COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Lebrun,

2011 BCCA 42

Date: 20110128

Docket: CA038286

Between:

Regina

Respondent
(Plaintiff)

And

Anthony Roland
Lebrun

Appellant
(Defendant)

Before:

The Honourable Mr. Justice K. Smith

The Honourable Madam Justice Bennett

The Honourable Madam Justice Garson

On appeal of sentence from:
Provincial Court of British Columbia, June 18, 2010
(
R. v. Lebrun
, Port Coquitlam Registry No. 80542-2C)

Oral Reasons for Judgment

Counsel for the Appellant:

H.M. Patey

Counsel for the Respondent:

E.A. Campbell

Place and Date of Hearing:

Vancouver, British
  Columbia

January 27, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January 28, 2011

[1]

GARSON J.A.
:  Anthony
Roland Lebrun applies for leave to appeal and, if leave be granted, he appeals
a global sentence of six years i
mposed by a
Provincial Court judge
on June 18, 2010, following his guilty plea to
charges of forcible confinement, and illegal use of a

firearm while committing
forcible confinement.

[2]

T
he actual sentence for the two offences
was as follows:  four and one-half years for the unlawful confinement and
one and one-half years consecutive for the use of a firearm while committing an
offence. This sentence was reduced by three and one-half years to reflect
credit for 21 months served in pre-trial custody. Therefore the custodial sentence
imposed on him was one year for the charge of unlawful confinement and one and
one-half years for the firearm offence, for a total sentence of two and
one-half years.

[3]

Mr. Lebrun raises two
grounds of appeal. First he says the sentence is unfit because it is outside
the range of sentences usually imposed for similar offences and similar
offenders. Second he says that the judge's comments from the bench during the
sentencing, combined with her rejection of both Crown and defence submissions,
demonstrated a reasonable apprehension of bias.

[4]

On appeal, Mr. Lebrun asks
that this Court substitute a global sentence of four years.

[5]

The Crown argues that the
appeal should be dismissed.

[6]

At the
sentencing hearing the Crown had sought a 48 month global sentence. The
defence argued for time served which amounted to
42 months after granting credit for the time Mr. Lebrun had spent on remand. The
judge indicated in the course of submissions that she was considering a longer
sentence than the one recommended by either counsel.

Background facts

[7]

These offences arose from an incident that began
on September 13, 2008. Mr.
McCann, one
of the co-accused, was convinced that the two complainants, Mr. Morgan and
Ms. Cochran had stolen
a bottle of Oxycontin pills from him. During the
course of the day, the dispute escalated. At some point Mr. Lebrun told Mr.
Morgan that Mr. McCann had handed the dispute over to him, saying "its
out of Mike's hands." In other words, Mr. Lebrun took over an enforcer
type role. In doing so he and the co-accused, Mr. Pastulovic, used duct-tape to
confine Mr. Morgan and Ms. Cochran in a small bathroom in the house. Mr. Morgan
was put on the floor of the bathroom where
Mr. Lebrun and Mr. Pastulovic, wearing boots,
stomped on his neck, tore
his earrings out of his ear, struck him with the butt end of a
pump action shotgun, and threatened him in such a
way that Mr. Morgan firmly believed

he would
be killed. Ms. Cochran was similarly restrained and threatened. She eventually
managed to escape through the bathroom window. She called the police from a
neighbour's home and Mr. Morgan was thereafter rescued. Mr. Morgan was still
restrained in the bathroom when the police arrived. The police found one of the
two firearms with three shells in the magazine, one was loaded in the chamber
and the safety was in the off position. The three accused were arrested at the
home.

[8]

This terrifying ordeal had lasting impacts, both
physically and psychologically on both complainants. Mr. Morgan required
stitches for injuries administered to him while he was restrained. At the time
of the sentencing, some 21 months after the offence, he continued to complain
of pain in his neck from the blows, and as the sentencing judge said,
"...he still has a very substantial emotional and psychological response
to these
actions, [that was] evident when
he testified in the course of the preliminary inquiry, both
in terms of
how the nightmares never end and the ongoing shock and disbelief that this
could happen to him." Ms. Cochran was similarly traumatized by these
events. She too was certain that she was going to be killed. The evidence is
not clear on the length of time the complainants were restrained, but counsel
advised that it was estimated to be some three to six hours.

Mr. Lebrun's background

[9]

Mr. Lebrun has a
dated criminal record for offences far less serious than this one.
The sentencing judge said she was giving no weight to the record for
purposes of sentencing. Mr. Lebrun was 43 years of age when sentenced. The
judge noted that: he
had been hard-working
throughout his life; he had his own concrete business; he maintained a
positive
relationship with his two children, (aged at sentencing 17 and 21); he had
coached his children in their sporting activities; he had been a model prisoner
during the 21 months he had spent in
custody;
he had positive and strong support from his family and friends;  and he had
employment, as well as a home to
return to where he had a supportive,
common-law wife. Some 15 letters of support were filed by family members,
friends, associates, and employers. The theme running through these letters is
a description of Mr. Lebrun as a hard-working, loyal, reliable individual. The
judge expressed some concern that the authors of these letters may not have
been aware of the particulars of the offences.

Grounds of Appeal

Bias

[10]

Mr. Lebrun argues that this court should find
the judge demonstrated a reasonable apprehension of bias. In so arguing he
relies in part on the judge's advice to counsel that,

THE COURT:  Thank you Mr.
Lebrun. Im going to take a break to think about what Im going to do. Counsel,
Ill tell you that walking into the courtroom this morning I was thinking of a
number of considerably higher than four years. I was in the range of double
that because of the nature of this incident, and I need to think about that a
bit longer.
Some of my remarks will have probably flagged that those are more
of the direction of my concerns here, but this has all brought - - this has all
been forced with - - the firearm is the part that concerns me the most in terms
of moving it beyond the range thats been spoken to. So I am going to go away
and think about it for the break and if either of you want to address that,
youre welcome to do that after the break as well, because I am at the moment
of two minds, but I think in fairness I need to tell you that. Well stand down
for 15 minutes.

[11]

In concluding her sentence she said, I am
persuaded that I can be moved from my original impression or thought as to what
the sentence would be.

[12]

Mr. Lebrun argues that these
comments made by the judge give rise to a reasonable apprehension of bias. He
says that the comments indicate the judge had a firmly held view as to the
appropriate sentence before the sentencing proceedings began. He
contends that rather than having an open mind as
to a fit sentence, the judge viewed counsel's role as needing to persuade her
to depart from her pre-determined decision
as to the length of a fit
sentence.

[13]

The Crown contends that
these comments, and others, taken in context do not reflect a closed mind but
rather one that was open and inviting of submissions. The Crown notes that the
judge appropriately alerted counsel to the fact that she was considering a
higher sentence than the one recommended by both counsel. It was, the Crown
says, appropriate for the judge to alert counsel to her concerns and allow them
the opportunity to address those concerns. The Crown says that it is important
to note the context of the judge's submissions. She had presided at the
preliminary inquiry so she was familiar with the particulars of the offence
before the sentencing hearing began.

[14]

On appeal, the issue is
whether the judge's comments may reasonably be construed as indicative of the alleged
apprehension of bias.

[15]

The
test for appellate review where bias is alleged was articulated by Cory J. in
R.
v.
R.D.S.,
[1997] 3 S.C.R. 484, at paras. 104 and 105:

104      In
Valente v. The Queen
, [1985] 2 S.C.R. 673,
at p. 685, Le Dain J. held that the concept of impartiality describes "a
state of mind or attitude of the tribunal in relation to the issues and the
parties in a particular case". He added that "[t]he word 'impartial'
. . . connotes absence of bias, actual or perceived". See also
R. v.
Généreux
, [1992] 1 S.C.R. 259, at p. 283. In a more positive sense,
impartiality can be described -- perhaps somewhat inexactly -- as a state of
mind in which the adjudicator is disinterested in the outcome, and is open to
persuasion by the evidence and submissions.

105      In contrast, bias denotes a state of mind that is in
some way predisposed to a particular result, or that is closed with regard to
particular issues. A helpful explanation of this concept was provided by Scalia
J. in
Liteky v. U.S.
, 114 S.Ct. 1147 (1994), at p. 1155:

The words [bias or prejudice]
connote a favorable or unfavorable disposition or opinion that is somehow
wrongful
or
inappropriate
, either because it is undeserved, or because it rests
upon knowledge that the subject ought not to possess (for example, a criminal
juror who has been biased or prejudiced by receipt of inadmissible evidence
concerning the defendant's prior criminal activities), or because it is
excessive in degree (for example, a criminal juror who is so inflamed by
properly admitted evidence of a defendant's prior criminal activities that he
will vote guilty regardless of the facts). [Emphasis in original.]

Scalia J. was careful to stress
that not every favourable or unfavourable disposition attracts the label of
bias or prejudice. For example, it cannot be said that those who condemn Hitler
are biased or prejudiced. This unfavourable disposition is objectively
justifiable - - in other words, it is not wrongful or inappropriate:
Liteky
,
supra
, at p. 1155.

[16]

And at paragraph 107, he
concluded his discussion of the concept of bias by noting that
to establish bias, "It must be demonstrated
that those beliefs, opinions or biases prevent
[the decision-maker] from
setting aside any preconceptions and coming to a decision on the basis of the
evidence." (citation omitted.)

[17]

In
R. v. Bertram
, 1989 CarswellOnt 1511
[1987] O.J. No. 2123, Watt J. had this to say about a judge expressing his
views during the course of submissions on sentence:

[68]      It is no doubt accurate
to observe that the learned Provincial Court judge, on occasion, indicated the
appropriateness of the terms of imprisonment which were to have been the
subject of the joint submission, but he equally made it plain that sentence would
be determined on the basis of evidence and submissions. It would scarcely seem
unusual that, when a range of sentence or a specific sentence is suggested by
counsel, a judge daily involved in criminal cases may have some views on its
appropriateness and express them to counsel. That he or she does so could
scarcely be a ground of disqualification on account of a reasonable
apprehension of bias else the work of the criminal courts would never be done.
Judges are required to approach the task of sentencing, as other tasks in the
trial and disposition of criminal cases, with a mind that is and appears to be
open to reason and persuasion, not with one that is empty of it and unschooled
by experience. Neither is a judge required to remain mute during proceedings.
Views may be expressed and exchanged with counsel. To do so is not, per se, to
create, in every case, a reasonable apprehension of bias. In the entire
circumstances of this somewhat unusual case, I am not persuaded that what here
occurred demonstrates a case of reasonable apprehension of bias or other
jurisdictional error.

[18]

I agree with the comments made by Watt J. And I
believe his comments are equally applicable to this case.

[19]

The sentencing judges comments,
said to be indicative of bias, include her comment that she thought the authors
of the reference letters did not "have the foggiest clue" about the
nature of the offence. The judge said that she would have expected the letters
to have
acknowledged in the context of
their description of Mr. Lebrun's positive character
some sense of
shock at what he had done.

[20]

In this case, the judge's
comments, taken in the context of the whole proceeding, show that she was
particularly troubled by Mr. Lebrun's gratuitous violence, by the significant
impact on the complainants, and by Mr. Lebrun's seemingly inexplicable
involvement over someone else's trifling affair. She described his conduct as
having been motivated by a misplaced sense of loyalty. That she communicated
clearly to counsel she was considering the offence in a more serious light than
Crown or defence is not evidence of bias. It was necessary for her to
communicate to counsel that she was considering a much longer sentence than
either of them expected and to invite further submissions. Her comments before
she retired to consider her decision clearly indicate she was giving anxious
consideration to all that had been said and was weighing the mitigating factors
against her view as to the seriousness of the offence. I disagree with the appellants
submission that the judge had a fixed starting point from which she began her
consideration of the appropriate sentence. Rather, after she retired she heard
further submissions from defence counsel. I see nothing either untoward or
indicative of bias in these comments. I would not accede to this ground of
appeal.

Fitness of Sentence

[21]

I turn next to the
second ground of appeal. That is the argument that the sentence
is not fit. Mr. Lebrun's counsel says the judge over-emphasized the
use of a gun as an aggravating factor, and under-estimated the mitigating
personal circumstances.

[22]

Appellate courts must show great deference to sentencing decisions of a
trial judge. Only if the sentence is not fit or if the judge erred in principle
should the Court interfere on appeal.
R. v. L.M.
, 2008 SCC 31, [2008] 2
S.C.R. 163 at para. 14.

[23]

Mr. Lebrun contends that the judge placed undue
emphasis on his use of a firearm (it was already accounted for in the minimum
mandatory consecutive sentence under s. 85(3)(a) and 85(4) of the
Criminal Code
),
and that she failed to give sufficient weight to Mr. Lebrun's
otherwise non-violent conduct and substantial community
support.

[24]

Section 85(3)(a) provides
that a judge must sentence an offender to a mandatory minimum sentence of one
year for offences that include the use of a firearm while committing an indictable
offence. Subsection (4) mandates that that sentence be served consecutively to
any punishment imposed on the person for an offence arising out of the same
event.

[25]

Mr. Lebrun's argument seems
to rest on the notion that where an offender is sentenced under s. 85(1) no
account should be taken of the use of a firearm as an
aggravating factor in the overall consideration of the main offence, in
this case unlawful
confinement (s. 279(2)). The judge considered the use
of the firearm as a significantly aggravating factor. Its use cannot be
entirely separated from her consideration of the unlawful confinement. The
aggravating factors she mentioned are the following:

·

More than one firearm was used in the commission of the offence.

·

The firearms were brought into the house specifically to be used
during this incident.

·

One of the firearms was loaded, had a shell in the chamber, and
had the safety in the off
position when the police arrived.

·

The appellant used the firearm to scare or threaten the
complainants.

·

As a consequence of the use of the firearms both complainants
believed they were going to be
killed. Mr. Morgan specifically became fearful of being killed when the firearm
was used to threaten him.

[26]

In my view s. 85(1) is intended to be an
additional consecutive sentence for precisely the type of incident that
occurred in this case. If, as Mr. Lebrun contends, a judge is to discount the
use of the gun in the main offence, then there would be no additional penalty under
s. 85(1) which seems contrary to the intention of the section. I would not
accede to this argument on appeal.

[27]

Counsel for Mr. Lebrun also
argues that the sentence was not fit given the circumstances of this offender
and this offence. He argues that even for home-invasion type offences involving
firearms, lesser sentences than in the case at bar have been imposed. Both
counsel referred to a series of home invasion type cases as guidance in this
sentencing.

[28]

Both parties rely on
R.
v. N.P.D.
,

2002 BCCA 304, in which a 19 year old accused with a
serious
related record was sentenced to an
effective sentence of five and one-half years.
N.P.D.
plead guilty (in connection with a
home invasion type offence) to unlawful confinement, assault with a weapon,
breaking and entering a dwelling and having his face masked with intent to
commit an indictable offence. He tied up the occupants of the house with zap
straps and one of the intruders stood guard over the occupants with a gun. The
incident lasted about 15 minutes. Madam Justice Levine, speaking for the court,
said at para. 20 that the appropriate range for a home invasion type of offence
had been established by the Court to be five to eight years.

[29]

In
R. v. Bernier
,
2003 BCCA 134, a five judge division of this Court considered the wide ranging
and possibly conflicting authorities on sentences imposed in home invasion type
offences. In that case, the Court reduced Mr. Berniers sentence of 14 years to
six years. Mr. Bernier had broken into a home, struck one of the occupants with
a gun, briefly confined the occupant and stolen money.

[30]

In
R. v A.J.C
., 2004 BCCA 268, this Court noted that the range
for serious home invasions was nine to 10 years and higher than that for more
egregious home invasions (para. 45). The charges to which
A.J.C
. had
pleaded guilty, included kidnapping, breaking and entering, unlawful
confinement and having his face masked while committing those offences. On
appeal the sentences were
reduced from 14 years to 11 years
. In this
case, the home invasion was planned in order to terrorize the victims in an
effort to force payment of $50,000. The intruders were armed with sawed-off
shotguns, pepper-spray and at least one knife. The intruders were in the home
for three hours. These facts led the Court to conclude that that case was a
more serious home invasion meriting 11 years. In a helpful review of the recent
home invasion sentencing cases, at paragraph 33, Chief Justice Finch, speaking
for the court, discussed the
Bernier
case and several subsequent cases:

33        After sentences were pronounced in the present
cases, a division of five judges heard the sentence appeal in
R. v. Bernier
(2003), 177 C.C.C. (3d) 137, 179 B.C.A.C. 218, 2003 BCCA 134. A five judge
panel was appointed specifically because of the perceived uncertainty as to the
appropriate range of sentence for "home invasion" type cases in light
of
N.P.D.
,
supra
and
D.A.W.
,
supra
.

34        In
Bernier
,
supra
, the court
unanimously agreed to reduce the appellant's sentence from 14 years to six
years for convictions of breaking and entering a residence to commit robbery,
robbery, assault, and possession of stolen property. It is significant that the
Crown proved that Bernier planned the home invasion but not that he was present
during its execution. He was therefore convicted as a party rather than a
principal to the offences.

35        Although the court in
Bernier
gave three
concurring judgments, several important points emerge. First, this court's
references to sentence "ranges" serve merely as guidelines for
sentencing judges. They are not conclusive of the appropriate sentence in any
given case. As Southin J.A. (Hollinrake J.A. concurring) explained at [paragraph]
40-42:

[40]  As to the term
"range", in sentencing cases its proper use, in my opinion, is only
as a short way of describing what the court has done in previous appeals in
which the offence and the offender were similar to those in the case at bar.
The reason is this: no division of this Court has the power to bind other
divisions on future sentence appeals.

[41]  While the past is a prelude
to the present, the past cannot always govern the present, nor can what we say
now determine the future.

[42]  A "range" does not
preclude on grounds of deterrence or denunciation or the gravity of a
particular offence a sentence different from that "range". Nor does a
"range" preclude a lesser sentence if some special circumstances
warrant such a course. When considering any particular case similar to
R. v.
D.A.W.
or to
R. v. N.P.D.
or to this case, trial judges and this
court will have in mind those sentences as part of the "range". The
"range" is not conclusive.

See also [paragraphs] 73-75 per Prowse J.A. (Levine J.A. concurring);
and [paragraphs] 96, 105-106 per Newbury J.A.

36        Second, the task of arriving at appropriate
"ranges" of sentence for "home invasion" type crimes is
particularly difficult given the different combinations of offences that may
actually be committed. Prowse J.A. stated at [paragraphs] 81-82:

[81]  As noted by my colleagues,
the difficulty with a discussion of range of sentences with respect to home
invasions is that there is no single crime known as "home invasion".
Rather, that term is loosely used as a shorthand expression for a combination
of offences involving a breaking and entering with intent to commit theft or
robbery, with knowledge or recklessness as to whether the dwelling is occupied
at the time, and frequently involving an assault on one or more occupants.

[82]  Because the combination of
crimes charged in these cases will vary to some extent, it is difficult to
determine a relevant range of sentence. For this reason, the Court should
exercise more caution than usual in attempting to suggest general ranges of
sentence for home invasions.

See also [paragraphs] 36-37 per Southin J.A.; [paragraph] 97
per Newbury J.A.

37        Third, and finally, a sentence of 14 years, such as
that which the sentencing judge imposed on
Bernier
, should be reserved
for the most egregious and severe types of "home invasion" cases.
Southin J.A. stated that 14 years seemed higher than any sentence she had seen
for breaking and entering to commit theft ([paragraph] 49) and that it
"... appears to me to be giving up any hope or prospect that the applicant
might be rehabilitated and become a useful member of the community"
([paragraph] 52). Prowse J.A. generally agreed with these observations
([paragraph] 84, 87); see also Newbury J.A. at [paragraph] 107.

38        This court has decided two cases since Bernier that
are relevant.

39        In
R. v. Leggo
(2003), 184 B.C.A.C. 150,
2003 BCCA 392 [
Leggo
], the appellant and a co-accused were armed with a
wooden bat and imitation revolver. They kicked in the front door of a residence
and struck the occupant on the back of the neck with the revolver. The
intruders tied the victim up with duct tape and shoe lace, kicked him
repeatedly, and dragged him down a hallway where he was left lying face-down on
the floor. They stole some marijuana, $7800 in cash and other personal items
and then left the residence. The appellant was 32 years old and had a lengthy
criminal record. The trial judge found that there were no mitigating factors.
The accused was sentenced to eight and a half years overall, in addition to
eight months pre-trial custody, for break and enter to commit robbery, unlawful
confinement, possession offences and using a firearm during a robbery. This
court affirmed the effective global sentence of 9 years and 10 months.

40        In
Barton
,
supra
, this court upheld a
sentence of effectively 14 years for an especially brutal "home
invasion" which resulted in convictions for manslaughter and robbery. In
that case, the appellant and a co-accused were armed with a gun and knife and
forced their way into a house to complete a planned robbery. A confrontation
with one of the occupants of the home ensued, in which he was killed. Barton
appeared to have played a lesser role in the death, but this court accepted the
trial judge's finding that he was as morally culpable as the co-accused because
this was a planned joint venture. The appellant was 22 years of age and
aboriginal. He had a lengthy record and led no evidence of any efforts at
rehabilitation. This court upheld the sentence of 11 years for manslaughter and
seven years concurrent for robbery, after giving credit for 20 months of
pre-sentencing custody. I therefore take the case to support a sentence of
approximately 14 years.

41        In my view, the 15 year
sentence imposed in
Jones
,
supra
, and the 14 year sentence
effectively imposed in
Barton
,
supra
indicate the length of
sentence which may well be appropriate in the most aggravated circumstances
where a "home invasion" involves not only a break and enter to commit
robbery, the terrorizing and confinement of victims, and the use of weapons to
achieve these objectives, but also the infliction of serious injuries, sexual
assault or death.

[31]

The case before the court is not a home invasion insofar as the
complainants were tenants of Mr. McCann. However the events do resemble home
invasion scenarios, and I agree that it was appropriate for the parties to
treat this case as a home invasion in order to obtain some guidance from the
case authorities. That being the case, in my view, the violence in this case places
it towards the more serious end of the spectrum. The length of time that the
complainants were confined, the violence that was perpetrated upon them, as
well as the threats to their lives are all factors that point to a longer
sentence. The judge took into account all these factors as well as the
mitigating factors. Mr. Lebruns personal circumstances and strong involvement
in family and community life were clearly factored into her sentence, including
the fact that the offence seemed out of character given Mr. Lebruns background.
Balanced against these mitigating factors was the extreme degree of violence
administered to the complainants for no really explicable reason. The
sentencing principles of denunciation and general deterrence are important factors
in this case and ones that would tend to support the fitness of the sentence
imposed by the trial judge. I would not find that her sentence was unfit or in
any way inconsistent with the range of sentences given in the cases mentioned. Indeed,
as the Crown says, a considerably higher custodial sentence would not have been
inconsistent with the authorities.

[32]

I would grant leave and dismiss the appeal.

[33]

K. SMITH J.A.
:  I agree.

[34]

BENNETT J.A.
:  I agree.

[35]

K. SMITH J.A.
: Leave to appeal is granted and the appeal is
dismissed.

"The Honourable Madam Justice Garson"


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Wallster v. Erschbamer,

2011 BCCA 27

Date: 20110128

Docket: CA037767

Between:

Suzanne Marie
Wallster

Appellant

(Petitioner)

And

Miriam Erschbamer
and Robert Walker Bowe

Respondents

(Respondents)

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Mackenzie

The Honourable Mr. Justice Hinkson

On appeal from: Supreme
Court of British Columbia, November 26, 2009
(
Wallster v. Erschbamer,
2009 BCSC 1619, Vancouver Registry No. S096482)

Counsel for the Appellant:

W. Kosteckyj

Counsel for the Respondents:

J.L. Straith

Place and Date of Hearing:

Vancouver, British
  Columbia

January 10, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January 28, 2011

Written Reasons by:

The Honourable Madam Justice Newbury

Concurred in by:

The Honourable Mr. Justice Mackenzie

The Honourable Mr. Justice Hinkson

Reasons for Judgment of the Honourable
Madam Justice Newbury:

[1]

Ms. Wallster appeals an order of the Supreme Court of British Columbia
below which dismissed her petition for an order rescinding, varying or
cancelling a restrictive covenant and easement registered against her property in
favour of the respondents and their successors in title.  The order was made on
November 26, 2009 by Mr. Justice Masuhara for reasons indexed as 2009
BCSC 1619.

[2]

Ms. Wallster lives to the immediate east of the respondents in
North Vancouver.  She and her husband wished to build a new house that would
incorporate various energy-efficient features.  Beginning in 2008, they
prepared their plans and obtained building approval from the District of North
Vancouver, but they and their designer/contractor, Mr. Henderson, did not
review the terms of the restrictive covenant and easement until February 2009.
These charges had been registered against title to the appellants property
since 1972 and ran with the land.

[3]

The terms of the restrictive covenant limit the height  measured from
the height of the sill of a west-facing window of the respondents house that
overlooks the appellants property  of any dwelling or structure that may be
erected on that property.  Before the owner may commence construction of any such
dwelling or structure, the covenant requires that the written approval of the Grantee
therein, i.e., the respondents, be obtained.

[4]

The house Ms. Wallster planned to build would originally have set the
height of her roof approximately four feet higher than permitted by the
covenant.  After various discussions between the neighbours, the appellant
revised her plans at least twice, such that by the time of the hearing below, the
height being proposed by the appellant would exceed the height restriction by
only 16 inches.  An alternative plan prepared by Mr. Henderson
did
comply with the restrictive covenant, but it was problematic from the
appellants point of view: it would allow little natural light into the rear
side of her house and it would be necessary for ventilation of the first floor
to be carried out by mechanical means  something Ms. Wallster finds intolerable.
This design would also entail additional costs of approximately $100,000 for
the appellant.

[5]

The respondents refused to agree to the 16-inch modification Ms.
Wallster had proposed.  The chambers judge found that the respondents had
purchased their property because of the expansive views afforded from their
house.  In his words:

The evidence of Mr.
Bowe and Ms. Erschbamer establishes that the view from the Reference window
provides a wonderful view from their living room that covers a view of downtown
Vancouver between BC Place and Canada Place through to the southern part of
Vancouver Island and north to approximately Nanaimo. They entertain both
friends and business associates in this room. Further, their evidence is
supported by that of Mr. Krahn, a residential designer consulted by the
respondents, who supported the aesthetic value of a long distance view. He also
reinforced the conventional wisdom that a vista of an extensive nature has
financial value and that diminishing the view with a portion of a roof would
serve to impair that value. He says that the height of the house in the revised
design would diminish the view from the Reference window.  [At para. 19.]

[6]

The easement granted a corridor almost seven feet wide along the east
side of the appellants property, running its length between the two subject
lots, approximately 109 feet long.  It provided to the Grantee (again, the
respondents in this case) a free and uninterrupted right and easement, for
persons, animals and vehicles, through, along and over the appellants
property and the right to pass and re-pass over the said right and easement
for the purposes of ingress and egress to and from the said right and
easement.  The Grantor (now the appellant) covenanted to build and fence
and/or a wall to the satisfaction and discretion of the Grantee on the
easement, to clear the easement of any trees, growth or obstructions that might
interfere with the passing or repassing ... for the purpose of ingress and
egress to and from the said easement, and to use the easement for gardening
or planting of shrubs [or] trees that the Grantee might wish to have planted
on the easement.

[7]

A wall has been in place on the easement since before the respondents acquired
their property.  It runs north/south and extends about 13 feet back from the
southern property line, and encroaches about ten inches over the boundary of
the easement onto the appellants lot.  The respondents constructed a wall
adjoining and running perpendicular to the first wall.  The second wall blocks
access to the easement from Tamarack Road, thus (the appellant says)
restricting use of the easement to the respondents.  As the appellant states in
her petition, The Easement which is granted in favour of the Respondents is
entirely lodged and walled in such a manner that the Petitioner has no ability
to use such Lands.

[8]

Ms. Wallster brought her petition seeking cancellation or modification of
both encumbrances, pursuant to s. 35(2)(b) of the
Property Law Act
,
R.S.B.C. 1996, c. 377.  Section 35 provides:

35  (1)  A person
interested in land may apply to the Supreme Court for an order to modify or
cancel any of the following charges or interests against the land, whether
registered before or after this section comes into force:

(a)  an easement;

(b)  a land use contract;

(c)  a statutory right of way;

(d)  a statutory building or
statutory letting scheme;

(e)  a restrictive or other
covenant burdening the land or the owner;

(f)   a right to take the produce
of or part of the soil;

(g)  an
instrument by which minerals or timber or minerals and timber, being part of
the land, are granted, transferred, reserved or excepted.

(2)  The court
may make an order under subsection (1) on being satisfied that the application
is not premature in the circumstances, and that

(a)  because of
changes in the character of the land, the neighbourhood or other circumstances
the court considers material, the registered charge or interest is obsolete,

(b)
the reasonable
use of the land will be impeded, without practical benefit to others, if the
registered charge or interest is not modified or cancelled
,

(c)  the
persons who are or have been entitled to the benefit of the registered charge
or interest have expressly or impliedly agreed to it being modified or
cancelled,

(d)  modification
or cancellation will not injure the person entitled to the benefit of the
registered charge or interest, or

(e)  the registered instrument is
invalid, unenforceable or has expired, and its registration should be
cancelled.  [Emphasis added.]

[9]

The appellant submitted that her reasonable use of her property  the
construction of an energy-efficient home  will be impeded without practical
benefit to others if the modification or cancellation is not permitted.  The
chambers judge elaborated:

The essence of the petitioners
argument is that since the roof at the sought after height will obscure the
view only a minimal amount more than it would if the roof were built to the
height specified in the [restrictive covenant], there is no practical benefit
to the respondents to maintain the height restriction. In support of this
position, the petitioner relies upon the affidavits of Mr. Henderson and view
images prepared by Mr. Humney, a designer. Mr. Henderson also deposes that
alternatives to the design to bring the house within compliance of the [restrictive
covenant], have been considered, but that they would be at great expense, or in
the case of blasting bedrock to build up from a lower level, would also not be
permissible. He further deposes that the excess height is required as the
passive ventilation design requires ceiling fans on the upper floor for air
flow. In the absence of a modification of the height restriction, mechanical
ventilation equipment on the exterior of the building would be required which
would create ambient noise. Ms. Wallster says that she cannot tolerate the
effects of air conditioning. The other flaw that Mr. Henderson identifies in
the design without the height restriction being relaxed is that there would be
little light permitted into the rear of the house where the master and second
bedrooms are located. Mr. Henderson notes that this area of the house is
currently dark as there is little space between the respondents and
petitioners houses, only 14 feet.  [At para. 10.]

[10]

Masuhara J. noted, correctly, that the appellant had the burden of
establishing that there was no practical benefit to others in keeping the
height restriction in place, and that both subjective and objective factors
could be taken into account in considering the question of practical benefit to
others.  (See
Gubbels v. Anderson
(C.A. Vic. Reg., #V02171, June
16, 1995) at paras. 23-5.)  After noting the aesthetic and financial value of
the respondents view (see para. 19 quoted above), he rejected the appellants contention
that the roof height she sought would impede the view only slightly and that
there were better views from other places in the respondents home.  In his
analysis, the focus of the restrictive covenant was on the window specified
therein and the practical benefits derived
at that location
.  The chambers
judge found no merit in the argument that the sought after roof height would
only impede slightly the view from a roof built to the height permitted [by the
restrictive covenant], given that a practical benefit exists.  (Para. 20.)

[11]

The chambers judge went on to observe that the additional height sought
by Ms. Wallster was not necessary to meet building code

requirements,
although there was evidence from Mr. Henderson that it was most desirable.
The judge continued:

... The driver of the roof height
is the petitioners desire for passive ventilation in the house, and that
ceiling fans to permit this are required and apparently necessitate the greater
height. It would also provide for additional natural light from glass panels
which would be installed at the top of the walls. However, Mr. Henderson has
acknowledged that mechanical ventilation could be used to achieve the
ventilation requirements without increasing the roof height. It is only the
petitioners preference for passive ventilation that necessitates the higher
roof level. While Mr. Henderson deposes that the alternative of digging out the
foundation and having the structure built up from a lower level is not feasible
because this would require blasting, which in his view would not be permitted
because of the proximity to the respondents foundation and that, in any event,
such a task would require the total demolition of the existing structure and
re-servicing of the lot at great expense,
this is not a factor that is
relevant to the issue of a practical benefit
.  [Para. 21; emphasis added.]

In all the circumstances, he concluded that the
appellant had failed to demonstrate [the] absence of a practical benefit to
others arising from the restrictive covenant.  He also found that none of the
other paras. of s. 35(2) was applicable.

[12]

The chambers judge noted that the parties dispute concerning the
easement was secondary to the dispute over the height restriction.  However,
he found that the easement also provided a practical benefit to the respondents
with respect to light, air and access; that the construction of the wall along
the easement had been expressly contemplated by its terms; that the easement
facilitated the need for light and air in terms of space; and that if any
change were to be considered in terms of the removal of either wall or part
thereof, municipal or other public approvals would be required under
s. 35(4)(a) of the Act.  Such approvals had not been sought.

[13]

In the result, although the Court acknowledged that it was unfortunate
that the appellant and her husband found themselves in a difficult position
regarding their home redesign, the petition was dismissed.

On
Appeal

[14]

In this court, Ms. Wallster asserts that the chambers judge erred
in failing to find that the reasonable use of her property would be impeded
without practical benefit to others if the restrictive covenant and easement
were not modified.  In essence, it is said that in referring to what was
necessary to meet building code requirements and for ventilation purposes, the
chambers judge required the appellant to demonstrate necessity or unreasonable
hardship proving that her proposal constituted a reasonable use of her
property.  In insisting on a reasonable alternative that would not require
the modification of the restrictive covenant, it is said the Court raised the
hurdle well above what was required by the statute and case law.

[15]

In the appellants submission, the chambers judge should instead have
asked only whether the sought-after modification constituted a reasonable use
of land  a question that could only be answered in the affirmative.  Then, it
is said, he should have asked himself whether, if the modification were not
permitted, the appellants use of her land would have been impeded without
practical benefit to others.  On this view, the appellant submits, the
question was not whether the restrictive covenant provided a practical benefit
to Ms. Erschbamer and Mr. Bowe, but rather
whether a denial of the
16-inch modification
provided a practical benefit to them.  (My emphasis.)
Since the respondents view was going to be impeded, at least on the horizontal
plane, in any event by the construction of the appellants house, she contends
that a roof design that would exceed the restriction by only 16 inches would
affect the respondents only minimally, and that there was no practical
benefit in
denying a 16 inch modification
given that the current view
would be lost in any event.

[16]

I must say that I do not read the Courts comments regarding the
necessity, or lack of necessity, for natural ventilation or for building codes
to be complied with, as material to the question of reasonable use, the first
branch of s. 35(2)(b).  I read these observations and others regarding the
possibility of excavating further, as a recounting of the evidence given by Mr.
Henderson.  In the end, the chambers judge said, this was not relevant to the
issue of practical benefit  the second branch of s. 35(2)(b).  (See para. 21,
quoted above.)  I see no suggestion in the reasons that the appellants
proposed use of her land to build a residence would not have been a reasonable
use.

[17]

Nor do I agree that the chambers judge asked the wrong question on the
issue of reasonable use.  While s. 35(2)(b) is not worded felicitously, the
question for the court seems clear enough: if the encumbrance is not modified,
will the reasonable use of the appellants property be impeded without
practical benefit to, in this case, the respondents?  Put another way, does the
encumbrance as it now exists provide a practical benefit to the respondents?
This is not the same as asking whether the denial of a specific modification
will provide a practical benefit, although the difference is very subtle.

[18]

The appellant further argues that the application of s. 35(2)(b) of
the
Property Law Act
entails the balancing of the impediments that
will be suffered by the petitioner if the restrictive covenant is not cancelled
or modified, against the benefits enjoyed by the respondents and others if the
status
quo
is maintained.  Counsel drew our attention to
Winmark Capital Inc.
v. Galiano Island and Local Trust Committee,
2004 BCSC 1754, where the Court
said this about s. 35(2)(b):

This subsection requires some balancing of the impediments
suffered by the petitioner against the benefits gained by the respondents and
others.  In saying this, I recognize that this is not a mere balance of
convenience test.  The petitioner must show a very substantial balance in
its favour before a covenant will be cancelled.

In the present case, I am unable
to say that there is a significant impediment to the petitioners current use
of the land as a result of the covenant ...  [At paras. 42-3.]

[19]

I am not persuaded that s. 35(2)(b) should be approached as a
balancing exercise.  As I read the provision, the petitioner (Ms. Wallster
in this case) must show that the reasonable use of the land (here, the erection
of her new house, which in my view is obviously a reasonable use) will be
impeded without practical benefit unless the petition is granted  in other
words, that the continuation of the covenant or other charge provides
no
practical benefit.  If this burden is not met, the petition should not be granted.
It is clear that practical benefit can include subjective factors such as
neighbourhood aesthetics (see
417489 B.C. Ltd. v. Scana Holdings Ltd.
(1997)
B.C.J. No. 2408, at paras. 72-4), and to that degree s. 35(2) may involve
the exercise or some discretion by the court.  It may also be the case that a
truly minimal benefit  for example, the preservation of one inch of the
height restriction in this case  could also be disregarded on the principle of
de minimis non curat lex.
But that principle was not engaged in this
case, where there was evidence not only from the respondents but also from real
estate professionals as to the value, in both subjective and objective terms,
of preserving the respondents view as is.  Various photographs and projections
of the comparative views from the respondents house with and without the 16-inch
modification supported the chambers judges conclusion that they enjoy a
practical benefit from the height restriction.

[20]

Turning to the easement, the appellant submits that although the
original purpose thereof was to provide access to the respondents dwelling (via
a side door near the middle of the side of the house) from Tamarack Road, that
purpose had been completely frustrated by the construction of the wall perpendicular
to the easement corridor.  They suggest that the easement be reduced to a width
of about three feet and that it extend only as far as the side door, i.e., the
minimum necessary to accomplish what they say is the primary purpose of the
easement  providing ingress and egress to the respondents house.

[21]

Even if the appellant is correct as to the primary purpose of the
easement, it seems to me that any narrowing of its width or length is almost
automatically a diminution of the practical benefit it affords to the
respondents and will afford to future owners of their property.  The chambers
judge found that the easement facilitated the need for light and air as well as
access, and that the market value of the property would surely reflect the
existence of the easement and the restrictive covenant.  I see no basis on
which we could interfere with this conclusion.

[22]

I would therefore dismiss the appeal.

The
Honourable Madam Justice Newbury

I agree:

The
Honourable Mr. Justice Mackenzie

I agree:

The Honourable Mr. Justice
Hinkson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Falati v. Smith,

2011 BCCA 45

Date: 20110202

Docket: CA038069

Between:

Hourash Falati

Respondent

(Plaintiff)

And

Marion May Smith

Appellant

(Defendant)

Before:

The Honourable Mr. Justice K. Smith

The Honourable Madam Justice Bennett

The Honourable Madam Justice Garson

On appeal from: Supreme
Court of British Columbia, April 7, 2010
(
Falati v. Smith
, 2010 BCSC 465, Vancouver Registry M074325)

Oral Reasons for Judgment

Counsel for the Appellant:

A.B. Hudson
P.M. Arvisais

Counsel for the Respondent:

D.M. Mah

Place and Date of Hearing:

Vancouver, British
  Columbia

January 27, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

February 2, 2011

[1]

BENNETT J.A.
: Mr. Falati, the respondent, was struck by a motor
vehicle driven by Ms. Smith, the appellant, on February 13, 2007. He suffered a
crush-type fracture to his left tibia and a fracture of the fibula. He was
hospitalized, underwent surgery, and after discharge from hospital, underwent a
course of physiotherapy. The trial judge found that there was a possibility
that he would suffer a permanent disability associated with the injury.

[2]

The trial judge made the following awards:

·

Non-pecuniary damages

$ 85,000.00

·

Gross Past Loss of Earning Capacity:

$180,000.00

·

Future Loss of Earning Capacity:

$ 75,000.00

·

Special Damages:

$   1,102.44

[3]

The appellant appeals the award for gross past loss of earning capacity
and the future loss of earning capacity.

Facts

[4]

Mr. Falati had three potential sources of income. At the time of the
accident he had a photography business, from which he had earned $40,000 during
2006. His father was in negotiations to purchase a café. The closing date was
set for April 2007, and Mr. Falati planned to be the manager of the café,
earning $5,000 per month. Mr. Falati was also involved in developing a
restaurant in Yaletown with another gentleman, who was the financier. Mr.
Falati was to manage this restaurant earning $6,000 per month.

[5]

The trial judge concluded that Mr. Falati would not be able to perform
both restaurant jobs, and eventually another manager would have to be hired for
one of the restaurants had both proceeded.

[6]

The café purchase did not complete. The trial judge concluded that the
failure of this business was causally connected to the accident, a finding
which on appeal is not disputed by Ms. Smith. The financier eventually pulled
out of the Yaletown restaurant. The trial judge concluded that he would have
pulled out regardless of the accident, and found that any delay in the opening
of the restaurant was not causally connected to the accident.

[7]

As noted, Mr. Falatis father was going to invest in the café. When that
deal collapsed, and the financier for the Yaletown restaurant withdrew, his
father invested his money into the Yaletown restaurant. The trial judge found
that the father would not have had the money to invest in the Yaletown
restaurant if he had purchased the café. Mr. Falati invested $300,000 of his
own money in the Yaletown restaurant, derived from the sale of his condominium.
Mr. Falati began receiving $6,000 per month around June 2008, initially for his
work setting up the restaurant and then for his work at the restaurant. The
restaurant opened for business in December 2008. Mr. Falati also holds a 40%
ownership in the restaurant with his father. Mr. Falati was unable to perform
all of the functions of manager. Mr. Canuel had to be hired to manage the
restaurant. The trial judge found that there was a causal connection between
the accident and the necessity to hire a manager. He also considered the fact
that the manager, who was also a sommelier, added some benefit to the business.

[8]

The trial judge found that Mr. Falatis injuries have continued to place
some limitations on his capacity to earn income from his photography. Mr.
Falati has not earned any income from photography since the accident. The trial
judge accepted Mr. Falatis evidence that if he was working at both of these
other jobs, he would earn around $10,000 per year from his photography. The
trial judge concluded that Mr. Falati would not be able to work at both
restaurants but would be able to augment his income through photography.

[9]

The trial judge found that there was a possibility that Mr. Falati would
suffer from a permanent disability in relation to his ankle. The evidence from
Mr. Canuel was that Mr. Falati had difficulty performing physical tasks at the
restaurant, which would be considered routine for a manager.

Standard of Review

[10]

The standard of review is well-established. An appellate court cannot
interfere with a trial judges findings of fact unless there is a palpable and
overriding error. The trial judge must have committed a manifest error, ignored
conclusive or relevant evidence, has misunderstood the evidence, or drawn
erroneous conclusions from the evidence before an appeal court can intervene. See:
Toneguzzo-Norvell
(Guardian ad litem of) v Burnaby Hospital,
[1994] 1 S.C.R. 114 at para. 16.

Past Loss of Earning Capacity

[11]

The appellant submits that the trial judge must have double counted the
income from the two restaurant positions when he assessed $180,000 for past
wage loss. Her submission is that $180,000 divided by 38 months (from the time
of the accident until the time of the judgment) approximates what Mr. Falati
would have earned from managing the café. The appellant submits that the trial
judge must not have taken into account and deducted the money earned by Mr.
Falati at the Yaletown restaurant.

[12]

The trial judge found that Mr. Falati would have worked at the café
earning $5,000 per month, but for the accident. The café deal was to be
finalized in early April 2007. Mr. Falati began to earn income from the
Yaletown restaurant in mid-2008. Therefore there was a 14 month period during
which Mr. Falati earned no income as a result of the accident. During this 14
month period his earnings from the café would have been in the range of $70,000.
Once Mr. Falati began earning income of $6,000 per month, he had to hire a
manager because he was physically unable to perform the job. Mr. Canuel has
been paid $5,000 per month since December 2008. As noted, Mr. Falati has a 40%
interest in the business. Thus, there is evidence that the business would have
been more profitable had it not had to retain Mr. Canuel. In addition, a
contingency taken into account by the trial judge is that Mr. Canuel is also an
experienced sommelier, and would add some benefit to the business. Finally, the
trial judge had the evidence of what Mr. Falati earned from his photography
business. Mr. Falati estimated that if he was working at both restaurants, he
could earn an additional $10,000 from his photography business. The trial judge
concluded that it was unreasonable for Mr. Falati to successfully work at two restaurant
managerial positions. However, he found that Mr. Falati would be able to
supplement his income through his photography business. The trial judge could
reasonably conclude that if Mr. Falati was only working at one job, he could
earn additional income from his photography, taking into account that he earned
$40,000 annually from this business before the accident.

[13]

Therefore, there was evidence before the trial judge from which he could
reasonably conclude that the past wage loss of Mr. Falati was in the range of
$180,000.  The assessment for loss of earning capacity is not a mathematical
calculation. It is what it is called: an assessment. The trial judge considered
a number of hypothetical situations which could reasonably arise from the
evidence including those he considered contingencies, which might affect the
assessment. In my respectful view, there were available routes in the evidence
to his conclusion without double counting income as submitted by the appellant.

[14]

In my view, the trial judge did not commit an overriding or palpable
error when he made his assessment of past wage loss.

Future Loss of Earning Capacity

[15]

The appellant submitted that there was no evidence to support the award
of future wage loss. However, when asked whether the possibility of a permanent
ankle injury would attract such an award, counsel fairly conceded that it
would, given that Mr. Falatis current employment requires physical activity
which he is not able to perform fully.

[16]

In addition, there is evidence of a reasonable possibility that Mr.
Falati will be limited in his ability to earn income from his photography
business.

[17]

The trial judges assessment of $75,000 represents a salary of less than
a year from his work as a restaurant manager and his work as a photographer. In
my respectful view, this is a more than reasonable assessment taking into
account, as the trial judge did, the evidence and the potential contingencies.

[18]

I would dismiss the appeal.

[19]

K. SMITH J.A.
: I agree.

[20]

GARSON J.A.
: I agree.

[21]

K. SMITH J.A.
: The appeal is dismissed.

The Honourable Madam Justice Bennett