not required to establish suppression or concealment of a
material fact. His application was denied by a Supreme Court judge.

I.

Background

[3]

Mr. McKibbon made an assignment into bankruptcy on July 2, 2013. He
was discharged from bankruptcy on February 24, 2016, after successfully
fulfilling the terms of a conditional discharge order pronounced on January 4,
2016. The trustee in bankruptcy was discharged on November 5, 2016.

[4]

Mr. McKibbon proposes to file a civil claim against his former
trustee in bankruptcy, the respondent BDO Canada Limited. Mr. McKibbon says
that as a result of the conduct of his trustee he has been required to pay
additional income taxes that should have been paid from the surplus funds in
the bankruptcy, and, further, that owing to the misconduct of the trustee there
was a delay in his discharge that resulted in his suffering a significant loss
of income. He alleges that the trustees conduct amounts to suppression or
concealment of a material fact.

[5]

The steps he must follow to commence a civil suit against his former
trustee in bankruptcy are somewhat procedurally complex. On discharge of the
trustee, s. 41(8) of the
BIA
provides for a release of all
liability unless the discharge is revoked. Therefore, Mr. McKibbon must
first satisfy the requirements of s. 41(8) in order to revoke the
discharge. Absent a court‑ordered revocation, s. 41(8) is an
absolute bar to civil liability of the trustee. If Mr. McKibbon is
successful in obtaining an order revoking the discharge, he may then apply
pursuant to s. 215 of the
BIA
for leave to commence an action
against the trustee. In this case, Mr. McKibbon has commenced a proceeding
under s. 41(8) and also one pursuant to s. 215. Counsel have agreed
to proceed first under s. 41(8) as it may be dispositive of Mr. McKibbons
proposed claim against his former trustee. It is the s. 41(8) application
that is before me by way of an application for leave to appeal the dismissal of
his s. 41(8) application before a Supreme Court chambers judge.

A.

Proceedings in the Court Below

[6]

Mr. McKibbon sought to revoke the discharge of his trustee pursuant
to s. 41(8) in a hearing before Justice Hori in chambers. On May 30, 2019,
in reasons indexed as
McKibbon (Re)
, 2019 BCSC 848, Justice Hori
dismissed Mr. McKibbons application to revoke the trustees discharge.

[7]

As to the factual allegation underlying the claim, the chambers judge
said:

[13]      The applicant submits that when the trustee applied
for a discharge it should have disclosed to the court the following facts but
instead concealed and suppressed them for the purposes of obtaining a
discharge:

a)    that the
surplus income had been incorrectly calculated by the trustee;

b)    the method
by which the trustee calculated the surplus income; and

c)     that the
trustee had erroneously prepared the applicants pre- and post- bankruptcy
income tax returns.

(the Alleged Material Facts)

[8]

At paras. 18 and 19 the chambers judge found there was no evidence
of intentional conduct:

[18]      Finally, there is no evidence from which I can
conclude that the trustees failure to disclose the Alleged Material Facts was
intentional. The applicant suggests that the failure to disclose was motivated
by the trustees desire to avoid civil liability under the protection of
section 41(8) of the
Act
. However, the evidence falls short of
establishing this theory. There is no evidence that the trustee was concerned
about civil liability before it applied for a discharge. There is no evidence
that the trustee was put on notice that it should be concerned about civil
liability before it applied for a discharge. The evidence is that the trustee
had proceeded through this bankruptcy with the view that the surplus income
calculations were done in the proper manner and that the income tax issues,
which had been created by the Canada Revenue Agency, were corrected.

[19]      Accordingly, I have
concluded that there is no basis upon which any fraudulent intention that can
be inferred on the part of the trustee in failing to disclose the Alleged
Material Facts in its discharge application. Therefore, the application to
revoke the trustees discharge is dismissed.

[9]

As for the legal test to revoke a discharge under s. 41(8), the
chambers judge concluded that an applicant is required to establish that any
suppression or concealment of facts by the trustee was done fraudulently: at paras. 810.

[10]

The chambers judge dismissed the application. Mr. McKibbon appeals
this order.

II.

The Legislation

[11]

Section 41 of the
BIA
provides:

41 (1)
When a trustee has completed the duties
required of him with respect to the administration of the property of a
bankrupt, he shall apply to the court for a discharge.

(7)
Nothing in or done under authority of this section
relieves or discharges or shall be deemed to relieve or discharge a trustee
from the results of any fraud.

(8)
The discharge of a
trustee discharges him from all liability

(a)
in respect of any act done or default made
by him in the administration of the property of the bankrupt, and

(b)
in relation to his conduct as trustee,

but any discharge may be revoked by the court on proof
that it was obtained by fraud or by suppression or concealment of any material
fact.

Section
193 of the
BIA
provides:

193
Unless otherwise expressly provided, an appeal
lies to the Court of Appeal from any order or decision of a judge of the court
in the following cases:

(e)
in any other case by leave of a judge of
the Court of Appeal.

III.

Positions of the Parties

[12]

Mr. McKibbon submits that in order to revoke the discharge of a
trustee in bankruptcy under s. 41(8), proof of fraudulent intent is not
required to establish suppression or concealment of a material fact. Rather he
submits that actual knowledge of an undisclosed material fact is sufficient to
meet the test under s. 41(8). He suggests that s. 41(8) should be
read in a somewhat bifurcated manner. The first part of the section provides
that a discharge may be revoked if it was obtained by fraud. He says the second
part of the section, or by suppression or concealment of any material fact,
may be met by a lesser standard.

[13]

Mr. McKibbon acknowledges that a mere allegation of negligence
would not meet the statutory test. But he says the fraud requirement does not
modify the words suppression or concealment of any material fact.

[14]

He contends that at issue in the proposed appeal is a question of
statutory interpretation: is proof of fraudulent intent required to establish
suppression or concealment of a material fact for the purpose of s. 41(8)
of the
BIA
? If it is not, should this Court revoke BDOs discharge on
the basis of the correct legal test or order a new hearing?

[15]

The respondents submit that leave should not be granted. The respondents
argue that motivating the application to revoke the discharge is a civil claim
against the trustee that is now time barred (though Mr. McKibbon says it is
not time barred because he has already filed the s. 215 application.) As a
result, the trustee contends, there is no live controversy between the parties
and the appeal has become moot. On this application, I am not able to reach any
conclusion about whether the claim is barred by the effluxion of time and I
would not decide the application on this basis.

[16]

The respondents further submit that the proposed appeal raises no issues
of general importance to bankruptcy practice. They say the chambers judge
followed law that has been settled for many years.

[17]

The respondents submit that the appeal has no merit because the decision
of the chambers judge involved the exercise of discretion. The respondents also
contend that there is nothing in the record to show that the discharge was
obtained by fraud, suppression, or concealment of a material fact.

[18]

In a new argument not raised in the court below the respondents rely on
s. 62 of the
Bankruptcy and Insolvency General Rules
, C.R.C.,
c. 368, for the proposition that because this was a summary administration
(meaning that no court appearance was required to effect the discharge), any
knowledge that Mr. McKibbon imputes to the trustee is not material. The
respondents say that only two criteria are required to obtain the discharge,
namely:

62
The trustee of the estate of a bankrupt under
summary administration shall apply for taxation of the trustees accounts and
for the discharge of the trustee by sending to the Division Office

(a)
the
trustees final statement of receipts and disbursements, in prescribed form;
and

(b)
the dividend sheet, showing
the dividends paid or to be paid to the creditors of the bankrupt.

[19]

I would not decide the application on the basis of s. 62.

IV.

The Test for Leave

[20]

In
Farm Credit Canada v. Gidda
, 2015 BCCA 236 at para. 11
(Chambers), Justice Goepel citing
Business Development Bank of Canada v.
Pine Tree Resorts Inc.
, 2013 ONCA 282 articulated the test for granting
leave under s. 193(e) of the
BIA
. The test inquires whether the
proposed appeal:

a)

raises an
issue that is of general importance to the practice in bankruptcy/insolvency
matters or to the administration of justice as a whole, and is one that this
Court should therefore consider and address;

b)

is
prima
facie
meritorious, and

c)

would unduly hinder the progress of the bankruptcy/insolvency proceedings.

[21]

Justice Goepel noted that these criteria are functionally identical to
the general test for leave to appeal set out in
Power Consolidated
(China) Pulp Inc. v. British Columbia Resources Investment Corp.
(1988), 19
C.P.C. (3d) 396 (B.C.C.A.), which direct an inquiry into:

[1]        whether the point on appeal is of significance to
the practice;

[2]        whether the point raised is of significance to the
action itself;

[3]        whether
the appeal is prima facie meritorious or, on the other hand, whether it is
frivolous; and

[4]        whether the appeal
will unduly hinder the progress of the action.

[22]

In the general test for leave to appeal, the overarching concern is the
interests of justice:
Hanlon v. Nanaimo (Regional District)
, 2007 BCCA
538 (Chambers) at para. 2. As per Justice Goepel in
Farm Credit Canada
,
the two tests above are functionally identical, and this includes the
requirement that I consider the interests of justice in an application for
leave to appeal under s. 193(e) of the
BIA
.

V.

Analysis

[23]

I accept that the appeal is of significance to the parties and will not
hinder the progress of the action as the bankruptcy is completed. The
significance to Mr. McKibbon is that he says that not only was he required
to pay additional income tax as a consequence of the conduct of the trustee,
but additionally he lost significant income also attributable to the trustees
conduct.

[24]

Mr. McKibbon submits that, due to uncertainty in the law, the
proposed appeal is significant to the practice generally and provides this
Court with an opportunity to offer an authoritative interpretation of s. 41(8)
of the
BIA
. He submits that only two appellate decisions have considered
s. 41(8) or its predecessors, and neither discusses the issue of interpretation
raised in this proceeding:
Lachapelle c. Verdier
(1990), A.C.W.S.
(3d) 286 (C.A.Q.) and
Mann v. KPMG Inc.
, 2001 SKCA 45. Mr. McKibbon
argues that the interpretation of the chambers judge is based on a line of only
three cases from the Superior Court of Quebec that adopt the reasoning in
Re
Harris
:
Ex parte Hasluck
, [1899] 2 Q.B. 97, an English case that
required an element of fraud:
Delorme, (Sindic de)
, 2011 QCCS 236;
Denis,
(Faillite de)
, J.E. 99‑1919, 1999 CanLII 11481 (Q.C.C.S.); and
Leclair
c. Ginsberg, Gingras et associés Inc.
, J.E. 88‑925, 1988
CarswellQue 1057 (C.S.Q.). Two other Canadian lower court decisions simply refused
to find suppression or concealment without any discussion of the provision:
Rodd
v. Welton
, 104 A.C.W.S. (3d) 626 (Ont. Sup. Ct.) and
Alec Smith
Decorating Ltd. v. Parkland School Division No. 63
(1982), 16 A.C.W.S.
(2d) 154 (Sask. Q.B.).

[25]

The respondents submit that because the law has been settled for
over a century, this proposed appeal raises no issue of general importance.

[26]

I turn to the evidentiary record in order to clarify the nature of the
allegations that Mr. McKibbon proposes to advance.

[27]

In support of the application, Mr. McKibbon relies on his
own affidavit and those of his wife. Mrs. McKibbon looked after Mr. McKibbons
business and financial affairs. She recounts a difficult bankruptcy with many
miscalculations and mistakes by the trustee concerning Mr. McKibbons tax liability.
She alleges the trustee did not inform the court that there was a $10,000
discrepancy and further that the trustee was aware of this issue but failed to
advise the court the taxes were in dispute. At paras. 74, 81, 82, and 83 of
her second affidavit she says:

74.       Mr. Joslin
also knew at the time of the hearing on January 4, 2016 that the estate was not
realized or complete because there was still a $10,000 discrepancy in the 2013
taxes that has not been corrected. It is clear that if Mr. Joslin had been
correct in his opinion that the amount owed to the 2013 post‑bankruptcy
taxes was approximately $2,000 then this may not have made much difference in
the final reconciliations, but he was not correct. The amount owed was closer
to $10,000 and Mr. Joslin and BDO were responsible for the errors, the
delays and the allocation of funds from the pre‑bankruptcy to the post‑bankruptcy.

81.       I
understood that based on my correspondence and conversations with Mr. Joslin
that he was at all times aware of the 2013 tax issues and discrepancies
involved in the estate.

82.       To the
best of my knowledge, and upon a review of the trustees Form 82 Report,
and the Statement of Receipts and Disbursements, the trustee did not inform the
court that there was a $10,000 discrepancy in the 2013 taxes that had not yet
been corrected.

83.       Mr. Joslin was aware of
this issue and he knew that a final calculation remained. Mr. Joslin
reported to the court [t]hat this estate was realized and complete on the
Form 82 even though the amount of the post‑bankruptcy taxes was
still in dispute.

[28]

The chambers judge considered this evidence and held that there was no
evidence from which he could conclude that the trustee intentionally failed to
disclose material facts.

[29]

Mr. McKibbon raises an issue of statutory interpretation. He
submits that if Parliament had not intended suppression or concealment to offer
an alternative to fraud, it could have omitted the phrase as it did in s. 180(2)
of the
BIA
, which provides for the annulment of a bankrupts discharge
if obtained by fraud. Mr. McKibbon submits that, in his proposed test,
suppression or concealment requires only that the applicant show that the
trustee had actual knowledge of the material facts at issue. Mr. McKibbon
says that here the trustee had actual knowledge of undisclosed material facts,
namely that that the surplus income was incorrectly calculated and that income
tax returns were erroneously prepared. Further, he says this is evidence of
intentional conduct sufficient to meet the statutory test.

[30]

In saying that the trustees knowledge of the inaccuracy of the tax
calculation is sufficient evidence to ground his legal argument that
intentional conduct, even in the absence of fraud, he raises an arguable point.

[31]

I conclude that there is a
prima facie
argument on this basis and
accordingly grant leave to appeal.

VI.

Disposition

[32]

The application to extend the time to apply for leave to appeal and to
file the motion book to September 18, 2019 is granted. Pursuant to s. 193(e),
leave to appeal is granted.

The
Honourable Madam Justice Garson