COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Rozenboom
          v. MacGregor,

2006
          BCCA 21

Date: 20060113

Docket: CA031754

Between:

Gerrit
    Johan Rozenboom

Appellant

(
Plaintiff
)

And

Ralph
    MacGregor, Gail Dorman, Gerry Bergen

and
    Lee Brine, doing business as Willow Park

Respondents

(
Defendants
)

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Mr. Justice Donald

The
          Honourable Mr. Justice Hall

Oral Reasons for Judgment

A.
          de Turberville

Counsel for the Appellant

M.F.
          OMeara

Counsel for the Respondents

Place
          and Date:

Vancouver, British Columbia

13 January 2006

[1]

FINCH, C.J.B.C.
:  The plaintiff appeals a judgment of the
    B.C. Supreme Court pronounced 24 February 2004 dismissing his claim for damages
    for injuries and loss alleged to have been suffered in a slip and fall accident
    on 21 December 1998.

[2]

At that time the plaintiff and his wife lived at 1050 Morrell Place,
    a cul-de-sac, in Willow Park, a trailer park in the City of Nanaimo.  The
    park was privately owned by the defendants.  There had been a significant
    snowfall on the night of 20-21 December.  On the afternoon of 21 December
    at about 2 p.m. and before the snow had been cleared from Morell Place, the
    plaintiff walked from his home to a common mailbox site about four lots away.
    On his way back from the mailbox to his home he slipped, fell and suffered
    serious injuries.  The plaintiff sued the owners of the park claiming that
    they were liable as occupiers for failure to take reasonable care to see that
    persons, including residents of the park, were reasonably safe in using the
    parks premises.  Specifically the plaintiff claimed that the defendants were
    negligent in the following respects:

·

Failing to clear snow
    and ice from Morell Place in a timely way;

·

Failing to warn the
    plaintiff the road was slippery;

·

Failing to salt or
    sand the roadway before the snowfall;

·

In constructing a
    roadway with inadequate drainage so that ice could form on its surface.

[3]

The learned trial judge did not accept any of those allegations.  As
    to the timeliness of snow clearing on Morell Place, the trial judge said in
    part:

[11]
    The accident occurred at about 2:00 p.m. in the afternoon of December 21,
    1998.  Morrell Place had not yet been cleared of snow and ice.  After a snowfall,
    Morrell Place was usually, if not always, the last street in Willow Park to
    be cleared.

[12]
    That Morrell Place was cleared of snow last was a source of irritation to
    the plaintiff, and one of his ongoing complaints.  But I am of the opinion
    that it was not negligent of the defendants to have Morrell Place cleared
    last.  It is obvious that whatever the order of snow clearing, one part of
    the park must be cleared last.  Morrell Place is at the far end of the roadway
    system within the park.  It is logical that the roadways would be cleared
    from the entrance inwards.  The order of snow clearing left the park managers
    street cleared last, just as it did the plaintiffs.  The park manager could
    have had the operators of the snow clearing machines change the order of clearing
    to clear his street before others.  He did not do so.  The plaintiff considered
    that the order of snow clearing was unfair.  But, in my opinion, it was probably
    the most sensible order of clearing, and certainly not negligent.

[4]

As to the alleged failure to salt and sand prior to the snowfall, the
    trial judge said:

[21]
    The storm left a layer of ice on the road surfaces of Willow Park covered
    by a snowfall of about 13 cm. to 16 cm.  The roads were icy and difficult
    to clear.  The roads could not be salted or sanded after the storm until the
    snow was cleared.  The clearing and sanding was done in difficult conditions.
    It was done with a large machine that had been designated for that work.
    In my opinion, the defendants were not negligent in respect of the speed in
    which Willow Park was cleared of snow and sanded, and not negligent as to
    how it was done.  The plaintiffs complaints relate to incidental details.
    However, in my opinion, the work was done effectively and within a reasonable
    period of time.  Furthermore, it is a matter of speculation as to whether
    Morrell Place could have been cleared and sanded by 2:00 p.m., even if the
    defendants had had a second machine available to them.

[22]
    I am satisfied that the manner and speed in which the defendants cleared and
    sanded the streets of Willow Park following this storm was reasonable.

[27]
    The plaintiff submits that the defendants ought to have put salt on the roadway
    before the snowfall, and that that would have prevented ice from forming in
    the first place.

[28]
    However, the opinion of Mr. Tim Leggett, an accident reconstruction engineer
    who has particular expertise in the area of winter road maintenance, is that
    pre-salting of roads is a technique that is not widely used.  It is effective
    only in conditions of moisture, and there had not been precipitation for some
    days before this storm.  Pre-salting was not a technique used by the City
    of Nanaimo in 1998.  Furthermore, it was a snowfall that had been predicted.
    There is no evidence that the defendants ought to have known that there was
    a particular risk of ice forming on Morrell Place.

[5]

With respect to the allegation that the defendants failed to warn the
    plaintiff of the slippery condition of the road, the trial judge said:

[26]
    In my opinion, there was no duty or obligation on the part of the defendants
    to telephone or visit all the residents to warn them that the roads were icy.
    The defendants duty was to clear the roads of snow and ice within a reasonable
    time, which is what they did.  The plaintiff could have waited until the streets
    were cleared and sanded before he left his residence.  The plaintiff decided
    to leave his residence and walk on the roadway before it was cleared and de-iced.
    Icy roads are a common phenomenon after storms.  It ought to have been obvious
    to the plaintiff that the roadway could be slippery.  The plaintiff had shovelled
    his own driveway earlier that same day.

[6]

As to the allegation of negligent road design, the trial judge said:

I
    am of the opinion that there is no evidence that Mr. Rozenbooms fall is related
    to inadequacies in the construction of the road surface on Morrell Place.
    He fell on ice which covered all of the roadways within Willow Park.

[7]

On this appeal counsel for the plaintiff says the learned judge applied
    an incorrect test in assessing the reasonableness of the defendants snow
    removal practices.  He says the trial judge applied the wrong standard of
    care to the defendants conduct and, in particular, should have not used the
    snow removal practices of the City of Nanaimo as a standard for measuring
    the defendants conduct.

[8]

I have not been persuaded that the trial judge erred in any way that
    would permit this Court to intervene.  There was evidence on which the judge
    could conclude that the defendants had a reasonable system in place for snow
    removal and that the system was being implemented at the time of the accident.
    The defendants had stockpiled sand and salt on site and they had a machine
    operator and a dedicated machine for snow clearing at what was the first reasonable
    opportunity.  The layout of the park and the location of the defendants residence
    made it reasonable as the trial judge found for Morell Place to be the last
    street in the park to be cleared.  The time for snow clearance in the park
    was substantially less than that for residential streets in the City of Nanaimo.
    There was no other evidence adduced by the plaintiff as to a different or
    more exacting standard.

[9]

On this appeal the allegation of negligent road design was not pursued
    and, in my view, the allegation of the defendants duty to warn is not tenable.

[10]

I see no basis on which this Court could interfere with the conclusions
    reached by the trial judge.  I would dismiss the appeal.

[11]

DONALD, J.A.
: I agree.

[12]

HALL, J.A.
: I agree.

[13]

FINCH, C.J.B.C.
:  The appeal is dismissed.

The
    Honourable Chief Justice Finch


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Reischer
          v. Love,

2006
          BCCA 22

Date: 20060116

Docket: CA032914

Between:

Susan
    Frances Reischer

Respondent

(
Plaintiff
)

And

Joshua
    Robert Love and Gladys Helen Love

Appellants

(
Defendants
)

Before:

The
          Honourable Madam Justice Southin

The
          Honourable Mr. Justice Donald

The
          Honourable Madam Justice Huddart

Oral Reasons for Judgment

S.M.
          Katalinic

Counsel for the Appellants

D.R.
          McLeod

Counsel for the Respondent

Place
          and Date:

Vancouver, British Columbia

16 January 2006

[1]

SOUTHIN, J.A.
: This is an application for the review of
    an order of our brother Mackenzie.  Two problems arise on it that were not
    really thought through, I think, by counsel.  One is a term which expresses
    the learned judges opinion that this case did not require a five judge panel,
    but it is couched in such a way in the order that it could be looked upon
    as a decision by the learned chambers judge binding on the court that there
    should be no such thing.  I am sure he did not mean it.  The question of whether
    there should be a five judge panel is a matter to be dealt with in the usual
    course of this Court by an application by a party to an appeal to the Chief
    Justice, who will address the point in the fullness of time.  Therefore the
    order is to be varied by deleting the term.

[2]

The other is a paragraph of the order which says:

IT
    IS FURTHER ORDERED THAT the written submissions of the parties filed on this
    application are sufficient and factums are not required.

There is not any rule of this Court that uses that language
    exactly.  We do have a rule, 21(4), on the application of a party or on a
    justices own motion, a justice may order that the filing of factums by any
    or all parties be dispensed with.  We also have Rules 19 and 20, especially
    19 about appeal records.  We have a general power under s. 9 of the
Act
,
    which we can do anything we like in the management of appeals, more or less.

[3]

This really should have been an order that the filing of an appeal
    record be dispensed with and that the motion book and the reply book in the
    court below stand in lieu of the record.  Secondly, maybe, that factums be
    dispensed with.  However, the solution is that counsel for the appellant says
    to us that the factum may be useful for the court.

[4]

For reasons which I need not go into, it has now occurred to counsel
    for the respondent that it might be useful to him, too.  We vary this order
    by deleting the clause in question and substituting an order, it is further
    ordered that the motion book and reply books in the court below stand in place
    of the appeal record and appeal book.  I suppose there was affidavit evidence.
    That would ordinarily be the appeal book.  What was done below will do for
    the appeal record and the appeal book, and the factums will be filed in the
    usual way.

[5]

Now, about time.  This matter has been delayed.

(discussion with counsel)

[6]

The usual rule, of course, is 30 days after filing the record.  The
    time limit will start to run from this day.

The Honourable Madam Justice Southin


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Hayes,

2006
          BCCA 29

Date: 20060119

Docket: CA033120

Between:

Regina

Respondent

And

Andrew
    Thomas Hayes

Appellant

Before:

The
          Honourable Madam Justice Southin

The
          Honourable Madam Justice Prowse

The
          Honourable Madam Justice Levine

Oral Reasons for Judgment

D.
          Turko

Counsel for the Appellant

M.
          Brundrett

Counsel for the (Crown) Respondent

Place
          and Date:

Vancouver, British Columbia

19 January 2006

[1]

SOUTHIN, J.A.
:  This is an application for leave to appeal
    and, if leave be granted, an appeal from a sentence of 18 months imposed upon
    the applicant for the offence of dangerous driving under s. 249(2) of the
Criminal Code
.  The maximum sentence for this offence is five
    years.  There is, therefore, no issue about the legality of the sentence.

[2]

The offender is a man of about 36 or 37 years, who has a long criminal
    record going back at least to 1991 which includes several convictions for
    dangerous driving.  We do not have before us any material as to the nature
    of the dangerous driving, but a conviction for dangerous driving is a matter
    of consequence.

[3]

On the particular occasion, the accuseds response to the facts of
    the driving was that he was suffering from some kind of diabetic event which
    affected his ability to drive.  The learned judge took the view that the accused
    certainly ought to have appreciated that he was in no condition to be driving.

[4]

The
Criminal Code
provisions as to sentencing were clearly
    before the learned judge and in her mind when she addressed the issues.

[5]

Even if an expression used by a trial judge might attract some dispute
    in this Court, the ultimate question for us always is whether the sentence
    on all the facts was a fit sentence.  I am certainly unable to say that for
    someone with this record of dangerous driving a sentence of 18 months is in
    and of itself unfit.

[6]

The problem which Ms. Turko has raised with us - and I must say I have
    found most enlightening her explanation of how parts of the
Corrections
    and Conditional Release Act
work  is that the applicant was at the
    time of the offence in issue here on parole on a four-year sentence for breaking
    and entering.  Immediately upon his being arrested on this offence his parole
    was suspended and he was returned to a penal institution.  In this case the
    Corrections authorities put him in a provincial institution although they
    could have put him in a federal institution.  Because he was put into a provincial
    institution, the way the system works, he was unable after 120 days from his
    parole suspension to apply to have his parole reinstated.  For some reason
    that does not happen in the provincial system but it must happen in the federal
    system.

[7]

Ms. Turko suggests that the learned judge ought to have taken that
    fact into account in arriving at her conclusion.  I am not sure that on a
    close reading of her reasons she did not have it more or less in mind, perhaps
    not in those exact terms, but she accepted the commonly held opinion that
    provincial time is harder than federal time.  That is one of those commonly
    held opinions that I have never seen satisfactorily proven, but
communis
    error jus
if nothing more.  In the circumstances, even if she might have
    given some more weight to that point, the question for us in the end is not
    the process of reasoning of the learned judge below but the result.  The result
    here is not one that I think can be characterized, especially in light of
    his record, as unfit.

[8]

Therefore, while I would grant leave to appeal I would dismiss the
    appeal.

[9]

PROWSE, J.A.
: I agree.

[10]

LEVINE, J.A.
: I agree.

The Honourable Madam Justice Southin


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Ancheta
          v. Ready,

2006
          BCCA 23

Date: 20060120

Docket: CA030769

Between:

Andres
    Ancheta

Appellant

(
Petitioner
)

And

Vincent
    L. Ready, Labour Arbitration and Mediation Services

Ltd.,
    College Printers Ltd., Graphic Arts International Union, and

British
    Columbia Labour Relations Board

Respondents

(
Defendants
)

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Madam Justice Newbury

The
          Honourable Mr. Justice Hall

Mr. Ancheta, appearing on his own behalf

S.A. Dawson

Counsel for the Respondent,
College Printers Ltd.

P.D. McLean

Counsel for the Respondent,
Graphic Arts International Union

Place
          and Date of Hearing:

Vancouver, British Columbia

16 December 2005

Place
          and Date of Judgment:

Vancouver, British Columbia

20 January 2006

Written
          Reasons by
:

The
          Honourable Mr. Justice Hall

Concurred
          in by:

The
          Honourable Chief Justice Finch

The
          Honourable Madam Justice Newbury

Reasons for Judgment of the Honourable Mr. Justice Hall:

[1]

This is an application by Mr. Ancheta to vary an order of Southin J.A.
    On 23 September 2005, Southin J.A. ordered the appeal of the appellant
    dismissed because of his failure to post security of $5,000 before 2 September
    2005, as had been ordered by Ryan J.A. on 19 April 2005.

[2]

The factual background of this matter is that the applicant was employed
    for about 19 years by the respondent, College Printers Ltd., between
    1980 and the date of his dismissal by College Printers Ltd. effective 7 December
    1999.  Up to the year 1998, he had a generally good work record, but beginning
    in that year Mr. Ancheta seems to have run into increasing difficulty
    with his fellow employees, his employer and the representatives of his union,
    Graphic Arts International Union (the "Union").

[3]

In early 1998, he began to complain about a great many matters and
    he filed a series of grievances which the Union declined to proceed with.
    In a letter of 11 May 1998, the Union wrote to the grievor a letter which
    included the following passage, I dont know if you are hell-bent on placing
    your employment in jeopardy, whether you're receiving advice from someone
    who only has part of the information, or someone who has no idea what they
    are advising you about.  Later that year, Mr. Ancheta was involved in
    an incident with a shop steward, as a result of which he commenced a civil
    lawsuit against the shop steward.  Between 7 October 1998 and 31 January
    1999, Mr. Ancheta was off work due to stress leave.  He returned to work
    at College Printers Ltd. on 1 February 1999.

[4]

On 2 November 1999, there was a highly publicized incident in
    Honolulu, Hawaii, where an individual who was employed with a company shot
    and killed several employees of the company.  The following day, an employee
    at a company in Seattle, Washington, was also involved in a workplace shooting.
    On the evening of 3 November 1999, the applicant attended at College
    Printers Ltd. and discussed newspaper articles concerning these incidents
    with a number of co‑workers.  He apparently made suggestions to those
    he spoke with that he might do something along these lines.  Needless to say,
    this caused grave alarm to his employer and to his fellow employees.  He was
    immediately suspended by his employer and on 10 December 1999, the employer
    wrote to him as follows:

This letter will confirm that you are terminated effective
    December 7, 1999.

On the evening of November 3, 1999, you made reference
    to causing deadly violence to other employees and to yourself.

Out of our concern that your continued presence in the
    workplace may have caused a risk to the safety and health of our employees
    and possibly yourself, we suspended you with pay effective November 4,
    1999.  We provided you with an opportunity to give us by December 6,
    1999, a full and detailed written explanation of your conduct in the workplace
    on November 3, 1999.  You declined the opportunity and instead the lawyers
    for your Union responded and attached a medical report without any submission
    that provided an excuse for your conduct.

We directed you to attend a psychiatric assessment and
    you failed to attend.

You have provided us with no justification for your conduct
    in the workplace on the evening of November 3, 1999.  The only medical
    documentation that we have received suggests that you were not suffering from
    any psychosis or medical health condition which would justify your totally
    unacceptable conduct.  Your decision to not attend at the scheduled appointment
    with the psychiatrist has only compounded matters.

Based on your recent conduct and our interview with you
    on November 4, 1999, it is clear to us that you are a disgruntled and
    frustrated man.  It is also clear to us that you chose a most alarming and
    frightening way to express your frustration.  You threatened to kill your
    co-workers and you have provided no justification for this extreme misconduct.
    Given the gravity of your conduct we have no choice but to terminate your
    employment for cause effective immediately.

[5]

The applicant grieved his dismissal and the Union represented him on
    this grievance.  The grievance alleging unjust discharge came before an arbitrator,
    Vincent L. Ready, and following a hearing that occurred between March 12
    and 16, 2001, Mr. Ready, in a decision rendered on 4 October 2001,
    dismissed the grievance.  The decision of Mr. Ready can be found at (2001),
    101 L.A.C. (4th) 193.  Mr. Ready expressed his conclusion thus, at p. 217
    of the report:

On the evidence, and in light of the seriousness of the
    offence, I do not believe that the Employer and its employees should be required
    to endure the return of even a 19‑year employee after the events of
    November 3, 1999.  Put another way, it is my finding that the employment
    relationship, which in this case would include the ability of the grievor
    to work side-by-side with his co-workers who experienced the threatening comments
    and testified as to their feelings about his return to College Printers, is
    irreparably damaged and reinstatement would not be appropriate.

[6]

Following upon the dismissal of the grievance, there ensued what J.W. Williams J.
    characterized as a "cascade of litigation":  see
Law Society
    of British Columbia v. Dempsey
, [2005] B.C.J. No. 1985 at para. 51
    (QL), 2005 BCSC 1277.  Mr. Ancheta, the applicant, applied to the Labour
    Relations Board (the "Board") seeking to set aside the decision
    of Mr. Ready on the ground of bias and he also filed a complaint against
    the Union alleging that it had failed to properly represent him at the hearing.
    The Board dismissed both the application and the complaint.

[7]

In October 2001, the applicant commenced an action in the Supreme Court
    against a number of parties, including the present respondents and a number
    of his former co-workers.  Most of these claims were dismissed by Sigurdson J.
     see [2003] B.C.J. No. 112 (QL), 2003 BCSC 93.  An application to extend
    the time to file an appeal from the order of Sigurdson J. was dismissed
    by Newbury J.A. on 9 January 2004.

[8]

Meanwhile, in June 2002, the applicant had filed a petition in the
    Supreme Court seeking judicial review of the dismissal of his grievance and
    he sought an order for reinstatement of his employment.  Many of the same
    defendants that were originally included in the action before Sigurdson J.
    were included in this proceeding, as was the Board.  After a hearing, Lowry J.,
    (as he then was), dismissed the petition.  From this decision, Mr. Ancheta
    brought the current appeal.

[9]

During the currency of this appeal, he applied to amend his notice
    of appeal to expand the grounds of appeal.  This application was dismissed
    by Low J.A. on 13 February 2004.  Low J.A. observed on that
    occasion that the whole matter was being over litigated by the appellant at
    substantial cost to various parties.  I understand that an application was
    filed to vary that order of Low J.A., but nothing further has been done
    about that.

[10]

A year ago, in January 2005, College Printers Ltd. and the Union, the
    current respondents, brought on an application before the Court for security
    for costs with respect to this appeal.  In her decision rendered in April
    2005, found at [2005] B.C.J. No. 851 (QL), 2005 BCCA 232, Ryan J.A.
    concluded that it was appropriate to order that the applicant should post
    security for costs of the extant appeal in the sum of $5,000.  By her order
    dated 19 April 2005, Ryan J.A. directed that the appellant had to
    post this security before 2 September 2005.

[11]

The appellant did not post the security prior to 2 September 2005,
    as required and on 23 September 2005, the respondent, College Printers
    Ltd., supported by the respondent Union, made application to dismiss the appeal.
    Southin J.A. ordered the appeal of the appellant dismissed with costs
    payable to the respondents.  On 14 October 2005, the appellant filed
    an application to vary this order of Southin J.A.

[12]

The test to be applied in a proceeding of this nature is that set forth
    in the case of
Frew v. Roberts
(1990), 29 B.C.L.R. (3d) 34,
    [1990] B.C.J. No. 2175 (B.C.C.A.) (QL), where it was said that this Court
    should not interfere with a decision of a chambers judge unless satisfied
    that the chambers judge was wrong in the legal sense and not merely that the
    chambers judge exercised a discretion incorrectly.

[13]

In the more recent case of
Haldorson v. Coquitlam (City)
,
    [2000] B.C.J. No. 2532 (QL), 2000 BCCA 672, Lambert J.A. said:

[7]        It comes to this:  that the review hearing is not
    a hearing of the original application as if it were a new application brought
    to a division of the court rather than to a chambers judge, but is instead
    a review of what the chambers judge did against the test encompassed by asking:  was
    the chambers judge wrong in law, or wrong in principle, or did the chambers
    judge misconceive the facts.  If the chambers judge did not commit
    any of those errors, then the division of the court in review should not change
    the order of the chambers judge.

[14]

In my opinion, there is no error disclosed in the decision of Southin J.A.
    to dismiss this appeal.  This application seeking to vary the order of Southin J.A.
    is without merit and ought to be dismissed.  I would so order.

The
    Honourable Mr. Justice Hall

I
    Agree:

The
    Honourable Chief Justice Finch

I
    Agree:

The
    Honourable Madam Justice Newbury


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Johnson
          v. Breitkreuz,

2006
          BCCA 30

Date: 20060120

Docket: CA032951

Between:

Jack
    Armand Johnson and Carolina Dawn Johnson

Respondents

(
Plaintiffs
)

And

Gerald
    Harvey Breitkreuz

Appellant

(
Defendant
)

Before:

The
          Honourable Madam Justice Prowse

The
          Honourable Madam Justice Levine

The
          Honourable Mr. Justice Thackray

Oral Reasons for Judgment

G.J.
          Dykstra

Counsel for the Appellant

D.B.
          Adair, Q.C.

Counsel for the Respondents

Place
          and Date:

Vancouver, British Columbia

20 January 2006

[1]

LEVINE, J.A.
:  This appeal concerns an agreement for the
    sale of land. The appellant, Gerald Harvey Breitkreuz, disputed the respondents
    claim that there was such an agreement, and claimed that if there was, it
    was to be completed by May 2003. The respondents took the position that there
    was an agreement with a completion date on June 1, 2007. After a summary trial
    under Rule 18A, Crawford J. ordered that there was an agreement for sale and
    that the completion date be set as July 1, 2005.

[2]

The appellant raises three grounds of appeal. He maintains that the
    trial judge erred by:

(a)
    failing to grant an adjournment of the summary trial so that the appellants
    counsel could cross-examine certain witnesses on their affidavits and conduct
    further examination for discovery;

(b)
    deciding the case on a summary trial where there were conflicting affidavits
    and credibility issues;

(c)        finding that there was an enforceable
    agreement for sale.

[3]

In my opinion, there is no merit to the appeal, and I would dismiss
    it for the following reasons.

Background Facts

[4]

The appellant owned a house in Chilliwack. In 2000, he sold it to his
    mother, who died in 2001, leaving the house to the appellant and his two brothers
    in her will.

[5]

Ms. Johnson is the niece by marriage of the appellant. They had a close
    relationship from the time Ms. Johnson was 17 years old. The respondents lived
    in a rented house in Cultus Lake. In October 2000, at the appellants suggestion,
    the respondents moved into the house in Chilliwack and paid the appellant
    $750 per month in rent.

[6]

In May 2002, the parties discussed terms of a sale and purchase of
    the house by the respondents. The respondents claimed they reached agreement
    on the following terms:

(a)        the price was $180,000;

(b)
           the appellant would obtain a mortgage for $120,000 to pay out the shares
    of his two brothers;

(c)
           the appellant and Ms. Johnson would open a joint account and the respondents
    would make the mortgage payment of $437.47 every two weeks;

(d)
           at the end of five years the respondents would assume the mortgage
    and pay out the remaining $60,000;

(e)
           there was no interest on the $60,000 final payment due June 1, 2007;

(f)
            the appellant would continue to pay the house insurance, taxes and
    mortgage insurance and the respondents would reimburse him at the time of
    the payment of the $60,000;

(g)        the respondents
    could work on the house as if it were their own.

[7]

The appellants evidence was that he would agree to sell the house
    to the respondents for $180,000; that the sale would be completed within a
    reasonable time; when that time came he would accept $60,000 as a down payment;
    and the respondents would assume the mortgage. He would then transfer the
    house to them.

[8]

In May 2002, the respondents did not have the money to buy the house.
    The appellant and Ms. Johnson opened a joint bank account and the appellant
    took out a mortgage for $120,000. The respondents made all of the mortgage
    payments, which amounted to $874.94 per month.

[9]

In September 2003, at the appellants request, the respondents obtained
    a market valuation for the house, which was $240,000. In December 2003, the
    appellant began to make comments that indicated he was not going to sell the
    house. He took the position that he had made an offer to the respondents to
    sell the house, which they had not accepted.  He offered to pay $25,000 to
    the respondents for work they had done on the house.

[10]

On February 26, 2004, the appellants solicitor wrote to the respondents
    solicitor stating that: The understanding was that the down payment and the
    owners expenses would be paid within a reasonable time. That reasonable time
    was one year from May, 2002.  He set out terms on which the appellant would
    transfer the property by May 25, 2004, stating: My clients offer is open
    for acceptance for thirty (30) days from today.

[11]

On April 6, 2004, the appellants solicitor wrote again to the respondents
    solicitor, stating that since the offer made in his earlier letter had not
    been accepted, it was withdrawn, and the respondents were required to vacate
    the house by May 1, 2004.

History of the Proceedings

[12]

The respondents started the proceeding by petition, seeking a declaration
    that there was an agreement for sale. The application was converted to an
    action; the amended statement of claim was filed September 9, 2004; and the
    amended amended statement of defence was filed on October 20, 2004. On February
    23, 2005, the respondents brought an application for a summary trial under
    Rule 18A. Notice of the application had previously been given to the appellants
    solicitor on February 11, 2005. The notice of motion stated that the respondents
    would rely on affidavits of the appellant and four independent witnesses,
    all of which had been sworn in 2004 and those of the independent witnesses
    served in September 2004; affidavits of the respondents sworn on February
    23, 2005; and the examination for discovery of the appellant, which had been
    conducted January 19, 2005. The application was set for hearing on March 24,
    2005.

Adjournment Application

[13]

The appellant sought an adjournment of the summary trial in order to
    cross-examine the independent witnesses and have further examination for discovery
    of Mr. Johnson. Counsel for the appellant also suggested to the trial judge
    that there was another witness whose evidence he wished to obtain, but did
    not identify the witness or describe the content of the expected evidence.
    The proposed examination for discovery of Mr. Johnson concerned a without
    prejudice letter sent by the respondents counsel to appellants counsel,
    proposing a settlement of the matter, which the appellant interpreted as a
    different version of the agreement for sale than that described in the respondents
    evidence.

[14]

The trial judge held that the appellant had sufficient time, from the
    time he had received the affidavits, to cross-examine the witnesses. The appellant
    had been asked about the witnesses evidence in his examination for discovery.
    The trial judge did not mention the without prejudice letter, but on review,
    the letter is clearly a settlement proposal and not admissible as evidence
    in the case.

[15]

In my opinion, the trial judge made no reviewable error in refusing
    to adjourn the summary trial. I would not accede to this ground of appeal.

Application to Refer the Matter to the Trial List

[16]

The appellant noted that the issue in the case was the existence and
    terms of an oral contract. He took the position that the affidavits raised
    issues of credibility concerning conflicting evidence that could only be resolved
    at a full trial.

[17]

The trial judge said: (at para. 34):

[34]
    While I do have real concern about an oral agreement, it does appear that
    the essential terms, such as the parties, subject property and price were
    agreed on, and that the only issue in terms of contractual certainty was when
    the agreement was to be performed, i.e., payment to be made in exchange for
    title to the land.

[18]

The respondents point out that the trial judge had an abundance of
    material before him to support their case: the affidavits of the parties
    and independent witnesses; portions of the examination for discovery of the
    appellant; copies of the document opening the joint account and the account
    statements showing the regular mortgage payments. A review of this evidence
    reveals that the only issue really in dispute (although the appellant claimed
    that there was only an offer and if there was an agreement it was too uncertain
    to be enforced) was whether the land was to be transferred in a year or five
    years after the agreement as to price and payment terms was made. The trial
    judge accepted the evidence of the independent witnesses which supported the
    respondents evidence on this issue. In light of that evidence; the time that
    had been available to the appellant to cross-examine those witnesses and to
    put in portions of the examination for discovery of the respondents; and the
    appellants own evidence in response to that of the independent witnesses;
    I can find no basis on which to find that the trial judge erred in exercising
    his discretion in concluding that the matter could be determined on a summary
    trial.

Terms and Enforceability of the Agreement for Sale

Trial Judges Reasons

[19]

The trial judge began his analysis by noting the provisions of s. 59
    of the
Law and Equity Act
, R.S.B.C. 1996, c. 253. Section 59(3)
    of the
Act
provides a contract respecting land or a disposition
    of land is not enforceable unless:

(a)
    there is, in a writing signed by the party to be charged or by that partys
    agent, both an indication that it has been made and a reasonable indication
    of the subject matter,

(b)
    the party to be charged has done an act, or acquiesced in an act of the party
    alleging the contract or disposition, that indicates that a contract or disposition
    not inconsistent with that alleged has been made, or

(c)        the person alleging the contract or disposition
    has, in reasonable reliance on it, so changed the person's position that an
    inequitable result, having regard to both parties' interests, can be avoided
    only by enforcing the contract or disposition.

[20]

Section 59(4) of the
Act
provides:

For
    the purposes of subsection (3)(b), an act of a party alleging a contract or
    disposition includes a payment or acceptance by that party or on that partys
    behalf of a deposit or part payment of a purchase price.

[21]

The trial judge summarized the respondents arguments that the appellant
    had done an act or acquiesced in an act of theirs that indicated a contract
    not inconsistent with that alleged, as required by s. 59(3)(b) of the
Act
where the contract is not in writing (at para. 39):

(a) the continued occupation of the premises;

(b) the increased payment to the amount specified in the mortgage;

(c) signing the joint account card.

[22]

He also noted the respondents arguments that they had changed their
    position in reasonable reliance on the contract, for the purposes of s. 59(b)(3)
    of the
Act
(at para. 40):

(a) increasing their monthly payments;

(b)
    performing extensive work on the premises, for which the appellant offered
    to pay $25,000.

[23]

While the trial judge did not expressly state that he accepted the
    respondents arguments that the acts done or acquiesced in by the appellant
    or the respondents changes in position satisfied the requirements of the
Act
, that conclusion must be inferred from his order, which
    enforced the agreement for sale.

[24]

The trial judge then turned to the substantive question: whether there
    was an agreement for sale and its terms. He summarized the appellants argument
    that there was no consideration for the agreement (at para. 41). He noted
    that there had been a promise for a promise, and that the respondents had
    committed themselves to pay an increased amount each month; pay $60,000; and
    reimburse the appellant for his related expenses.

[25]

The trial judge held (at para. 42) that it was plain from the appellants
    examination for discovery that there was an agreement for sale and the pleadings
    and correspondence established the principal terms. The only matter not agreed
    on was the term of the agreement.

[26]

The trial judge accepted the evidence of four independent witnesses,
    only one of whom was related to the respondents, that the appellant had told
    them, in separate conversations, that the sale would complete in five years.
    He concluded (at para. 45) that the appellant did enter into an agreement
    for sale for $180,000, payable in five years.

[27]

The trial judge noted (at para. 46) that the respondents had initially
    taken the position that they would forthwith take ownership of the property
    and secure the appellants interest with a $60,000 mortgage. He determined,
    however, (at para. 47) that the equities of the proceeding are such that
    the respondents brought the summary trial to resolve matters and should pay
    the appellant in advance. He therefore ordered that the sale complete on July
    1, 2005.

Analysis of Arguments on Appeal

[28]

The appellant argues on appeal that the trial judge erred in finding
    that there was an agreement where the evidence was in conflict. The trial
    judge relied on the appellants own evidence, however, in finding there was
    an agreement and that the terms as to parties, subject matter and price had
    been agreed. There was no conflict to be resolved on these matters. The only
    real conflict was as to the term.

[29]

The appellant disputes the evidence of the four independent witnesses
    relied on by the trial judge, but his own evidence in response to that of
    the independent witnesses was inconsistent. In an affidavit sworn in August
    2004, the appellant stated that he did not discuss the terms of his arrangements
    with the respondents regarding the house. In his examination for discovery,
    conducted in January 2005, he recalled having conversations with each of the
    four witnesses, but not what they discussed. He said it was possible that
    he talked about the house and the financing for the house

[30]

The appellants counsel argues that it would be unlikely the appellant
    would have discussed those matters, but the appellants evidence does not
    support that argument. In my opinion, the trial judge was in a position, taking
    into account all of the evidence, to accept the evidence of the independent
    witnesses and find that the term of the agreement was five years.

[31]

The appellant argues that the requirements of s. 59 of the
Act
were not met. He suggests that the conditions imposed by the common law for
    satisfaction of the
Statute of Frauds, 1677
, which was replaced
    by the
Act
, are still relevant, and seeks to apply them in a
    more restrictive manner than is indicated by the terms of s. 59. He argues
    that any acts of the appellant or acquiesced in by him must be unequivocally
    referable to the contract: see
Heyman v. Canarim Investment Corp.
,
    [1986] B.C.J. No. 1983 (S.C.)(QL), citing
McNeil v. Corbett
(1907), 39 S.C.R. 608. He also contends that the trial judge failed to find
    the facts necessary for the purposes of s. 59(3).

[32]

I have set out above the trial judges summary of the respondents
    arguments supporting their claim that they satisfied the requirements of ss.
    59(3)(b) and (c), and concluded that he must be taken to have accepted the
    respondents arguments. In my opinion, he made no error in concluding that
    the acts of the respondents acquiesced in by the appellant were not inconsistent
    with the contract, and that the respondents changed their position in reasonable
    reliance on the contract. The trial judge noted correctly (at para. 43) that
    the courts have recognized for several hundred years that the statute cannot
    [be] the basis for avoiding an agreement: see the discussion of the manner
    in which courts of equity acted to prevent the Statute of Frauds to be used
    as an instrument of fraud in
Steadman v. Steadman
, [1976]
    A.C. 536 at 540, 551, 558 (H.L.).  The wording of ss. 59(3)(b) and (c) provides
    relief in broader terms than the courts, indicating the intention of the Legislature
    to codify the basis on which agreements for the sale of land would be enforced,
    not to track the common law.

[33]

I would not accede to the appellants arguments that the trial judge
    was wrong to find that s. 59 of the
Act
was satisfied and there
    was an enforceable agreement for sale.

[34]

The appellant argues finally that the trial judge erred in ordering
    specific performance of the contract, when the respondents did not claim any
    such relief in their statement of claim. The respondents sought a declaration
    that there was a contract on the terms they claimed, which would have completed
    on June 1, 2007. It appears that the trial judge determined, on his own motion,
    that it was equitable that the contract be completed forthwith, since the
    respondents had offered to do so and the appellant had sought an earlier completion.
    Once the trial judge found there was an agreement for sale with a term of
    five years, I see no prejudice to the appellant in an earlier completion date.
    I reject this argument.

[35]

In conclusion, I would dismiss the appeal.

[36]

PROWSE, J.A.
: I agree.

[37]

THACKRAY, J.A.
: I agree.

[38]

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

The Honourable Madam Justice
    Levine


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Morguard
          Investments Ltd. v. Assessor of Area #12  Coquitlam,

2006
          BCCA 26

Date: 20060123

Docket: CA032346

Between:

Morguard
    Investments Limited, Coquitlam Centre,
Hudson's Bay Company, Zellers Inc., and the
Property Assessment Appeal Board of British Columbia

Respondents

(Appellants)

And

Assessor
    of Area #12  Coquitlam

Appellant

(Respondent)

Before:

The
          Honourable Madam Justice Rowles

The
          Honourable Mr. Justice Donald

The
          Honourable Madam Justice Newbury

P.W.
          Klassen

Counsel for the Appellant

J.D.
          Fraser

Counsel for the Respondents
Hudson's Bay Co. and Zellers Inc.

Place
          and Date of Hearing:

Vancouver, British Columbia

November 17, 2005

Place
          and Date of Judgment:

Vancouver, British Columbia

January 23, 2006

Written
          Reasons by
:

The
          Honourable Madam Justice Newbury

Concurred
          in by:

The
          Honourable Madam Justice Rowles

The Honourable
          Mr. Justice Donald

Reasons for Judgment of the Honourable Madam Justice
    Newbury:

[1]

This is an appeal, with leave, from the determination by a Supreme
    Court judge of one of two preliminary issues arising in connection with an
    appeal by way of stated case under s. 65 of the
Assessment Act
,
    R.S.B.C. 1996, c. 20 (the "Act").  The discrete issue is the meaning
    of the phrase "a person affected by a decision of the board on appeal"
    as it appears in s. 65(1)
,
dealing with standing to bring an
    appeal on a question of law from the Property Assessment Appeal Board to the
    Supreme Court of British Columbia.

Factual Background

[2]

The appellants Hudson's Bay Company (HBC) and Zellers Inc. are "anchor"
    tenants in Coquitlam Centre, a shopping centre in Coquitlam owned by Morguard
    Investments Limited ("Morguard").  It is assessed as a whole, and
    not in the names of the various entities that lease and occupy the shopping
    centre premises.  Morguard appealed its property assessments in respect of
    the Centre for the assessment years 2001-2003.  In late 2001 and early 2002,
    the Property Assessment Appeal Board (the "Board) conducted "appeal
    management conferences" between the Assessor and Morguard, in which the
    main topic of discussion was document disclosure.  The Board ordered the disclosure
    of certain documents, and once the Assessor had been provided with the information
    he required, Morguard and the Assessor agreed on a resolution of the appeal
    which specified a lower value for class 6 assets included in the shopping
    centre property.  Shortly thereafter, in July 2003, the Board issued a series
    of orders accepting the parties' recommendations and directing the Assessor
    to amend the 2001, 2002 and 2003 assessment rolls accordingly.  In keeping
    with its usual practice, the Board did not convene a hearing or require the
    parties to provide further information or submissions.  HBC and Zellers had
    no involvement at any stage of this process, although Morguard did inform
    Zellers in June 2001 that it was appealing that year's assessment.

[3]

As a result of the Board's orders, the assessed value of the shopping
    centre was reduced and Morguard received a rebate of property taxes for all
    three years in the total amount of some $929,000.  Strangely, however, due
    to the tax apportionment provisions in the leases of the two tenants, the
    amounts they were required to pay to Morguard in respect of property taxes
    under their leases were
increased
.  The tenants were first notified
    of this by letter dated November 7, 2003 from Coquitlam Centre's retail manager
    stating that Morguard's recent appeals had "met with some success"
    but that the results of the appeals on anchor tenants were "not all positive":
     Morguard required the payment of an additional $35,651 plus G.S.T. from HBC
    and an additional $30,210 plus G.S.T. from Zellers.  The two tenants were
    given a breakdown of the tax computations but were not provided with copies
    of the Board's decisions and orders until December 21 after their solicitor
    requested same from the Board.  On December 23, HBC and Zellers delivered
    a "Requirement to State a Case" to the Board, pursuant to s. 65(1)
    of the Act.

[4]

Evidently, the Board then received submissions from counsel concerning
    a preliminary objection made by the Assessor in respect of the Board's jurisdiction
    to state the case.  In the Assessor's submission, the Board did not have such
    jurisdiction because HBC and Zellers were not persons affected within the
    meaning of s. 65.  The Assessor also took the position that once an objection
    had been raised, the Board was required to make its initial determination
    of the point before referring the matter to the Supreme Court.  Counsel for
    the tenants took the opposite position.

[5]

On January 13, 2004 the Board by its chair, Ms. Vickers, declined to
    decide the matter, ruling that it was for the Court to determine.  She stated:

While
    section 65 is worded in such a way so as to suggest that it is for the Board
    to make this determination, in my view its intent is really to provide a right
    of appeal to the Supreme Court, on a question of law, from a decision of the
    Board to "a person affected".  Whether someone is "a person
    affected" is, therefore, a matter affecting the Supreme Court's jurisdiction
    to hear the appeal.  The jurisdiction of the Supreme Court to entertain the
    appeal, is an issue for the Court's determination.

Even
    if the question of whether someone is a "person affected" entitling
    them to require the Board to state a case is a matter within the Board's jurisdiction,
    the Board's decision on this point would, of course, be reviewable, on a standard
    of correctness, by the Supreme Court in any event.  Further, in order to make
    this determination, the Board may require, as it would in this case, evidence
    from the parties as to how the applicant is alleged to be affected by the
    Board's decision.  It simply makes more sense, that when the standing of an
    applicant to require an appeal is disputed, that issue be determined by a
    Court who must ultimately determine the appeal, and not the Board.

I further rely on the Court's decision in
GDB Investments Ltd. v. Assessor
    of Area #4  Port Alberni
, 1998 Stated case 417, in concluding that issues
    of compliance with section 65 are not within the Board's jurisdiction but
    are matters for the Court.

With her letter, Ms. Vickers enclosed a draft of the
    proposed form of stated case, which was required to be filed on the same day.
    In due course, it was filed in the Supreme Court of British Columbia, seeking
    the Court's opinion on three questions that need not be described here.

[6]

When the matter came before the Supreme Court in September 2004, Mr.
    Justice Scarth stated the two preliminary issues before him as follows ((2004)
    1 M.P.L.R. (4th) 214, 2004 BCSC 1270):

1.
    Was the Property Assessment Appeal Board required to determine as a prerequisite
    to filing this stated case with the court registry of the Supreme Court pursuant
    to s. 65(4) of the
Assessment Act
the threshold question of whether
    the Hudsons Bay Company and Zellers Inc. are, in the circumstances of this
    stated case, person(s) affected by a decision of the board on appeal within
    the meaning of s. 65(1) of the Act and therefore entitled to require the
    board to refer the decision to the Supreme Court for appeal on a question
    of law alone in the form of a stated case.

2.         Whether or not the board was required to decide
    the threshold question before filing this stated case with the court registry,
    are the Hudsons Bay Company and Zellers Inc. in the opinion of the Court
    person(s) affected within the meaning of s. 65(1) of the Act.  [para. 2]

The Board appeared but took no position on either question.

[7]

At para. 38 of his reasons, Scarth J. decided that the Board had been
    under a duty to decide whether the tenants were "persons affected by
    the decision of the Board on appeal" within the meaning of s. 65, prior
    to the filing of the stated case in the Supreme Court.  In his analysis:

In determining if the applicant for a stated case falls within the group
    entitled to require the board to state a case under s. 65 the board is not
    usurping this Courts role of deciding whether it has jurisdiction to hear
    the stated case; it is determining whether the board is required, and hence
    has the jurisdiction, under the Act to state the case; albeit the board and
    the Court, in performing their respective functions, may be required to address
    the same issue, namely, is the applicant for the stated case a person affected
    by the boards decision.  [para. 40]

However, he went on to deal with the second preliminary
    question, and neither party to this appeal has made any objection to his having
    done so.

[8]

After reviewing counsel's submission, the Chambers judge concluded
    at para. 63 that HBC and Zellers were persons affected for purposes of s.
    65(1).  He stated:

Plainly
    the
Act
distinguishes between those entitled to complain against an
    entry in the assessment roll before a review panel, those entitled to appeal
    the decision of the review panel to the board, and those entitled to appeal
    the boards decision to this Court.  The latter group is manifestly narrower
    than the first two:
Assessor of Area #08  North Shore/Squamish Valley
    v. Joan Anne Wedley et al
, 2000 BCSC 1365, at ¶ 7.  This does not, in
    my view, suggest that a person affected in s. 65(1) of the
Act
is
    restricted to an owner of the property in question or, conversely, that a
    tenant
per se
is excluded from the term person affected.

One
    must, I think, look at the realities of the situation as they are presented
    in the factual matrix of this case.  Insofar as The Coquitlam Centre is concerned,
    the municipality in which it is situate, the City of Coquitlam, imposes taxes
    against the lands and improvements pertaining to the Centre.  The assessed
    value of those lands and improvements, as determined pursuant to the
Assessment
    Act
, is a factor in establishing the amount of those taxes.  Clearly,
    the owner of the lands and improvements, here Morguard Investments Limited,
    is a person affected by a change in the assessed value of the lands and improvements
    and hence by a decision of the board on appeal.  The owner must, of course,
    pay the property taxes imposed against its lands and improvements or run the
    risk of losing its property.
The Hudsons Bay Company and Zellers Inc.,
    in my view, are not in a significantly different position.  If they fail to
    pay the property taxes as part of their rent under their leases with the owner
    they run the risk of losing their leasehold interests in the lands and improvements.
    They too are affected by a change in the assessed value of those lands and
    improvements and hence by a decision of the board on appeal.

I am unable to read into s. 65(1) of the
Assessment Act
a distinction between the imposition of taxes against the lands and improvements
    of Coquitlam Centre for which the owner is liable
qua
owner and for
    which these tenants are liable
qua
tenants.  Both owner and tenants
    are persons affected by a decision of the board on appeal.  [paras. 64-66;
    emphasis added.]

Accordingly, Scarth J. ordered that the question of whether
    the tenants were "person[s] affected by a decision of the board on appeal"
    should be answered "yes", and that the Board should have decided
    the threshold question.

The Statutory Scheme

[9]

Before reviewing counsel's arguments on the appeal in detail, it may
    be worthwhile to review briefly the assessment and appeal processes provided
    for in the Act, and in particular, the statutory "timelines" and
    provisions regarding standing.

[10]

As the Assessor noted in his factum, the Act provides for the annual
    valuation and classification of real property, and for procedures whereby
    certain persons are entitled to appeal such assessments after they have been
    entered on the assessment roll.  The assessments are used by various taxing
    authorities as the basis for levying real property taxes pursuant to other
    enactments such as the
Community Charter
, S.B.C. 2003, c. 26,
    the
Taxation (Rural Area) Act
, R.S.B.C. 1996, c. 448 and the
Vancouver Charter
, S.B.C. 1953, c. 55.

[11]

The first stage of "complaint" from an entry in an assessment
    roll is to a review panel under s. 33(1).  A person may make such a complaint,
    as may the Minister of Finance and Corporate Relations, the commissioner,
    a local government or an assessor, as set out in ss. 32(2), (3) and (4) respectively.
    The complainant must file notice of the complaint with the assessor no later
    than January 31 of the year following the year in which the roll was completed.
     If the complaint is not resolved under s. 10(2), the time for hearing by
    the review panel must be set before March 16.  By that date as well, the review
    panel must complete any investigation under s. 38(2)(a) and adjudicate
    the matters raised by the complaint (s. 38(4).)

[12]

Under s. 41 of the Act, the assessor is required by April 7 following
    the review panels sitting to deliver notice of the decision, or of its refusal
    to adjudicate the complaint, to the owner of the property to which the decision
    relates and to the complainant.  Section 42 requires the assessor to amend
    the assessment roll in accordance with any directions given by the review
    panel under s. 38(2)(d).

[13]

Part 6 of the Act deals with appeals from decisions of the review panel.
    Such appeals must be based on the grounds described in s. 32(1).  Section
    50 provides that such an appeal may be brought by "a person" who
    files a notice of appeal with the Board on or before the April 30 date following
    the sitting of the review panel.  Sections 51-52 state:

51
    If the board receives a notice of appeal in accordance with section 50, the
    board must promptly provide a copy of the notice to each of the following
    who is not the appellant:

(a)        the owner of the property;

(b)        the assessor;

(c)        the municipality or regional district in respect
    of which the property is located;

(d)        the commissioner;

(e)        the complainant before the review panel, if
    that person is not a person specified in paragraphs (a) to (d).

52        (1)        The following persons
    are parties to an appeal under this Part:

(a)        the appellant;

(b)        the owner of the property, if not the appellant;

(c)        the complainant at the review panel, if not
    the owner or appellant;

(d)        the assessor.

(2)        The board may direct that
any other person
    who may be affected by the appeal
may be added as a party to the appeal,
    including, without limitation, a local government in respect of which the
    property is located, the government or the commissioner.

(3)        The board may permit a person to take part
    in an appeal as an intervenor.

(4)
    An intervenor may take part in an appeal only to the extent permitted by the
    board.  [Emphasis added]

(Subsections
    (3) and (4) were deleted by S.B.C. 2004, c. 45,
after
the material
    events of this case, but see s. 33 of the
Administrative Tribunals Act
,
    S.B.C. 2004, c. 45.)

[14]

Section 61 requires the Board to issue its decision "at the earliest
    opportunity after hearing an appeal" and, on request by a party, to provide
    written reasons for its decision.  The Board must deliver notice of its decision
    on an appeal to "the parties to the appeal and any intervenors"
    and to the commissioner.  On receipt of the Board's decision, the assessor
    must make any required amendments to the assessment roll "promptly",
    and ensure that a copy of notice of the Board's decision is available for
    public inspection:  s. 63(1).

[15]

Part 7 of the Act provides for appeals by stated case on questions
    of law.  Section 64 deals with the referral of a question of law, in the form
    of a stated case, to the Supreme Court by the Board, either on its own initiative
    or "at the request of one or more of the persons affected by the appeal"
    at any stage of the proceeding.  Upon the filing of a stated case, the Board
    must "suspend the proceeding as it relates to the stated case and reserve
    its decision until the opinion of the Supreme Court has been given",
    and decide the appeal in accordance with the Court's opinion. The stated case
    must be brought on for hearing within one month from the date on which it
    is filed, and the Court must hear and determine the stated case and give its
    decision within two months.

[16]

Section 65, with which we are concerned in this case, deals with appeals
    on questions of law alone brought from decisions of the Board.  I reproduce
    the relevant provisions below:

65        (1)        Subject to subsection
    (2),
a person affected by a decision of the board
on appeal, including
    a local government, the government, the commissioner or an assessor acting
    with the consent of the commissioner, may require the board to refer the decision
    to the Supreme Court for appeal on a question of law alone in the form of
    a stated case.

(2)
Within 21 days after receiving the decision
    referred to in subsection (1)
, the person must deliver to the board
    a written request to refer the decision to the Supreme Court, and include
    in the request the question of law to be referred.

(3)        On receipt of the request under subsection
    (2), the board must promptly provide written notice of the request to

(a)        the parties to the appeal from which the reference
    is requested and any intervenors, and

(b)        the commissioner, if the commissioner was
    not a party.

(4)        Within 21 days after receiving the request
    under subsection (2), the board must file the stated case with the court
    registry, including the decision on appeal, a statement of the facts and all
    evidence material to the stated case.

(5)        The stated case must be brought on for hearing
    within one month from the date on which it is filed under subsection (4).

(6)        Subject to subsection (7), the court must
    hear and determine the stated case and within 2 months give its decision.

* * *

(9)        An appeal on a question of law lies from a
    decision of the Supreme Court to the Court of Appeal with leave of a justice
    of the Court of Appeal.

(10)
    The board must direct the assessor to make any amendment to the assessment
    roll necessary to give effect to a decision made by the Supreme Court or the
    Court of Appeal under this section.  [Emphasis added.]

[17]

As counsel noted, none of the appeal provisions of the Act deals specifically
    with lessees of real property.  However, Mr. Fraser brought to our attention
    s. 4, which permits the registered holder of a charge to give notice of his
    or her charge to the assessor and to request copies of all assessment and
    tax notices issued during the duration of the charge.  Upon receipt of such
    notice, s. 6(4) requires the assessor to enter the chargeholders name and
    address on the assessment roll and to mail to the lessee a copy of any assessment
    notice in respect of the subject property.  In addition, s. 6 (7) contemplates
    that in respect of classes of property specified by regulation, the owner
    must on request by a lessee of all or part of the property, deliver a copy
    of the notice to the lessee.  There is no evidence that HBC or Zellers gave
    the assessor any notice under s. 4, or that s. 6(7) applies to the shopping
    centre premises leased by them.  Nor is there any requirement that chargeholders
    who have invoked s. 4 be given notice of the decisions of review panels or
    of the Board made on an appeal.

[18]

In summary, the Act provides very wide rights of appeal to review panels
    and to the Board. Literally any person can advance a complaint or appeal at
    both levels, whether or not he or she holds any interest in the assessed property
    or is affected personally by the assessment decision.  At the final stage,
    appeals by stated case on questions of law, the right is narrower:  a person
    may appeal only if he or she is affected by a decision of the board on appeal.
    This general scheme has existed for many years and through many iterations
    of the
Assessment Equalization Act
and
Assessment Act.
The 1960 revision of the 1953 Act (c. 32, 2
nd
Sess.),
    for example, provided in s. 44(1) for a person who was dissatisfied with
    a decision of the court of revision to appeal to the Assessment Appeal Board,
    and in s. 51(2) for any person affected by the decision of the Board on appeal
    to require the Board to submit a stated case to the Supreme Court on a question
    of law:

51 (2)
Any person affected by the decision of the Board on appeal
,
    including a municipal corporation acting on the recommendation of the Assessor
    and on the resolution of its Counsel, including a Provincial Assessor acting
    with the consent of the Minister of Finance, and including the commissioner,
may, after he has served on all persons affected by the decision a written
    notice of his intention
to require the Board to submit the case to the
    Supreme Court, by correspondence addressed to and received by the Board within
    twenty-one days of the receipt of the decision by such person, require the
    Board to submit the case for the opinion of the Supreme Court on a question
    of law only.  [Emphasis added]

[19]

Similarly, Part VII of the
Assessment Act,
S.B.C. 1974,
    c. 6, provided in s. 60(1)  for a person who was dissatisfied with a decision
    of the Court of Revision to appeal to the Board.  The statute did not require
    the Board to notify anyone of its decision, except the appropriate assessor:
    s. 66(1).  Section 67(1) and (2) then provided as follows with respect to
    appeals from the Board:

67.
    (1)
Any person affected by the decision of the board
on appeal, including
    a municipality on the resolution of its council, the Minister of Finance,
    and the commissioner, has,
within twenty-one days of receipt of the decision
    of the board
, the right of appeal to the Supreme Court on a question of
    law only.

(2)  At any stage of the proceedings, the board on its own initiative,
    or
at the request of one or more of the persons affected by the appeal
,
    may submit, in the form of a stated case for the opinion of the Supreme Court,
    a question of law arising in connection with the appeal, and shall reserve
    its decision until the opinion of the Supreme Court has been given, and the
    board shall then decide the appeal in accordance with the opinion.  [Emphasis
    added]

[20]

The same general pattern was repeated in the
Assessment Act
,
    R.S.B.C. 1979, c. 21 at ss. 67 and 74, the relevant provisions of which stated:

67(1)
Where a person
, including a municipality, the minister, commissioner,
    or assessor, is
dissatisfied with the decision of a Court of Revision
,
    or with the omission or refusal of the Court of Revision to hear or determine
    the complaint on the completed assessment roll, he may appeal from the Court
    of Revision to the board.

* * *

74(1)
    At any stage of the proceedings before it, the board, on its own initiative
    or at the request of
one or more of the persons affected by the appea
l,
    may submit, in the form of a stated case for the opinion of the Supreme Court,
    a question of law arising in the appeal, and shall suspend the proceedings
    and reserve its decision until the opinion of the final court of appeal has
    been given and then the board shall decide the appeal in accordance with the
    opinion.

(2)
A person affected by a decision of the board on appeal
, including
    a municipal corporation on the resolution of its council, the Minister of
    Finance, the commissioner, or an assessor acting with the consent of the commissioner,
    may require the board to submit a case for the opinion of the Supreme Court
    on a question of law only by

(a)  delivering to the board,
within 21 days after his receipt of the decision
,
    a written request to state a case; and

(b)  delivering,
within 21 days after his receipt of the decision
,
    to all persons affected by the decision, a written notice of his request to
    the board to state a case to the Supreme Court.  [Emphasis added]

[21]

Beginning in 1989, with the enactment of the
Assessment (Amendment)
    Act
, S.B.C. 1989, c. 20, and ending in 1998 with the enactment of
    the
Assessment Amendment Act
, S.B.C. 1998, c. 22, one variation
    of note was in force: s. 68(6)(b) provided with respect to appeals from a
    court of revision, that any other person affected by the appeal who is accepted
    as a party by the board or the panel or member conducting the appeal could
    be a party to the appeal.  This provision was at issue in
Yorke v. Assessor
    of Area #9
(1992) 70 B.C.L.R. (2d) 135 (B.C.S.C.), discussed below.

[22]

The wording of s. 65(1) and (2) of the 1996 revision (R.S.B.C. c. 20)
    is quoted at para. 16 above.

Analysis

[23]

Who, then, is a person affected by a decision of the board on appeal
    within the meaning of s. 65(1)?  Case law suggests that the phrase a person
    affected, as it has appeared in preceding enactments, is not wide enough
    to include a person who has a mere public interest, including that of a
    taxpayer, in the assessment of another taxpayers property.  Thus in
Mellor
    v. Harbour Park Developments Ltd
. (1970) S.C. 67, Seaton J., then
    a judge of the Supreme Court of British Columbia, concluded that a taxpayer
    with no interest in the subject property was not a person affected for purposes
    of s. 51(2) of the
Assessment Equalization Act
, R.S.B.C. 1960,
    c. 18.  (See para. 18 above.)  Seaton J. reasoned:

The
    appellant does not claim any interest in the land.  I gather that he is a
    resident of Vancouver, and I presume, for the purposes of these reasons, a
    taxpayer.
That is no help.  If every taxpayer is a person affected, the
    appellant fails because he has not given notice to every other taxpayer
.
    The section provides that he may require the board to submit the case only
    after he has served all
persons affected
.

The
    term must mean the same thing on each of the occasions it is used in the section.
    The Legislature did not intend an appellant to serve all taxpayers, and I
    conclude that the term persons affected must be somewhat narrower than that.

The appellant claims to be a person affected, because he exercised the
    right of any person to appeal to the Court of Revision and the Board.  Can
    it be said that because he exercised those rights he is now a person affected?
    I think not.  (At 326; emphasis added)

Seaton J. also noted an Alabama decision,
M.W.
    Smith Lumber Co. v. Alabama Public Service
24 So. (2d) 409 (1946),
    which held that the words affected thereby in an enactment refer to one
    who has a personal interest in the subject matter and not a mere public interest
    in common with the general public, and the order challenged subjects him to
    actual or threatened legal injury.

[24]

This court ultimately dismissed Mr. Mellors appeal (see (1970) S.C.
    327), although the issue before the panel was his application for an extension
    of time in which to bring his appeal under s. 51(7) of the
Assessment
    Equalization Act
.  The Court concluded that the latter statute, rather
    than the
Court of Appeal Act
, applied and that Mr. Mellor was
    out of time.  The Court did not deal with the meaning of person affected.

[25]

As will also be apparent from the legislative review above, the requirement
    construed by Seaton J. in
Mellor
that an appellant serve notice
    of his request on all persons affected by the decision was not carried forward
    to s. 67 of the 1974 revision of the
Assessment Act
. It did
    reappear in s. 74(2) of the 1979 Revised Statutes and in s. 63(3)(b) of the
    1996 revision until the latter was amended by S.B.C. 1998, c. 22.

[26]

Mellor
was cited and followed, albeit in a different
    statutory context, in
Yorke v. British Columbia (Assessor of Area #9)
,
supra
.  In that case, the Committee of Progressive Electors (COPE)
    sought to challenge the assessment of the former Expo site which was owned
    by Concord Pacific Developments Ltd..  At the time fixed for the hearing of
    the assessors appeal from the Court of Revision to the Assessment Appeal
    Board, COPE sought to be added as an intervenor under what was then s. 68(6)
    of the
Assessment Act,
which permitted an appeal to be made
    by various persons and by any other person affected by the appeal who is
    accepted as a party by the board or the panel or member conducting the appeal.
    Parrett J. held that COPE was not a person affected.  In his analysis:

The purpose of s. 68(6)(b) is not to provide a mechanism to allow any
    taxpayer to appear and participate in the hearing for that right is provided
    through the provisions of s. 40 of the Act which provides the board with a
    discretion to recognize and add as a party persons affected by the appeal.
    When viewed in the context of the legislative scheme as a whole
it is intended
    that such persons be individuals, organizations or representatives not enumerated
    in s. 68(4) who are subject to actual or threatened injury or benefit arising
    from alterations or possible alterations to their right or property
.
    To come within the section it is not sufficient to demonstrate merely a public
    interest which that person holds in common with the general public [;] such
    an interest may entitle a person to participate but only through the mechanism
    provided in s. 40.  This is also the answer to the argument that the present
    appellants have a representative character, in that they represent groups
    of individual taxpayers [;] their representative character can give them only
    the right to participate through the procedure provided in s. 40.  Mr. Rankin
    in his argument suggested that there must be a vision at least of public participation
    in this process [;] the legislation provides the reality of that participation
    but lays down the requirements of that participation to ensure an orderly
    process.  (at 142; emphasis added).

(See also
GDP Investments Ltd. v. Assessor of Area
    05  Port Alberni
(1999) SC 417 (B.C.S.C.)).

[27]

A more recent case, decided by Lowry J. (now J.A.), is
Wedley
    v. British Columbia (Assessor of Area #8  North Shore/Squamish Valley
)
    2000 B.C.S.C. 1365.  This was an appeal brought by an assessor from a decision
    of the Board dealing with the question of whether G.S.T. was to be included
    in the valuation of a condominium Mr. and Mrs. Wedley had purchased some years
    earlier.  The assessors appeal was by way of stated case and the Wedleys
    also appealed.  The assessor objected when several other property owners sought
    to participate in the hearing in Supreme Court.  Lowry J. sustained the objection,
    holding as follows:

In my view,
    while the statute provides for complaints to a review panel and appeals to
    the Board being taken by others, it is only the Wedleys, the owners of the
    subject property, who can be said to be affected by the decision of the Board,
    and only they who can appeal to this court.
To be a person affected by
    the decision one must have a personal interest in the subject-matter, not
    a mere public interest
.  His or her rights in respect of the property
    assessed must be affected by the decision:
Mellor v. Harbour Park Developments
    Ltd. et al.,
and
GDP Investments Ltd. v. Assessor of Area 05  Port
    Alberni
, (21 May 1999), Vancouver A982380 (S.C.).  It is then only the
    Wedleys who have standing to be heard on this appeal.  [para. 8; emphasis
    added].

[28]

None of these cases deals with the position of a lessee, and counsel
    have not located any case that does.  Mr. Fraser naturally submits on behalf
    of HBC and Zellers that a tenant whose rent may by contract (i.e. the lease
    terms) be increased or decreased according to the owners property tax payable,
    clearly has more than a mere public interest in the assessment.  In his
    submission, the tenants have interests in real property and are affected financially
    by a decision (or more specifically, an approval of a settlement reached by
    the landlord and the Assessor) such as that made by the Board in this case,
    even though their liability for increased rent occurred as the result of the
    terms of their private lease arrangements with Morguard.

[29]

Looking for the moment only at the phrase a person affected by a decision
    of the board, I agree with Mr. Frasers submission on this point.  In my
    view, the ordinary and natural meaning of the phrase would include persons
    such as HBC and Zellers who have an interest in the land being assessed and
    whose rent will be increased or decreased as a result of a change in the assessment
    of the property.  In the modern commercial context, it would be unrealistic
    to ignore the fact that many leases provide for the tenant to pay, or to reimburse
    the lessor, for property taxes as a specific add-on to normal rent.  Thus
    the tenants interest in the settlement reached by Morguard and the Assessor
    is a legitimate one.  As well, I disagree with Mr. Klassens argument that
    because the Act deals only with assessments and does not impose liability
    for taxation, the tenants cannot be said to be affected
by the assessment
.
    Such an argument
might
prevail if the Act used the words a person
directly
affected in this context, but it does not.

[30]

Counsel for the Assessor contends, however, that this interpretation
    of the phrase leads to an absurdity for two separate but related reasons.
    First, he notes that s. 65(2) requires that a person affected who wishes
    to have an appeal advanced, must deliver to the board a written request within
    21 days after receiving the decision referred to in subsection (1).  Where
    the person affected is not already a party or intervenor, however, there
    is no statutory requirement that he or she receive notice of the decision
    from the Board (or anyone else): as mentioned earlier, s. 62 requires only
    that the Board notify the parties to the appeal, any intervenors, and the
    commissioner.  Since the tenants were not parties at the lower stage in this
    case, they received no notice from the Board.  Thus the Assessor argues in
    his factum:

That the interpretation urged by the Tenants results in an absurdity is
    underscored by the fact that if the Tenants were correct, the appeal process
    would be potentially never ending.  This is so as the Tenants assert that
    the time for the filing of the requirement to state a case commences when
    it
received
the Order of the Board, some five months after the Orders
    came down.  If this is correct, a tenant could, hypothetically, require the
    Board to State a Case years after the decision was rendered by simply asserting
    that they did not receive the decision until then.  In order for the time
    for an appeal to run from the date of its receipt by the proposed appellant,
    it is submitted that there must be in the Act an obligation to
send
the decision in the first instance.

[31]

This leads directly to the Assessors second and broader point  that
    the decision appealed from runs contrary to the intention of the Act that
    the roll should be finalized and the appeal process should be efficient, as
    shown by the various time requirements in the Act.  These considerations,
    Mr. Klassen contends, would be meaningless if a would-be appellant who had
    not received notice of a decision of the Board within a reasonable time of
    the making of that decision could, upon learning of it, require that a stated
    case be referred to the Supreme Court.  Final assessments could be delayed
    by months or even years beyond what is contemplated.  In the Assessors submission,
    such a result would be absurd in the sense of conflicting with the intent
    and object of the Act.

[32]

Unstated, but implicit, in this argument is the proposition that although
    words used in a statute may have an ordinary and natural meaning, where that
    meaning would produce absurd consequences, a court will adopt the construction
    that does not lead to that result .  (See
Boma Manufacturing v. Canadian
    Imperial Bank of Commerce
[1996] 3 S.C.R. 727, at para. 109, per LaForest
    J., and
Re Rizzo and Rizzo Shoes Ltd.
[1998] 1 S.C.R. 27, at
    para. 27.)  In recent years, the Supreme Court of Canada has pointed to an
    approach to statutory interpretation that is less concerned with what Professor
    Sullivan calls textual meaning (Ruth Sullivan, Sullivan and Driedger on
Construction of Statutes
(4
th
ed., 2002)) and more
    with the legislators intent.  She writes:

Even
    the strongest proponents of consequential analysis do not suggest that courts
    can blithely disregard the clear intentions of the legislature.  In certain
    circumstances, however, they may reject the apparent clear meaning of a text.
    Under the plain meaning rule, courts must apply the text as written because
    textual meaning is considered the only safe indicator of legislative intent.
    Under the modern principle, however, the chief duty of the courts is not to
    give effect to textual meaning, but to what the legislature most likely intended.
    The courts must harmonize the text as written with other indicators of legislative
    intent, including presumed intent.  The modern principle justifies the presumption
    against absurdity by integrating it into the analysis through which the intention
    of the legislature is constructed.  (At 243.)

[33]

With this integrated approach in mind, I turn to the legislators
    intent as indicated by the Act.  There is no doubt that two of the general
    objectives of the assessment and appeal scheme it incorporates are efficiency
    and certainty in the preparation of the assessment roll.  However, they are
    not the only objectives.  Two other clear policies of the Act are, to use
    a colloquial expression, to get it right and to have as open a process as
    possible.  Presumably this is why the Act provides wide rights of appeal to
    those who may have information or arguments that the assessing authorities
    may not have considered or properly reflected in their decisions.  Hence any
    person may appeal at the first two levels, and any person affected at the
    third level. It is not consistent with these other objectives to read the
    phrase any person affected in a narrower way than the ordinary meaning would
    indicate.

[34]

Moreover, there are various opportunities for delay in the assessment
    and appeal proceedings, notwithstanding the timelines specified in the Act.
    Section 57(5), for example, provides that the assessor must enter any reassessments
    ordered under s-s. 4 on a supplementary assessment roll, notwithstanding a
    twelve-month deadline imposed by s. 12(6).  With respect to decisions of
    the Board, s. 61 provides that the Board must issue its decision at the earliest
    opportunity, no doubt recognizing that it would be virtually impossible to
    impose a time limitation for this purpose.  The Act does not specify any time
    within which notice of its decision must be given under s. 62.  Further, s.
    65(6) provides that on a stated case, the Court must hear and determine it
    within two months; but non-compliance with that provision is unlikely to affect
    the validity of the appeal or the Courts decision.  Last, as Mr. Fraser notes,
    the 21-day deadline imposed by s. 65(4) on the Board has been held to be
    only directory as far as the Board is concerned:  see
Assessment Commissioner
    v. Woodwards Stores Ltd. et al.
(1981) S.C. 142.

[35]

All of these instances suggest that the openness of the process and
    the full availability of rights of appeal may be as important legislative
    objectives as efficiency and finality in the statutory assessment scheme.
    At the least, in my view, they suggest that the result arrived at by the Chambers
    judge below is not absurd in the sense that it contradicts values or principles
    implicit in the Act or necessary for its operation.

[36]

There are other reasons that also militate in favour of the proposition
    that the tenants in this case are persons affected.  As has been seen, HBC
    and Zellers could have appealed under s. 50(1) from a decision of a review
    panel, in which case they would have become parties to the appeal in accordance
    with s. 52(1).  Had they done so, they would have been parties and would
    therefore have been eligible to require the Board to refer the stated case
    to the Supreme Court.  Yet not having been made aware of or participated in
    the lower stage of appeal, they are in the Assessors submission not eligible
    to appeal at this stage. Thus it is implicit in the Assessors argument that
    a person affected must have been a party to, or intervenor in, the lower
    appeal.  I am not persuaded that there is good reason to infer such a qualification
    into the phrase person affected in s. 65.  As Mr. Fraser contends, if the
    Legislature had intended that only persons referred to in s. 62, or parties
    to the earlier appeal, were eligible to invoke s. 65(1), it would have been
    an easy matter to so state.  As it is, the Assessor is required to ensure
    that the Boards decision is available for public inspection and the Act does
    recognize the interests of tenants in the assessment of their leased premises.
    These facts reinforce the argument which arises from the ordinary and natural
    meaning of the phrase, that the Legislature intended that such persons also
    have wide rights of appeal, including appeals on questions of law to the Supreme
    Court.

[37]

I conclude, then, that the ordinary and natural meaning of the impugned
    phrase is not absurd or contrary to the intent of the Act as a whole, and
    that each of HBC and Zellers was a person affected by a decision of the Board
    on appeal for purposes of s. 65.

[38]

I would dismiss the appeal, with thanks to both counsel for their very
    able submissions.

The Honourable
Madam Justice Newbury

I Agree:

The Honourable
Madam Justice Rowles

I Agree:

The Honourable
Mr. Justice Donald