COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

Bradley v. Bath,

2010 BCCA 10

Date: 20100113

Docket:
CA036393

Between:

David Ryan Bradley

Respondent

(
Plaintiff
)

And

Dilbahaar Bath and DaimlerChrysler
Services Canada Inc./
Services DaimlerChrysler Canada Inc.

Appellants

(
Defendants
)

Before:

The Honourable Mr. Justice Donald

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Tysoe

On
appeal from: Supreme Court of British Columbia, August 5, 2008
(
Bradley v. Bath
, 2008 BCSC 1056, Docket M055109)

Counsel for the Appellants:

A.
  M. Gunn, Jr.

Counsel for the Respondent:

R.
  A. Holness and D. B. Hanna

Place and Date of Hearing:

Vancouver,
  British Columbia

November 27, 2009

Place and Date of Judgment:

Vancouver
, British Columbia

January
  13, 2010

Written Reasons by
:

The Honourable Mr. Justice Tysoe

Concurred in by:

The Honourable Mr. Justice Donald

The Honourable Madam Justice Newbury

Reasons for
Judgment of the Honourable Mr. Justice Tysoe:

[1]

The plaintiff was injured while riding his
bicycle on the sidewalk in front of a gas station.  He was struck by a vehicle,
driven by the individual defendant and owned by the corporate defendant, as it
was emerging from the gas station.

[2]

Following a seven-day trial, the trial judge
held that the defendants were wholly liable for the accident.  She made damage
awards for non-pecuniary damages, loss of past income, loss of future wages,
loss of future earning capacity, cost of future care and special damages, and
she made an in-trust award for the benefit of the plaintiffs girlfriend.

[3]

The defendants appeal from the judges order in
three respects.  They say the judge erred (i) in her approach to the issue of
contributory negligence on the part of the plaintiff, (ii) in her assessment of
past and future loss of earning capacity, and (iii) in making the in-trust
award.

Background

[4]

The accident took place between 10:30 and 11:00 a.m.
on December 3, 2003.  The gas station in question is located at the north-west
corner of S.W. Marine Drive and Cambie Street in Vancouver.  The plaintiffs
bicycle was on the north sidewalk travelling in an easterly direction towards
the gas station (S.W. Marine Drive also runs in a slightly southerly to
northerly direction at that location but, for the sake of simplicity, I will
refer only to the predominant directions).  The individual defendant (whom I
will call the defendant when I am referring to him alone) had been in the gas
station, and was intending to exit from the westerly driveway of the gas
station to turn onto S.W. Marine Drive in a westerly direction.

[5]

The front of the defendants vehicle struck the
plaintiffs left leg.  The plaintiff was thrown approximately 15 feet onto S.W.
Marine Drive.

[6]

The gas station was separated from the property
to its west (the direction from which the plaintiff was coming) by a 5.5 foot
high fence, which extended to a point 1.25 feet short of the sidewalk.  The
fence was approximately 5.5 feet from the western edge of the gas stations
driveway from which the plaintiffs vehicle emerged.

[7]

There were three witnesses to the accident  the
parties themselves and Ms. Point, who was stopped for the traffic light at
the intersection of S.W. Marine Drive and Cambie Street, facing in a westerly
direction.  They gave two versions of the events giving rise to the accident,
which the trial judge referred to as scenarios.

[8]

The plaintiff and Ms. Point testified that the
plaintiff was hit by the defendants vehicle in the middle of the driveway as
the plaintiff was slowly riding his bicycle across the driveway (the plaintiff
estimated his speed to be approximately 8 km/h).  The defendants vehicle
suddenly accelerated while it was within the gas station and did not stop until
after it collided with the plaintiff.

[9]

The plaintiff also testified that as he
travelled beyond the fence he observed the defendants vehicle heading towards
the exit driveway.  He said the defendants vehicle was moving at a moderately
slow speed approximately two and a half car lengths away from the front edge of
the driveway, and he felt it was safe to proceed.  The plaintiff conceded on
cross-examination that he did not make eye contact with the defendant prior to
the impact and did not know the direction the defendant was looking at the time
of the impact.

[10]

The second scenario was the version given by the
defendant.  He testified that he stopped his vehicle before crossing the
sidewalk, looked to his right and did not see anyone on the sidewalk and looked
to his left for at least five seconds until the traffic coming from the east
had cleared.  He then proceeded onto the sidewalk, at which time he testified
that the plaintiff collided with the front of his vehicle.

[11]

In her reasons for judgment, the trial judge
reviewed the medical evidence in considerable detail but did not make express
findings with respect to the plaintiffs injuries.  At para. 42 of her reasons,
the judge quoted a summary of his injuries from the medico-legal report of his
family doctor:

fracture of
the distal tibia, laceration of his scalp, laceration of his left shin,
post-traumatic periostitis of the left shin, a partial tear of his anterior
tibiofibular ligament (an ankle ligament) and retrocalcaneal bursitis (a bursa
in the ankle/heel area).

The plaintiff had continuing symptoms
at the time of the trial, and the injuries affected his ability to do physical
work and to enjoy recreational activities.

[12]

The trial judge also referred to medical
evidence detailing injuries or symptoms of mild traumatic brain injury, post
concussion syndrome, chronic anxiety and post-traumatic stress disorder
symptoms, sleep disorder, depression and personality change.  However, she
expressed concern about this evidence because the psychiatrist who gave the
opinion appeared to have relied on erroneous or unproven facts.

[13]

At the time of the accident, the plaintiff was
23 years of age and had a grade 12 education.  He grew up in Ontario and had
become skilled at woodworking by working in his fathers business.  He moved to
British Columbia in March 2003 and found work at a firm called West Isle
Design, an architectural millwork firm, at a wage of $16 an hour.

[14]

Shortly before the accident, the plaintiff
obtained a job with a new company called Skookum Space Rentals, which was owned
by the father of a friend.  He was to be paid $22 an hour.  The accident
occurred on the morning of the plaintiffs first day at his new job, and he
never worked at Skookum Space Rentals.

[15]

After the accident, the plaintiff was not able
to work full time in woodworking.  In the four and a half years between the
time of the accident and the date of the trial, he worked as a security guard,
a host for SnowBus, a part-time carpenter, a ski-lift painter, a window cleaner
and, together with his girlfriend, a manager/caretaker of a residential
building.

Decision of the Trial Judge

[16]

The trial judge noted that s. 183(2)(a) of the
Motor
Vehicle Act
, R.S.B.C. 1996, c. 318, prohibits a person operating a bicycle
from riding on a sidewalk (unless permitted by bylaw or signage) and that s.
176(1) of the
Act
requires a driver of a vehicle emerging from a
driveway to stop before driving onto the sidewalk and to yield the right of way
to a pedestrian on the sidewalk.  The judge did not make a specific finding as
to which of the two scenarios presented by the testimony of the witnesses was
the accurate version of the events leading to the accident because she
concluded that either scenario led to the result that the defendant bore full
liability for the accident.  However, it is apparent from the reasons for
judgment that the judge had difficulties with the defendants version, and she
appeared to prefer the version given by the plaintiff and Ms. Point.

[17]

The judge held that, under the scenario
described by the plaintiff and Ms. Point, the defendant was in breach of
s. 176(1) by failing to stop his vehicle before crossing the sidewalk, and his
actions fell below the standard of an ordinarily prudent person.  While the
plaintiff was in breach of s. 183(2)(a), the judge held there was no causal
link between the breach and the accident because he could just as easily have
been a jogger, a rollerblader or a regular pedestrian.

[18]

The judge held that, in the five-second period
described by the defendant in the second scenario between the time he looked to
the right and the time he proceeded across the sidewalk, a pedestrian, jogger
or rollerblader could have travelled the distance from a point outside of the
defendants line of sight to the point in front of the defendants vehicle.
The judge concluded that, under this scenario, the accident would not have been
caused by the plaintiff riding his bicycle on the sidewalk but, rather, it
would have been caused by the failure of the defendant to look to his right
before moving his vehicle forward after looking away for a period of time
during which a person could have appeared to the right of his vehicle.

[19]

The judge made an award for past income loss in
the amount of $79,297.25 representing the difference between the amount the
plaintiff would have earned on a full-time basis from the date of the accident
to the date of the trial at $22 an hour  plus 10% for bonuses and overtime
($185,684.40) and the amount that counsel agreed he had actually earned during
this period ($106,387.15).

[20]

The judge made an award for loss of future wages
in the amount of $72,526.40 representing the wages the plaintiff would have
lost while retraining for two years for a new career, calculated by determining
his wages at $22 an hour plus 10% for bonuses and overtime ($82,526.40), less a
deduction for contingencies such as the shutdown of a business, layoffs and a
decision to move back to Ontario ($10,000).

[21]

The judge made an award for loss of future
earning capacity in the amount of $80,000.  She noted that even if the
plaintiff succeeded in completing his diploma in building inspection, he may
suffer some income limitation from not being able to work long hours and he may
find it problematic to climb ladders to perform inspections.  She also noted
that the plaintiff may be viewed as a less attractive employee than one who is
fully able to perform without difficulty all the physical tasks of an
occupation such as a building inspector.

[22]

The judge made an in-trust award in the amount
of $14,040 for household work done by the plaintiffs girlfriend.  The amount
was based on two hours a week at $30 an hour from the date of the accident to
the date of the trial.

[23]

The judge also made awards for non-pecuniary
damages ($75,000), cost of future care ($73,078) and special damages
($2,811.45).  None of these awards are contested on appeal except to the extent
that the defendants say they should be reduced as a result of the plaintiffs
contributory negligence.

Discussion

(a)
Contributory
Negligence

[24]

At common law, contributory negligence on the
part of a plaintiff was a complete defence to his or her claim.  This was
considered to be unjust, and legislatures in many common law jurisdictions
passed contributory negligence statutes (also referred to as apportionment
legislation).  The statute in this province is currently called the
Negligence
Act
, R.S.B.C. 1996, c. 333, s. 1(1) of which reads as follows:

If by the fault
of 2 or more persons damage or loss is caused to one or more of them, the
liability to make good the damage or loss is in proportion to the degree to
which each person was at fault.

If damage or loss has been caused by
the fault of two or more persons, s. 4 of the
Act
requires the
court to determine the degree to which each person was at fault.  While the
prerequisite to apportionment is that the damage or loss has been caused by the
fault of two or more persons, the apportionment must be done on the basis of
the degree to which each person was at fault, not on the basis to which each
persons fault caused the damage:
Cempel v. Harrison Hot Springs Hotel Ltd.
,
[1998] 6 W.W.R. 233, 43 B.C.L.R. (3d) 219 (C.A.).

[25]

The concept of contributory negligence was
described in John G. Fleming,
The Law of Torts
, 9th ed. (Sydney: LBC
Information Services, 1998) at 302, as follows:

Contributory negligence is a
plaintiffs failure to meet the standard of care to which he is required to
conform for his own protection and which is a legally contributing cause,
together with the defendants default, in bringing about his injury.  The term
contributory negligence is unfortunately not altogether free from ambiguity.
In the first place, negligence is here used in a sense different from that
which it bears in relation to a defendants conduct.  It does not necessarily
connote conduct fraught with undue risk to
others
, but rather failure on
the part of the person injured to take reasonable care of himself in his
own
interest. ... Secondly, the term contributory might misleadingly suggest that
the plaintiffs negligence, concurring with the defendants, must have
contributed to the
accident
in the sense of being instrumental in
bringing it about.  Actually, it means nothing more than his failure to avoid
getting hurt ...

[Emphasis in
original; footnotes omitted.]

[26]

In the present case, the trial judge held that
the plaintiff was not contributorily negligent because the plaintiff could have
been struck by the defendants vehicle if he had been a jogger, rollerblader or
regular pedestrian rather than riding his bicycle.  Thus, she concluded that
the plaintiffs breach of the
Motor Vehicle Act
was not causally
connected to the accident.

[27]

In my respectful view, the trial judge did not
ask the correct question.  The proper question was not whether a jogger,
rollerblader or pedestrian could have been hit by the defendants vehicle.  The
correct inquiry was to determine whether the plaintiff failed to take
reasonable care for his own safety and whether his failure to do so was one of
the causes of the accident.  While the judge acknowledged that the plaintiff
was under a heightened duty of care because he was in breach of the law by
riding his bicycle on the sidewalk, she failed to give effect to the heightened
duty because she did not consider what care had been taken by the plaintiff
when he saw the defendants vehicle moving towards the exit from the gas
station.

[28]

In my opinion, the plaintiff was at fault, and
his fault was one of the causes of the accident.  Contrary to law, he was
riding his bicycle on the sidewalk against the flow of traffic.  He saw the
defendants vehicle moving towards the exit he was approaching.  Rather than
making eye contact with the defendant or stopping his bicycle and letting the
defendants vehicle exit the gas station, the plaintiff assumed the defendant
saw him and would not accelerate his vehicle.  In these circumstances, he was
at fault for continuing to ride his bicycle across the path to be taken by the
defendants vehicle in exiting the gas station.

[29]

The defendants submit that the apportionment of
fault under s. 4 of the
Negligence Act
should be 70% to the plaintiff
and 30% to themselves.  In that regard, they cite the following cases involving
an accident involving a bicycle and a motor vehicle:
Gill v. Francis
, [1997]
B.C.J. No. 2491 (S.C.) (75% to cyclist);
Capostinsky (Guardian ad litem of)
v. Aurora Cycle Supply Ltd.
(1993), 39 B.C.A.C. 236 (60% to the cyclist);
Bergvinson
v. Rapanos
, [1991] B.C.J. No. 4009 (S.C.) (two‑thirds to the
cyclist); and
Tompkins v. Barden
, 2000 BCCA 325, 76 B.C.L.R. (3d) 260
(50% to the cyclist).

[30]

I am of the view that the fault of the parties
in this case is equal.  The plaintiffs fault was riding his bicycle on a
sidewalk against the flow of traffic and continuing to ride across the path of
the exiting vehicle without ensuring his way was clear.  The defendants fault
was his failure to keep a proper lookout when exiting the gas station.  I do
not believe that one party is more culpable than the other.

(b)
Loss of
Past Earning Capacity

[31]

Under the heading past income loss, the trial
judge awarded the plaintiff the sum of $79,297.25.  Lawyers and judges often
refer to this head of damages as past income loss or past wage loss because, in
the usual type of personal injury cases, the plaintiff will have been working
at a job at the time of the injury and will return to the same job when
sufficiently recovered from the injury.  The amount of damages suffered by the
plaintiff is routinely calculated by determining the amount of salary or wages
the plaintiff would have earned at the job if he or she had not been injured.
It is because of the method of calculating the damages that they are commonly
referred to as past wage loss or past income loss.

[32]

However, this head of damages, both pre-trial
and post-trial, is properly characterized as a loss of earning capacity.  This
was explained in
The Queen v. Jennings
, [1966] S.C.R. 532 at 545, 57
D.L.R. (2d) 644, referring to the 7th Report of the Law Reform Committee
(August 1958):

Damages should,
so far as any monetary award can do so, restore the plaintiff to the position
in which he would have stood but for the defendants wrongdoing. On this basis
they should represent compensation for loss of earning capacity and not for
loss of earnings.  In a case of personal injuries, what the plaintiff has lost
is the whole or part, as the case may be, of his natural capital equipment ...

For a more recent discussion of the
proper characterization of loss of past earning capacity, see
Rowe v. Bobell
Express Ltd
, 2005 BCCA 141, 39 B.C.L.R. (4th) 185.

[33]

In the usual type of case, as I have described
it above, the assessment of the loss of past earning capacity is
straightforward.  There is no suggestion that the plaintiff would have worked
at a job other than the one he or she had at the time of the accident and the
one to which he or she has returned.  The loss of the past earning capacity is
quantified by the amount of the wages or salary the plaintiff would have earned
at the job if his or her capacity had not been impaired by the injuries
sustained in the accident.  The assessment is not so straightforward, however,
in other cases; for example, where the plaintiff was not employed at the time
of the accident or where, as here, the plaintiff does not return to the job at
which he or she was employed at the time of the accident.

[34]

In this case, the defendants criticize the trial
judges award for past income loss in two respects.  First, it is said the
judge made a mathematical calculation to the penny of the wages the plaintiff
would have earned at his new job without addressing the pecuniary value of the
impairment of the plaintiffs capacity.  Secondly, it is said the plaintiff did
not introduce any evidence that Skookum Space Rentals continued in operation
through the period from the date of the accident to the date of the trial.

[35]

It is clear the trial judge considered the
plaintiff to be a skilled and industrious worker.  Whether the plaintiff worked
at Skookum Space Rentals or elsewhere, it is apparent that the judge believed
the plaintiff had the capacity, if he had not been injured in the accident, to
have been employed continuously to the date of the trial at a wage of $22 an
hour, plus overtime and bonuses.  It is also apparent that the judge was
satisfied that the plaintiff worked to the maximum of his impaired capacity
between the date of the accident and the date of the trial.

[36]

While it would have been preferable for the
judge to have expressly made the award in terms of a loss of capacity, I am
satisfied that the award does represent the monetary value of the impairment to
the plaintiffs past earning capacity occasioned by injuries suffered by him in
the accident.  It was not necessary for the plaintiff to prove that Skookum
Space Rentals continued to be in business because the judge implicitly found
that he had the capacity to find equivalent employment.  I am not persuaded
that the judge erred by failing to make a deduction to take into account the
contingency that the plaintiff may not have been able to find equivalent employment.
I would not accede to this ground of appeal.

(c)
Loss of
Future Earning Capacity

[37]

The trial judge made two awards in respect of
the plaintiffs ability to work in the future: the first was an award for loss
of future wages during a period of retraining; the second was an award for loss
of future earning capacity.

[38]

The defendants have three criticisms of these
awards.  The first two criticisms, which relate to the award for loss of future
wages, are the same as their criticisms made in connection with the award for
loss of past earning capacity (namely, the judge made mathematical calculations
of lost wages without assessing the loss of capacity and she assumed during the
retraining period that he was foregoing employment at the $22 an hour wage rate
that Skookum Space Rentals was to have paid him).  The third criticism is that
the judge improperly split the post-accident inquiry into separate components
for loss of future wages and loss of future earning capacity.

[39]

The first and third criticisms are based on the
principle that the proper approach in determining damages under this head is to
assess the impairment of the plaintiffs capital asset caused by the injuries
in question.  In
Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353 at 356
(S.C.), after quoting a case referring to this principle, as articulated in
The
Queen v. Jennings
, Mr. Justice Finch (as he then was) said the following
about considerations to be taken into account when assessing loss of future
earning capacity:

[8]        The means by which the value of
the lost, or impaired, asset is to be assessed varies of course from case to
case.  Some of the considerations to take into account in making that
assessment include whether:

1.         The
plaintiff has been rendered less capable overall from earning income from all
types of employment;

2.         The
plaintiff is less marketable or attractive as an employee to potential
employers;

3.         The
plaintiff has lost the ability to take advantage of all job opportunities which
might otherwise have been open to him, had he not been injured; and

4.         The plaintiff
is less valuable to himself as a person capable of earning income in a
competitive labour market.

To this list of considerations can be
added the consideration that, in order to mitigate the loss resulting from the
impairment, a plaintiff may retrain for another career and forgo earning an
income during the period of retraining.

[40]

While I agree with the defendants that the trial
judge should not have made a separate award for loss of future wages, it would
not have been improper for her to have taken the possibility of retraining into
account when assessing loss of future earning capacity.  As noted by Mr.
Justice Hall in the following passage in
Pett v. Pett
, 2009 BCCA 232, 93
B.C.L.R. (4th) 300, the ultimate task is to quantify the financial harm to be
sustained by the plaintiff:

[19]      ...
Some cases speak of the
loss of a capital asset and some of the loss of future earnings, but the
essential matter that engages the attention of a court making an assessment in
this area is to endeavour to quantify the financial harm accruing to the
plaintiff over the course of his or her working career.

[41]

In the present case, the plaintiff submitted to
the trial judge that an appropriate award for loss of future earning capacity
was the sum of $400,000.  The aggregate of the awards made by the trial judge
for loss of future wages ($72,526.40) and loss of future earning capacity
($80,000) is approximately $152,500.  When the judge made the $80,000 award for
loss of future earning capacity, she made the assessment on the basis that the
plaintiff would retrain for another career.

[42]

On the evidence before the trial judge, I would
not regard an award of $152,500 for loss of future earning capacity to be
unreasonable.  While the judge theoretically erred in making a separate award
for loss of future wages, I am satisfied that the financial harm to the
plaintiff over the balance of his working life was reasonably quantified, and I
would not accede to this ground of appeal.

(d)
In-Trust
Award

[43]

An in-trust award is one made to a plaintiff in
trust for one or more of his or her family members, who are not named as
parties to the action, as compensation to the family members for additional
work done by them as a result of the impaired capacity of the plaintiff to
perform housekeeping chores or to care for themselves.  It was affirmed as a
recoverable award by this Court in
Kroeker v. Jansen
(1995), 123 D.L.R.
(4th) 652, 4 B.C.L.R. (3d) 178 (C.A.).

[44]

The entire reasoning of the trial judge in
making the $14,040.00 in-trust award was as follows:

[157]  Mr.
Bradley submits that an in-trust award for the work done by his girlfriend is
appropriate.  He calculates it at two hours per week at $30 per hour, for a
total of $14,040.00 to the date of trial.  I find that amount reasonable on the
evidence.  The defendant did not attempt to rebut this evidence.

The $30 per hour figure came from the
report of an occupational therapist in connection with the plaintiffs claim
for future care costs in relation to janitorial assistance and home
maintenance.

[45]

The defendants say the in-trust award was not
properly pleaded

and, in any event, the evidence did not support such an
award.  In my opinion, both points have merit.

[46]

Although the statement of claim requested
special damages, they are not particularized, and there was no reference to an
in-trust claim.  Such a claim was first raised in the plaintiffs closing
submissions at trial.  It is not surprising in these circumstances that the
defendant did not attempt to rebut the evidence relied upon by the trial judge
in making the in-trust award.

[47]

Mr. Justice Mackenzie said the following about
pleading in-trust claims in
Star v. Ellis
, 2008 BCCA 164, 80 B.C.L.R.
(4th) 57 at para. 21:

[21]  One aspect
of this claim that is not directly in issue on this appeal, but is of some
significance, is the question of the extent to which a claim for past in-trust
services ought to be pleaded.  The claim is addressed under the heading of
special damages which normally requires that the claim be specifically pleaded
as is the case with out-of-pocket expenses.  The trial judge relied on
Frers
v. De Moulin
[2002 BCSC 408] for the proposition that an in-trust claim
does not have to be specifically pleaded and
Frers
was not challenged by
the appellant in this case.  Nonetheless, it appears to me that a claim of this
nature ought to be pleaded to provide a degree of specificity to the claim.  As
I have indicated, the pleading point is not specifically put in issue on this
appeal, but in my view, good practice suggests that in future cases it ought
properly to be pleaded.

The plaintiff responds by pointing out
that
Star v. Ellis
was decided after his statement of claim was filed
and by asking this Court to grant him leave to amend the statement of claim.

[48]

Unlike the situation in
Star v. Ellis
,
the lack of a proper pleading was made an issue on this appeal.  I would have
reservations about granting an amendment at this stage of the proceeding in
view of the trial judges reliance on the failure of the defendants to rebut
the evidence that she regarded as supporting the in-trust claim.  However, it
is not necessary to decide this aspect of the appeal on a pleadings point
because it is my view in any event that the evidence did not support the making
of an in-trust award.

[49]

The principle recognized in
Kroeker v. Jansen
is that an in-trust award is to compensate for a diminution in the ability to
carry out household tasks (even if those tasks are performed gratuitously by a
family member).  As illustrated in
Cummings v. Olson
(1996), 82 B.C.A.C.
241, this Court will set aside an in-trust award if there is no foundation in
the evidence for such an award.

[50]

In the present case, there was no evidence that
the plaintiffs girlfriend did any household chores that the plaintiff was
incapable of performing.  In her testimony, she said that they split the chores
before the accident and that since the accident she has done the household
cleaning, he has done the cooking and she has been the one who jumps up and
takes the dog out.  The plaintiff was asked during cross-examination about
household chores:

Q         Okay. Youve been able to do all of your normal household
chores since a year or so following this accident?

A          Well,
Ill be honest.  Leah is a cleaner by trade, and before I even have the chance
to do anything, she really does have it wrapped up.  You know, it sounds kind
of bad, but no, its an agreement between her and I.

In my opinion, this evidence does not
provide a foundation for a conclusion that there was a diminution in the
plaintiffs ability to perform household tasks.

[51]

In making closing submissions, counsel for the
plaintiff did not refer the judge to any case authorities dealing with
requirements for an in-trust claim.  On the basis of the pleadings, counsel for
the defendants was presumably not anticipating that an in-trust claim would be
made, and he did not cite any authorities in his brief submission that such a
claim was not supported by the evidence.  The lack of proper pleadings
presented the judge with a situation in which she did not believe that the
claim was being seriously contested, and she made the in-trust award without
the benefit of the applicable jurisprudence.

[52]

My conclusion that the evidence did not provide
a foundation for an in-trust award is reinforced by the trial judges rejection
of the plaintiffs claim that he should receive an award for future care costs
in respect of janitorial assistance and home maintenance service.  Her reason
for rejecting this claim was that I see no need for janitorial or home
maintenance assistance for Mr. Bradley (para. 138).  Other than a short period
following the accident, there was no differentiation in the evidence between
the pre-trial and post-trial capacity of the plaintiff to perform household
tasks.  Just as the evidence did not support a finding of diminished capacity
at the time of the trial, it did not support such a finding in the period
preceding the trial.

Conclusion

[53]

I would allow the appeal by eliminating the
in-trust award and by reducing the other heads of damage by one-half to take
the plaintiffs contributory negligence into account.  The result would be that
the judgment in favour of the plaintiff, apart from pre-judgment interest,
costs and deduction of Part 7 benefits, is reduced from $396,753.10 to
$191,356.55.

The Honourable Mr.
Justice Tysoe

I agree:

The Honourable Mr. Justice Donald

I agree:

The
Honourable Madam Justice Newbury


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Romanchych v. Vallianatos,

2010 BCCA 20

Date: 20100113

Docket:
CA037207

Between:

Deanna
Lynn Romanchych

Respondent

(Plaintiff)

And

Gerassimos
Vallianatos

Appellant

(Defendant)

Before:

The Honourable Mr. Justice Low

The Honourable Mr. Justice Tysoe

The Honourable Madam Justice D. Smith

On
appeal from: Supreme Court of British Columbia, May 20, 2009
(
Romanchych v. Vallianatos
, 2009 BCSC 669, Vancouver Reg. M082429)

Oral Reasons for Judgment

Counsel for the Appellant:

M-H.
  Wright

J.P.C.
  Miller

Counsel for the Respondent:

M.G.
  Bolda

H.S.
  Roesch-West

Place and Date of Hearing:

Vancouver,
  British Columbia

January
  13, 2010

Place and Date of Judgment:

Vancouver,
  British Columbia

January
  13, 2010

[1]

TYSOE J.A.
: The
defendant appeals from the $80,000 damage award made by the trial judge in
respect of loss of future earning capacity resulting from injuries sustained by
the plaintiff in a motor vehicle accident. The judge also made awards for
non-pecuniary damages, damages for cost of future care, damages for past loss
of income and special damages, but none of these awards are challenged on
appeal.

[2]

The accident occurred on July 4, 2006. The
plaintiffs vehicle was struck from behind by the defendants van while the
plaintiff was waiting to merge onto the Alex Fraser Bridge. Liability for the
accident was admitted by the defendant.

[3]

The plaintiff suffered neck and shoulder
injuries with associated headaches. She also subsequently experienced jaw pain
that the trial judge found was caused by the accident.

[4]

The plaintiffs neck and shoulder pain was
severe in the first month following the accident, but she slowly improved until
reaching the level that existed at the time of the trial. On a good day, her
pain was scaled at a level of 2 or 3 out of 10. On a bad day, when her symptoms
were aggravated, her pain was scaled at a level of 4 or 5 out of 10. The
activities that aggravated her symptoms included writing reports, studying,
long hours of computer work, renovation work, carrying heavy objects, driving,
walking for more than 45 minutes and any activity that involved extending her
arms beyond shoulder level.

[5]

The plaintiffs family doctor opined that her
symptoms would be considered to chronic, with a likelihood of less than 10%
that she would become asymptomatic.

[6]

At the time of the accident, the plaintiff was a
student at Simon Fraser University working towards a Bachelor of Science degree
in chemistry, which she obtained in 2008. As part of her studies, she was working
part-time as a co-op student at Cantest Laboratories. She worked as a
laboratory technician performing chemical extractions. This required her to
work with her arms at chest level or higher.

[7]

The accident caused the plaintiff to miss only
two days of work following the accident, but she worked in pain. The plaintiff
left Cantest Laboratories and joined a company called Freybe Gourmet Foods in
April 2007. She left the Cantest job because it was a long commute from her
home to work and the demands of her job aggravated her symptoms and caused
significant pain.

[8]

The plaintiffs position at Freybe was team
leader in quality control. Her degree was not required for the position. The
job did not aggravate her symptoms. Although the plaintiff liked the job at Freybe,
she was a bit bored with it and she expressed concern that it did not utilize
her educational training.

[9]

When the plaintiff left Cantest, she was earning
$13 an hour, which is the equivalent to approximately $27,000 per annum on a
full-time basis. She started at Freybe at a wage of $14 an hour but at the time
of the trial she was earning $18.25 an hour, or approximately $38,000 per annum.
The plaintiff testified that she would have earned $40,000 per annum at Cantest
if she had been promoted to the position of analyst.

[10]

The trial judge first addressed the question of
whether the plaintiffs earning capacity had been impaired to any degree by the
injuries caused by the accident. She referred to
Athey v. Leonati
,
[1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235 at para. 27, for the proposition that
a future or hypothetical possibility will be taken into consideration as long
as it is a real and substantial possibility and not mere speculation. She also
referred to
Sinnott v. Boggs
, 2007 BCCA 267, 69 B.C.L.R. (4th) 276,
which she considered to be of particular assistance because it also involved a
young person not yet settled into a career. The judge concluded that a loss of
future earning capacity had been proven by the plaintiff.

[11]

The judge then addressed the quantum of the
damages and, in that regard, made reference to the considerations set out in
Brown
v. Golaiy
(1985), 26 B.C.L.R. (3d) 353 at para. 8 (S.C.). She referred
generally to the various contingencies and possibilities to be encountered by a
person in the position of the plaintiff and, considering there was a real and
substantial possibility the plaintiff will experience an income shortfall
during the rest of her working career, she fixed the award at the amount of
$80,000.

[12]

The defendant asserts two errors on the part of
the judge. First, he says the judge erred in law or mixed fact and law. Secondly,
he says the judge made a palpable and overriding error of fact.

[13]

The defendant refers to the decision in
Parypa
v. Wickware
, 1999 BCCA 88, 169 D.L.R. (4th) 661 at para. 67 for the
proposition that the judge was required to take into account all substantial
possibilities and give them weight according to their relative likelihood. The
defendant submits the judge committed an error of law or an error of mixed fact
and law because she failed to consider the extent of any real and substantial
possibilities of an actual income loss and to then attribute them weight
according to their relative likelihood. I am not persuaded that the judge made
such an error. The judge was not required to articulate all of the substantial
possibilities and assign a specific weight to them. She was alive to the
existence of contingencies and possibilities, and took them into account when
assessing the damagesw for the impairment to the plaintiffs future earning
capacity. As noted at para. 69 of
Parypa
, the task of the court is to
assess the damages, not calculate them according to a mathematical formula. Although
it may have been preferable for the trial judge to have given a fuller explanation
with respect to her assessment of the damages, it is my opinion that her
reasons as a whole were sufficient in that regard.

[14]

In
Parypa
, Cumming J.A. acknowledged that
the purpose of damages for loss of future earning capacity is to compensate the
injured party for the loss or impairment of a capital asset.
He said the
following:

[63]      ... it is not the lost earnings
themselves that must be compensated, but loss of earning capacity as a capital
asset that requires compensation. There are several cases in this court which
confirm that the capital asset approach is correct:
Earnshaw v.
Despins
(1990), 45 B.C.L.R. (2d) 380;
Palmer v. Goodall
(1991), 53
B.C.L.R. (2d) 44; and
Kwei v. Boisclair
(1991), 60 B.C.L.R. (2d) 393. The
significance of compensating earning capacity as a capital asset as opposed to
projected future earnings is seen in the following passage from
Palmer
,
supra
,
at 59:

Because it is impairment that is being
redressed, even a plaintiff who is apparently going to be able to earn as much
as he could have earned if not injured or who, with retraining, on the balance
of probabilities will be able to do so, is entitled to some compensation for
the impairment. He is entitled to it because for the rest of his life some
occupations will be closed to him and it is impossible to say that over his
working life the impairment will not harm his income earning capacity.

[15]

As Mr. Justice Mackenzie observed in
Sinnott
v. Boggs
at para. 16, the quantification of the loss of future earning
capacity is more at large when the injured plaintiff is a young person who has
not yet established a career. This is in contrast to the situation in
Steward
v. Berezan
, 2007 BCCA 150,
64 B.C.L.R. (4th) 152, where the
plaintiff was near the end of his working career and had no intention of
returning to the trade which he was unable to perform due to his injuries.

[16]

The defendant also relies on the decision in
Mayenburg v. Lu
,
2009 BCSC 1308, where Mr. Justice Myers dismissed a claim for diminished
earning capacity in circumstances where the plaintiff was continuing with her
education. However, unlike the case at bar, there was no evidence in
Mayenburg
to suggest that the plaintiff would be unable to perform the tasks required of
the line of work for which she was being educated.

[17]

In asserting that the judge made a palpable and
overriding error, the defendant says that the judge misapprehended the evidence
in several respects and that this resulted in the judge arriving at an
incorrect damage award for loss of future earning capacity. In my opinion, the
defendant has only identified one factual error made by the judge but it was a
minor error that did not affect the outcome.

[18]

The minor error made by the judge occurred at
para. 81 of her reasons when she stated that [w]hile she currently earns a
dollar more an hour at Freybe than she did as a technician at Cantest, the
plaintiff would have earned more as an analyst at Cantest. It was true that
the plaintiff earned a dollar an hour more when she first joined Freybe, but
she subsequently received one or more pay raises that increased her hourly wage
by $4.25. Hence, it was not accurate to state that the wage differential was
only one dollar an hour at the time of the trial. However, the second part of
the judges statement was accurate because the plaintiffs increased wage at
Freybe was less than the wage the plaintiff testified she would have earned as
an analyst at Cantest. It is my view that the judges error was not overriding
because it was contained in the introductory portion of her statement and did
not affect the point that the judge was making. Her point was that the
plaintiff was earning less at Freybe than she was likely to have been earning
at Cantest, and that was accurate.

[19]

In my opinion, the balance of the
misapprehensions alleged by the defendant are not palpable errors. The
defendant makes arguments with respect to the interpretation of the evidence,
but it was open for the judge to draw the inferences and make the findings of
fact she did.

[20]

As it has not been shown that the judge made any
error of significance, I would dismiss the appeal.

[21]

LOW J.A.
: I
agree.

[22]

D. SMITH J.A.
: I
agree.

[23]

LOW J.A.
: The
appeal is dismissed.

The Honourable Mr. Justice Tysoe


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Dunn,

2010 BCCA 22

Date: 20100114

Docket:
CA037610

Between:

Regina

Respondent

And

Joseph
Allan Dunn

Appellant

Before:

The Honourable Mr. Justice Donald

The Honourable Madam Justice Levine

The Honourable Mr. Justice Lowry

On
appeal from: Provincial Court of British Columbia, May 20, 2009,
(
R. v. Dunn
, Vernon Registry 43549-1;43727-1; 43642-1)

Oral Reasons for Judgment

Counsel for the Appellant:

L.J.
  Helps

Counsel for the (Crown) Respondent:

F.
  Tischler

Place and Date of Hearing:

Vancouver,
  British Columbia

January
  14, 2010

Place and Date of Judgment:

Vancouver,
  British Columbia

January
  14, 2010

[1]

DONALD J.A.
: Joseph
Allan Dunn seeks leave to appeal and, if granted, appeals from a restitution
order in the amount of $15,000 imposed as part of a custodial sentence and
probation on pleas of guilty to break and enter of a dwelling house, failing to
stop a vehicle in an attempt to evade a police officer, assault of a police
officer and escape from lawful custody.

[2]

The order in question obliges Mr. Dunn to pay
$15,000 to the victim of the break-in to compensate for the theft of an all
terrain vehicle (ATV), valued at $10,000, and two mountain bicycles valued at
$5,000.

[3]

Mr. Dunn argues that the sentencing judge erred
in making the order on the spur of the moment without having determined whether
the order was fair in light of the other penalties, and whether it
realistically could be fulfilled.

[4]

I agree that the order was made in error and I would
set it aside.

[5]

Counsel below presented a joint submission on
sentence. The judge acceded to the submission and accordingly imposed the
following sentence:

(i)       for the
break and enter  one day in jail, having given six months credit for four
months pre-sentence custody, and two years probation, including a condition
that Mr. Dunn pay the victim $1,060 restitution for an insurance deductible of
$1,000 plus $60 for re-keying the home (this order is not appealed);

(ii)      for
failing to stop  one month consecutive jail and an 18-month driving
prohibition;

(iii)      for
assault of a police officer  two months concurrent jail and a two-year
weapons prohibition; and

(iv)     for escaping lawful custody  three months
consecutive jail.

In the result, Mr. Dunn was sentenced to
four months additional time in custody, in addition to the other penalties.

[6]

The transcript of the sentence proceedings
indicates that the idea of an additional restitution order only occurred to the
judge at the end of submissions. It seems that it was prompted by his
consideration of the victim impact statement and not as a request from the
prosecutor:

THE COURT:  I see, Ms. Jedlinski, that
on the victim impact statement the victim, ..., says that in addition to the
deduction she paid, she lost the quad at $10,000 and another item at $5,000,
which she wasnt reimbursed, so . . .

MS. JEDLINSKI:  Yes, Your Honour, Im
wondering if perhaps there can be a stand-alone restitution order for those
items, the $1,060 be part of the probation and then the $15,000 for the other
items be stand-alone. Just -- I dont know what the likelihood of -- is
recovering -- of recovering that money.

THE COURT:  Well, if he wins the
lottery, I guess so. But as far as $1,060, is that in the probation order
itself?  What do you think about that, Mr. --

MR. DEULING:  Me?

THE COURT:  Yes.

MR. DEULING:  Well, I dont have any
submissions with respect -- I have a bit of a problem with the ATV and the
$15,000. I --

THE COURT:  Well, you can go after all
his cohorts, I guess, to contribute to it if, you know --

MR. DEULING:  Well, it would be my
submission, Your Honour, that it would probably be better for Mr. Dunn to not
have those cohorts anymore in any sense of the word, and I think if hes hoping
to have any meaningful recovery from his addiction that he wouldnt want to be
around those people.

THE COURT:
Youd think. On the other hand, we have a bunch of people at the other end of
the crime who are out a whole bunch of money, and were not even talking about
compensation for the psychological harm thats been involved and all that other
stuff that happens on break and enters, so . . .

[7]

The circumstances of the offences are not
material to this appeal. It is to be noted, however, that the victim and her
family suffered considerable emotional distress in addition to the loss of
property. The victim expressed the hope that the appellant would reveal where
the ATV and bicycles were. I surmise that the judge tried to provide the victim
some solace by ordering restitution.

[8]

The circumstances of the offender are, in the
words of his counsel at sentencing, those of a homeless crack addict. Nothing
was said about his ability to make restitution within a reasonable time. The
judges remark about winning the lottery provides some measure of the odds that
Mr. Dunn would be able to comply with the order within a meaningful time frame.

[9]

It appears from the record that the judge
attempted to give effect to the victims wish that Mr. Dunn disclose the whereabouts
of the ATV and bicycles. This is an indirect purpose for the order to pay
money, and since Mr. Dunn was not the only person involved in the theft, the
order has, in that respect, doubtful efficacy.

[10]

The reasons for sentence are very brief. They
adopt the joint submission. As to the order in question, the judge simply
pronounced the order, he did not discuss ability to pay or explain how the
order fits in with the other aspects of the sentence. He said only this (20
May, 2009), Vernon No. 43549-1, 43727-1, 43642-1 (B.C.S.C.):

[15]  And with
respect to the 43549 [the information charging the offence], the break and
enter, there will be a 738 order in favour of [the victim] in the amount of
$15,000.

[11]

The relevant principles governing the exercise
of the discretion to order restitution are compendiously reviewed by Madam
Justice Prowse in
R. v. Yates
, 2002 BCCA 583, 169 C.C.C. (3d) 506. Among
those principles are that ability to pay must be examined as an important
factor, as well as the effect such an order has on the balance of the sentence.
Those principles were not observed in the present case.

[12]

I am unable to say that any useful purpose would
be served by a restitution order where the likelihood of compliance is as
remote as the judge said. The order was an afterthought made without the
benefit of full argument and is unlikely to provide any tangible benefit to the
victim.

[13]

I would grant leave, allow the appeal, and set
aside the restitution order under appeal.

[14]

LEVINE J.A.
: I
agree

[15]

LOWRY J.A.
: I
agree.

[16]

DONALD J.A.
:
Leave to appeal is granted. The appeal is allowed and the restitution order is
set aside.

The Honourable Mr. Justice Donald


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Power,

2010 BCCA 21

Date: 20100114

Docket:
CA037574

Between:

Regina

Respondent

And

Harold
Garrett Power

Appellant

RESTRICTION ON
PUBLICATION:  AN ORDER HAS BEEN MADE IN THIS CASE PURSUANT TO SECTION 486.4 OF
THE
CRIMINAL CODE
THAT PROHIBITS ANY INFORMATION THAT COULD IDENTIFY THE
COMPLAINANT[S] OR WITNESS[ES] BEING PUBLISHED, BROADCAST OR TRANSMITTED.

Before:

The Honourable Mr. Justice Donald

The Honourable Madam Justice Levine

The Honourable Mr. Justice Lowry

On
appeal from:  Supreme Court of British Columbia, October 14, 2009
(
R. v. Power
, 2009 BCSC 1514, Vancouver Docket 24239)

Oral Reasons for Judgment

Appellant appearing In Person (in
  custody):

Counsel for the (Crown) Respondent:

S.J.
  Brown

Place and Date of Hearing:

Vancouver,
  British Columbia

January
  14, 2010

Place and Date of Judgment:

Vancouver,
  British Columbia

January
  14, 2010

[1]

LOWRY J.A.
: The
applicant seeks leave to appeal and, if granted, appeals a sentence of
18 months imprisonment followed by two years probation imposed on him by a
Supreme Court judge before whom he was tried and found guilty of one count of
sexual exploitation under s. 153(1)(a) as it stood at the time. He contends the
sentence is unduly harsh and the judge erred in not giving proper consideration
to a conditional sentence order. He also contends two terms of the probation
order are unnecessarily restrictive. The reasons given for the sentence imposed
are indexed as 2009 BCSC 1514.

[2]

The applicant is a 53-year-old criminal lawyer
who represented the complainant in Youth Court proceedings on various occasions
during 2004. The complainant was, at the time of the offence, an aboriginal boy
of 14 years of age. The applicant encountered the complainant coincidentally
one evening in August of that year after the complainant had been thrown out of
his house and was in need of a place to stay. The applicant invited him to
drive around with him for a time and then he invited him to spend the night at
his apartment. The judge described what happened as follows, referring to the
complainant as J.I.:

[8]  Mr. Power took J.I. to his
penthouse suite in New Westminster. In the living room of the suite was a pool
table and mini-fridge containing beer and other alcoholic drinks. Mr. Power
invited J.I. to play pool and offered him a cooler. J.I. accepted. He drank two
coolers at Mr. Powers invitation. He had never consumed alcohol before
that night. Mr. Power then told J.I. that his brother was visiting so J.I.
would have to sleep in Mr. Powers bed. J.I. agreed.

[9]  Mr. Power put on a pornographic
video in the bedroom. J.I. remained dressed in his soccer pants and t-shirt. Mr. Power
got undressed and into bed. After watching some of the video, Mr. Power
invited J.I. to masturbate. J.I. declined. Mr. Power then put his hand
down J.I.s soccer pants, following which he performed oral sex on J.I. J.I.
was too shocked and surprised to resist. He recalled ejaculating and then going
to sleep.

[10]  The next
morning Mr. Power gave J.I. money for breakfast and asked him to leave. No
such encounters occurred again. Neither spoke of the incident subsequently. Mr. Power
continued to represent J.I. from time to time for approximately 18 months. That
representation ended in the spring of 2006, when J.I. went to police at the
urging of adults he knew and gave a statement concerning the sexual interaction
with Mr. Power in August of 2004.

[3]

The judge then outlined the applicants
background which reveals that he has for many years suffered from alcohol abuse
and has long had a sexual attraction to adolescents. The judge reviewed and
quoted the more pertinent passages of the psychological assessment outlined in
a pre-sentence report furnished to the court. She stated in particular:

[22]
Dr. Hervé noted that despite Mr. Powers assessed risk level,
treatment needs, and treatment prognosis, based on his recent community
functioning he appeared to be a good candidate for community supervision.

[4]

After reviewing the positions taken by the Crown
and the defence, the judge discussed the governing principles and then turned
to consider a conditional sentence having regard for the prerequisites
established in
R. v. Proulx
, 2000 SCC 5, [2000] 1 S.C.R. 61. She
considered that, although it was said the applicant may be an appropriate
candidate to serve his sentence in the community, he was assessed as a low to
moderate risk to re-offend, which gave her concern that he continues to be a
risk to the community. But she considered the greatest difficulty in imposing a
conditional sentence lay in the requirement that it had to be consistent with
the principles and purposes of sentencing. She recognized that, given the
nature of the offence, involving as it did the abuse of a young person, primary
consideration was to be given to the objectives of denunciation and deterrence.
The principle is now codified in s. 718.01 of the
Code.
The judge
expanded on the importance she attached to the unique position of trust and
dependency the applicant held as the complainants lawyer in concluding:

[52]  ... that a
fixed term of incarceration is necessary to bring home the significance of the
offence and the consequences that will be visited on those who commit such
offences.

[5]

The applicant says the judge failed to give
adequate reasons for refusing to impose a conditional sentence and failed to
give proper effect to the psychological assessment that he appeared to be a
good candidate for community supervision. But I see no merit in what the
applicant says in this regard. As I have outlined them, the judges reasons as
to why she considered the primary objectives of sentencing would not be
adequately addressed by other than a term of incarceration are clear and quite
complete. She did not overlook the psychological assessment but dealt
specifically with whether community supervision would be appropriate. As
indicated, she had concern the applicant posed a continuing risk to the community.
She said that on that aspect of the evidence it was a very close call but
ultimately rejected a conditional sentence on the basis of the mandated
objectives that she considered required incarceration. I see no basis on which
this Court should interfere with what was an exercise of the judges
discretion:
R. v. Proulx
at paras. 123-126 and
R. v. Labrash,
2006
BCCA 357 at paras. 21-22.

[6]

After deciding a term of incarceration was
warranted, the judge turned to consider the range of sentences for offences of
this nature and commented on the governing authority. She noted the applicant
had no criminal record but said there was no guilty plea or expression of
remorse to mitigate the sentence. She concluded:

[57]  I have already outlined the factors
which, in my view, require a definite prison term. The sexual assault took
place on one occasion only, but that cannot surely be viewed as a mitigating
factor. There was nothing impulsive about the assault. There was guile and
manipulation involved. It was a very serious and highly intrusive assault. Mr. Power
committed fellatio on J.I. Before that, he plied him with alcohol and showed
him pornographic videos. J.I. was sexually inexperienced before that time and,
most importantly, of course, Mr. Power had acted as J.I.s lawyer.

[58]  In this case, as noted, the sentencing
principles require the greatest emphasis on denunciation and deterrence. I have
considered the other principles, but these must receive the greatest attention.
As noted by Bennett J. in [
R. v. Lennax
, 2008 BCSC 1761] at
para. 45:

Children are entitled to be protected in
society and by our courts. The only way the courts can denounce such crimes [as
this] is by the imposition of a sentence.

[59]  As observed by Newbury J.A. in
R.
v. Ashley-Pryce
, 2004 BCCA 531, the case law reflects the very serious view
taken by the courts of offences involving the sexual exploitation of persons
under the age of 18 by persons in positions of authority or trust. In that case,
the Court of Appeal upheld a sentence of 18 months incarceration for a
healthcare worker who masturbated himself by holding the hand of an elderly
female Alzheimers patient. He was convicted of one count of sexual
exploitation under s. 153. He had pled guilty to the offence and, due to
the conviction, had to move his family from the small community.

[60]  While I am
not persuaded that a penitentiary term is appropriate in this case, I am
persuaded that a significant reformatory term is required. I will, therefore,
be imposing a sentence of 18 months followed by two years of probation.

[7]

The applicant says the judge overemphasized
denunciation and deterrence and made no mention of the prospects of
rehabilitation. This, he says, led her to impose a sentence that was unduly
harsh and unfit. He maintains the judge wrongly treated the absence of a guilty
plea as an aggravating factor and thus erred in principle.

[8]

Again, I see no merit in what the applicant
contends. I do not consider the judge to have treated the absence of a guilty
plea as an aggravating factor, but merely to have pointed out there was no
mitigating factor that could be attributed to an expression of remorse. Further,
in my view, there is no sound basis on which it can be said the sentence was unfit.
As the Crown points out, the applicant was in a unique position of trust and
the complainant was particularly dependent upon him at a very troubled time in
his young life. The applicant invited the complainant to his apartment for the
night even though he was sexually attracted to adolescent males. Given the
complainants age and circumstances, the applicant knew he was particularly
vulnerable and took advantage of him.

[9]

A couple of times in her reasons, the judge
referred to the offence the applicant committed as a sexual assault when she
ought to have said sexual exploitation, but her having done so is of no
particular consequence now. She was not confused about the charge. The sentence
imposed cannot be said to be inconsistent with what has been imposed for the
offence of sexual exploitation:
R. v Ashley-Pryce,
2004 BCCA 531.

[10]

The applicant says that two provisions of the
probation order are unnecessarily restrictive. The first, Condition 9,
prohibits his having contact with children under the age of 16 years unless
accompanied by an informed adult approved by his Probation Officer. He says the
provision need do no more than prohibit his being alone in the company of a
person under the age of 16 years. The provision is unduly broad and would be
adequate, and consistent with the offence of which the applicant was convicted,
if the worded as by this Court in
R. v. R.R.M.
, 2009 BCCA 578 consistent
with what the applicant seeks.

[11]

The second provision, Condition 11, prohibits
the applicant from attending playgrounds, school grounds, public parks,
community centres or other sites where children may congregate unless
accompanied by an informed and approved adult. The Crown acknowledges that the
words or other sites where children may congregate constitute a vague phrase
that is unnecessary, particularly given Condition 9.

[12]

I would grant leave to appeal but would dismiss
the appeal save that I would amend Conditions 9 and 11 of the Probation Order
so they provide:

Condition 9: You
shall not be in the company of any person under the age of 16 years, unless in
the company of an informed adult approved in advance by your Probation Officer.

Condition 11:  You are not to attend at playgrounds,
school grounds, public parks, or community centers unless accompanied by an
informed adult approved of in advance by your Probation Officer.

[13]

DONALD J.A.
: I
agree.

[14]

LEVINE J.A.
: I
agree.

[15]

DONALD J.A.
:
Leave to appeal is granted. The appeal is allowed to the extent of amending the
probation order as indicated in the reasons of Mr. Justice Lowry. The appeal is
otherwise dismissed.

The Honourable Mr. Justice Lowry


COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

Davidson v. Tahtsa Timber Ltd.,

2010 BCCA 12

Date: 20100115

Docket:
CA035587

Between:

Thomas Clifford Davidson

Appellant

(
Plaintiff
)

And

Tahtsa Timber Ltd.

Respondent

(
Defendant
)

Before:

The Honourable Mr. Justice Low

(In Chambers)

On
appeal from: Supreme Court of British Columbia, November 22, 2007 (
Davidson
v. Tahtsa Timber Ltd.
, 2007 BCSC 1684, 13954)

Counsel for the Appellant, :

I.B.
  Lawson
, via teleconference

Counsel for the Respondent:

W.W.
  Chapman
,
via teleconference

Place and Date of Hearing:

Vancouver,
  British Columbia

October 9, 2009

Place and Date of Judgment:

Vancouver
, British Columbia

January
  15, 2010

Reasons for
Judgment of the Honourable Mr. Justice Low:

[1]

The appellant brings separate motions for leave
to file his factum out of time and for removal of his appeal from the inactive
list.

[2]

The respondent opposes both motions, primarily
on the basis that the appeal lacks merit.

[3]

The action against the respondent was for
wrongful dismissal of the appellant from his job as a truck driver.  He had
worked for the respondent in that capacity for twelve years.  The trial judge,
Mr. Justice Rice, found that the dismissal was not justified but that the
appellant had fully mitigated his damages by obtaining alternate employment
during the notice period of ten months.  Therefore, he dismissed the action.
The appellant contends that the judge erred in finding that damages had been
fully mitigated.

[4]

There is also an issue as to whether there should
have been a Bullock order made against the respondent for that party to pay
the costs of John Brienen, another defendant against whom the action was
dismissed.  Mr. Brienen is a principal of Nadina Truck Service Ltd., a company
that owns a repair shop into a wall of which the appellant drove the
respondents truck.  That incident and the appellants denial of it are what
led to the appellants dismissal from his employment.

[5]

The appellant claimed damages from Mr. Brienen
for interference with his contract of employment and for slander.  He claimed
that what Mr. Brienen said about the appellant induced the respondent to fire
him.  The trial judge found that the actual words complained of were not said
by Mr. Brienen and that, even if they had been said, they were truthful and
therefore justified.  The appellant does not appeal the dismissal of the action
against Mr. Brienen.  Therefore, Mr. Brienen is not a respondent in the appeal.

[6]

The trial judgment was given on 22 November
2007.  The notice of appeal was filed on 4 December.  The respondent filed its
appearance on 25 January 2008.  The appeal record, transcript and appeal books
were filed more than a year later.  They had been in the possession of counsel
for the respondent from June 2008 to January 2009 as counsel considered the
content of the transcript and appeal books necessary for a proper hearing of
the appeal.  On 18 February 2009 there was a consent order extending the time
for these three filings and the appellant complied with the order.  However, by
this time the appeal was on the inactive list so the respondent consented to an
order that the appeal be removed from that list.  This order provided that the
time limit for taking the next step required by the
Court of Appeal Act
or
Court of Appeal Rules
must commence to run as of the date of this
order.  That meant that the appellant had to file and deliver his factum by 18
April 2009.

[7]

The appellant did not comply.  His counsel
advised counsel for the respondents on 15 June 2009 that the factum was
complete.  On 13 July, the registry refused to file the factum because an order
was needed extending the time for filing.  It was then almost three months
late.  The respondent would not consent to late filing.  As of 2 September the
respondents counsel had not received even an unfiled copy of the appellants
factum.

[8]

On 18 September 2009 the appellant filed the
motion to extend the time for filing his factum.  An affidavit of the appellant
in support of the motion exhibits the draft factum.

[9]

Because the appellant had not filed a
certificate of readiness within 180 days of the date of the consent order
removing the appeal from the inactive list, the appeal again went on the
inactive list on 18 August 2009 pursuant to s. 25(4)(b) of the
Court of Appeal
Act
.  When counsel made oral submissions before me in chambers, the
appellant had not brought a motion for a second removal of the appeal from the
inactive list.  When I learned this on a later review of the court file, I
advised counsel through the registry that I could not determine the motion
before me while the appeal remained on the inactive list.  The appellant has
now brought a motion for removal of the appeal from the list and I have
received written submissions on that motion.

[10]

The test for extension of time for the taking of
a step in an appeal is set out in
Sekhon v. Armstrong
, 2003 BCCA 318,
183 B.C.A.C. 137:

[17]      The
tests
that are applied
when an application is made to extend the time for taking a step necessary in
the prosecution of an appeal are set out in
Davies v. Canadian Imperial Bank
of Commerce
(1987), 15 B.C.L.R. (2d) 256 (C.A.).  The following questions,
with the necessary modifications, will generally be considered: (1) Was there a
bona fide intention to appeal? (2) When were the respondents informed of the
intention? (3) Would the respondents be unduly prejudiced by an extension? (4)
Is there merit in the appeal? (5) Is it in the interests of justice that an
extension be granted?  The fifth question is the most important as it
encompasses the other four questions and states the decisive question.  As to
the fifth rule, Lambert J.A., in
Haldorson v. Coquitlam (City)
,
supra
,
observed at para. 9:

[9]    The fifth rule, of course, in
Davies
v. Canadian Imperial Bank of Commerce
(1987), 15 B.C.L.R. (2d) 256
(B.C.C.A.) is that in deciding whether to extend time to someone who files a
notice of appeal late, the overriding rule, called the fifth rule, is that
there must be a balancing of the interests of justice as they affect both
parties and in reaching a decision the interests of justice will prevail.  The
first four rules cannot be used to defeat the interests of justice but are
themselves guides to the application of the interests of justice.

[11]

The test on an application for removal of an
appeal from the inactive list is found in
Kar Recovery Ltd. v. K.D.A
,
2004 BCCA 503, 204 B.C.A.C. 181:

[23]      There is no rigid test to apply in
determining whether an inactive appeal ought to be reactivated.  The overriding
issue is whether it is in the interests of justice to grant the application.

[24]      Factors which have been considered
by this Court include the following:

●          the extent of the delay,

●          the explanation for the delay,

●          the existence of any prejudice arising from the delay,

●          the likelihood of success on appeal.

(
Deline v. Kidd
, 2003 BCCA 170 at
para. 11.)

[12]

The delay in readying this appeal for hearing
has been extensive.  Counsel for the respondent took a long time to assist in
settling the appeal book and transcript.  Counsel for the appellant delayed
filing the appellants factum until it was out of time.  Both counsel have
failed to consider the time limits set out in the rules.  No reasons are
offered for the various delays.  It happens that the latest delay caused by
counsel for the appellant has created the double problem of leave becoming
necessary for filing of the appellants factum and the appeal having again been
put on the inactive list.  The respondent has not argued that it has been
prejudiced by the latest delay.  This is one of those cases in which consequences
of the failure of counsel to comply with the time limits should not be visited
upon the litigant.

[13]

It remains to consider the strength of the
appeal and the overriding interests of justice.

[14]

Mr. Brienen has taxed his costs against the
appellant at $42,653.75.  The appellant wishes to visit these costs upon the
respondent.

[15]

Mr. Brienen was not an employee of the
respondent.  The claim against him was independent of the claim against the
respondent.  The appellant failed to prove that Mr. Brienen did any of the
things the appellant claimed that he had done to interfere with the appellants
employment contract with the respondent.  The appellant has presented no
argument that the respondent could have properly been ordered to pay Mr.
Brienens costs even if the appellant had been able to prove damages against
his former employer for wrongful dismissal.

[16]

The appellant did not seek a Bullock order at
trial.  He wishes to raise that issue for the first time in this court.  It is
very unlikely that the appellant would be able to persuade a division of this
court that the trial judge should have made the costs order he now seeks.  It
seems unarguable that Mr. Brienen was a necessary defendant to enable the
appellant to make out his case of wrongful dismissal against the respondent.
If this were the only ground of appeal, I would find that the appeal is without
merit.

[17]

On the question of damages for wrongful
dismissal, the appellant says that the trial judge erred in determining his
notice-period income on the basis of his income during the two years prior to
the dismissal.  Alternatively, the appellant says that there should have been
an order for nominal damages plus costs.

[18]

The respondent fired the appellant on 11 July
2005.  There is no dispute that the appropriate notice period was ten months.
The period to be considered, therefore, was from that date to 11 May 2006.  The
trial judge determined that during this period the appellant earned at least as
much as he would have earned had he continued in his employment with the
respondent.  The judge said this:

[16]
As for
damages, there was little disagreement with the plaintiffs submission that ten
months was an appropriate notice period subject to the plaintiffs duty to
mitigate his loss.  It was not disputed that despite the brief interlude as a
contractor, the plaintiffs position ought to be judged overall as if he were a
twelve year employee.  The evidence indicates that work was available to the
plaintiff as a logging truck driver with other companies immediately after his
dismissal.  The plaintiff proved this by quickly finding a new job as a driver.
 The evidence did not indicate that his scale of pay fell at all with the
change, and from the materials submitted it seems that he earned more than he
did working for Tahtsa.  As a result, I was unable to find that there was any actual
loss.

[17]      In 2004, the plaintiffs reported
total income was $49,151.24.  For 2005, he reported $25,365.69 as employment
income from trucking, and $21,747.30 as farm income.  The sum of those two
is $47,112.99.  His reported income for 2006 was close to $57,000.00.

[18]      A review of the plaintiffs
documentation by Tahtsas counsel showed that his actual income for 2005 was
$55,616.94, not $47,112.99 as per his 2005 return.  The discrepancy was not
explained.  The plaintiffs calculation of his 2005 income was much higher, at
least for the first half of 2005.  However, there were errors in the
plaintiffs calculations, and I preferred the submission of Tahtsas counsel on
the point.

[19]      According to both Mr. Posselt and
the plaintiff, logging truck operators could expect eight months work in a
year, possibly more but possibly less depending on weather conditions.  A
driver of a low-bed tractortrailer such as the one driven by the plaintiff to
transport equipment could expect one month more work, but not a greater annual
income Logging operations shut down in August usually, and also during winter
freezing and spring break-up, but exact times arent predictable.  As a result,
argued Tahtsas counsel, it was likely more reliable to base projected income
for the plaintiff on an average of his income for the previous twelve months or
more.

[20]      Mr.
Posselt
explained in some detail other variables that make a truck drivers
income unpredictable.  One of those variables is market conditions.  The
logging truck operators, taking their pay as a percentage of the price of the
logs sold, must expect their income to fluctuate.  Low-bed drivers, normally
paid by the hour, are theoretically immune to those fluctuations, but their
pay, as Mr. Posselt testified, does not tend to exceed what the logging truck
drivers earn.

[21]      Accordingly,
taking into account these uncertainties, and relying to a great extent on the
plaintiffs total income for 2005 and 2006, overall it appears that the
plaintiffs expected income for the ten months after his dismissal should have
amounted on average of his past two years earnings per month multiplied by
ten.  His actual income was at least that much and was probably more.  I am
unable to determine with certainty, therefore, that the plaintiff suffered any
actual loss.  Accordingly the claim for wrongful dismissal is dismissed
with costs to Tahtsa at scale B subject to submissions.

[19]

The appellants argument is that the trial judge
erred in failing to take into account that the appellant, pre-dismissal, worked
for the respondent as both a logging truck driver and as a low-bed driver.  It
is said that the evidence supported the conclusion that per year this would
have given him two more months employment than when he had been driving only a
logging truck.  Although his counsel does not put it this way, the error the
appellant alleges is that the judge misapprehended the evidence in comparing
earnings to determine the amount of the loss.  The appellant says that if the
judge had fully considered the evidence he would have found a loss of about
$11,000 during the ten-month notice period.

[20]

This does not appear to be a strong ground of
appeal but I am unable to say that it is devoid of merit and is bound to fail.

[21]

Having regard to the casual manner employed by
both sides in perfecting this appeal, the existence of an arguable ground of
appeal and the absence of prejudice to the respondent, it is in the interests
of justice to permit the appeal to proceed to a resolution on the merits.

[22]

There will be an order removing the appeal from
the inactive list, on terms.  The appellant will file and serve his factum
within 14 days of this decision being pronounced.  The appeal will then be
ready for hearing in accordance with R. 28(1) and the appellant thereafter will
comply with R. 28(3), R. 28(5) and R. 28(7).

[23]

The costs of each motion before me will be to
the respondent in the appeal.

The Honourable Mr. Justice Low