COURT OF APPEAL FOR
BRITISH COLUMBIA

Citation:

The Owners, Strata
  Plan VIS2968 v. K.R.C. Enterprises Inc.,

2009 BCCA 36

Date: 20090204

Docket: CA35185

Between:

The Owners, Strata
Plan VIS2968

Appellant

(
Plaintiff
)

And

K.R.C. Enterprises
Inc.

Respondent

(
Defendant
)

Before:

The Honourable Chief
  Justice Finch

The Honourable Madam
  Justice Saunders

The Honourable Madam
  Justice Kirkpatrick

A.R. Tryon

Counsel for the Appellant

M.J. Hargreaves

Counsel for the Respondent

Place and Date of Hearing:

Vancouver
, British Columbia

18 December 2008

Place and Date of Judgment:

Vancouver
, British Columbia

4 February 2009

Written Reasons by
:

The Honourable Madam
  Justice Kirkpatrick

Concurred in by:

The Honourable Chief
  Justice Finch

The Honourable Madam
  Justice Saunders

Reasons for Judgment
of the Honourable Madam Justice Kirkpatrick:

I.          INTRODUCTION

[1]

This appeal arises from a dispute
between the owners of bare land strata lots in a development in Sooke, B.C.,
and the party to whom the developer assigned options to purchase some of the
common property of the strata corporation.  The sole issue on this appeal is
whether the granting of options to purchase some of the common property of a
strata corporation without first obtaining subdivision approval is prohibited
by s. 73 of the
Land Title Act
, R.S.B.C. 1979, c. 219,
the statute in force at the time the options were granted.

[2]

The only issue on the cross-appeal
is whether the fact that a strata plan was not registered at the time
invalidates the granting of the option to purchase the common property in
respect of one phase of the development.

[3]

The action in the Supreme Court
was heard as a special case by consent of the parties in March 2007.  Reasons
for judgment were pronounced on 1 June 2007, and are indexed as 2007 BCSC 774,
and reported at 74 B.C.L.R. (4th) 89, 59 R.P.R. (4th) 183.

II.         FACTS

[4]

The facts relevant to the appeal
may be briefly stated.  The appellants, The Owners, Strata Plan VIS2968 (the
strata corporation), are the owners of 48 bare land strata lots located in
the District of Sooke on Vancouver Island in a development known as Sooke Bay
Estates.  There is a single family dwelling on each strata lot.  The strata
corporation was created by deposit of the strata plan in the Victoria Land Title
Office on 25 November 1993.  The developer and registrant of the strata plan
was Blackstone Capital Corp. (Blackstone).

[5]

The strata plan was developed in
three stages with each phase consisting of 16 strata lots.  The three phases
were registered as follows:

(a)        Phase 1:          25
November 1993;

(b)        Phase 2:          9
March 1994; and

(c)        Phase
3:          9 March 1994.

[6]

Each phase of the strata plan includes
a common property area of parklands where the septic field for the sewage of
that phase is located.

[7]

During development, Blackstone
contemplated that in the future the local government might extend sewage
services to the area and there would be no need for the septic fields.

[8]

In anticipation of this
possibility, Blackstone, while owner of the parent property or while owner of
all of the strata lots, granted to itself contingent options to acquire the
parklands in the event that municipal sewage services became available.

[9]

The three contingent options are
substantially identical to one another.  In particular, each option states
(with the necessary modification in respect of the particular strata lots),

PROVIDED
HOWEVER, that the Option hereby granted may only be exercised following a
municipal, provincial or other public body providing access to a sewage
disposal system (the Public Sewer System) to service Strata Lots 1 through
16, Strata Plan VIS2968, and upon the Optionee providing to the Optionor, at
the sole expense of the Optionee, a Subdivision Plan converting the Optioned
Property to a separate and legally distinct lot or lots, no longer a part of
the Common Property of the Optionor.

[10]

Pursuant to the
Real Estate
Act
, R.S.B.C. 1979, c. 356, Blackstone was required to file an approved
disclosure statement or prospectus with the Superintendent of Real Estate as a
condition of offering strata lots for sale.  The disclosure statement refers to
the options as follows:

The
Developer will grant an Option To Purchase the Common Area septic disposal
fields in each phase in favour of the Developer, which Option To Purchase will
only be exercisable by the Developer in the event that the development is
serviced with a Municipal or other public sewage system at the date of
exercise.

[11]

All original purchasers of the
strata lots received a copy of the disclosure statement.  Many of the strata
lots are now owned by successors in title from original purchasers.

[12]

On 24 February 2004, Blackstone
notified the strata corporation that the options were being offered for sale.
The strata corporation responded and advised that it considered the options to
be void and unenforceable.  On 1 April 2004, all of the options were assigned
by Blackstone to the respondent, K.R.C. Enterprises Inc. (K.R.C.
Enterprises).

[13]

At all material times, the standard
by-laws in Part 5 of the
Condominium Act
, R.S.B.C. 1979, c. 61,
applied to the strata corporation.

[14]

Municipal sewage services have not
yet been extended to Sooke Bay Estates but the parties anticipate that services
will be within a few years.

[15]

Since 1995 a search of the common
property folio for the strata corporation discloses registration of the
options.  Prior to 1995, the options were recorded on a separate strata plan
sheet which, as with the common property folio, could be searched by any
interested party.  The options are not registered against the individual strata
lots.

[16]

The chambers judge was asked to
answer seven question of which only two are in dispute on appeal.

III.        ANALYSIS

[17]

The strata corporations argument
on appeal is essentially the same argument it advanced in the Supreme Court.  The
strata corporation submits the options were prohibited by the combined effect
of ss. 20(1) and 21(4) of the
Condominium Act
and Part 7 of the
Land
Title Act
.  At all relevant times, the capacity of the strata
corporation to grant the options was governed by the
Condominium Act
.

[18]

Sections 20(1) and 21(4) of the
Condominium
Act
governed the disposition of common property of a strata corporation
as follows:

20(1)    The
owners may, by special resolution, direct the strata corporation
to dispose
of all or part of its common property or assets, and, without limiting the
generality of the foregoing, may direct the strata corporation to grant an
easement or a restrictive covenant burdening the common property included in
the strata plan.

21(4)    Notwithstanding
the
Land Title Act
, a disposition, not including a lease for a term of 3
years or less, of all or part of the common property of a strata corporation
under section 20 is a
subdivision of land
, and Part 7 of the
Land
Title Act
applies.

[Emphasis added]

[19]

The relevant section of the
Land
Title Act
that dealt with the subdivision of land read as follows:

73(1)
Except on compliance with this Part
, no person shall subdivide land
into smaller parcels than those of which he is the owner for the purpose of

(a) transferring it; or

(b) leasing it, or agreeing
to lease it for a life, or for a term exceeding 3 years.

(2)
Except
on compliance with this Part, no person shall subdivide land for the purpose
of a mortgage
or other dealing
that may be registered under this Act as
a charge if the estate, right or interest conferred on the transferee,
mortgagee or other party would entitle the person in law or equity under any
circumstances to demand or exercise the right to acquire or transfer the fee
simple.

(4)  No
instrument executed by a person in contravention of this section confers on the
party claiming under it a right to registration of the instrument or part of
it.

[Emphasis added]

Compliance
with this Part requires the filing of a subdivision plan in conformity with
Part 7 of the
Land Title Act
.

[20]

Dispose is defined by the
Interpretation
Act
, R.S.B.C. 1996, c. 238, s.29, (and the
Interpretation Act
,
R.S.B.C. 1979, c. 206, s. 29) to mean to transfer by any method and includes
assign, give, sell, grant, charge, convey, bequeath, devise, lease, divest,
release and agree to do any of those things.

[21]

The strata corporation submits
that since there was no subdivision plan filed at the time of the granting of
the options, the options were invalid as they contravened s. 73 of the
Land
Title Act
.

[22]

In both the Supreme Court and on
appeal, K.R.C. Enterprises concedes that the granting of the options was a
disposition as defined by the
Interpretation Act
and a
subdivision of common property under s. 20(1) of the
Condominium Act
.
The respondent contends, however, that the disposition does not actually occur
until the contingencies in the options come to pass  when the municipal sewage
system becomes available and K.R.C. Enterprises provides a subdivision plan to
the strata corporation.

[23]

The respondent relies on the wording
of the options:

PROVIDED
HOWEVER, that the Option hereby granted may only be exercised  upon the
Optionee providing to the Optioner, at the sole expense of the Optionee, a
Subdivision Plan converting the Optioned Property to a separate and legally
distinct lot or lots

[24]

K.R.C. Enterprises submits that
the word legally means that the optionee must comply with Part 7 as a
condition precedent to the exercise of the option.  Thus the respondent submits
that the options do not offend s. 73 of the
Land Title Act
.

[25]

The chambers judge accepted the respondents
submission.  She held,

[43]      In
this case, the options are conditional upon complying with Part 7 of the
Land
Title Act
in that they specifically require that there must be a subdivision
converting the optioned lot to a distinct lot or lots that are no longer a part
of the common property prior to the option being exercised.  In other words,
the option holder is not entitled to the transfer of the fee simple without the
approval of the subdivision by an Approving Officer who, in compliance with
Part 7 of the
Land Title Act
, will consider whether or not the proposed
subdivision is against public interest.  Although the option holder can demand
the right to acquire or transfer the fee simple in certain circumstances, those
circumstances are that Part 7 of the
Land Title Act
has been complied
with.  Accordingly, I have concluded that the granting of the options was not
prohibited under either the
Condominium Act
or the
Land Title Act
.

[26]

The strata corporation submits
that the chambers judge erred in failing to recognize that the fact that the
options are conditional does not exempt them from operation of s. 73(2) of the
Land
Title Act
.  The strata corporation submits that this is because the subdivision,
within the meaning of the
Land Title Act
,

occurred
when the options were granted, not when they were exercised, and thus
Blackstone was obligated to comply with Part 7 of the
Land Title Act

at
the time they were granted.

[27]

The strata corporation contends
that the decision creates mischief because it permits a host of dealings in
respect of a portion of a lot  mortgages, transfers, options, etc.  creating
clouds on title by the creation of partial interests in land.  The strata corporation
submits that there is no practice or precedent supporting the decision of the
chambers judge, citing the Wendi J. MacKay
et al.,
eds.,
Land Title
Practice Manual
, looseleaf, 3d ed. (Vancouver:  Continuing Legal Education
Society of B.C., 2007) at §. 7.109, which states that Section 73(2) prohibits
the filing of options to purchase, rights to purchase, mortgages and other
charges of a part of a lot.

[28]

The strata corporation submits
that the impugned decision would lead the way for developers to avoid the
provisions of the
Real Estate

Development Marketing Act
,
S.B.C. 2004, c. 41, that require developers to first obtain preliminary
approvals, and file a prospectus with the Superintendent of Real Estate, before
entering into agreements with prospective purchasers.  If the decision stands,
the strata corporation submits that developers may enter into conditional
purchase agreements and receive money from purchasers without first obtaining
preliminary approval from the relevant authority.

[29]

K.R.C. Enterprises posits that no
such mischief would be created, citing s. 4 of the
Real

Estate
Development Marketing Act
:

4

A
developer must not market a subdivision lot or a bare land strata lot unless,
in relation to the subdivision lot or bare land strata lot,

(a)  a subdivision plan
or bare land strata plan, as applicable, has been deposited in a land title
office, or

(b)  an approving
officer has given preliminary layout approval.

[30]

Further, K.R.C. Enterprises submits
that in the circumstances of this case, to require the optionor to obtain
subdivision approval in advance of the granting of the option and before the
realization of the event allowing the option to be exercised, namely the
arrival of municipal sewage services, is unnecessarily costly and cumbersome.

[31]

K.R.C. Enterprises seeks an
interpretation that would limit the general proscription in s. 73 of the
Land
Title Act
and make it conditional on compliance with Part 7.  The
respondent submits that s. 73 may, in its words, be paraphrased as follows:

No
person shall subdivide land for the purpose of a dealing that may be registered
under this Act as a charge if the estate, right or interest conferred on the
other party would entitle that party, in law or equity, under any
circumstances, other than on compliance with this Part, to demand or exercise
the right to acquire the fee simple.

[32]

In support of its argument K.R.C.
Enterprises relies on this Courts decision in
Bank of British Columbia
v. Tri Holdings Ltd.
(1992), 71 B.C.L.R. (2d) 58, 71 B.C.A.C. 264
(cited to B.C.L.R.).  The respondent emphasizes Seaton J.A.s comments in
reference to s. 73, at para. 29:

I do
not read these sections as prohibiting people making an agreement contingent on
there being a subdivision.  Doing so is a common practice that does not
constitute subdividing for the purpose of transferring or leasing, or
subdividing for the purpose of a mortgage or other dealing that might be
registered.

[33]

The crucial point in this appeal, however,
is that K.R.C. Enterprises concedes that the granting of the option itself
constituted a disposition.  Pursuant to s. 21(4) of the
Condominium
Act
a disposition  is a subdivision of land.  The option is not
contingent upon there being a subdivision.  By operation of law, the granting
of the option is a subdivision.  It is contingent upon the availability of a
municipal sewage system, after which the respondent must provide to the strata
corporation a subdivision plan converting the septic fields to legally distinct
lot or lots.

[34]

It is useful to note that common
law rights to subdivide land have been curtailed by statute for some time.  In
City
of Vancouver v. Simpson
, [1977] 1 S.C.R. 71, 65 D.L.R. (3d) 669, the
Supreme Court of Canada considered the effect of the
Land Registry Act
,
R.S.B.C. 1960, c. 208, on the common law right to subdivide land.  Martland J.,
for the majority, stated (at 77):

The
enactment of that statute took away a free right to subdivide.  The landowner
has no right to subdivide save subject to the approval of the approving officer
who is required by the Act to determine if the contemplated development would
be against the public interest.  The very exercise of the power given to the
approving officer by the Act must necessarily curtail the landowners right to
subdivide.

[35]

While I have some sympathy for the
position taken by the respondent and its pragmatic interpretation of s. 73 of
the
Land Title Act
, regard must be had to the words of the
applicable statutes.  I am impelled to the view that the combined effect of ss.
20(1) and 21(4) of the
Condominium Act
and s. 73 of the
Land
Title Act
render the options invalid, as they constitute subdivisions
which have not first obtained subdivision approval.

[36]

The challenges that flow from this
interpretation  decreased profitability for developers or increased costs to
strata corporations when common property becomes redundant and disposition is
necessary  are matters that may best be considered by the Legislature.
However, the current statutes, in my opinion, permit no other interpretation.

IV.        DISPOSITION

[37]

It follows that I would allow the
appeal and declare the options invalid.  In the circumstances, it is
unnecessary to address the cross-appeal.

The Honourable Madam Justice Kirkpatrick

I agree:

The
Honourable Chief Justice Finch

I
agree:

The
Honourable Madam Justice Saunders


COURT OF APPEAL FOR
BRITISH COLUMBIA

Citation:

Amezcua v. Taylor,

2009 BCCA 42

Date: 20090206

Docket: CA036574

Between:

Justine Amezcua

Appellant

(
Plaintiff
)

And

Stephanie Taylor

Respondent

(
Defendant
)

Before:

The Honourable Mr. Justice Donald

(In Chambers)

J. L. Harbut

Counsel for the Appellant

S. G. Pereira

Counsel for the Respondent

Place
  and Date of Hearing:

Vancouver
, British Columbia

January 22, 2009

Place and Date of Judgment:

Vancouver
, British Columbia

February 6, 2009

Reasons for Judgment
of the Honourable Mr. Justice Donald:

[1]

This is the respondents motion
for directions whether leave is required to appeal the order of Madam Justice
Stromberg-Stein made 16 October 2008, setting aside the order of a Master which
added the Minister of Public Safety and the Solicitor General of the Province
of British Columbia (the Minister) as a defendant.  The reasons for judgment
are indexed as 2008 BCSC 1494.

[2]

I have concluded that leave is not
required and the appeal has been properly brought by the filing of a notice of
appeal.

[3]

The action arises from a motor
vehicle accident which occurred in 1999 at an intersection in North Vancouver.
The respondent driver was on duty as an officer of the Royal Canadian Mounted
Police at the time of the collision.  She admits in her statement of defence
that the accident happened as a result of her simple and regular negligence.
She also pleads the protection afforded her under the
Police Act
,
R.S.B.C. 1996, c. 367:

9.         In
answer to the whole of the Statement of Claim, the Defendant pleads and relies
upon section 14(1), 14(2) and 21 of the
Police Act
, as amended and say
that no action lies against her in this matter.

[4]

The gist of those provisions of
the
Police Act
is that no action lies for simple negligence in the
course and scope of an officers employment.  But that protection is only for
the officer; under s. 11 of the
Act
, the Minister is vicariously liable
for the officers simple negligence.  The
Act
also provides that the
individual officer is not shielded from gross negligence.

[5]

By moving to add the Minister as a
defendant, the appellant hoped to place herself in a position where she could
recover her losses on the basis of vicarious liability for simple negligence.
The problem is that the appellant waited a very long time to bring the motion,
and did so only years after the limitation date had expired.  The Master found
that although the delay was inordinate and not satisfactorily explained, the
respondent and the Minister had suffered no prejudice and so he granted the
order.  The reviewing judge reversed on the ground that the Master ignored the
loss of a limitation defence in assessing prejudice.

[6]

The question of whether leave to
appeal is required turns on whether this is a final or interlocutory order.
The answer lies in the effect of the order  does it dispose of a substantive
issue in the action?:
Forest Glen Wood Products Ltd. v. British Columbia
(Minister of Forests)
, 2008 BCCA 480.  I think it does.  Effectively, the
order decides with finality that (i) the action against the respondent in
simple negligence is futile; (ii) the only cause of action available against
the respondent is in gross negligence; and (iii) the Minister has the benefit
of the limitation defence.  Thus, it is a final order and leave of this Court
is not needed.

[7]

I cannot accept the argument that
this is merely an interlocutory order because it does not alter the position of
the parties as their pleadings presently stand.

[8]

The respondents representatives
warned the appellants solicitors consistently from the early stages of the
action that the appellants pleadings are deficient in not overcoming the
barrier to recover against the officer alone for simple negligence.  The order
in question closes the door to recovery, except for gross negligence, which is
not yet pleaded.

[9]

For these reasons, I have decided
that the order gives rise to an appeal as of right.

The Honourable Mr. Justice Donald


COURT OF APPEAL FOR
BRITISH COLUMBIA

Citation:

Edgewater Casino Inc.
  (Re),

2009 BCCA 40

Date: 20090206

Docket: CA035922; CA035924

In the Matter of the
Companies
Creditors Arrangement Act
,
R.S.C. 1985, c. C-36, as amended

In the Matter of the
Business Corporations
Act
,
S.B.C. 2002, c 57, as amended

In the Matter of Edgewater Casino Inc. and
Edgewater Management Inc.

Between:

Canadian Metropolitan
Properties Corp.

Appellant

(
Applicant
)

And

Libin Holdings Ltd.,
Gary Jackson Holdings Ltd.
and Phoebe Holdings Ltd.

Respondents

(
Respondents
)

Before:

The Honourable Madam
  Justice Levine

The Honourable Mr. Justice
  Tysoe

The Honourable Madam
  Justice D. Smith

J.J.L. Hunter, Q.C. and
  J.A. Henshall

Counsel for the Appellant

J.R. Sandrelli and A.
  Folino

Counsel for the Respondents

Place and Date of Hearing:

Vancouver
, British Columbia

January 7, 2009

Place and Date of Judgment:

Vancouver
, British Columbia

February 6, 2009

Written Reasons by
:

The Honourable Mr. Justice
  Tysoe

Concurred in by:

The Honourable Madam
  Justice Levine

The Honourable Madam
  Justice D. Smith

Reasons for Judgment
of the Honourable Mr. Justice Tysoe:

Introduction

[1]

This application raises the
question of the nature and application of the test to be utilized when leave is
sought to appeal from an order made in proceedings under the
Companies
Creditors Arrangement Act
, R.S.C. 1985, c. C-36 (the
CCAA
).

[2]

On August 29, 2008, the chambers
judge refused Canadian Metropolitan Properties Corp. (the Landlord) leave to
appeal from two orders pronounced on March 5, 2008 and December 18, 2008, by
the judge supervising the
CCAA
proceedings (the
CCAA
judge)
concerning Edgewater Casino Inc. and Edgewater Management Inc. (Edgewater).
The Landlord applies under section 9(6) of the
Court of Appeal Act
,
R.S.B.C. 1996, c. 77, to vary or discharge the order of the chambers judge so
that it is given leave to appeal from the two orders.  The respondents, being
the original shareholders of Edgewater, oppose the application.

Background

[3]

The Landlord and Edgewater entered
into a lease agreement dated for reference November 8, 2004 (the Lease) under
which the Landlord leased part of the Plaza of Nations site in downtown Vancouver for the operation of a casino by Edgewater.  Edgewater took possession of the
leased property on May 4, 2004 and, prior to commencing operation of the casino
on February 5, 2005, spent approximately $15 million renovating the main
building covered by the Lease.  These renovations indirectly led to two
disputes between the parties.  The first dispute related to the extent, if any,
to which Edgewater was responsible to reimburse the Landlord for increases in
property taxes attributable to improvements made by Edgewater.  A related issue
was whether Edgewater was responsible to pay a portion of the consulting fees
incurred by the Landlord in appealing property tax assessments. The second
dispute related to Edgewaters responsibility to pay for the cost of utilities
supplied to the leased property prior to the commencement of the operation of
the casino while Edgewater was in possession and renovating the building.

[4]

Edgewater commenced the
CCAA
proceedings
on May 2, 2006, and the
CCAA
judge supervised the proceedings.
Edgewater proposed a plan of arrangement by which sufficient funds would be
paid into a law firms trust account in an amount to fully pay all claims of
creditors accepted by Edgewater and the asserted amounts of creditor claims
disputed by Edgewater.  I gather that the plan of arrangement was predicated on
a sale of the shares in Edgewater by the respondents to a new owner and that it
was agreed that the respondents would be the benefactors of any monies
recovered from the Landlord and any monies left in trust following the
resolution of the property tax and utilities disputes.

[5]

On August 11, 2006, the
CCAA
judge
pronounced a Claims Processing Order establishing a process for claims to be
made by Edgewaters creditors and to be either accepted by Edgewater or
adjudicated upon in a summary manner in the
CCAA
proceedings.  On August
29, 2006, the
CCAA
judge  pronounced a Closing Order pursuant to which
the plan of arrangement was implemented and sufficient funds were paid into
trust to satisfy the accepted and disputed claims of Edgewaters creditors.

[6]

The Landlord filed a proof of
claim asserting that Edgewater was indebted to it in the amount by which the
property taxes for the leased property had increased since 2004.  Edgewater
disallowed the proof of claim.  Edgewater subsequently claimed a right of
setoff against the Landlord in respect of the utilities that it alleged had
been improperly charged by the Landlord and had been paid by mistake.

[7]

By a case management order dated
March 29, 2007, the
CCAA
judge directed that, among other things, the
property tax and utilities disputes were to be determined summarily, with the
parties exchanging pleadings and having representatives cross-examined on
affidavits or examined for discovery.  Hearings took place before the
CCAA
judge in August and September, 2007.

[8]

In his reasons for judgment
dealing with the property tax dispute, indexed as 2008 BCSC 280, the
CCAA
judge held that: (i) clause 3.05 of the Lease, which dealt with Edgewaters
responsibility for increases in the property taxes, was sufficiently clear to
be enforceable; (ii) the Landlord had not made negligent misrepresentations to
Edgewater on matters relevant to the property tax increase; (iii) Edgewater was
only responsible for increases in the assessment of the Lands (defined as the
lands and improvement thereon) solely attributable to the improvements made by
it, with the result that Edgewater was only obliged to pay the Landlord the
increased taxes based on the increase in the assessed value of the buildings;
and (iv) Edgewater was not liable, either in contract,
quantum meruit
or unjust enrichment, to reimburse the Landlord for any consulting fees
incurred by it in appealing the property tax assessments in question.

[9]

In his reasons for judgment
dealing with the utilities dispute, indexed as 2007 BCSC 1829, the
CCAA
judge
held that: (i) clause 4.01 of the Lease, which was clear on its face,
restricted the amount of rent and additional rent during the period preceding
the commencement of operation of the casino to the sum specified in the clause,
and Edgewater was not responsible to pay for any additional sum in respect of
utilities; (ii) the Landlord did not meet the test in order to have the Lease
rectified in respect of the payment for utilities during the period of
possession preceding the commencement of operation of the casino; and (iii)
Edgewater was entitled to the return of the payments for utilities during the
period of possession preceding the commencement of the casino made by it as a
result of a mistake.

Decision
of the Chambers Judge

[10]

In dismissing the applications for
leave to appeal the two orders, the chambers judge commented that the
CCAA
judge had held the language of clauses 3.05 and 4.01 of the Lease to be clear
and unambiguous.  Relying on
Re Pacific National Lease Holding Corp.
(1992), 72 B.C.L.R. (2d) 368, 15 C.B.R. (3d) 265 (C.A. Chambers), and
Re Pine
Valley Mining Corporation
, 2008 BCCA 263, 43 C.B.R. (5th) 203 (Chambers), the
chambers judge stated that leave to appeal in proceedings under the
CCAA
is granted sparingly.  He commented that there were none of the time pressures
that often attend
CCAA
proceedings.

[11]

The chambers judge noted that the
CCAA
judge had applied settled principles of contractual interpretation and
expressed the view that there were very limited prospects of success on appeal.
He observed that the issues had been decided in the context of summary
proceedings under the
CCAA
and stated that the decision of the chambers
judge was entitled to substantial deference.

Discussion

[12]

The parties are agreed that the
test to be applied by a reviewing court on an application to review an order of
a chambers judge is to determine whether the judge was wrong in law or
principle or misconceived the facts: see
Haldorson v. Coquitlam (City)
,
2000 BCCA 672, 3 C.P.C. (5th) 225.

[13]

The parties made their submissions
on the basis that there is a special test or standard for the granting of leave
to appeal from an order made in
CCAA
proceedings.  The genesis of this
perception is the following passage from the decision of Mr. Justice Macfarlane
in
Pacific National Lease
:

[30]
Despite what I have said, there may be an arguable case for the petitioners to
present to a panel of this court on discreet questions of law.  But I am of the
view that this court should exercise its powers sparingly when it is asked to
intervene with respect to questions which arise under the C.C.A.A.  The process
of management which the Act has assigned to the trial court is an ongoing one.  In
this case a number of orders have been made.  Some, including the one under
appeal, have not been settled or entered.  Other applications are pending.  The
process contemplated by the Act is continuing.

[31]
A colleague has suggested that a judge exercising a supervisory function under
the C.C.A.A. is more like a judge hearing a trial, who makes orders in the
course of that trial, than a chambers judge who makes interlocutory orders in
proceedings for which he has no further responsibility.

[32]
Also, we know that in a case where a judgment has not been entered, it may be
open to a judge to reconsider his or her judgment, and alter its terms. In
supervising a proceeding under the C.C.A.A. orders are made, and orders are
varied as changing circumstances require.  Orders depend upon a careful and
delicate balancing of a variety of interests and of problems.  In that context
appellate proceedings may well upset the balance, and delay or frustrate the
process under the C.C.A.A.  I do not say that leave will never be granted in a
C.C.A.A. proceeding.  But the effect upon all parties concerned will be an
important consideration in deciding whether leave ought to be granted.

Numerous
subsequent decisions have referred to these comments.  These decisions include
Re
Westar Mining Ltd.
(1993), 75 B.C.L.R. (2d) 16, 17 C.B.R. (3d) 202 (C.A.) at para. 57;
Re Woodwards Ltd.
(1993), 105 D.L.R. (4th) 517, 22 C.B.R. (3d)
25 (B.C.C.A. Chambers) at para. 34;
Re Repap British Columbia Inc.
(1998), 9 C.B.R. (4th) 82 (B.C.C.A. Chambers) at para. 8;
Luscar Ltd.
v. Smoky River Coal Ltd.,
1999 ABCA 179, 175 D.L.R. (4th) 703 at para. 62;
Re
Blue Range Resource Corp.
, 1999 ABCA 255, 12 C.B.R. (4th) 186 (Chambers) at
para. 3;
Re Canadian Airlines Corp.
, 2000 ABCA 149, 19 C.B.R. (4th) 33
(Chambers) at para. 42;
Re Skeena Cellulose Inc.
, 2003 BCCA 344, 13
B.C.L.R. (4th) 236 at para. 52;
Re Fantom Technologies Inc.
(2003),
41 C.B.R. (4th) 55 (Ont. C.A. Chambers) at para. 17; and
Re New Skeena
Forest Products Inc.
, 2005 BCCA 192, [2005] 8 W.W.R. 224 at para. 20.

[14]

The Landlord accepts the general
proposition that leave to appeal from
CCAA
orders should be granted
sparingly, but says that there should be an exception where, as here, the time
constraints present in typical
CCAA
situations do not exist.  In this
regard, the Landlord relies on the views expressed by Chief Justice McEachern
in
Westar Mining
.  After quoting the above passage from
Pacific
National Lease
, McEachern C.J.B.C. said the following:

[58]  I respectfully agree with what Macfarlane J.A. has said, but in
this case the situation of the Company has stabilized as its principal assets
have been sold.  The battle for the survival of the Company is over, at least
for the time being.  What remains is merely to determine priorities, and the
proper distribution of the trust fund which was established with the approval
of the Court primarily for the protection of the Directors.

Although
McEachern C.J.B.C. was speaking in dissent when making these comments, an
appeal to the Supreme Court of Canada was allowed, [1993] 2 S.C.R. 448, and the
Court agreed generally with his dissenting reasons.

[15]

The respondents submit that there
should be the same test for leave to appeal from all orders made in
CCAA
proceedings.
The respondents maintain that the test has been consistently applied throughout
  Canada and that a different test in some circumstances would lead to the
result that there would be many more leave applications to appeal orders made
in
CCAA
proceedings and appellate courts would be required to analyze
the underlying
CCAA
proceeding in every leave application.

[16]

The requirement for leave to
appeal from an order made in
CCAA
proceedings is found in the
CCAA
itself (section 13), as opposed to the provincial or territorial statutes
governing the appellate courts in Canada.  This suggests that Parliament
recognized that appeals as of right from orders made in
CCAA
proceedings
could have an adverse effect on the efforts of debtor companies to reorganize
their financial affairs pursuant to the Act and that appeals in
CCAA
proceedings should be limited: see
Re Algoma Steel Inc.
(2001), 147
O.A.C. 291, 25 C.B.R. (4th) 194 at para. 8.

[17]

However, it does not follow from
the fact that the statute itself is the source of the requirement for leave
that the test or standard applicable to applications for leave to appeal orders
made in
CCAA
proceedings is different from the test or standard for
other leave applications.  It is my view that the same test applicable to all
other leave applications should be utilized when considering an application for
leave to appeal from a
CCAA
order.  In British Columbia, the test
involves a consideration of the following factors:

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

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

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

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

The authority most frequently cited in British
Columbia in this regard is
Power Consolidated (China) Pulp Inc. v. British
Columbia Resources Investment Corp.
(1988), 19 C.P.C. (3d) 396 (B.C.C.A.
Chambers).

[18]

This is not to suggest that I
disagree with the above comments of Macfarlane J.A. in
Pacific National
Lease
.  To the contrary, I agree with his comments, but I do not believe
that he established a special test for
CCAA
orders.  Rather, his
comments are a product of the application of the usual standard used on leave
applications to orders that are typically made in
CCAA
proceedings and a
recognition of the special position of the supervising judge in
CCAA
proceedings.
In particular, a consideration of the third and fourth of the above factors
will result in leave to appeal from typical
CCAA
orders being given
sparingly.

[19]

The third of the above factors
involves a consideration of the merits of the appeal.  In non-
CCAA
proceedings, a justice will be reluctant to grant leave where the order
constitutes an exercise of discretion by the judge because the grounds for
interfering with an exercise of discretion are limited: see
Silver Standard
Resources Inc. v. Joint Stock Co. Geolog
, [1998] B.C.J. No. 2298 (C.A.
Chambers).  Most orders made in
CCAA
proceedings are discretionary in
nature, and the normal reluctance to grant leave to appeal is heightened for
two reasons alluded to in the comments of Macfarlane J.A.

[20]

First, one of the principal
functions of the judge supervising the
CCAA
proceeding is to attempt to
balance the interests of the various stakeholders during the reorganization
process, and it will often be inappropriate to consider an exercise of
discretion by the supervising judge in isolation of other exercises of
discretion by the judge in endeavouring to balance the various interests.
Secondly,
CCAA
proceedings are dynamic in nature and the supervising
judge has intimate knowledge of the reorganization process.  The nature of the
proceedings often requires the supervising judge to make quick decisions in
complicated circumstances.  These considerations are reflected in the comment
made by Madam Justice Newbury in
New Skeena Forest Products
that
[a]ppellate courts also accord a high degree of deference to decisions made by
Chambers judges in CCAA matters and will not exercise their own discretion in
place of that already exercised by the court below (para. 20).

[21]

The fourth of the above factors
relates to the detrimental effect of an appeal on the underlying action.  In
most non-
CCAA
cases, the events giving rise to the underlying action
have already occurred, and a consideration of this factor involves the
prejudice to one of the parties if the trial is adjourned or if the action
cannot otherwise move forward pending the determination of the appeal.
CCAA
proceedings are entirely different because events are unfolding as the
proceeding moves forward and the situation is constantly changing  some refer
to
CCAA
proceedings as real-time litigation.

[22]

The fundamental purpose of
CCAA
proceedings is to enable a qualifying company in financial difficulty to
attempt to reorganize its affairs by proposing a plan of arrangement to its
creditors. The delay caused by an appeal may jeopardize these efforts.  The
delay may also have the effect of upsetting the balance between competing
stakeholders that the supervisory judge has endeavoured to achieve.

[23]

Similar views were expressed by
Mr. Justice OBrien in
Re Calpine Canada Energy Ltd.
, 2007 ABCA 266, 35
C.B.R. (5th) 27 (Chambers):

[13]  This Court has repeatedly stated, for example in
Liberty Oil
& Gas Ltd., Re
, 2003 ABCA 158, 44 C.B.R. (4th) 96 (Alta. C.A.), at
paras. 15-16, that the test for leave under the CCAA involves a single
criterion that there must be serious and arguable grounds that are of real and
significant interest to the parties. The four factors used to assess whether
this criterion is present are:

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

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

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

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

[14]  In assessing these factors, consideration should also be given to
the applicable standard of review:
Canadian Airlines Corp
.
, Re
,
2000 ABCA 149, 261 A.R. 120 (Alta. C.A. [In Chambers]).  Having regard to the
commercial nature of the proceedings which often require quick decisions, and
to the intimate knowledge acquired by a supervising judge in overseeing a CCAA
proceedings, appellate courts have expressed a reluctance to interfere, except
in clear cases:
Smoky River Coal Ltd., Re
, 1999 ABCA 179, 237 A.R. 326
(Alta. C.A.) at para. 61.

Other decisions on leave applications where the usual
factors were expressly considered include
Re Blue Range Resource Corp
.,
Re
Canadian Airlines Corporation
and
Re Fantom Technologies Inc
., each
of which quoted the above comments of Macfarlane J.A. in
Pacific National
Lease
.

[24]

As a result of these
considerations, the application of the normal standard for granting leave will
almost always lead to a denial of leave to appeal from a discretionary order
made in an ongoing
CCAA
proceeding.  However, not all of the above
considerations will be applicable to some orders made in
CCAA
proceedings.  Thus, in
Westar Mining
, McEachern C.J.B.C., while
generally agreeing with the comments made in
Pacific National Lease
, believed
that the considerations mentioned by Macfarlane J.A. were not applicable in
that case because the
CCAA
proceeding had effectively come to an end
with the sale of the principal assets of the debtor company.  Madam Justice
Newbury made a similar point in
New Skeena Forest Products
at para. 25 (which
was a hearing of an appeal, not a leave application), although she found it
unnecessary to decide the appeal on the point.

[25]

The chambers judge did give
consideration to the usual factors in the present case, but none of the
considerations I have mentioned were applicable to the two orders.  The
CCAA
judge was deciding questions of law in each case and was not exercising his
discretion.  The knowledge gained by the
CCAA
judge during the
reorganization process was not relevant to his decisions, which involved events
that occurred prior to the commencement of the
CCAA
proceeding.  The
plan of arrangement made by Edgewater has been implemented, and appeals from
the two orders will not delay or otherwise jeopardize the reorganization
process.  There is no prospect that the outcome of the appeals will affect the
continuing viability of Edgewater; indeed, although the disputes involve
Edgewater in name, the parties with a monetary interest in the disputes are the
Landlord and the respondents, who are the former shareholders of Edgewater.  In
the circumstances, there was no reason to give substantial deference to the
CCAA
judge.

[26]

I am not saying that the
considerations I have mentioned will never apply to a determination of claims
pursuant to a claims process in a
CCAA
proceeding.  For example, a plan
of arrangement may only be successful if the total amount of claims against the
debtor company is less than a specified sum.  An appeal from an order
quantifying a claim of a creditor would delay the
CCAA
proceeding and
could jeopardize the companys reorganization.

[27]

I have no doubt that there will be
other circumstances in which the claims process will have an impact on the
reorganization process.  Even if the claims process will not jeopardize the
reorganization process, some of the other considerations I have mentioned may
apply to the determination of the claims.  For example, the outcome of an
appeal may affect the amounts received by other creditors and may delay the full
implementation of the plan of arrangement.  The fact that section 12 of the
CCAA
mandates the determination of claims to be by way of a summary application to
the court illustrates that Parliament recognized that the claims process will
often be sensitive to time constraints.

[28]

There is one other point about the
order relating to the utilities dispute that differentiates it from the typical
CCAA
order.  The dispute did not involve a claim against Edgewater but,
rather, it was a claim by Edgewater to have the Landlord refund utilities
payments made by it.  Such a claim would normally be pursued in a normal
lawsuit and, if it was determined on a summary application (i.e., a Rule 18A
application), there would have be an appeal as of right, and leave would not have
been required.  It was only because the claim was raised as a setoff to the
Landlords property tax claim that it came to be determined in the
CCAA
proceeding.

[29]

I now turn to a consideration of
the usual factors in relation to the order dealing with the property tax
dispute:

1.         As stated by the chambers
judge, the point in issue is of no significance to the practice.

2.         As conceded by the
respondents on the application before the chambers judge, the point in issue is
of significance to the action itself (in the sense that it finally determines
the Landlords claim).

3.         The order did not involve an
exercise of discretion by the
CCAA
judge.  The chambers judge was
mistaken in his belief that the
CCAA
judge held that clause 3.05 was
clear and unambiguous; the first issue considered by the
CCAA
judge was
whether the clause was sufficiently clear as to make it enforceable.  In my
opinion, the appeal is not frivolous.

4.         The appeal will not unduly hinder the
progress of the action because Edgewaters plan of arrangement has been
implemented and the
CCAA
proceeding has come to a conclusion.

On
a consideration of all of the factors, it is my view that leave to appeal the
order dealing with the property tax dispute should be given.

[30]

A consideration of the usual factors
in relation to the order dealing with the utilities dispute leads to the same
observations with one exception.  As conceded by the Landlord on this
application, the prospects of success of an appeal do not appear to be as high
as the prospects in an appeal from the other order.  However, I am not
persuaded that the appeal has so little merit that it amounts to a frivolous
appeal.  If the dispute had not become intertwined with the property tax
dispute as a result of Edgewaters claim of a right of setoff, the dispute
would not have been determined in the
CCAA
proceeding, and the Landlord
would have had an appeal as of right.  In all the circumstances, it is my view
that leave to appeal from the order dealing with the utilities dispute should
also be given.

Conclusion

[31]

I would discharge the order made
by the chambers judge dismissing the leave application, and I would grant the
Landlord leave to appeal from both of the orders.

The Honourable Mr. Justice Tysoe

I
agree:

The
Honourable Madam Justice Levine

I
agree:

The
Honourable Madam Justice D. Smith


COURT OF APPEAL FOR
BRITISH COLUMBIA

Citation:

R. v. Schwartz,

2009 BCCA 44

Date: 20090206

Docket: CA026741

Between:

Regina

Respondent

And

Douglas Louie Schwartz

Appellant

BAN ON DISCLOSURE

Pursuant to s. 486(3) [now s. 486.4)
C.C.C.
]

Before:

The Honourable Mr. Justice
  Low

The Honourable Madam
  Justice Kirkpatrick

The Honourable Mr. Justice
  Groberman

In person

Appellant

A. Budlovsky, Q.C.

Counsel for the Respondent

Place and Date of Hearing:

Vancouver
, British Columbia

21 January 2009

Place and Date of Judgment:

Vancouver
, British Columbia

6 February 2009

Written Reasons by
:

The Honourable Mr. Justice
  Low

Concurred in by:

The Honourable Madam
  Justice Kirkpatrick
The Honourable Mr. Justice Groberman

Reasons for Judgment
of the Honourable Mr. Justice Low:

[1]

Mr. Schwartz is serving an
indeterminate sentence after being declared a dangerous offender on 12 January
2000.  The designation and the sentence were upheld by this court following a
hearing at which Mr. Schwartz was represented by counsel.  He now brings an
application to reopen his appeal.  The application originally came on before
Madam Justice Ryan in chambers.  She held that, to the extent this
court has the power to rehear a criminal matter, the decision to do so can be
made only by a division of the court.

[2]

Mr. Schwartz was convicted on 24
January 1997 of sexual assault, the predicate offence for the subsequent
dangerous offender proceedings.  His appeal from that conviction was dismissed
as abandoned three years later.  This court heard his appeal from the dangerous
offender designation on 24 October 2002 and gave written reasons dismissing it
on 18 November 2003:  see 2002 BCCA 616.

[3]

On 4 March 2004, the Supreme Court
of Canada dismissed an application brought by Mr. Schwartz for leave to appeal
the order of this court.

[4]

Mr. Schwartz subsequently brought
an application for
habeas corpus
in the Supreme Court of British
Columbia.  On 14 September 2004, Ross J. made an order dismissing that
application.  Mr. Schwartz did not appeal that order.

[5]

The next step he took was to seek
reconsideration in the Supreme Court of Canada of his leave application.  On 17
August 2006 the deputy registrar of that court ruled that his application did
not meet the required standard.

[6]

This court can reopen a criminal
appeal in very limited circumstances.

[7]

In
R. v. Hummel
,
2003 YKCA 4, [2003] Y.J. No. 36 the court held that there is a discretionary
power to reopen after the court has rendered judgment so long as the formal
order flowing from the judgment has not been entered.

[8]

In the very recent case of
R.
v. Henry
, 2009 BCCA 12, in a highly unusual situation, the court
reopened the appeal for consideration on its merits.  That was a conviction
appeal that had been dismissed as abandoned many years earlier.  The appeal had
not been heard on its merits.

[9]

Mr. Schwartz has exhausted his
remedies in this court.  The order dismissing his appeal of the dangerous
offender designation has long since been entered.  The court made that order
after a full hearing on the merits.  What Mr. Schwartz proposes to do now
essentially is to re-argue the issues canvassed on his appeal.  He contends
that the decisions of this court in
R. v. Johnson
(2001), 158
C.C.C. (3rd) 155 and
R. v. Edgar
(2001), 158 C.C.C. (3rd) 212, were
applied and that he should have the opportunity to argue their effect as later
modified by the Supreme Court of Canada on appeal of them to that court.
However, those decisions in the Supreme Court of Canada were handed down by
that court before it heard Mr. Schwartzs leave application and he was still
denied leave.  In addition, his argument did not meet the test for
reconsideration of his leave application.

[10]

In any event, even if Mr. Schwartz
had not applied for leave to appeal to the Supreme Court of Canada, this court
would have no power to reopen his appeal.

[11]

In a case in which a convicted
person has exhausted all his appeal remedies and there is an argument that
there has been a miscarriage of justice, that person can apply to the Minister
of Justice under s. 696.1 of the
Criminal Code of Canada
for a
review of his case.  That section applies to a dangerous offender finding as
well as to a conviction.  If there is any merit to Mr. Schwartzs contention,
and I do not say there is, this is the only way he can now be heard.  In the
circumstances, this court has no power to rehear his appeal of the order
designating him a dangerous offender.

[12]

I would dismiss the application.

The Honourable
Mr. Justice Low

I agree:

The Honourable Madam Justice Kirkpatrick

I agree:

The Honourable Mr. Justice Groberman


COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. J.G.B.,

2010 BCCA 2

Date: 20100104

Docket:
CA036740

Between:

Regina

Respondent

And

J.G.B.

Appellant

Publication
Ban

Pursuant to Section 486.4(1) of the
Criminal Code

Before:

The Honourable Madam Justice Huddart

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Tysoe

On appeal from:  Supreme Court of British Columbia, May 5, 2008

(
R. v. J.G.B.
, 2008 BCSC 1261, 1262; Cranbrook Registry No. 25073-2)

Counsel for the Appellant:

J.J.
  Saulnier

Counsel for the Respondent:

M.T.
  Ainslie

Place and Date of Hearing:

Vancouver,
  British Columbia

November 30, 2009

Place and Date of Judgment:

Vancouver
, British Columbia

January
  4, 2010

Written Reasons by
:

The Honourable Mr. Justice Frankel

Concurred in by:

The Honourable Madam Justice Huddart

The Honourable Mr. Justice Tysoe

Reasons for
Judgment of the Honourable Mr. Justice Frankel:

Introduction

[1]

J.G.B. appeals his conviction for sexually
assaulting his adopted daughter, A.B.  The charge covers the period when A.B.
was between six and 15 years old.  J.G.B.s grounds of appeal concern the
admissibility and use of the evidence of J.W., who testified that J.G.B. kissed
her one night, while she and A.B. were lying in the same bed.

[2]

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

Factual
Background

[3]

The trial took place before Mr. Justice
Myers of the Supreme Court of British Columbia, sitting without a jury.  The
evidence called by both the Crown and defence is reviewed in detail in his
reasons for judgment, which are indexed as 2008 BCSC 1262.  Only a summary of
the evidence is required for the purposes of this appeal.

A.B.s Evidence

[4]

A.B. was born in 1990.  She and her younger
brother were adopted by J.G.B. and his wife, E.B., after their mother died.

[5]

A.B. testified that the sexual assaults started
just before her seventh birthday, shortly after she began living with J.G.B.
and E.B.  The nature of those assaults changed over time.

[6]

The first assault occurred when A.B. was sleeping
in the upper bunk in an upstairs bedroom she shared with her brother.  She said
that J.G.B. came into the room, stood on the bottom bunk, and inserted his hand
into her pants, rubbing her clitoris.  He also took her hand, put it inside his
pyjama pants, and used it to stroke his penis.  While doing this, J.G.B. kissed
A.B. several times.

[7]

A.B. said that J.G.B. repeated this conduct
three or four times a week until she was eight years old, when the bunk beds
were separated into two twin beds.  After this, J.G.B. would crawl into A.B.s
bed, and get under the covers.  As they were lying side-by-side, he would pull
their respective pyjama pants down and rub his penis against her clitoris until
he ejaculated.

[8]

When A.B. was eight or nine years old, she moved
into a bedroom in the basement.  She testified that that J.G.B. continued to
get into bed with her three or four times each week, touching her sexually, and
having her stroke his penis.

[9]

A.B. testified that when she was around ten
years old, her friend, J.W., would often sleep over with her, in the same bed.
A.B. said that J.G.B. would get into bed between them, and tickle them or
engage in horseplay.

[10]

The nature of the sexual acts changed when A.B.
turned 12 years old.  J.G.B. would lick her vagina and have her kiss his penis
until he ejaculated.  J.G.B. would also kiss A.B. and rub her breasts, which
were beginning to develop.  A.B. testified that on three occasions shortly
before her 13th birthday, J.G.B. inserted his penis into her vagina.

[11]

A.B. said that the way J.G.B. kissed her changed
over time.  At first he would give her a short kiss (i.e., peck) on the lips.
Later, he would kiss her by placing his tongue in her mouth.  She could not
recall when this latter form of kissing started, but said that it was while she
was sleeping upstairs.  It never occurred when anyone else was present.

[12]

A.B. said that sexual contact ended just before
she turned 15, when she told J.G.B. that if he did not stop, then she would
tell E.B.

J.W.s
Evidence

[13]

J.W. was seventeen when she testified.  She and
A.B. were best friends when they were nine or ten years old.  For approximately
one year, J.W. would often sleep over at A.B.s house.  She said that J.G.B.
would tuck them in, and lie in bed between them, playing around with, or
tickling them.  He would be both over and under the covers, and would stay with
them until they fell asleep.

[14]

In the midst of J.W.s examination in-chief, a
voir
dire
was held to determine whether the Crown could introduce evidence that J.G.B.
had kissed her.  J.W. was examined and cross-examined on the
voir dire
.
She testified that the last time she slept over at A.B.s house, they used a
bed in the upstairs bedroom.  J.W. said that J.G.B. came into the room, which
was dark, and lay down in the bed between her and A.B.  After A.B. had fallen
asleep, and with J.W. nearly asleep, J.G.B. leaned over J.W. and gave her a
long kiss with his mouth open.  J.W. said it was like a kiss she had seen
J.G.B. give A.B.  After kissing J.W., J.G.B. got up and left the room.  J.W. then
heard J.G.B. and E.B. arguing.  This was the only time J.W. had been kissed by
J.G.B.

[15]

At the end of the
voir dire
, J.W. resumed
and completed her testimony on the trial proper.

Voir Dire
Ruling

(2008 BCSC 1261)

[16]

Before the Crown closed its case, the trial
judge stated that J.W.s evidence with respect to having been kissed by J.G.B. was
admissible as either original evidence, or as similar-fact evidence.  He
said he would provide reasons for that decision later.

[17]

The trial judge gave his
voir dire
ruling
just before he pronounced his reasons for convicting J.G.B.  In his ruling, the
trial judge noted that the Crown had advanced two alternative, but
inconsistent, bases for admitting J.W.s testimony:  (1) that J.G.B. had intended
to kiss A.B. and, therefore, evidence of the kiss was original evidence, and
(2) that J.G.B. had intended to kiss J.W., and evidence of the kiss was
admissible under the rules governing similar-fact evidence.

[18]

With respect to admitting J.W.s testimony as
original evidence, the trial judge said:

[18]      I will first consider whether the
evidence is admissible on the first alternative, namely that J.G.B. intended to
kiss A., but kissed J.W. by mistake.

[19]      I think that the evidence is
sufficient to permit a trier of fact to conclude that J.G.B. intended to kiss
A.  The room was dark.  He was in between both of the girls.  Nothing was said
before the kiss.

[20]      That
evidence would support A.s evidence that her father kissed her in bed.  I do
not consider that its prejudicial value exceeds its probative value.  As the
trier of fact, I am able to recognise that the evidence is supportive of only
one aspect of the sexual acts described by A.

[19]

The trial judge next considered whether J.W.s
testimony was admissible as similar-fact evidence, having regard to the framework
for deciding this question set out in
R. v. Handy
, 2002 SCC 56, [2002] 2
S.C.R. 908.  After finding that there had been no collusion between A.B. and
J.W., the trial judge continued:

[26]      Turning to the similarity of the
conduct to that comprised in the indictment, kissing is one act of many that
has been alleged by A.  There is some similarity, but it is limited.

[27]      When
considering the potential for prejudice of the evidence and the balancing of
its probative value against that potential prejudice, I think the factors that
I have admitted it into evidence on the alternative basis, and that this is a
trial without a jury, have a significant bearing.  I will have in front of me
evidence of the kiss in any event.  If I determine that J.G.B. did not intend
to kiss J.W. but, rather, A., the prejudice of leaving it open for me to
determine the weight  if any  of the evidence as similar fact evidence, is
minimal.

J.G.B.s
Evidence

[20]

J.G.B. denied sexually assaulting A.B.  He
testified that he only ever kissed A.B. with a peck on the lips or forehead to
say goodnight.  He said that he never lay down in bed with her, either on top
of or under the covers.  He expressed the view that such conduct was
inappropriate.  He could not recall ever tickling A.B. and J.W. during the
sleepovers, and denied ever lying in the same bed with them.

Reasons for Conviction

(2008 BCSC 1262)

[21]

The trial judge did not accept J.G.B.s
evidence, nor was he left with a reasonable doubt by it.  Rather, he accepted
A.B.s version of events.  He also accepted J.W.s evidence regarding the kiss,
but found that on that occasion J.G.B.s intention had been to kiss A.B.  In
this regard, the trial judge said:

[184]    I find J.W. to have been a credible
witness and her evidence to be credible.

[185]    I do accept her evidence that she
was kissed by J.G.B.  I conclude that J.G.B. intended to kiss A., not J.W.  I
say this because kissing J.W. would have been a different level of conduct; one
far more risky.  I think that to be unlikely.

[186]    I
recognise the limits of J.W.s evidence regarding the kiss:  namely, that it
did not involve any further activity similar to that alleged by A.  That said,
J.W.s evidence confirms A.s evidence that J.G.B. got into bed with the
children, which is something he denied.  That, in turn, lends credence to A.s
evidence that J.G.B. got onto the bed with her when she was alone, something
else he denied, as I noted earlier.

Analysis

[22]

J.G.B. submits that J.W.s testimony regarding
the kiss should not have been admitted because it does not meet the
requirements of the rules relating to similar-fact evidence.  J.G.B. further
says that, in any event, the inference drawn by the trial judge, i.e., that he
intended to kiss A.B., amounts to unfounded speculation based on impermissible
propensity reasoning.

Admissibility
of the Kiss Incident

[23]

J.G.B.s position is that the evidence of the
kiss was evidence of extrinsic discreditable conduct beyond that alleged in the
indictment that was introduced to show he had a propensity to engage in sexual
conduct with young girls.  He says that evidence is more prejudicial than
probative.  His factum contains a very detailed argument that discusses the
leading authorities dealing with the admission of similar-fact evidence.

[24]

In my view, a similar-fact analysis is
unnecessary in this case, as the trial judge did not err in admitting J.W.s
testimony as original evidence.  It was evidence, admissible in its own right, capable
of supporting A.Bs evidence with respect to J.G.B.s conduct towards her.

[25]

It is important to keep in mind that the kiss
incident does not involve conduct unconnected to the allegations that form the
subject matter of the charge.  The incident took place in A.B.s bed, in her presence,
and in circumstances from which it could be inferred she was the person J.G.B.
intended to kiss.  It is also important to keep in mind that, in admitting
the kiss incident, the trial judge was very much alive to the limited use that
properly could be made of that evidence.  As he noted in his ruling, as the
trier-of-fact (i.e., a judge sitting without a jury), he would be able to
confine the use of this evidence to the limited purpose for which he was
admitting it:  see
R. v. Arason
(1992), 78 C.C.C. (3d) 1 at 39
(B.C.C.A.).

[26]

Having concluded that the trial judge was
correct in admitting the kiss incident as original evidence, it is not
necessary to consider whether he was also correct in ruling it admissible as
similar-fact evidence.

Use of
the Kiss Incident

[27]

J.G.B.s position is that there was no basis in
the evidence to support the trial judges finding that he intended to kiss A.B.
rather than J.W., and that, in drawing that inference, the trial judge wrongly proceeded
on the assumption that he sexually assaulted A.B.  In his submission, the trial
judge engaged in the following flawed reasoning process:

(a)      contrary to the
presumption of innocence, he started with the assumption that J.G.B. had sexually
assaulted A.B.;

(b)      based on that
assumption, he found that J.G.B. had intended to kiss A.B.;

(c)      having found
that the kiss was intended for A.B., he treated J.W.s evidence as confirming
aspects of A.B.s testimony; and

(d)      having found
confirmation of A.B.s evidence, he accepted her evidence, and concluded beyond
a reasonable doubt that J.G.B. had sexually assaulted her.

[28]

I do not agree with that submission.  As I read
the trial judges reasons, he proceeded as follows:

(a)      he found J.W. to
be a credible witness, and her evidence reliable;

(b)      he accepted J.W.s
evidence that J.G.B. got into bed with her and A.B. (something J.G.B. denied);

(c)      he accepted J.W.s
evidence regarding the kiss incident (something J.G.B. denied);

(d)      he found it more
likely that J.G.B. intended to kiss A.B.;

(e)      he considered J.W.s
evidence as confirmatory of A.B.s evidence that J.G.B. got into bed with the
two of them, and supportive of A.B.s evidence that J.G.B. got into bed with
her when she was alone (something J.G.B. denied); and

(f)       based on a
consideration of the whole of the evidence, he accepted A.B.s evidence as
proving, beyond a reasonable doubt, that J.G.B. had committed the alleged
offence.

[29]

I am unable to see any impermissible reasoning
in that analysis.  The trial judge did not assume anything, nor did he use the
kiss incident as evidence of discreditable conduct.  Rather, he evaluated the
evidence in a logical manner, drawing inferences that are supportable on that
evidence.

[30]

In the end, this was a credibility case.  Having
found J.W. credible, the trial judge regarded her evidence as strengthening his
belief in the truthfulness of A.B.s evidence.  That is something that was open
to him to do.

Conclusion

[31]

I would dismiss this appeal.

The Honourable Mr. Justice Frankel

I agree:

The Honourable
Madam Justice Huddart

I agree:

The Honourable Mr. Justice Tysoe


COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Ward,

2010 BCCA 1

Date: 20100104

Docket:
CA036841

Between:

Regina

Respondent

(
Respondent
)

And

Gail
Phyllis Ward

Applicant

(
Appellant
)

Before:

The Honourable Mr. Justice Lowry

(In Chambers)

On
appeal from: Supreme Court of British Columbia, December 1, 2008,
(
R. v. Ward
, 2008 BCSC 1653, Docket X071775)

Counsel for the Appellant:

M.
  T. K. Berry

Counsel for the (Crown) Respondent:

W.
  P. Riley

Place and Date
  of Hearing:

Vancouver, British Columbia

December 18, 2009

Place and Date of Judgment:

Vancouver
, British Columbia

January
  4, 2010

Reasons for
Judgment of the Honourable Mr. Justice Lowry:

[1]

The applicant seeks leave to appeal the order of
a judge of the Supreme Court dismissing her appeal of her conviction before the
Provincial Court for possession of a small quantity of cocaine.  At issue is
the trial courts determination that the admission of evidence obtained in a
manner that infringed the applicants
Charter
rights would not bring the
administration of justice into disrepute: s. 24(2).

The
Conviction

[2]

The applicant was arrested after being observed
in suspicious circumstances in a back alley in Surrey in an area known to
police as a place where people in the drug trade congregated to conduct drug
transactions.  The arresting officer was an experienced police officer who had
worked in the area for a long time.  He had observed literally hundreds of drug
transactions and carried out many arrests and drug seizures.  He observed the
applicant together with several other individuals standing in an alley.  The
applicant was holding a weight scale.  She and another person appeared to be
attempting to conceal what they were doing.  Both were seen to be conducting
what the officer referred to as heat checks, being visual scans for police.
After making these observations, and determining he had sufficient grounds, he
arrested the applicant, conducted a search incidental to arrest, and found a
small amount of rock cocaine in a contact lens container in her left jacket
pocket.

[3]

On conducting a
voir dire
, the trial
judge found that the officer did not have reasonable and probable grounds for
arrest, and that the ensuing search was therefore in violation of the applicants
s. 8
Charter
rights.  He then followed the approach to the s. 24(2)
analysis prescribed by the Supreme Court of Canada in
R. v. Collins
,
[1987] 1 S.C.R. 265, 33 C.C.C. (3d) 1, and
R. v. Stillman
, [1997]
1 S.C.R. 607, 113 C.C.C. (3d) 321, in determining that the admission of
the evidence would not bring the administration of justice into disrepute.  He
concluded:

[9]  Turning next to the next part of the
Collins
test, I find that while this breach was not a flagrant breach, not particularly
obtrusive or egregious, it was certainly deliberate.  But the officer had a
subjective, genuine belief in the lawfulness of what he was doing.  I therefore
find at the end of the day, applying the
Collins
test to this evidence,
that it has not been established by the defence, on a balance of probabilities,
that the admission of the cocaine in this case would bring the administration
of justice into disrepute, and accordingly I decline to exclude the evidence.

[
R. v. Ward
(17 March 2008) Surrey Registry 165532-1 (B.C. Prov. Ct.)]

[4]

On admitting the evidence, the judge then found
the applicant guilty as charged.

[5]

For reasons indexed as 2008 BCSC 1653, the judge
presiding in the Supreme Court upheld the trial judges decision, finding no
apparent error as to the applicable principles or any unreasonable finding (para.
34). She found the trial judge considered all the relevant factors and that the
evidence was properly admitted.

The
Application

[6]

The considerations on an application of this
kind were recently restated in
R. v. Winfield
, 2009 YKCA 9, 79
M.V.R. (5th) 19:

[13]  To
obtain leave to appeal from the decision of a summary conviction appeal court,
the applicant must establish that (a) the ground of appeal involves a question
of law alone, (b) the issue is one of importance, and (c) there is
sufficient merit in the proposed appeal that it has a reasonable possibility of
success.  The overriding consideration in the exercise of the discretion
to grant or refuse leave is the interests of justice:
R. v. Cai
,
2008 BCCA 332, 258 B.C.A.C. 235 at para. 26 (Chambers);
R. v. Gill
,
2008 BCCA 259 at para. 3 (Chambers).

[7]

The applicant contends the approach to be taken
to a s. 24(2) analysis is now different than it was at the time of the trial,
and the first level of appeal, by virtue of the Supreme Court of Canadas
decision in
R. v. Grant
, 2009 SCC 32, 245 C.C.C. (3d) 1.  This is said
to raise a question of law of sufficient importance to merit the proposed
appeal being heard.  The applicant maintains that under the approach that is
now prescribed, the evidence obtained by the officer would have to be held to
be inadmissible.

[8]

In
Grant
, at para. 71, McLachlin C.J.C.
and Charron J., writing for the majority, said s. 24(2) requires a court to
balance the effect of admitting evidence on societys confidence in the justice
system based on three lines of inquiry:

... whether the admission
of evidence obtained in breach of the
Charter
would bring the
administration of justice into disrepute engages three avenues of inquiry, each
rooted in the public interests engaged by s. 24(2), viewed in a long-term,
forward-looking and societal perspective.  When faced with an application
for exclusion under s. 24(2), a court must assess and balance the effect of
admitting the evidence on societys confidence in the justice system having
regard to: (1) the seriousness of the
Charter
-infringing state
conduct (admission may send the message the justice system condones serious
state misconduct), (2) the impact of the breach on the
Charter
-protected
interests of the accused (admission may send the message that individual rights
count for little), and (3) societys interest in the adjudication of the case
on its merits.  The courts role on a s. 24(2) application is to balance
the assessments under each of these lines of inquiry to determine whether,
considering all the circumstances, admission of the evidence would bring the
administration of justice into disrepute.

[9]

In assessing the seriousness of the infringing
conduct, the court should consider whether admission of the evidence would
suggest to the public that the court condones state deviation from the rule of
law:
Grant
at para. 72.  In making this determination, the court should
evaluate the seriousness of the police conduct with an eye to whether the
violation was minimal and inadvertent, or reckless and wilful. Good faith that
is not a result of ignorance of or wilful blindness of
Charter
standards
is a factor that weighs towards admission.  Deliberate police conduct in
violation of established
Charter
standards supports exclusion:
Grant
at para. 76.

[10]

Consideration of the impact on the protected
interests of an accused requires the court to evaluate the extent to which the
breach undermined the interests protected by the right infringed:
Grant
at paras. 76-78.  A s. 8 violation impacts on the right to privacy and to
human dignity.  A higher expectation of privacy in the area of violation
results in a greater negative impact on the interests protected by s. 8.

[11]

With respect to societys interest in an
adjudication on the merits, the court must assess the impact on the perception
of the administration of justice in failing to admit the evidence.  The fact
that evidence is reliable is not determinative of its admission:
Grant
at para. 80.  The reliability of the evidence and the fact that it will
facilitate the discovery of the truth is a factor to weigh against other
factors that tend toward exclusion.

Discussion

[12]

The applicant contends that in saying the search
the officer undertook was deliberate the judge found the
Charter
breach
to have been wilful.  She maintains that renders the officers infringing
conduct serious.  The applicant also contends that, contrary to what the trial
judge said, the search conducted was intrusive because the pocket where the
cocaine was found was where there was a high expectation of privacy resulting
in a negative impact on the right protected.  As I understand the
submission, it is that on the basis of these two considerations the proposed
appeal has sufficient merit to warrant leave being granted.

[13]

I am unable to accept that is so.

[14]

With respect to the seriousness of the
infringing conduct, I do not accept the judge found the officer wilfully
infringed the applicants
Charter
rights.  The judge found the officer
acted deliberately in the sense that he intended to arrest and search the
applicant, but he lacked bad faith in acting as he did, because he had a
subjective, genuine belief in the lawfulness of what he was doing.  This
renders the infringement less serious and weighs towards admitting the
evidence.

[15]

The judge saw the search as not particularly
obtrusive or egregious.  It was a relatively minor search which quickly led to
the discovery of the small quantity of cocaine.  While a persons pocket may be
a place where there is a relatively high expectation of privacy, it does not
necessarily follow that the impact on the right protected in this instance was
so great as to tip the balance of the s. 24(2) assessment against admission of
the evidence.

[16]

The evidence recovered as a result of the search
conducted by the officer was highly reliable and its exclusion would have a
negative impact on the determination of the truth.  Certainly that was, in this
case, a factor weighing in favour of admission in serving societys interest in
an adjudication on the merits.

[17]

While it may be the issue on the proposed appeal
is one of law, it involves a deferential standard, and I consider it of
questionable importance given the context in which it is raised.  In any event,
I do not consider the appeal would have any reasonable prospect of success and
it would not, in my view, be in the interests of justice to grant leave.

[18]

The application for leave to appeal is
accordingly dismissed.

The Honourable Mr. Justice Lowry


COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

V.W.R. Capital Corporation v.
Keremelevski
,

2010 BCCA 599

Date: 20100104

Docket:
CA036524

Between:

V.W.R. Capital Corporation

Respondent

(
Petitioner
)

And

Bozidar Vujicic and Svetlana Vujicic

Canadian Western Trust Company

Ivanco Keremelevski

Appellants

Before:

The Honourable Madam Justice Prowse

(In Chambers)

On appeal from: Supreme
Court of British Columbia, September 24, 2008
(
V.W.R. Capital Corporation v. Keremelevski
, New Westminster Reg.
S112278)

Oral Reasons for Judgment

Appellant appearing In Person:

I. Keremelevksi

Counsel for the Respondent:

P. Roxburgh

Place and Date of Hearing:

Vancouver, British
  Columbia

January
  4, 2010

Place and Date of Judgment:

Vancouver, British
  Columbia

January 4, 2010

[1]

PROWSE J.A.
: On November 27, 2009, this Court dismissed Mr.
Keremelevskis appeal from an order
nisi
of foreclosure of a property in
Port Coquitlam, British Columbia, in which Mr. Keremelevski claimed a
beneficial interest and in which he had been living as a tenant. He has been
involved in an ongoing dispute with the registered owners of the property, Mr.
and Mrs. Vujcic. The Vujcics earlier efforts to appeal the order
nisi
failed.

[2]

Mr. Keremelevski has applied for a stay of execution under of the order
nisi
pending his intention to seek leave to appeal this Courts decision to the
Supreme Court of Canada. In that regard, he advises that he faxed a Notice of
Application for Leave to Appeal to the Supreme Court of Canada on December 23,
2009, and he has some indication that the fax was received. The Notice has not
been provided to counsel for V.W.R. but, for the purpose of this application, I
am prepared to accept that Mr. Keremelevski has initiated his application for
leave to appeal in the Supreme Court of Canada.

[3]

The respondent opposes this application on the basis that the proposed
appeal is without merit, that the amounts owing on this mortgage and at least
one other mortgage on the property exceed the equity in the property, and that
even if Mr. Keremelevski should be granted leave to appeal, and even if his
appeal should succeed, the most he could expect to receive would be a monetary
judgment.

[4]

This Court has the power to grant a stay of proceedings, including
execution, pending an appeal to the Supreme Court of Canada pursuant to s.
18(2) of the
Court of Appeal Act
. This jurisdiction is also recognized
under s. 65.1 of the
Supreme Court Act.

[5]

The criteria to be considered on an application for a stay are
essentially the same as those governing interlocutory injunctions, namely:
whether there is a serious question to be tried; whether the applicant would
suffer irreparable harm if the stay is not granted; and whether the applicant
would, on the balance of convenience, suffer more harm if the stay is refused
than the respondent would suffer if it were ordered.

[6]

In this case, with respect to the merits, Mr. Keremelevski submits that
this Court erred in not providing him with sufficient time to explain his case.
He submits that the appeal was originally set for a full day and that the
amount of time he was given was reduced so that the appeal was heard in half a
day. He submits that he was not allowed to make all of his arguments as fully
as he wished, based on the materials he filed. He submits that this Court did
not properly consider all of his arguments.

[7]

In the result, I am not persuaded that Mr. Keremelevski has satisfied
the criteria required in order to obtain a stay of proceedings. I can see no
prospect of Mr. Keremelevksi being granted leave to appeal from the judgment of
this Court, nor can I see any merit in his proposed appeal. To the extent he
continues to have any claim against the Vujicics in the Supreme Court, in
relation to the property or otherwise, he can take whatever steps are open to
him to pursue relief there. In the meantime, the respondent has been denied the
ability to pursue its entitlement to relief under the order
nisi
of
foreclosure and the interest and other costs continue to mount, not only with
respect to their mortgage but with respect to other mortgages registered
against the property. In my view, this is not a case where the interests of
justice favour a stay. In the result, I would dismiss the application for a
stay.

The Honourable Madam Justice Prowse


COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Tickell,

2010 BCCA 3

Date: 20100105

Docket:
CA037509

Between:

Regina

Respondent

And

Bryan Tickell

Applicant

Before:

The Honourable Mr. Justice Hall

(In Chambers)

On appeal from the Provincial Court of British Columbia, June 1,
2009,

(
R. v. Tickell
, 49581-2-C)

Applicant in Person by Teleconference

Bryan
  Tickell

Counsel for the Respondent:

M.
  Maisonville

I. Hay

Place and Date of Hearing:

Vancouver,
  British Columbia

December 4, 2009

Place and Date of Judgment:

Vancouver
, British Columbia

January
  5, 2010

Reasons for
Judgment of the Honourable Mr. Justice Hall:

[1]

This is an application by Mr. Tickell for the
appointment of counsel to assist him with his sentence appeal.  The applicant,
who had a position with the office of the Public Guardian and Trustee of
British Columbia, abused his position to commit frauds upon individuals whose
affairs were under the direction of the Public Guardian and Trustee.  Those
activities were the subject of criminal charges to which the appellant pleaded
guilty.  The circumstances outlined by the sentencing judge indicate that the
activities of the applicant that constituted the crimes displayed a measure of
planning and sophistication.  When Mr. Tickell was before me, he appeared to be
reasonably intelligent and articulate in his presentation of his application.

[2]

It seems to me that the sentence appeal that is
proposed to be pursued by this applicant is not an unduly complicated or
intricate legal proceeding.  I am satisfied that this applicant has the requisite
mental capacity and resources to adequately represent himself before this Court
on any sentence appeal.  Because I do not consider that there has been demonstrated
any necessity for counsel to be appointed to assist the applicant with the
effective prosecution of his appeal from sentence, I would decline to make the
order requested for the appointment of counsel.  In the result, the application
must stand dismissed.

The Honourable Mr. Justice Hall


COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

Thompson v. Canada (Attorney
  General)

2010 BCCA 60

Date: 20100106

Docket: CA036169

Between:

Lisa Darlene Thompson

Appellant

(
Plaintiff
)

And

Attorney General of Canada,
Attorney General of British Columbia,
Mike Pfeifer, Fred Bott, Fraser Health Authority,
Lois Felkar and Estate of Bryan Bruce Heron, Deceased

Respondents

(
Defendants
)

Before:

The Honourable Madam Justice Prowse

(In Chambers)

On
appeal from Supreme Court of British Columbia, May 8, 2008
(
Thompson v. Attorney General (Canada)
, 2008 BSCS 582, Van. Reg.
S052565)

Oral Reasons for Judgment

Counsel for the Appellant:

A.C.
  Ward

Counsel for
  the Respondents, Attorney General of Canada, Attorney General of British
  Columbia, M. Pfeifer, F. Bott

H.J. Roberts

Counsel for
  the Respondents, Fraser Health and L. Felkar

W.S. Dick

Counsel for
  the Respondent, Estate of B. Heron, Deceased

T.E. Sprague

Place and Date of Hearing:

Vancouver,
  British Columbia

January 6, 2010

Place and Date of Judgment:

Vancouver
, British Columbia

January
  6, 2010

[1]

PROWSE J.A.
: Ms.
Thompson is seeking directions as to whether she requires leave to appeal from
an order made by a chambers judge on May 8, 2008, following the hearing of a
special case. The order provides:

THIS COURT ORDERS

That Lisa
Thompson cannot maintain an action in negligence against any of the Defendants
to recover compensation for psychiatric injuries suffered as a consequence of
the deaths of Sherry Heron and Anna Adams.

[2]

This appeal was reinstated by order of Madam
Justice Rowles made December 9, 2009. At that time, Madam Justice Rowles
expressed the view that the order was final with respect to the determination
of the issue raised in the special case but, since there seemed to be some
doubt expressed by counsel in that regard at that time, she directed counsel
for Ms. Thompson to file a Notice of Appeal (a Notice of Application for Leave
to Appeal already having been filed) and to seek directions as to whether leave
was required and, if leave was required, to seek leave to appeal.

[3]

As of today, the Notice of Appeal has not been
filed. There was apparently some misunderstanding as to the effect of Madam
Justice Rowles order, but I am advised by counsel for Ms. Thompson that he
will file that Notice of Appeal today. No exception is taken to that by the
respondents.

[4]

It is unnecessary to review the background of
this case which is set out in detail in the reasons of the chambers judge, 2008
BCSC 582, and summarized by Madam Justice Rowles in her recent chambers
decision, 2009 BCCA 614. In my view, there is no doubt that the order of the
chambers judge disposing of the issue raised on the special case is a final
order which does not require leave to appeal. None of the respondents has
argued otherwise. During the course of the hearing of this application there
was a discussion as to whether, and to what extent, counsel for Ms. Thompson
was seeking to raise issues related to the orders of Master Tokarek which were
dealt with briefly by the chambers judge in this matter by way of dismissing an
application for leave to extend the time to appeal the decisions of Master
Tokarek. I am advised by counsel for Ms. Thompson on this application that the
only order he proposes to pursue on this appeal is, in fact, the order as
framed as stated of May 8, 2008.

[5]

On that basis, my conclusion is, as I have
stated, leave to appeal is not required and the appeal should proceed on the
basis of the Notice of Appeal, which will be filed today.

[6]

The only question I have is whether directions are
required with respect to the appeal proceeding from this point onward? The
Notice of Appeal was to take effect as of the date the notice of application
for leave to appeal was filed. I do not know to what extent Madam Justice
Rowles dealt with that question, but arguably, extensions of time are required
for all of the filings thereafter. That is why I want to make sure we do not
run into stumbling blocks. It seems to me that some kind of filing schedule
should be agreed upon by counsel. If I can assist in that regard, I will, but
if you think you can do it on your own then, I urge you to do so. In other
words, I do not want the situation to occur where counsel attempt to file
documents at the Registry and they are told they are out of time. It may be that
you wish to agree that all filings shall be in accordance with the Rules and
shall flow from this date forward so that today is the starting date for all
further applications. If so, I am happy to make that order.

(counsel
agree)

[7]

PROWSE J.A.
: I
will make that part of my order in terms of directions. I would direct that all
further filings following the filing of the Notice of Appeal today will take
place with today as the running date from which all further filings follow and
that the parties will hereafter adhere to the time limits set out in the
Court
of Appeal Rules
. That filing schedule will be subject to the consent of
counsel if for some reason they wish to make adjustments.

(submissions
on costs)

[8]

PROWSE J.A.
: In
my view, the appropriate order with respect to this application is that each
party will bear his or her own costs.

The Honourable Madam Justice Prowse