COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Routkovskaia v. Gibson,

2020 BCCA 29

Date: 20200124

Docket: CA46228

Between:

Olga Routkovskaia

Appellant

(Respondent)

And

Michael Gibson

Respondent

(Applicant)

Before:

The Honourable Madam Justice Garson

(In Chambers)

On appeal from:  An
order of the Supreme Court of British Columbia, dated
June 19, 2019 (
Routkovskaia v. Gibson
, 2019 BCSC 2186,
New Westminster Docket E56257).

The Appellant, appearing in person
(via teleconference):

O. Routkovskaia

The Respondent, appearing in person:

M. Gibson

Place and Date of Hearing:

Vancouver, British
  Columbia

January 9, 2020

Place and Date of Judgment:

Vancouver, British
  Columbia

January 24, 2020

Summary:

The respondent applies for
directions as to whether the appellant requires leave to appeal. He also
applies for an extension of time to file and serve his factum. The appellant
applies for access to the recording and unedited transcript of the judges oral
judgment in the court below. Held: With the exception of the application for an
extension of time, the applications are dismissed. With respect to the
respondents application for directions, this Court no longer entertains
applications for directions as to whether leave to appeal is required. It would
appear, however, that leave is not required. The respondents application for
an extension of time is granted. With respect to the appellants application,
she must follow the procedure set out in the court below for access to the records.

Reasons for Judgment of the
Honourable Madam Justice Garson:

Applications

[1]

There are several applications before me in this high conflict family
case.

[2]

The first application is Mr. Gibsons application for directions as
to whether Ms. Routkovskaia requires leave to appeal an order of a Supreme
Court judge dismissing an appeal from a Provincial Court judge on the grounds
that the order was an interim order from which there is no appeal: s. 233
of the
Family Law Act
, S.B.C. 2011, c. 25 [
FLA
].

[3]

The second application before me is Ms. Routkovskaias application
for access to the court recording of the judges oral judgment, as well as a
prepared transcript (unedited) of his reasons. She says the judge edited his
reasons in an unauthorized manner.

[4]

The third application before me is Mr. Gibsons application for an
extension of time to file and serve his factum.

[5]

For the reasons that follow, Mr. Gibsons application for
directions and Ms. Routkovskaias application for access to the records
below are dismissed. Mr. Gibsons application for an extension of time to
file and serve his factum to February 18, 2020 is granted.

Background

[6]

The underlying issue in this appeal is an access and custody dispute.
The parties have a child, born in 2008.

[7]

On November 8, 2010, Judge Steinberg of the British Columbia Provincial
Court ordered that Mr. Gibson have weekly access visits with the child.

[8]

On September 14, 2012, Judge Buller Bennet of the Provincial Court made
an order by consent that contained an access schedule for Mr. Gibson and
provided that the parties have joint guardianship.

The application and trial leading to the order in question

[9]

On August 3, 2016, Mr. Gibson applied for an order in the British
Columbia Provincial Court for full custody of their child. Specifically, the
application asked that the November 2010 access order be replaced. In his
written application, Mr. Gibson wrote: Access  Full Custody  I believe
my son is living in unacceptable conditions and is not being taken care of.

[10]

On October 7, 2016, Ms. Routkovskaia counterclaimed for child
support, retroactive support, and a protection order. Ms. Routkovskaia
asked for a protection order due to Mr. Gibsons anger issues.

[11]

From November 2017 to September 2018, a trial concerning the child took
place over 14 days in Provincial Court.

The September 2018 Order

[12]

On September 7, 2018, at the conclusion of the trial, Judge Steinberg
made an order that Mr. Gibson and Ms. Routkovskaia have joint
guardianship of their child (the September 2018 Order). This order provided,
inter
alia
, that the primary residence of the child will be with Ms. Routkovskaia,
an access schedule for Mr. Gibson that increased access over the previous
order, that each parent should attend counselling, and that each parent should
prepare a list of three things that have improved between them for report at
the review. The order provided for a review to take place in April of 2019.

[13]

On October 16, 2018, Ms. Routkovskaia appealed this order to the
Supreme Court of British Columbia pursuant to s. 233(1) of the
FLA
.
In her Notice of Appeal, Ms. Routkovskaia alleges that the Provincial
Court judge made errors of law by improperly considering the best interests of
the child and by incorrectly assessing family violence. Her Notice of Appeal
also alleges an error of jurisdiction in the requirement to report three things
that have improved between the parents.

[14]

On April 16, 2019, Judge Steinberg heard the scheduled review of
the September 2018 Order. At this hearing, Judge Steinberg stated the
following:

It's hard to call what I did in
September a final order because if you read the order it's coming back today
for a review of its terms and any changes that may be necessary. That doesnt
sound like a final order. You're free to appeal it. I dont have the slightest
hard feeling about that. I dont think any, the less or more of you, for it.
You have an absolute right to appeal. So you know, maybe you'll be successful,
maybe you won't.

[15]

The order under appeal from the Provincial Court provides as follows:

1.         The Applicant, Michael E. Gibson (Mr. Gibson)
and the Respondent, Olga Routkovskaia (Ms. Routkovskaia) shall have joint
guardianship of the child  (the Child);

2.         Primary residence of the Child shall be with Ms. Routkovskaia;

3.         Mr. Gibson shall have parenting time
with the Child every second weekend from Thursday to Monday morning, the Child
will be picked up from school or after school program on Thursday and returned
to school Monday morning;

4.         If there is a Professional Development day or
statu[to]ry holiday following the weekend of Mr. Gibsons parenting time
with the Child, Mr. Gibson will have the Child from Friday to Tuesday. The
Child will be picked up from school or after school program on Friday and
returned to school on Tuesday morning;

5.         Mr. Gibson shall have telephone access
with the Child 1 time a week. Each call is not to exceed 15 minutes and the Child
is to be permitted to call his father, Mr. Gibson anytime the Child
wishes;

6.         Mr. Gibsons calls will be on the
Thursday before the weekend the Child is not with Mr. Gibson and on the
Tuesday of the following week;

7.         Each parent is to treat the other with
courtesy and respect and will limit communication to factual information
necessary for the other parents care of the Child;

8.         Each parent will advise the other of any
medical, dental or similar appointments;

9.         Each parent is to notify the other at the
earliest possible opportunity of their plans to travel outside the country and
if written permission is required for that travel the other parent is to
immediately supply that written permission unless there is a good reason not
to;

10.       Subject to further Court Order, for the
Childs school winter break and spring break, each parent is to have
alternating weeks, the week is to be scheduled so that it does not interfere
with the overall cycle of the exchanges;

11.       Mr. Gibsons parenting time during the summer
will [be 2] weeks in July and 2 weeks in August;

12.       The Child will be with Ms. Routkovskaia
during the day of Mothers Day and with Mr. Gibson on Fathers Day. Pick‑up
and drop‑off will be by Mr. Gibson from 10:00 am to 7:00 pm;

13.       Any changes that need to be made shall be
reviewed during April of 2019;

14.       Mr. Gibson, Ms. Routkovskaia and the
Child shall each attend counselling, for the parents counselling is to be
focussed on improving communication and for the child counselling is to be
focussed on how to cope with differing parenting styles;

15.       Each parent is to
prepare a list of three things that have improved between them for the period
from this date until the appearance in April 2019 and present that list to the
Court at that appearance.

[16]

Her entitlement to appeal turns on the question of whether Judge
Steinbergs order is final or interim. If Judge Steinbergs order is interim
there is no right of appeal, pursuant to s. 233(1) of the
FLA
:

233
(1) A party may appeal to the
Supreme Court an order of the Provincial Court made under this Act,
except
an interim order
.

[Emphasis added.]

[17]

Ms. Routkovskaia appeals from the Order of Justice Ball on the
ground that he erred in determining the order was interim.

The Supreme Court Appeal

[18]

On June 19, 2019, a hearing was held in British Columbia Supreme Court
Chambers before Justice Ball. Mr. Gibson took the position at the hearing
that the September 2018 Order of Judge Steinberg was an interim order.

[19]

Following the hearing, on June 19, 2019, Justice Ball ordered that the
application of Ms. Routkovskaia be dismissed because it was an interim
order. The reasons for judgement are brief (2019 BCSC 2186). Justice Ball said:

[2]

I have
reviewed this transcript with some care, particularly the final portion of the
transcript. Upon that review and reflecting on the comments from Ms. Routkovskaia,
and the rather more brief comments from Mr. Gibson, I am satisfied, based
on that review, that this was not a final order and was never intended to be a
final order.

[3]        The recorder had difficulty recording reasons
because there were often two persons speaking. What is clear from the
transcript is that there was a conversation between Ms. Routkovskaia and
Judge Steinberg. Judge Steinberg is a very experienced member of the court, he
would not have tolerated the kind of consistent interruptions which took place
here while he was giving reasons. It is difficult enough to give reasons
without being repeatedly interrupted with references to bits of evidence and
statements to the effect that I disagree with this, and I disagree with that.
This is simply a conversation intending to lead to a further hearing which
occurred and not a final order.

[4]        The parties subsequently appeared again in front
of His Honour in the following April to continue the proceeding. The proceeding
in April was not before this court on appeal. That second hearing however is
inconsistent with there having been a final order on September 7, 2018.

[5]        There is no basis for an appeal of an interim
order here, and because this is an interim order and not a final order, I am
dismissing this appeal now.

[6]        Each party will bear
their own costs.

[20]

Ms. Routkovskaia now seeks to appeal the order of Justice Ball to
this Court.

Analysis

[21]

Mr. Gibson applies for directions as to whether Ms. Routkovskaia
has a right to appeal. As of May 8, 2017, this Court no longer entertains
applications for directions as to whether leave to appeal is required in a
particular matter (Commencing an Appeal When Uncertain if Leave to Appeal is
Required (Civil Practice Directive, 8 May 2017)).

[22]

Even though this Court no longer gives directions, I would observe that
it appears leave would not be required in any circumstance of this case. If the
initial order was an interim order, there lies no right to appeal that order at
all (
FLA
, s. 233). If it was a final order, Ms. Routkovskaia
would be able to appeal as of right (
Court of Appeal Rules
, R. 2.1).
There appears to be no circumstance in which leave to appeal would be required.
Ms. Routkovskaia would in the normal course pursue her appeal. Mr. Gibson
could respond, in part, that the court has no jurisdiction to hear an appeal
from an interim order.

[23]

Mr. Gibsons application for directions is dismissed.

[24]

The second application concerns the oral reasons for judgment of Justice
Ball.

[25]

Ms. Routkovskaia seeks the following relief:

a.         An order authorizing the British Columbia
Supreme Court to release audio recording of the hearing to the parties on
record, Olga Routkovskaia and Michael Gibson, upon their request.

b.         An order authorizing the British Columbia
Supreme Court to release the transcript of the reasons for judgment delivered
orally on June 19, 2019, exactly as received from the transcription company
before any changes were made by Justice Ball or anyone else to the parties on
record, Olga Routkovskaia and Michael Gibson, upon their request.

c.         An order authorizing J.C. WordAssist Ltd. to
release audio recording they have in their possession to the parties on record,
Olga Routkovskaia and Michael Gibson, upon their request.
(This is being
requested as contingency backup to the above in the event of unexpected
issues.)

d.         An order
authorizing J.C. WordAssist Ltd. to release the transcript of the reasons for
judgment delivered on June 19, 2019, exactly as provided to the British
Columbia Supreme Court before any changes were made by Justice Ball or
otherwise to the parties on record, Olga Routkovskaia and Michael Gibson, upon
their request.
(This is being requested as contingency backup to the above
in the event of unexpected issues.)

[26]

The Supreme Court has published a Court Record Access Policy (the
Policy) that details the processes by which a party can access the recording
and transcript of a proceeding. According to section 2.3.15 of the Policy,
anyone who is entitled to access the court record in a family law proceeding
may have access to the transcript of that proceeding. That person will also
have a right to copy the transcript. If a transcript is not yet prepared, that
person will have to pay the appropriate fee to request the transcript.
According to Rule 22‑8(1)(a) of the
Supreme Court Family Rules
, a
party to the proceeding is a person entitled to access the court record. Ms. Routkovskaia
is thus entitled to access the transcript. In order to obtain the transcript, Ms. Routkovskaia
may do so by visiting the Supreme Court Family Registry.

[27]

The Policy further provides that a person who was present at a
proceeding (or entitled to be present) is entitled to listen to that proceeding
(s. 3.2.1). Ms. Routkovskaia has indicated she has already listened
to the proceeding, which one does by visiting the Supreme Court Family
Registry.

[28]

Ms. Routkovskaia is entitled to obtain a copy of the audio
recording of the proceeding, pursuant to section 3.3.3.2 of the Policy:

3.3.3.2 Oral Reasons for Judgment

A person wishing to obtain a copy
of the audio recording of oral reasons for judgment in respect of a family
proceeding must make an application in accordance with
Supreme Court Family
Rules
and PART 4 - PROCEDURE FOR ACCESS APPLICATIONS of this policy.

[29]

According to section 3.3.3.2 of the Policy, she can apply for an audio
recording of the oral reasons for judgment by making a without notice
application in accordance with Rule 10‑8.

[30]

At least at first instance, Ms. Routkovskaia must follow the
procedure set out in the court below for access to the recordings below. I
would therefore dismiss Ms. Routkovskaias applications.

[31]

The third application before me is Mr. Gibsons application for an extension
of time.

[32]

Mr. Gibson applies for an extension of time to file and serve his
respondents factum. Rule 21 of the
Court of Appeal Rules
requires a
respondent to file a factum within 30 days of being served with the appellants
factum. The appellants factum was filed on October 15, 2019.

[33]

The criteria for extending the time to begin an appeal are:

1.

Was there a
bona fide
intention to appeal?

2.

When was the respondent informed of the intention?

3.

Would the respondent be unduly prejudiced by an extension?

4.

Is there merit in the appeal?

5.

Is the extension in the interest of justice?

Davies v. Canadian Imperial Bank
of Commerce
(1987), 15 B.C.L.R. (2d) 256 at 259260 (C.A.).

[34]

Though these factors were articulated with respect to beginning an
appeal, they will apply (with appropriate modifications) in applications to
extend the time for taking any step necessary in the prosecution of an appeal (
Vancouver
City Savings Credit Union v. R.D. Backhoe Services Inc.
, 2011 BCCA 159 at para. 8).

[35]

This chambers hearing was initially scheduled for November 15, 2019, and
was adjourned until January 9, 2020. At the initial hearing, Mr. Gibson
sought an extension of time on the grounds that the reasons for judgment from
the court below were not yet available. They have since been made available and
filed with this Court. Though neither Mr. Gibson nor Ms. Routkovskaia
argued the five
Davies
factors, it is in the interests of justice that Mr. Gibson
have an extension of time to file his respondents factum given the procedural
hurdles encountered. Mr. Gibson will have until February 7 to file and
serve the respondents factum.

Disposition

[36]

Mr. Gibsons application for directions is dismissed.

[37]

Mr. Gibsons application for an extension of time is granted. The
deadline to file and serve his factum is extended to February 18, 2020.

[38]

Ms. Routkovskaias applications as set out above at paragraph 25
are dismissed.

The Honourable Madam
Justice Garson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

British Columbia (Attorney General) v.
Canadian Constitution Foundation,

2020 BCCA 48

Date: 20200127

Docket: CA46296

Between:

Attorney General
of British Columbia

Respondent

(Petitioner)

And

Canadian
Constitution Foundation

Appellant

(Respondent)

And

Office of the
Information and Privacy Commissioner for British Columbia

Respondent

(Respondent)

FILE SEALED IN PART

A
partial sealing order is imposed
by order of this Court as set out in these reasons.

Before:

The Honourable Mr. Justice Tysoe

(In Chambers)

On appeal from:  An
order of the Supreme Court of British Columbia, dated
July 12, 2019 (
British Columbia (Attorney General) v. British Columbia
(Information and Privacy Commissioner)
, 2019 BCSC 1132,
Vancouver Docket S1810373).

Oral Reasons for Judgment

Counsel for the Appellant:

J.B. Maryniuk

M. Potomak

Counsel for the Respondent,
Attorney General of British Columbia:

J.D. Hughes

M.A. Witten

Counsel for the Respondent,
Office of the Information and Privacy Commissioner for British Columbia:

A.R. Hudson

Place and Date of Hearing:

Vancouver, British Columbia

January 27, 2020

Place and Date of Judgment:

Vancouver, British Columbia

January 27, 2020

Summary:

The Office of the Information
and Privacy Commissioner applies for orders relating to the sealing of
certain documents and permitting in camera proceedings.  Held: Application
allowed in part.  The confidential information received on an in camera
basis by the adjudicator under the Freedom of Information and Protection
of Privacy Act may be filed in a separate appeal book, which is
to be sealed.  The confidential information does not need to be referred to in
the factums, and it is not appropriate to have separate sealed factums.
The aspect of the application for in camera argument referring to the
confidential information at the hearing of the appeal is referred to the
division hearing the appeal for determination, if necessary.

[1]

TYSOE J.A.
:
The Office of the Information
and Privacy Commissioner for British Columbia (OIPC) applies
for orders relating to the sealing of certain documents and permitting
in camera
proceedings
in this appeal.

[2]

The appeal arises from a request made by the appellant, Canadian
Constitution Foundation, pursuant to s. 5 of the
Freedom of Information
and Protection of Privacy Act
, R.S.B.C. 1996, c. 165 [
Act
],

for the BC Government to provide records in connection with the cost
of litigating what is commonly referred to as the Cambie Surgeries lawsuit.
The Ministry of Attorney General withheld the information
on the basis of solicitor and client privilege pursuant to s. 14 of
the
Act
.

[3]

Canadian Constitution Foundation
requested the Commissioner under the
Act
to review the
Ministrys decision, and an adjudicator ordered the disclosure of the
information.  The adjudicators decision was quashed on judicial review
by Justice Ross in reasons indexed as 2019 BCSC 1132, and
Canadian Constitution Foundation is appealing her order.

[4]

In the hearing before the adjudicator,
the Attorney Generals initial submissions and two affidavits were
accepted for filing on an
in camera
basis pursuant to s. 56(4)(b) of the
Act
.
Copies of the submissions and affidavits, with the confidential information
being redacted, were provided to Canadian Constitution Foundation.  The
non‑redacted documents were attached as exhibits to the
affidavit of Rebecca Rohrick (affirmed on March 21, 2019) that
was filed in the Supreme Court of British Columbia for the judicial review
proceedings, and Ross J. made a sealing order in respect of the affidavit
and non‑redacted attachments.

[5]

The OIPC is seeking the following orders:

(a)      the affidavit of Rebecca Rohrick
and non‑redacted attachments be filed in a separate appeal book,
which is to be sealed and accessible only by the Court, the OIPC and the
Attorney General;

(b)      the OIPC and the
Attorney General be permitted to file confidential versions of their factums
containing references to the confidential information, as well as public versions
of the factums with the confidential information being redacted,
and the confidential versions of the factums be sealed and accessible only
by the Court, the OIPC and the Attorney General; and

(c)      any oral argument at the hearing of the appeal
referring to the confidential information be made on an
in camera
basis
excluding the public and counsel for Canadian Constitution Foundation,
and that the court clerks notes of this oral argument be sealed
and accessible only by the Court, the OIPC and the Attorney General.

[6]

I have been provided with and reviewed
the affidavit of Rebecca Rohrick and the non‑redacted attachments.

[7]

Counsel for the Attorney General has
advised me that the Attorney General does not presently consider it
necessary to file a confidential version of his factum and
believes that any oral argument at the hearing of the appeal
can simply refer the members of the division to the confidential information
in the sealed appeal book without it being repeated in open court.

[8]

I am satisfied that the test for a
sealing order as set out in
Sierra Club of Canada v. Canada
(Minister of Finance)
, 2002 SCC 41 at para. 53,
has been satisfied with respect to the confidential information in the non‑redacted documents
attached to the affidavit of Rebecca Rohrick.  This Court must have the
same record as was before the adjudicator and Ross J., and it would
imperil the process before the OIPC if non‑redacted documents
submitted confidentially to it were later made public by the courts.  In
addition, at least some of the confidential information is subject to
solicitor and client privilege, and its disclosure would defeat the privilege.
Like Ross J., I am not persuaded that this is an appropriate case
for the confidential information to be disclosed to counsel for Canadian Constitution
Foundation on an undertaking to keep the information confidential and to return
it upon the conclusion of the appeal.

[9]

On the other hand, I am not satisfied
that it is appropriate to make the second and third orders requested by
the OIPC.  As the Attorney General will not be making reference to
the confidential information in his factum, I do not consider
it necessary for the OIPC to refer to the confidential information in
its factum given its limited role in the appeal.  In addition, if the OIPC
does consider it to be essential to make submissions relating to the
confidential information, counsel for the OIPC may make those
submissions at the hearing of the appeal.

[10]

With respect to the request that oral argument
at the hearing of the appeal referring to the confidential information
be made on an
in camera
basis, I share the reservation
expressed by Justice Fitch in
N.E.T. v. British Columbia
,
2018 BCCA 22 (Chambers), as to whether a single justice in chambers
has jurisdiction under s. 10(2)(a) of the
Court of Appeal Act
,
R.S.B.C. 1996, c. 77, to make such an order.  In any event, it is not
critical that a determination be made on the point prior to the hearing of the appeal,
and it is preferable, in my view, for the division hearing the appeal to
make any determination that may be necessary in that regard.

[11]

In the result, I make order (a) above, I decline to make order (b) above
and I refer the application for order (c) above to the division hearing the appeal.
Costs of the application will be in the cause of the appeal.

The Honourable Mr. Justice Tysoe


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Lapshinoff v. Wray,

2020 BCCA 31

Date: 20200127

Docket: CA45871

Between:

Don Lapshinoff

Appellant

(Plaintiff)

And

Brent Wray

Respondent

(Defendant)

Corrected
Judgment: The text of the judgment was corrected at paragraph 47 on
January 30, 2020.

Before:

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Hunter

The Honourable Madam Justice Griffin

On appeal from: An
order of the Supreme Court of British Columbia, dated
December 27, 2018 (
Lapshinoff v. Wray
, 2018 BCSC 2315,
Victoria Docket S121702).

Counsel for the Appellant:

R.L. Neary

Counsel for the Respondent:

M.J. Hargreaves

Place and Date of Hearing:

Victoria, British
  Columbia

January 9, 2020

Place and Date of Judgment:

Vancouver, British
  Columbia

January 27, 2020

Written Reasons by:

The Honourable Mr. Justice Groberman

Concurred in by:

The Honourable Mr. Justice Hunter

The Honourable Madam Justice Griffin

Summary:

The plaintiff claimed
against a police officer and the municipality that employed him, alleging that
the officer caused him injury by using excessive force in making an arrest. The
judge found all elements of the tort of assault were made out, but dismissed
the claim against the municipality due to the plaintiffs failure to provide it
with timely notice of the claim as required by the Local Government Act. Police
officers acting in the performance of their duties are protected from personal
liability under s. 21 of the Police Act. The use of excessive force does
not prevent an act from being characterized as having been done in the course
of performing duties. The claim against the officer could only succeed if gross
negligence or wilful misconduct were proven. The judge rejected the allegation
of gross negligence, and noted that wilful misconduct had not been pleaded or
argued. On appeal from the dismissal of the claim against the officer, held:
Appeal allowed, new trial ordered. The pleadings were sufficient to raise the
issue of wilful misconduct. It was a live issue despite the failure of the
plaintiff to address it in argument. The question of whether the officer was
guilty of wilful misconduct is fact-intensive, and must be determined in a new
trial. The appellant, while substantially successful on the appeal, accepts
that he should not be granted costs, as the appeal would have been unnecessary
had he argued wilful misconduct in the court below.

Reasons for Judgment of the Honourable
Mr. Justice Groberman:

[1]

This is an appeal from the dismissal of a personal injury claim.

Overview

[2]

The appellant, Mr. Lapshinoff, was injured in the course of his
arrest on May 15, 2010. He filed a notice of civil claim against four
members of the Saanich Police, and against the District of Saanich, the
municipality in which the officers worked as municipal constables.

[3]

In October 2015, the claims against two of the officers were dismissed
by consent. The claims against the other two officers and the municipality
proceeded to trial in 2018.

[4]

At trial, the judge determined that Constable Wray used excessive force
in arresting Mr. Lapshinoff, causing him injuries. The judge found all
elements of the tort of assault were made out against Constable Wray. He
dismissed the claim against the other officer, finding that his actions did not
cause Mr. Lapshinoffs injuries. No appeal is taken from that order.

[5]

The judges findings in respect of Constable Wray would ordinarily be
sufficient to fix the District of Saanich with vicarious liability under
s. 20(1)(a) of the
Police Act
, R.S.B.C. 1996, c. 367. The
District of Saanich argued, however, that the claim against it should be
dismissed because Mr. Lapshinoff had not provided it with written notice
of the time, place and manner in which he sustained damage within the two-month
time limit established by s. 286 of the
Local Government Act
,
R.S.B.C. 1996, c. 323 (now s. 736(1) of the
Local Government
Act
, R.S.B.C 2015, c. 1). The judge agreed with that position,
and dismissed the claim against the municipality. Mr. Lapshinoff has not
appealed from that order.

[6]

Constable Wray also raised a statutory defence, referring to s. 21
of the
Police Act
. That section insulates police constables from
personal liability for torts committed while performing police duties, unless
the court concludes that the officers conduct was the result of dishonesty,
gross negligence or malicious or wilful misconduct.

[7]

The judge accepted that Constable Wray was performing police duties when
he effected the arrest, and rejected the proposition that the officer acted
with gross negligence. The judge did not consider wilful misconduct, as he was
of the view that it was not pleaded, and it was not raised in argument. The
plaintiff did not contend that this was a case involving either dishonesty or
malice.

[8]

Mr. Lapshinoff appeals the dismissal of his claim against Constable
Wray. He asserts that, properly interpreted, s. 21 of the
Police Act
did not afford Constable Wray a defence, both because the constable was not
acting in accordance with his duties and because he was guilty of wilful
misconduct. While he accepts that wilful misconduct was not argued before the
trial judge, he says that it was pleaded, and was not abandoned.

[9]

Constable Wray argues that the judge was correct in finding that he was
acting in the performance of his duties. He says that Mr. Lapshinoff,
having failed to address the issue of wilful misconduct at trial, should not be
allowed to do so on appeal. He also says, in any event, that the judges
finding that he was not guilty of gross negligence implies that he was also not
guilty of wilful misconduct. Finally, he argues that the judge made a palpable
and overriding error of fact in finding that he caused Mr. Lapshinoffs
injuries.

Events Giving Rise to the Claim

[10]

On May 15, 2010, Mr. Lapshinoff was driving in Saanich. Constable
Wray was on motorcycle patrol, and received a radio dispatch indicating that a
possibly impaired driver was in his vicinity. The dispatch described the
vehicle and gave a licence plate number. Constable Wray spotted the vehicle,
and proceeded to stop it.

[11]

Several witnesses discussed what happened thereafter. In addition to Mr. Lapshinoff
and Constable Wray, three other police officers who attended the scene gave
evidence, as did Mr. Lapshinoffs wife, and a member of the public who
witnessed the events. The various accounts differed in many respects. In
general, the judge preferred the evidence of other witnesses to that of
Constable Wray.

[12]

Although Mr. Lapshinoff slowed his vehicle and pulled over in
response to Constable Wrays actions, he did not come to a stop right away.
Instead, he continued to move forward at about 5 km/hr. Constable Wray kicked the
vehicle, to signal Mr. Lapshinoff to stop. This appears to have led to
some words between the parties. The judge found that Mr. Lapshinoff
commented about his truck being hit, but also found that he was not
belligerent or loud. Mr. Lapshinoff did ask Constable Wray for
identification, which the judge said probably contributed to an antagonistic
atmosphere.

[13]

Very shortly after stopping Mr. Lapshinoff, Constable Wray ordered
him to exit his vehicle. The judge made the following findings as to what
occurred next:

[128]    Mr. Lapshinoff unlatched his seat belt but did
not get out promptly. Constable Wray repeated the demand more emphatically with
a profanity. Lapshinoff was in the process of complying, perhaps somewhat
reluctantly, with his left foot partially out the door which he opened partly,
at the same time repeating that he would still like to see ID, when Constable
Wray reached over and yanked him out forcefully

[129]    The fact that Constable Wray was able to pull the
200-pound Mr. Lapshinoff out of the truck in one pull, even though he said
that he did so as hard as he was able, is consistent with Mr. Lapshinoff
being turned and beginning to get out on his own. If both his feet were still
in the vehicle and he was facing forward when he was yanked out, it is
difficult to see how he could have emerged even partially on his feet.

[130]    In my view, this very forceful removal was
completely unnecessary and is only explainable as Constable Wray acting out of
a loss of self control and anger, rather than necessity. He acknowledged that
he did not consider any less violent means of dealing with the situation he
perceived.

[131]    It is clear that he was either blind to the fact
that Mr. Lapshinoff was starting to comply with his demand to get out, or
that he simply expected a faster response and was making that point with
physical aggression.

[133]    The plaintiffs right
shoulder or arm struck the truck door as he was yanked out, causing it to fly
open. This further demonstrates a degree of aggressiveness and lack of
foresight and care for the safety of the plaintiff, which was unnecessary and
disproportionate to the exigencies of the arrest. Although it is unknown
whether that impact actually contributed to the plaintiffs shoulder and arm
injuries, there certainly was a foreseeable risk of injury in yanking the
plaintiff through a partly open truck door.

[14]

The judge appears to rely on the evidence of Constable Wray as to what
happened next. The judge summarized the evidence as follows:

[73]      He testified that when
he pulled him out of the vehicle, Mr. Lapshinoff stumbles out, and he
took him around the open door and to the front of the vehicle, where Mr. Lapshinoff
was not overtly resisting, but sort of tussling and they were doing the
dance, with Mr. Lapshinoff holding his hands up on his chest and not
being compliant with his directions.  Then he made a decision to take Mr. Lapshinoff
to the ground with a leg sweep trip, and did so, falling to the ground together
with him.

[15]

The judge found that Mr. Lapshinoff suffered injuries while being
taken down. He found that, taken in its entirety, Constable Wrays actions
constituted an excessive use of force:

[138]    In the circumstances of
this case, I do not feel it is appropriate to parse the actions of Constable
Wray and examine the subsequent takedown as if it was a separate action to be
analyzed for justification. Constable Wrays excessive use of force was a
continuing action and all elements of it took place within a very short
timeframe. I find that the tussle outside and the takedown would not have
happened if the forceful removal from the truck had not occurred.

[16]

The judge turned to the question of whether s. 21 of the
Police
Act
precluded a finding of liability. In a very brief analysis, he found
that it did:

[145]    The plaintiff argued
that the police conduct in this case demonstrated a complete absence of any
measured use of force and constituted gross negligence. The cases cited for
definitions of gross negligence were
Hildebrand v. Fox
, 2008 BCSC 842
and
Doern v. Phillips Estate
(1995), 2 B.C.L.R. (3d) 349.

[146]    I have found the use of force employed by Constable
Wray to be unjustified and, therefore his actions constitute the tort of
assault.
[A]ssuming the assault by a police officer in this case was also negligence, I
do not find that it would amount to gross negligence.

[147]    The plaintiff did not
plead or argue wilful misconduct.

The Framework for Analysis Under the Police Act

[17]

The parties accept, for the purposes of this appeal, the judges
findings that Constable Wray had grounds to arrest Mr. Lapshinoff, and
that the force used by Constable Wray was excessive.

[18]

Sections 20 and 21 of the
Police Act
are the provisions relevant
to liability in this case:

20 (1)

(a)   a municipality
is jointly and severally liable for a tort that is committed by any of its
municipal constablesif the tort is committed in the performance of that
person's duties

21
(1) In this section, police
officer means...:

(a)   a person holding an appointment as a constable under
this Act;

(2) No
action for damages lies against a police officerfor anythingdone or omitted
to bedone by him or her in the performance or intended performance of his or
her duty or in the exercise of his or her power or for any alleged neglect or
default in the performance or intended performance of his or her duty or exercise
of his or her power.

(3) Subsection
(2) does not provide a defence if

(a)   the police officerhas, in relation to the conduct that
is the subject matter of action, been guilty of dishonesty, gross negligence or
malicious or wilful misconduct

(4) Subsection (2) does not absolve any of the following,
if they would have been liable had this section not been in force, from
vicarious liability arising out of a tort committed by the police officer or
other person referred to in that subsection:

(a)   a municipality,
in the case of a tort committed by any of its municipal constables

[19]

The scheme of the statute, in summary, is to make municipalities
vicariously liable for the torts of municipal constables. Police officers,
themselves, do not face civil liability for torts committed in the performance
of their duties, unless they are guilty of dishonesty, gross negligence or
malicious or wilful misconduct.

[20]

While s. 20 of the statute describes liability of a municipality as
joint and several, the language is misleading. Absent special circumstances,
a municipality will be the only party bearing liability for a tort committed by
a municipal constable. The language of s. 20 parallels the language of
s. 21, dealing with Provincial constables, the history of which was
discussed in
Aitken v. Minister of Public Safety
, 2013 BCCA 291,
particularly at para. 34.

[21]

In order to determine whether a police officer is personally liable for
a tort, the preliminary step is to determine whether the elements of the tort
have been established. In the case of an assault, a court will determine
whether the officer has applied force to an individual without consent. If so,
the onus is on the officer to demonstrate that their action was taken on
reasonable grounds, and that unnecessary force was not used (as described in
s. 25(1) of the
Criminal Code
, R.S.C. 1985, c. C-46)see
Crampton
v. Walton
, 2005 ABCA 81;
Priestman v. Colangelo, Shynall and
Smythson
, [1959] S.C.R. 615.

[22]

In this case, the judge found that the elements of the tort of assault
were made out. Although he found that Constable Wray had legal authority to
arrest Mr. Lapshinoff, and acted on reasonable grounds in doing so
(findings that are not challenged on appeal), he used unnecessary force in
yanking him from his vehicle and in taking him down to the ground.

[23]

Mr. Lapshinoff contends that the analysis should end at that point,
arguing that the legislature could not have intended to shield police officers
from personal liability for actions which would constitute criminal offences.
I am not persuaded that he is correct.

[24]

First, as a matter of constitutional authority, issues of civil
liability generally fall within Provincial jurisdiction, while the criminal law
is a matter for the Federal government. There is no necessary connection
between criminal and civil liability.

[25]

Second, the findings in a civil case, such as this one, cannot be
equated to findings of criminal liability. In making his findings of fact, the
judge applied the civil, not the criminal standard. To suggest that he found
Constable Wray to be guilty of a criminal offence is simply incorrect.

[26]

Third, and most importantly, statutory interpretation is primarily
concerned with the meaning of words. Statutory interpretation begins with the
words of the statute. It is a mistake to, instead, begin with an assumption of
what the Legislature should have done. In interpreting a statute, a court must
apply Elmer Driedgers modern approach to statutory interpretation, as
adopted by the Supreme Court of Canada in
Rizzo & Rizzo Shoes Ltd. (Re)
,
[1998] 1 S.C.R. 27 at para. 21:

Today there is only one principle
or approach, namely, the words of an Act are to be read in their entire context
and in their grammatical and ordinary sense harmoniously with the scheme of the
Act, the object of the Act, and the intention of Parliament.

See also:
Bell ExpressVu Limited Partnership v. Rex
,
2002 SCC 42 at para. 26.

[27]

The language of s. 21 is clear. It sets out two steps to be
followed in determining whether an officer enjoys personal immunity from tort
liability. The first step is described in s. 21(2). The officer bears the
onus of showing that the actions constituting the tort occurred in the
performance of the officers duties.

[28]

Mr. Lapshinoff contends that police officers can only be said to be
acting in the performance of their duties when they are acting lawfully and
properly. Such an interpretation of in the performance of [their] duties in
s. 21(2) cannot be correct. A tort action against a police officer will
always allege some impropriety or default on the officers part. If such
deficiencies were enough to take the officers actions or omissions outside of
the performance of their duties, there would be no scope at all for the
immunity from suit set out in the section.

[29]

It is also noteworthy that ss. 11 and 20 of the
Police Act
,
which impose vicarious liability on governments for the torts of police
officers, speak of torts committed in the performance of their duties. The
phrase must have the same meaning in s. 21 as it does in ss. 11 and
20.

[30]

Case law has also established that the phrase tort committed in the
performance of  duties is to be given broad scope in the context of the
Police
Act
: see
Sulz v. Minister of Public Safety and Solicitor General
,
2006 BCCA 582.

[31]

If the officer has demonstrated that actions giving rise to a claim in
tort were committed in the performance of the officers duties, the next step
in the inquiry is to consider s. 21(3). An officer forfeits the immunity
from personal liability where the officer acts dishonestly, grossly
negligently, maliciously, or by engaging in wilful misconduct. Because s. 21(3)
sets out exceptions to a defence, the onus is on the plaintiff to demonstrate
that the exception applies.

Application of the Framework to this Case

Were Constable Wrays Actions Taken in the Performance of his Duties?

[32]

I am unable to accept Mr. Lapshinoffs argument that Constable Wray
was not acting in the performance of his duties in this case. He was arresting
a person who he had reasonable grounds to believe was guilty of impaired
driving. He was, therefore, entitled to immunity from suit unless Mr. Lapshinoff
could demonstrate that the officer acted in one of the manners described in
s. 21(3).

What s. 21(3) Exceptions Were Pleaded?

[33]

Just as Constable Wray was required to plead that the tort occurred in
the course of his performance of duties as a police officer, it was incumbent
on Mr. Lapshinoff to plead that one of the exceptions in s. 21(3)
deprived Constable Wray of his immunity.

[34]

Such a pleading would, normally, be part of the plaintiffs reply
pleading, as it would be pleaded in response to a defence advanced by the
defendant. In the case before us, Mr. Lapshinoff chose to file an amended
notice of civil claim rather than a reply.

[35]

In Part 1 of the amended notice of civil claim (the Statement of
Facts), Mr. Lapshinoff stated that the defendants conduct was wilful
misconduct, and, in the alternative, was grossly negligent. In Part 3 of the
document (the Legal Basis), he stated that the arrest was conducted in a
grossly negligent manner, but did not mention wilful misconduct.

[36]

In my view, the legal characterization of the facts as wilful
misconduct or grossly negligent properly belonged in Part 3 of the document.
The fact that wilful misconduct was alleged only in Part 1 is unfortunate, but
was not, in this case, either confusing or prejudicial to the defendants.

[37]

In particular, I would reject Constable Wrays suggestion that he was
deprived of the opportunity to present evidence on wilful misconduct. The issue
was clearly raised by the pleadings, and ought to have been in the mind of
counsel for both parties during the hearing. Indeed, counsel for Constable Wray
mentioned wilful misconduct at points during the trial, treating it as a live issue.
It is also worth noting that the onus of proving wilful misconduct was on the
plaintiff, not the defendant.

Gross Negligence and Wilful Misconduct

[38]

The seminal authority in Canada on the meaning of gross negligence and
wilful misconduct is the oft-cited judgment of Duff C.J. in
McCulloch v.
Murray
, [1942] S.C.R. 141. In comments made in his concurring reasons in
the case, the Chief Justice said, at 145:

I am, myself, unable to agree
with the view that you may not have a case in which the jury could properly
find the defendant guilty of gross negligence while refusing to find him guilty
of wilful or wanton misconduct. All these phrases, gross negligence, wilful
misconduct, wanton misconduct, imply conduct in which, if there is not
conscious wrong doing, there is a very marked departure from the standards by
which responsible and competent people in charge of motor cars habitually
govern themselves. Subject to that, I think it is entirely a question of fact
for the jury whether conduct falls within the category of gross negligence, or
wilful misconduct, or wanton misconduct. These words, after all, are very plain
English words, not difficult of application by a jury whose minds are not
confused by too much verbal analysis.

[39]

The trial judge mentioned two trial-level decisions that further
elaborated on the meaning of gross negligence:
Doern v. Phillips Estate
(1995), 2 B.C.L.R. (3d) 349 and
Hildebrand v. Fox
, 2008 BCSC 842. Although
not mentioned in the trial judges reasons, both of those decisions were
affirmed on appeals to this Court:
Doern v. Phillips Estate
(1997), 43 B.C.L.R.
(3d) 53;
Hildebrand v. Fox
, 2008 BCCA 434. At para. 18 of this
Courts reasons in
Hildebrand
, it agreed with the discussion of gross
negligence in both of the trial decisions.

[40]

The parties do not suggest that the judge made a reversible error in
coming to the conclusion that Constable Wray was not guilty of gross
negligence.

[41]

While
McCulloch v. Murray
suggests that wilful misconduct is
closely related to gross negligence, with both representing very marked
departure[s] from the standards by which responsible and competent peoplehabitually
govern themselves, it also indicates that the two concepts are different, and
that there may be cases where one is satisfied, but the other is not.

[42]

In
Ward v. Vancouver (City)
, 2007 BCSC 3, Tysoe J. (as he then
was), after citing
McCulloch
, said:

[102]    In my view, a clearer description of the meaning of
wilful misconduct is contained in
R. v. Boulanger
, 2006 SCC 32, a case
dealing with the criminal offence of breach of trust by a public officer. The
Supreme Court of Canada held that it is necessary to have reference to the
common law authorities on misfeasance in public office in considering the
offence. In this regard, the Court summarized parts of an English authority,
Attorney
Generals Reference (No. 3 of 2003)
, [2004] W.L.R. 451 (Eng. C.A), at
¶27:

Wilful misconduct was held to mean
deliberately doing something which is wrong knowing it to be wrong or with
reckless indifference as to whether it was wrong or not (para. 28), and
recklessness to mean an awareness of the duty to act or a subjective
recklessness as to the existence of the duty (para. 30). The recklessness
test was said to apply to the determination of whether a duty arises in the
circumstances, as well as to the conduct of the defendant if it does.

Although the Court did not specifically adopt or approve of
these meanings, it did not express any disapproval of them.

[103]    In the present case,
there is no evidence that either Sergeant Kelly or Sergeant Gatto decided not
to release Mr. Ward when they knew that he should have been released. It
is not sufficient to establish that their acts constituted the commission of an
intentional tort. It must also be established that they committed the tort
knowing it to be wrong or with reckless indifference as to whether it was wrong
or not.

[43]

While aspects of
Ward
were appealed as against the City of
Vancouver and the Province of British Columbia (
Ward v. British Columbia,
2009 BCCA 23, revd in part
Vancouver (City) v. Ward
, 2010 SCC 27), no
appeal was taken in respect of the finding that the individual officers were
not personally liable.

[44]

The Supreme Court of Canada had an opportunity to further clarify the
meaning of wilful misconduct in
Peracomo Inc. v. TELUS Communications Co.,
2014 SCC 29. The majority discussed the ambit of wilful misconduct at paras. 5661,
concluding that the phrase
includes not only
intentional wrongdoing but also other misconduct committed with reckless
indifference in the face of a duty to know.

[45]

The parties take diametrically opposed positions on whether wilful
misconduct is made out in this case. Mr. Lapshinoff points to the findings
of fact, and says that deliberate misconduct or reckless indifference in the
face of a duty to know should be inferred by this Court.

[46]

Constable Wray, on the other hand, says that because the judge rejected
the allegation of gross negligence, it must also be the case that there was no
wilful misconduct. He says that in finding that gross negligence had not been
shown, the judge must have determined that the constables conduct did not
represent a marked departure from the standards expected. He says that the same
considerations that govern the assessment of a marked departure from expected
standards apply to both gross negligence and wilful misconduct.

[47]

I am unable to accept Constable Wrays argument. The degree to which
conduct departs from expected standards can turn not only on the acts
committed, but also on the state of mind of the person committing them. This
has been recognized by the Supreme Court of Canada in prosecutions for dangerous
driving: see
R. v. Beatty
, 2008 SCC 5 at para. 47 and
R. v. Roy
,
2012 SCC 26 at para. 38. Summarizing those paragraphs in
R. v. Chung
,
2019 BCCA 206 (appeal to SCC pending), at para. 36, this Court said: [a] marked
departure from the standard of the reasonable driver canbe proven either by
showing that the dangerous conduct was so seriously deficient as to justify a
criminal sanction, or by demonstrating that subjective
mens rea
was
present.

[48]

While gross negligence and wilful misconduct both represent marked
departures from expected standards of conduct, they have different focusses.
Gross negligence is a species of negligence: the focus is on a failure to take
due care and on the magnitude of the risk resulting from that failure. Wilful
misconduct, on the other hand, focusses on deliberate flouting of norms, or
indifference to following those norms in the face of a duty to do so.

[49]

That said, we do not have the benefit of a detailed analysis by the
judge as to why gross negligence was not made out, and it is at least
conceivable that he did not consider the conduct of the constable to be as
egregious as might be inferred from some of his findings. It is also notable
that he refrained from including any award of punitive damages in his
assessment of quantum.

[50]

Determining whether Constable Wray engaged in wilful misconduct would
require, amongst other things, determining his state of mind. Such a
determination requires a nuanced assessment of the evidence and an evaluation
of the credibility and reliability of the witnesses. It is not an assessment
that this Court can properly undertake in this case, given the limited analysis
provided by the trial judge.

[51]

I am unable to conclude that the judges
failure to consider wilful misconduct was a harmless error, but am not
satisfied that this Court can determine liability. The matter (as between Mr. Lapshinoff
and Constable Wray) must be remitted to the trial court for a new trial.

[52]

Because there will need to be a new trial, no
purpose would be served by analyzing Constable Wrays argument to the effect
that the judge made a palpable and overriding error as to the manner in which Mr. Lapshinoffs
injuries occurred. The issue of what actions resulted in injury and whether
Constable Wray bears responsibility for those actions will have to be
considered afresh, in any event, by the judge at the new trial.

Costs

[53]

The appellant has succeeded in obtaining a new trial, and would
ordinarily be entitled to his costs as the substantially successful party. In
this case, however, counsel for Mr. Lapshinoff (who was not counsel at
trial), wisely conceded that the ordinary order would not be appropriate. The
appeal has been necessitated by the failure of the parties (but particularly of
Mr. Lapshinoff) to properly present a crucial argument in the court below.

Disposition

[54]

I would allow the appeal and order a new trial as between Mr. Lapshinoff
and Constable Wray. Each party should bear his own costs of the appeal. The
costs of the original trial should be in the discretion of the judge hearing
the new trial.

The Honourable Mr. Justice Groberman

I AGREE:

The Honourable Mr. Justice
Hunter

I AGREE:

The Honourable Madam Justice Griffin


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Camille,

2020 BCCA 32

Date: 20200127

Docket: CA45529

Between:

Regina

Respondent

And

Gordon Paul
Camille

Appellant

Before:

The Honourable Madam Justice Bennett

The Honourable Mr. Justice Harris

The Honourable Mr. Justice Goepel

On appeal from:  An
order of the Supreme Court of British Columbia, dated
March 13, 2018 (
R. v. Camille
, 2018 BCSC 478, Kamloops Docket 101253).

Counsel for the Appellant:

K.M. Walker, Q.C.

K. Thorsteinson

Counsel for the Respondent:

E. Campbell

Place and Date of Hearing:

Kamloops, British
  Columbia

October 3, 2019

Place and Date of Judgment:

Vancouver, British
  Columbia

January 27, 2020

Written Reasons by:

The Honourable Madam Justice Bennett

Concurred in by:

The Honourable Mr. Justice Harris

The Honourable  Mr. Justice Goepel

Summary:

Mr. Camille was
convicted of manslaughter after being found to have caused the death of Dennis
Adolph. The Crowns case was circumstantial, and the trial judge ruled out
accidental or deliberate self-harm as reasonable, alternative inferences to
guilt. Mr. Camille appeals his conviction on the basis that the trial
judge erred in concluding that the only reasonable inference was that he caused
the death of Mr. Adolph. He also alleges that the trial judge improperly
drew inferences in the absence of expert evidence. Held: Appeal dismissed. The
trial judge did not err in finding the alternative inferences to be speculative,
nor did she improperly draw inferences where expert evidence was necessary. Her
conclusions were available on the evidence and the verdict was reasonable.

Reasons for Judgment of the Honourable
Madam Justice Bennett:

[1]

Gordon Camille appeals his conviction for manslaughter for causing the
death of Dennis Adolph. Mr. Adolph died as a result of blood loss from a
stab wound. Mr. Camille argues that the trial judge erred in concluding
that the only reasonable inference from the circumstantial evidence was that he
caused the death of Mr. Adolph.

[2]

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

Factual overview

[3]

The grounds of appeal relate to the inferences drawn by the trial judge
from her findings of fact. Thus, I will set out the evidence in detail.

[4]

On January 26, 2016, Dennis Adolph died at the age of 49 years from
exsanguination, or loss of blood, as a result of a single stab wound to his
abdomen. In the two months preceding his death Mr. Adolph had been living
at the Four Seasons Motel in Kamloops, B.C. and sharing a room with Mr. Camille.

[5]

On January 25, 2016, Mr. Adolph and Mr. Camille returned
to their room together at 8:15 p.m. During that evening, witnesses heard loud
voices and music emanating from the room, but nothing in the nature of a
dispute. Mr. Adolph and Mr. Camille remained alone throughout the
night and into the following morning.

[6]

Surveillance cameras on the motel property captured video footage of the
comings and goings of Mr. Adolph and Mr. Camille between
January 25, 2016 and January 26, 2016.

[7]

The footage confirmed that from 8:15 p.m. on January 25, 2016 to
6:15 a.m. the next morning, only Mr. Adolph and Mr. Camille could have
been in the roomno one else.

[8]

Similarly, from 6:15 a.m. to 11:30 a.m. on January 26, 2016, nobody
left or entered the room other than Mr. Adolph and Mr. Camille in the
following instances:

a)

At 6:15 a.m., Mr. Adolph attended the office of the motel manager, Mr. Vinepal,
and then returned to his room.

b)

At 6:52 a.m., Mr. Camille left the room and proceeded towards Mr. Vinepals
office. After knocking on the door and receiving no response, he returned to
the room.

c)

At 11:15 a.m., Mr. Camille left the room and reported Mr. Adolphs
death to Mr. Vinepal.

[9]

Following Mr. Camilles report, first responders attended the room
and found Mr. Adolphs body lying in a perpendicular position on one of
the two beds, with his legs draped over the edge and into the area between the
two beds. He was dressed in pajama pants only and covered by a blanket. A wound
to his abdomen was clearly visible once the blanket was removed. The first responders
moved Mr. Adolph to the floor and conducted various resuscitative
procedures, until ultimately discontinuing at 11:40 a.m.

[10]

A kitchen knife was found tucked under a pair of eyeglasses in the
drawer of a nightstand just a few feet from Mr. Adolphs body. The knifes
blade, measuring approximately five inches in length, had blood on the tip. The
blood was determined by DNA testing to be Mr. Adolphs blood. The trial
judge found that this was the knife used to stab Mr. Adolph. A red
washcloth was also found hanging from the handle of the same nightstand.

[11]

Aside from what was on the knife, there was little blood at the scene
other than a small stain on the blanket beside Mr. Adolphs body. No blood
was found in the drawer of the nightstand or in any part of the room, nor was
blood found outside. The Crowns forensic pathologist, Dr. Lisa Steele,
explained that Mr. Adolphs wound was plugged by a stopper of fat that
directed his blood to flow internally.

[12]

There were no indications of a struggle having taken place.

[13]

Several bottles of alcohol were seized from the room. Some were open,
others were closed. Many were spread across the floor.

[14]

An attending officer at the scene testified that Mr. Camille had an
odour of alcohol on his breath, as if he had been drinking previously, but he
did not appear to be intoxicated.

[15]

The Crowns DNA expert, Shaun Neudorf, confirmed that the blood on the
knife from the drawer was Mr. Adolphs, although he could not determine
when it was first applied to the blade. He agreed that DNA may be removed from
an object by washing it off, or it may remain for years.

[16]

The handle of the knife was submitted for genetic testing but not
examined for fingerprints. Results indicated mixed DNA from only two male
sources. Mr. Neudorf gave statistical evidence to suggest that Mr. Camille
and Mr. Adolph were likely the donors.

[17]

The source of the DNA on the knifes handle was unknown; it could have
been from skin cells, blood, or some other bodily substance. Mr. Neudorf could
not determine when the DNA taken from the knifes handle was first applied. He
agreed that two peoples DNA could be on most objects in a room shared for a
period of months.

[18]

Dr. Steele was qualified to give opinion evidence on the causes,
mechanisms and physical processes of death. She described the fatal wound as a
single incision immediately to the left of the umbilicus. As noted above, a
stopper of fat plugged the wound and directed close to a litre of blood into Mr. Adolphs
abdominal cavity and soft tissues. Mr. Adolph also suffered from two small
cuts to the back of his left hand.

[19]

Dr. Steele could not indicate a precise time of death, but she
noted that death would have ensued in a matter of minutes. When the first
responders arrived at approximately 11:30 a.m.,
rigor mortis
had just
begun and Mr. Adolphs body was still warm. This suggested a time of death
between two and six hours earlier. Given the evidence that Mr. Adolph was
alive at 6:15 a.m., she indicated that his time of death was likely between
6:15 a.m. and 9:30 a.m. She readily acknowledged that her conclusions were not
certain in this regard.

[20]

Dr. Steele testified that the nature and limited extent of blood
flow to the exterior of the wound, and the lack of blood found elsewhere in the
room, suggested that Mr. Adolph was lying down when he was stabbed, in the
position where his body was found. For instance, there was bleeding from the
abdominal wound to the side of Mr. Adolphs body, as though he were lying
flat. Furthermore, in that position, the blood stain found on the blanket
beside Mr. Adolphs body corresponded with the path of oozing blood from
his abdomen. The limited vertical blood trails on Mr. Adolphs abdomen
indicated that he may have tried to sit up.

[21]

Dr. Steele acknowledged that Mr. Adolph could have been
standing when he was stabbed, and the stopper of fat would have still kept the
majority of blood in his abdomen from leaking out. It was also possible that Mr. Adolph
could have walked after receiving the fatal blow. However, more blood would
likely have been found in the room if Mr. Adolph had been standing.

[22]

Dr. Steele described the characteristics of the abdomen wound. It
was about one inch in length at the surface, and between two and three inches
deep (less than the length of the blade of the knife seized from the
nightstand). The angle of the wound suggested that the sharp end of the knife
was oriented upwards and to the left when the incision was made, while the
blunt end was oriented downwards. Dr. Steele indicated that the knife was
likely not inserted to the level of its hilt, or there would have been an abrasion
mark left on Mr. Adolphs abdomen.

[23]

Dr. Steele could not quantify the amount of force required to
inflict the wound; however, she did note that the area of the body that was
penetrated has no resistant structures. Furthermore, Mr. Adolph was very
slender and had little subcutaneous fat or additional soft tissue to be
penetrated before a knife could reach the abdominal cavity.

[24]

Dr. Steele acknowledged that the alignment of the two cuts on the
back of Mr. Adolphs left hand was consistent with a single slice. She
stated that the cuts could have been sustained if Mr. Adolphs hand was in
the path of the stab to his abdomen, or if he raised his left hand and
obstructed the path of another potential stabbing. Either way, they were not
indicative of him having grabbed the knife as if it was coming towards him.

[25]

With the exception of the cuts on his left hand, Dr. Steele
indicated that there were no physical signs on Mr. Adolphs bodysuch as
bruising or lacerationsthat he had been in a fight or had tried to defend
himself.

[26]

Crown counsel also examined Dr. Steele regarding the
possibility that Mr. Adolph inflicted the fatal wound on himself. She
testified that she did not observe any indicia consistent with suicide or past
attempts of suicide.

[27]

A small plastic keychain that was identified as a Minecraft toy was
found in the cuff of Mr. Adolphs pajama pants during the autopsy. Those
pants had a single pocket with a one-inch hole in it.

[28]

Samples of Mr. Adolphs urine, blood, and vitreous fluid were
analyzed by Heather Dinn, a Forensic Specialist of the RCMP. Her toxicology
report was jointly admitted into evidence at trial. She did not testify.

[29]

Mr. Adolphs blood alcohol concentration (BAC) at the time of his
death was measured at 400 mg%. While this extraordinarily high level is often
associated with death by acute alcohol poisoning, Dr. Steele opined that Mr. Adolph
was alive when he was stabbed given the profuse bleeding into his abdomen. In
any event, the toxicology report described the physiological effects of such a
high BAC:

A BAC of 400 mg% is generally associated with severe intoxication. Signs and
symptoms which may be present include: very slurred to incomprehensible speech
,
extremely poor balance (e
.
g. swaying
while standing, staggering while walking with reeling and lurching when called
upon to make sudden t
u
rns or to carr
y
out unexpected
m
ovements and poss
i
bly
i
nability to stand or walk)
,
me
n
tal confus
i
on,
emotiona
l
i
n
stability,
disorientat
i
on
,
gross
muscu
l
ar incoordination, vomiting,
incontinence of urine or faeces, impaired consciousness or stupor. However, in
a small percentage of the drinking population a significant degree of tolerance
to alcohol concentrations at and above 400 mg% may be acquired through chronic
consumption of alcohol. As a result of this tolerance, the symptoms
characteristic of a particular BAC will be delayed until much higher BACs.

[30]

Dr. Steele agreed that a person with a BAC of 400 mg% would have
impaired walking, fine motor skills, and judgment.

[31]

There was, however, no expert evidence before the trial judge on the
issue of how impairment would affect a persons pain response and reflexes in
reaction to that pain response.

[32]

Mr. Adolphs BAC was declining at the time of his death, which led
the toxicologist to the conclusion that he had not consumed any significant
amount of alcohol within the preceding 30 minutes.

[33]

Mr. Camille did not testify.

[34]

At trial, the question of a third-party perpetrator was argued as a
major issue. The issue on appeal was narrowed to whether Mr. Camille stabbed
Mr. Adolph, or whether Mr. Adolph stabbed himself.

Issues on appeal and positions of the parties

[35]

Mr. Camille raises several related grounds of appeal dealing with
the inferences the trial judge drew from the evidence. He submits that the
trial judge erred by wrongly filling in gaps in the evidence, that she ignored
other reasonable inferences available on the evidence, and that the verdict was
unreasonable or unsupported by the evidence. He also says that the trial judge
erred by relying on common sense when expert evidence was required. The Crown
concedes this last issue, but seeks to apply the curative provision, s. 686(1)(b)(iii),
arguing that there was no substantial wrong or miscarriage of justice.

[36]

In my view, the trial judge did not err in her assessment of the
circumstantial evidence, and I do not agree with the Crowns concession with
respect to the trial judges analysis. I return to these points below.

Discussion

Legal framework

[37]

In
R. v. Villaroman
, 2016 SCC 33, the Court settled the test to be
applied when assessing circumstantial evidence, drawing inferences from the
evidence or absence of evidence, and determining if guilt is proved beyond a
reasonable doubt.

[38]

The concern regarding circumstantial evidence is that a jury may unconsciously
fill in the blanks or bridge gaps in the evidence to draw the inference the
Crown seeks:
Villaroman
at para. 26. Or, in other words, jumping
to unwarranted conclusions in circumstantial cases:
Villaroman
at paras. 2627.
The jury instruction regarding circumstantial evidence is given in order to
alert it to the concerns regarding the path of reasoning in relation to drawing
inferences from circumstantial evidence: at para. 29.

[39]

In
Villaroman
, Cromwell J., writing for the Court, examined the applicable
reasoning when there is an absence of evidence raised to support an alternative
theory to guilt, offering the following guidance at para. 36:

[36]      I agree with the respondents position that a
reasonable doubt, or theory alternative to guilt, is not rendered speculative
by the mere fact that it arises from a lack of evidence. As stated by this
Court in
Lifchus
, a reasonable doubt is a doubt based on reason and
common sense which must be logically based upon the evidence or
lack of
evidence
: para. 30 (emphasis added). A certain gap in the evidence
may result in inferences other than guilt.
But those inferences must be
reasonable given the evidence and the absence of evidence, assessed logically,
and in light of human experience and common sense
.

[38]      Of course, the line between a plausible theory
and speculation is not always easy to draw. But the basic question is whether
the circumstantial evidence, viewed logically and in light of human experience,
is reasonably capable of supporting an inference other than that the accused is
guilty.

[Emphasis added.]

[40]

Finally, the Court identified useful statements of the principle:

[40]      The first is from an old Australian case,
Martin
v. Osborne
(1936), 55 C.L.R. 367 (H.C.), at p. 375:

In the inculpation of an accused
person the evidentiary circumstances must bear no other
reasonable
explanation. This means that,
according to the common course of human
affairs, the degree of probability that the occurrence of the facts proved
would be accompanied by the occurrence of the fact to be proved is so high that
the contrary cannot reasonably be supposed
.

...

[42]      The second is from
R. v. Dipnarine
, 2014
ABCA 328, 584 A.R. 138, at paras. 22 and 2425. The court stated that
[c]ircumstantial evidence does not have to totally exclude other conceivable
inferences; that the trier of fact should not act on alternative
interpretations of the circumstances that it considers to be unreasonable; and
that alternative inferences must be reasonable, not just possible.

[Emphasis added by Cromwell J.]

[41]

I now turn to the application of these principles in the context of the
appeal issues.

Did the trial judge incorrectly apply the approach to circumstantial
evidence and fill in the gaps and blanks in the evidence?

[42]

The trial judge concluded that Mr. Camille stabbed Mr. Adolph.
The question is whether there was another reasonable inference available on the
evidence, namely, that Mr. Adolph stabbed himself, either intentionally or
accidentally. Mr. Camille submits that the evidence relied on by the trial
judge could not lead her to only one reasonable inference. The evidence of how Mr. Adolph
died was circumstantial, and by concluding that it was Mr. Camille who
struck the fatal blow, the trial judge improperly filled in the gaps of the
evidence.

[43]

The Crown has summarized the evidence that was available to the trial
judge to rest her conclusion. It is convenient to set it out here:

The following are
the trial judges relevant findings of fact:

·

Mr. Adolph died as a result
of a stab wound to his abdomen;

·

Mr. Adolph and the appellant
were alone and together in their motel room at the time of the stabbing and
until Mr. Adolph died of his wound;

·

Emergency personnel found
Mr. Adolph lying across one of the beds with the lower portion of his legs
hanging over the bed to the floor;

·

Mr. Adolphs body and head
were covered by a blanket;

·

A blood stain on the blanket under
Mr. Adolphs left side was the only blood found in the room or in the
vicinity of the room;

·

Close to a litre of blood
accumulated in Mr. Adolphs abdominal cavity, in part because the wound
was plugged by some fat tissue;

·

At the time of his death,
Mr. Adolph had a blood alcohol concentration of 400 mg% and analysis
indicated that he had not consumed alcohol in the preceding 30 minutes;

·

A concentration of 400 mg% is
associated with symptoms ranging from gross muscular incoordination to
unconsciousness to death;

·

Mr. Adolph was obviously
heavily intoxicated when he went to the office at 6:15 a.m., as demonstrated by
his stumbling and staggering while walking;

·

The knife that caused the wound
was the one found in the nightstand drawer;

·

The knife was found in the
nightstand drawer under a pair of eyeglasses. The drawer contained personal
items but no other kitchenware; and

·

Although Dr. Steele acknowledged that
Mr. Adolph could have walked with his wound, the limited external
bleeding, the nature and location of that bleeding, and the lack of blood
elsewhere in the room led Dr. Steele to conclude that Mr. Adolph was
lying down when he was stabbed.

[References
omitted.]

[44]

In her analysis, the trial judge reviewed the evidence relied on by the
Crown, which was broken down into four areas: scene evidence, DNA evidence,
expert evidence and video evidence. Much of the evidence addressed whether a
third-party had committed the killinga theory abandoned on appeal.

[45]

The trial judge did not, as argued by Mr. Camille, find that this
evidence supported an inference of guilt before considering the evidence that
would permit an inference inconsistent with Mr. Camilles guilt.

[46]

Rather, she examined the evidence advanced to support the alternative
theory, and concluded that neither accidental nor deliberate self-harm by Mr. Adolph
were reasonable inferences to draw.

[47]

She then turned to assess the whole of the evidence to determine whether
the Crown had proved its case beyond a reasonable doubt. She considered
Villaroman
,
and was alive to the correct approach to circumstantial evidence. Setting aside
the third-party perpetrator, there were two other theories put forward. One was
reasonable, one was not. As noted in
Villaroman
, at para. 42, the
circumstantial evidence does not have to totally exclude other conceivable
inferences. Alternative inferences, however, must be reasonable, not just
possible.

[48]

There was, in my view, strong evidence supporting the conclusion that Mr. Camille
stabbed Mr. Adolph: Mr. Adolph was most likely lying down when he was
stabbed, he would have died within minutes, not hours, he likely did not walk
after being stabbed, yet the knife was found in a nightstand drawer, neatly
tucked under a pair of glasses. If Mr. Adolph had stabbed himself, the
knife would most likely have fallen to the ground. He would not have had the
ability to place it in the nightstand. There is no evidence supporting a
contention that Mr. Adolph stabbed himself, and Mr. Camille put the
knife away. It also makes no sense that Mr. Camille would find Mr. Adolph
dead, but carefully place the knife in the nightstand drawer.

[49]

The trial judge did not fill in the gaps or blanks in the evidence.
The facts she found, and the reasoning she applied fully supports her
conclusion that the only reasonable inference was that Mr. Camille stabbed
Mr. Adolph.

[50]

In light of the foregoing, I would not accede to this ground of appeal.

Did the trial judge err in drawing inferences in the absence of expert
evidence?

[51]

Mr. Camille argued that the trial judge improperly relied on common
sense when assessing the pain response of a highly intoxicated person. The
Crown, in its factum, agreed:

46.       While finding the appellants theory to be
implausible, the trial judge commented on a persons pain response. She
reasonably applied common sense to say that a person would generally respond to
a knife accidentally breaking their skin by pulling the knife back rather than
plunging it in to a depth of two to three inches. However, the trial judge went
on to consider how Mr. Adolphs level of impairment may have affected this
pain response.

47.       The appellant chose not to elicit evidence of his
alternate theory from the toxicologist through cross-examination. Accordingly,
there was no expert evidence before the trial judge on the issue of how
impairment would affect a persons pain response and reflexes in reaction to
that pain response. In the absence of such expert evidence, the trial judges
consideration of the issue should not have been a part of her reasoning to reject
the alternate inference.

[References omitted.]

[52]

A careful review of the trial judges reasons does not, in my opinion,
reflect such an error. The defence argued that Mr. Adolph may have been
trying to use the knife to manipulate the Minecraft toy that was found by the
pathologist in the cuff of his pajama bottoms. He submitted that the knife could
have slipped and caused the wound, given his high state of intoxication. In
response to that argument, the trial judge said this, at para. 78 of her
reasons:

[78]      In ordinary
circumstances, a suggestion that a person could accidentally stab themselves to
a depth of between two and three inches with an ordinary kitchen knife would
run markedly counter to common sense and experience.  The natural human reflex
and response to pain would intervene with the initial penetration and would
cause the person to quickly stop it.

[53]

This observation is well-within the confines of human experience and
common sense. She then correctly framed the question, and evaluated the
suggested inference against the backdrop of how intoxicated the parties were,
or likely were, at the relevant time:

[79]      The question is whether
the suggested inference is a reasonable one in light of the evidence of Mr. Adolphs
extreme intoxication, coupled with the likelihood (based on the number and
location of empty bottles in the room) that Mr. Camille too was very
intoxicated and potentially unaware or Mr. Adolphs plight or unable to
assist.

[54]

The trial judge (at para. 80) was alive to the fact that there was
no expert evidence addressing the effect of extreme intoxication on reflexes
or reactions to pain or other signals of damage to the body. She did not rely
on Mr. Adolphs abilityor lack thereofto assess pain as part of her
reasoning to conclude that he did not accidentally stab himself.

[55]

Instead, she reviewed the evidence tendered that set out general
symptoms of a person as highly intoxicated as Mr. Adolph, relied on the
extent of the wound, and concluded (at para. 81) that it was far from
obvious that a person using the knife to fiddle with something like the
Minecraft key chain could accidentally cause the type of wound Mr. Adolph
sustained.

[56]

In my view, the judge did not err.

Did the trial judge ignore logical inferences from the evidence

[57]

Mr. Camille says that the trial judge ignored accidental and
deliberate self‑harm as logical inferences which were available on the
evidence.

[58]

This argument essentially repeats what was made at trial. The trial
judge was fully aware of the alternate theories presented by the defence. She
analyzed the evidence that supported the Crowns theory and the alternate
theories. She concluded that the alternate theory was not a reasonable
inference that she could draw from the evidence, and that the Crown had proved
that Mr. Camille struck the blow that caused Mr. Adolphs death.

[59]

I would not give effect to this argument.

Unreasonable
verdict

[60]

In
Villaroman
, the Court articulated the test for assessing the
reasonableness of a verdict based on circumstantial evidence at para. 55:

[55]      A
verdict is reasonable if it is one that a properly instructed jury acting
judicially could reasonably have rendered:
R. v. Biniaris
, 2000 SCC 15,
[2000] 1 S.C.R. 381. Applying this standard requires the appellate court to re‑examine
and to some extent reweigh and consider the effect of the evidence:
R. v.
Yebes
, [1987] 2 S.C.R. 168, at p. 186. This limited weighing of the
evidence on appeal must be done in light of the standard of proof in a criminal
case. Where the Crowns case depends on circumstantial evidence, the question
becomes whether the trier of fact, acting judicially, could reasonably be
satisfied that the accuseds guilt was the only reasonable conclusion available
on the totality of the evidence:
Yebes
, at p. 186;
R. v. Mars
(2006), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 4;
R. v. Liu
(1989), 95 A.R. 201 (C.A.), at para. 13;
R. v. S.L.R.
, 2003 ABCA
148;
R. v. Cardinal
(1990), 106 A.R. 91 (C.A.);
R. v. Kaysaywaysemat
(1992), 97 Sask. R. 66 (C.A.), at paras. 28 and 31.

[61]

The only live issue on appeal is whether Mr. Camille stabbed Mr. Adolph.
Although there was no direct evidence on the point, it is my view that the
circumstantial evidence set out above, and considered as a whole, supported the
trial judges conclusion that Mr. Camille had struck the blow.

[62]

In applying the question of whether the trier of fact, acting
judicially, could reasonably be satisfied that the accuseds guilt was the only
reasonable conclusion available on the totality of the evidence, the answer is
yes.

Conclusion

[63]

The trial judges reasons are not to be parsed with a scalpel, but read
as a whole, and in the context of the evidence, the issues and arguments at
trial, together with an appreciation of the purposes or functions for which
they are delivered:
Villaroman
at para. 15.

[64]

In my view, the trial judges reasons, when read as a whole, do not
contain any errors, and the verdict was reasonable and supported by the
evidence.

[65]

I would dismiss the appeal.

The Honourable Madam Justice Bennett

I AGREE:

The
Honourable Mr. Justice Harris

I AGREE:

The
Honourable Mr. Justice Goepel


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Liapis v. Keshow,

2020 BCCA 28

Date: 20200128

Docket: CA46341

Between:

Amalia Liapis

Respondent

(Claimant)

And

Aron Damien
Keshow, 0880881 B.C. Ltd.,

King Tiger
Investments Ltd.

Appellants

(Respondents)

And

0892868
B.C. Ltd.

Respondent

(Respondent
by Counterclaim)

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Abrioux

On appeal from:  Orders of
the Supreme Court of British Columbia, dated
August 14 and 16, 2019 (
Liapis v. Keshow
, Vancouver Registry E162841).

Counsel for the Appellants:

H.M. Dale

Counsel for the Respondents:

P.R. Albi, Q.C.

S.E. Ovens

Place and Date of Hearing:

Vancouver, British
  Columbia

January 15, 2020

Place and Date of Judgment:

Vancouver, British
  Columbia

January 28, 2020

Written Reasons of the Court

Summary:

Trial judge in family law
case, being dissatisfied with expert evidence concerning the value of a major
asset, ordered that the property be sold before she made a final order for the
division of property. This order had not been sought by counsel for either
party and they had not had the opportunity to make submissions on the
possibility of such an order. Appeal allowed. Trial judge had erred in making
the order without hearing counsels submissions thereon, and she had not
considered other alternatives that might be preferable. Order for sale was set
aside and the case was remitted to the Supreme Court.

Reasons
for Judgment of the Court:

[1]

We are all of the view that this appeal should be allowed and that the
trial in the court below should resume  if possible, before the trial judge
who has already heard several days of trial. If that is not possible, the Chief
Justice of the Supreme Court will have to nominate a new trial judge under R. 22‑2(10)
of the
Supreme Court

Family Rules
.

[2]

The order under appeal was made in the course of a family law trial in
which it became necessary to determine the value of a piece of real estate. The
real estate is located in downtown Vancouver and consists of a large
commercial/residential  building called the Boulder. It is owned by the
respondent King Tiger Investments Ltd. (King Tiger), a subsidiary of the
respondent 0880881 B.C. Ltd. (the Numbered Company), the shares of which are
owned by Mr. Keshow (the husband). He is involved in a time-consuming
and complex project to re‑develop the property.

[3]

A joint expert report on the fair value of the Boulder had been filed at
trial; the claimant in this proceeding, Ms. Liapis (the wife), had
disagreed with it; and she sought to adduce into evidence the opinions of two
other experts. In general terms, the experts disputed the method of calculating
the cost of the planned redevelopment of the Boulder, in respect of which the
husband had successfully reached a Heritage Revitalization Agreement with the
City of Vancouver. The Agreement included the grant to King Tiger of so-called
transferable density rights. According to the husbands testimony, the terms
of the Agreement prohibit the sale of the building without the Citys approval.

[4]

The trial commenced in October 2018 but was adjourned to February 2019
and then to early April 2019. On the 17th day of trial, both parties had filed
written submissions on the legal issues that had to be resolved. The husband
sought the equal division of the parties family assets and submitted that
there was no need to force a liquidation of one of the partys companies,
citing
Blackett v. Blackett
(1989) 63 D.L.R. (4th) 18 (B.C.C.A.) at 235.
Counsel for the wife submitted that everything about the Boulder project was
speculative and as we read his argument, suggested that the Court should
determine the fair market value at $4.1 million, the amount for which a
tenant of the Boulder property had made an offer to purchase. There may be
legitimate objections to using this tenants offer as indicative of fair market
value.

[5]

At the end of the day on April 5, 2019, the trial judge asked
counsel for the husband if she would require more time next time we meet.
Counsel replied that she had a great deal more submissions to make, but that
she had finished her submissions explaining the table of assets she had
provided to the Court.

[6]

When the trial resumed on August 14, the judge told counsel she had
had time to cogitate over the summer and had come to some decisions. The
second of these was that because she saw substantial deficiencies in the
expert reports, the only way she could be confident in a fair value to be
assessed is by ordering the building to be sold. No further reasons were
given; nor did the judge explain why the Boulder itself was to be sold rather
than the husbands shares of the Numbered Company or the Numbered Companys
share of King Tiger.

[7]

The husbands original notice of appeal was filed on August 28,
2019.

[8]

On September 5, 2019, the trial judge stayed the order of sale and
an ancillary order pending the husbands appeal. The trial was also adjourned
pending appeal.

[9]

On October 30, 2019, Mr. Albi on behalf of the wife wrote to
counsel for the husband as follows:

Considering the issue of proportionality and having regard to
the timelines before trial arguments are concluded,
we do not consider it
expedient or in the best interests of either party for the subject appeal to
proceed
.

While our position is that the
Order for Sale is appropriate having regard to the valuation evidence before
the court, in order to address concerns raised in the appeal, we will advise
the trial judge that the continuation of the trial in November that
Ms. Liapis
is prepared to agree to vacate the Order for Sale to allow the trial arguments
to be concluded before judgment is rendered on all issues
. In our view,
this will allow full argument on whether an Order for Sale should be granted,
and will render the appeal of the Order for Sale unnecessary. [Emphasis added.]

Strangely, counsel for the husband did not accept this
offer, apparently because she regarded it as offering only a suspension of
the order for sale and believed that it was too late to get a fair solution
from the trial judge.

[10]

It is unfortunate that counsel misunderstood Mr. Albis offer,
especially since in this court, both counsel acknowledged that neither party
had been afforded the right to be heard on the issue of whether the Boulder
should be sold before the judge divided the parties property. The sale of the
Boulder was at best premature; and
if
some division becomes necessary
under the
Family Law Act,
a better method might well be to re‑allocate
corporate shares rather than to sell the property itself. Obviously, shares can
be divided in a way real estate cannot, and various taxes and fees, as well as
negotiations with the City, might be avoided.

[11]

In the circumstances, we are of the view that the sale order and the
ancillary order should be set aside. The only remaining question for this court
is whether it will be necessary to order a new trial or whether the trial can
simply continue before the trial judge. This is complicated by the fact that
the judge has announced she is retiring effective May 30, 2020.

[12]

Ms. Dale argued initially before us that the trial judge had
breached the rules of procedural fairness in making the sale order without
hearing full argument on the issue from counsel and that her client should not
be required to go back before a judge who has made her mind up on the
question of sale. Counsel referred us to a number of cases, including
Boury
v. Iten
2019 BCCA 81. In that instance, a judge in chambers had made an
(interlocutory) order in respect of which he had received written submissions
but had not heard oral argument from counsel. This court ruled that the judge
had thereby breached the rules of procedural fairness. In Tysoe J.A.s
words:

The legal argument to be set
out in the Notice of Application is not intended to be a substitute for oral
submissions or more elaborate written arguments permitted by R. 8‑1(16)
in the event the hearing of an application will take more than two hours. Two
of the valuable functions of oral advocacy are to answer questions the judge
may have and to phrase submissions in a persuasive fashion that may be slightly
different from legal arguments set out in the Notice of Application or written
submissions. [At para. 32.]

Since it was not plain and obvious the procedural error
had not affected the outcome, the Court remitted the application to the Supreme
Court for a new hearing. (At paras. 445; see also
Felker v. Felker
[1946] O.W.N. 368 (Ont. C.A.);
Investors Group Financial Services Inc.
v. Corby
2005 BCSC 666.)

[13]

We are concerned here, however, with an interlocutory order made by a
trial judge mid-trial. As we told Ms. Dale, this court often refers
matters back to trial judges after correcting errors of law or fact. It is
assumed the trial judge will proceed without any predisposition against the
successful appellant. This was not an instance in which a truly discretionary
order was made that might justify a litigant in perceiving a predisposition on
the judges part. (Ms. Dale confirmed she was not alleging bias on the
part of the trial judge, in which event cases such as
Malton v. Attia
2016 ABCA 130 would have been relevant.)

[14]

In our discussions with counsel, Ms. Dale conceded that as long as
the trial judge was aware of the correct test applicable to the question of
when a sale of property such as the Boulder is required under the
Family Law
Act
, S.B.C. 2011, c. 25, an order of this court remitting the matter
to the trial judge would be an appropriate remedy. Mr. Albi was also
content to have the question of sale determined by the trial judge
at the
end of trial,
not as a means of determining value but as a method of
dividing it between the parties after proper argument.

[15]

It is obvious, in our view, that the sale order and the ancillary order
should not have been made until the trial judge had heard counsels submissions
and considered all relevant factors under the
Family Law Act
, including
whether a sale of the real estate would affect the Heritage Revitalization
Agreement and rights related thereto, the advantages and disadvantages to each
of the parties, and (if a division
is
found to be necessary) whether an
apportionment of corporate shares might be a preferable alternative. Further,
we note that while valuation issues are often difficult, trial judges must at
the end of the day do the best they can with the evidence they have. As stated
by this court in
Cyprus Anvil Mining Corp. v. Dickson
(1986) 33 D.L.R.
(4th) 641:

The one
true rule is to consider all the evidence that might be helpful, and to
consider the particular factors in the particular case, and to exercise the
best judgment that can be brought to bear on all the evidence and all the
factors. I emphasize: it is a question of judgment. No apology need be offered
for that. Parliament has decreed that fair value be determined by the courts
and not by a formula that can be stated in the legislation. [At 652.]

[16]

In the result, we would allow the appeal, set aside the sale order and
the ancillary order, and remit all outstanding issues to the trial judge for
determination. We acknowledge that it may not be possible for her to hear this
matter before her retirement, in which case the Chief Justice of the Supreme
Court will have to cconsider making an order under

R. 22‑2(10)
of the
Supreme Court Family Rules
, and a new judge will have to
determine how to conduct the trial under R. 22‑2(11).

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Abrioux