COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Abakhan
          v. Halpen,

2008
          BCCA 29

Date: 20080123

Docket: CA034664

Between:

George
    Abakhan

Appellant

(
Respondent on Cross Appeal
)

(Plaintiff)

And

Michael
    Halpen and Dwayne Diehl

Respondents

(
Appellants on Cross Appeal
)

(Defendants)

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Mr. Justice Hall

The
          Honourable Madam Justice Saunders

K.
          Wedel

Counsel for the Appellant

D.J.
          Barker

Counsel for the Respondents

Place
          and Date of Hearing:

Vancouver, British Columbia

October 16, 2007

Place
          and Date of Judgment:

Vancouver, British Columbia

January 23, 2008

Written
          Reasons by
:

The
          Honourable Madam Justice Saunders

Concurred
          in by:

The
          Honourable Chief Justice Finch

The
          Honourable Mr. Justice Hall

Reasons
    for Judgment of the Honourable Madam Justice Saunders:

[1]

This appeal concerns the obligations of co-guarantors.  The appellant
    Mr. Abakhan commenced this action against his two co-guarantors, the respondents
    Mr. Halpen and Mr. Diehl, to recover two sums.  The first sum is an amount
    in contribution to monies Mr. Abakhan said he paid on his guarantee to reduce
    the debt owing to the creditor bank by the principal debtors.  The second
    sum is the amount of the remnant debt he says he is owed as an assignee of
    the debt and security the bank held relating to the debt.

[2]

In his reasons for judgment (2006 BCSC 1979) the learned trial judge
    ordered each respondent to pay Mr. Abakhan one-half the difference between
    the total amount paid by Mr. Abakhan to the bank and Mr. Abakhans proportionate
    share of the original debt.  By the order, the trial judge declined Mr. Abakhans
    claim on the remnant debt except to the extent of including in his calculation
    of the total amount paid by Mr. Abakhan to the bank the modest sum he paid
    as consideration for the assignment.

[3]

Mr. Abakhan appeals, saying he is entitled to recover from the respondents
    the entire amount of the remnant debt, in addition to the amounts ordered
    by the trial judge as contribution to the monies he paid on the guarantee.
    The respondents cross appeal, saying that the trial judge erred in finding
    that Mr. Abakhan had actually paid a sum of $225,000 to the bank on his guarantee.

[4]

The claims arise from financial arrangements between three companies
    and the Bank of Nova Scotia.  Mr. Abakhan, Mr. Halpen and Mr. Diehl guaranteed
    the debts of the companies to the bank by joint and several guarantees.

[5]

Monies became owing by the companies to the Bank such that, in 2002,
    the Bank issued demands upon the companies.  This demand was followed in October
    2003 by demands upon each of the co-guarantors for principal and interest
    owing by the companies, then in the amount of $309,568.63.

[6]

Mr. Halpen and Mr. Diehl made no payment to the Bank in response to
    the demands.  In June 2004, Mr. Abakhan made an arrangement with the Bank
    settling its claim against him for $225,000.  The Bank reflected a payment
    of that amount in a spreadsheet showing a credit of that amount to the debts
    of the three companies.  The payment was financed by an agreement between
    the Bank and Mr. Abakhan that he would pay 11 equal annual payments.  Six
    months after this arrangement was concluded, Mr. Abakhan paid the Bank $8,000
    in exchange for an assignment of the debt and the security held by the bank
    relating to the debt, including the promissory notes and all the guarantees
    of the three co-guarantors.  The amount of the remnant debt owing to the Bank
    at that time was $82,307.55.

[7]

In the action Mr. Abakhan claimed for contribution to the $225,000
    he said had been paid on the companies debt, as well as the amount of the
    remnant debt, $82,307.55, plus interest.  In defence, the respondents Mr.
    Halpen and Mr. Diehl denied that Mr. Abakhan had paid $225,000 on account
    of the debts, saying that because Mr. Abakhan had agreed with the Bank to
    pay on a schedule of 11 equal annual payments, they were not obliged to contribute
    to him monies he was not yet out of pocket.  Second, they contended that Mr.
    Abakhan was not able to collect the remnant debt from them because their exposure
    to Mr. Abakhan was limited by s. 34 of the
Law and Equity Act
,
    R.S.B.C., 1996, c. 253 to contribution to amounts that Mr. Abakhan had paid
    out as a guarantor over and above his proportionate share of the debt.

[8]

The trial judge found that Mr. Abakhan had paid $225,000 of the companies
    debt and, joining that payment to the consideration for the assignment, held
    that the amount paid by Mr. Abakhan on account of the debt was $233,000.
    Referring to s. 34(3) of the
Law and Equity Act
, he concluded
    that the right to contribution related only to the payments over and above
    Mr. Abakhans proportionate share of the debt.  Thus he subtracted $103,189.54
    (one-third of the amount of debt demanded of them by the Bank), from the amount
    paid by Mr. Abakhan ($233,000), divided the balance equally and ordered Mr.
    Halpen and Mr. Diehl to each pay Mr. Abakhan $64,905 in contribution.  Further,
    he held that Mr. Abakhan was not entitled to judgment on the assignment of
    the remnant debt because s. 34 of the
Law and Equity Act
denied
    him recovery based upon an assignment.

[9]

In this appeal, Mr. Abakhan challenges the treatment of the remnant
    debt.  He says that the amount of $8,000 that he paid as consideration for
    the assignment was not payment under the guarantee, and rather should redound
    to his benefit through a judgment in his favour against Mr. Halpen and Mr.
    Diehl for the amount of the remnant debt, in addition to the judgment against
    them for contribution (based upon the amount of $225,000 he paid on the guarantee).
    If successful, and ignoring interest, Mr. Abakhan will obtain judgment against
    each of Mr. Halpen and Mr. Diehl for $60,905 as contribution to his payment
    under the guarantee ($225,000 - $103,189 ÷ 2), and judgment against each of
    them on the remnant debt for $41,154 ($82,307.55 ÷ 2), for total recovery
    by him of $204,118.  Considering that he paid $233,000, this would put Mr.
    Abakhan out of pocket approximately $29,000 in respect to the transactions
    in issue, and Mr. Halpen and Mr. Diehl each out of pocket about $102,000.

[10]

By cross-appeal, Mr. Halpen and Mr. Diehl challenge the characterization
    of the $225,000 transaction, saying the companies debts have not been reduced
    except by such annual payments as have actually been made.

The Appeal

[11]

Mr. Abakhan contends that the trial judge erred in his analysis and
    application of s. 34(3) of the
Law and Equity Act
, and so erred
    in failing to recognize the separate and unrelated nature of his claim under
    the assignment of the remnant debt.

[12]

Section 34 of the
Law and Equity Act
provides:

34
(1)    Every person who, being surety for the debt or
    duty of another or being liable with another for any debt or duty, pays the
    debt or performs the duty is entitled to have assigned to him or her or to
    a trustee for him or her every judgment, specialty or other security that
    is held by the creditor in respect of the debt or duty, whether the judgment,
    specialty or other security is or is not deemed at law to have been satisfied
    by the payment of the debt or performance of the duty.

(2)
    The person who has paid the debt or performed the duty is entitled to stand
    in the place of the creditor and to use all the remedies and, if necessary
    and on a proper indemnity, to use the name of the creditor in any action or
    other proceeding at law or in equity, in order to obtain from the principal
    debtor, or a co-surety, co-contractor or co-debtor indemnification for the
    advances made and loss sustained by the person, and the payment or performance
    made by the surety is not pleadable in bar of any action or other proceeding
    by him or her.

(3)
A co-surety
, co-contractor or co-debtor
is not entitled to recover
    from any other co-surety
, co-contractor or co-debtor, by the means referred
    to in subsections (1) and (2),
more than the just proportion
    to which, as between those parties themselves, the other co-surety
, co-contractor
    or co-debtor
is justly liable
.

[Emphasis added.]

[13]

In his reasons for judgment the trial judge held that Mr. Abakhan had
    paid $225,000 on the guarantee and that the two amounts paid by him should
    be viewed as a global payment:

[21]
    In my view, it would be an error to regard the plaintiffs payment towards
    the principal debt of $225,000 on June 16, 2004, and his payment of $8,000
    for an assignment of the Bank of Nova Scotia position as against the principal
    debtors and the guarantors on December 15, 2004, as separate transactions.
    On the basis of the evidence before me, I conclude that the plaintiffs payment
    of $225,000 on June 16, 2004, represents an actual payment of that sum which
    had the effect of reducing the principal debt by that amount.

[14]

The judge then addressed the effect of the assignment upon Mr. Abakhans
    relationship to his other two co-guarantors:

[24]
    On the issue of the effect of the assignment, I am not satisfied that by purchasing
    an assignment of the outstanding principal debt six months after negotiating
    a settlement of his own liability to the bank for the principal debt takes
    the plaintiff outside the scope of s. 34.  What was at issue in
North
    American v. F.B.D.B.

[(1989), 58 D.L.R. (4
th
) 505 (B.C.C.A.)],
    the decision relied on by the plaintiff, was whether a creditor of the principal
    debtor could improve its position by taking an assignment from another creditor
    which had priority even though the creditor taking the assignment was, as
    well, a guarantor of some of the principal debtors liability.  In holding
    that s. 30 did not apply and the plaintiff was not limited to recovering from
    Sleeping Giant only what it paid on the principal debt ($60,000), but could
    recover consistent with the assigned priority agreement between FBDB and BCDC
    60 percent of its payment of $205,000 from Sleeping Giant for Sleeping Giants
    assets, the Court of Appeal ruled, in effect, the plaintiff was not pursuing
    indemnification, but was pursuing recovery of its shareholders loan to Sleeping
    Giant.

[25]
In the present case, the plaintiffs relationship with the principal debtors
    was as a guarantor, not a creditor, and his relationship with the defendants
    was a co-guarantor even after he settled his liability to the bank.
    At all material times, he retained the right of a co-guarantor to

seek
    contribution from the defendants for any amount he paid in excess of his proportionate
    share and to recover against the principal debtors
.  This case, therefore,
    does not follow the exception identified in the
North American Leasing
decision in which it was not established the plaintiff entered the transaction
    as a guarantor because he was entering it as a creditor.
Although
    the plaintiff argues that since he had been released by the bank in June of
    2004 and therefore was no longer a guarantor vis-à-vis the bank, in my view,
    that does not alter his status as a co-guarantor within the meaning of s.
    34.
Section 34 is clearly concerned with protecting a co-guarantor
    against being liable to pay another co-guarantor more than the just proportion
    to which, as between those parties themselves, the former guarantor is justly
    liable.

[26]
    In his second amended statement of claim dated October 16, 2006, the plaintiff
    specifically relied on s. 34(3) of the
Law and Equity Act
in seeking
    a contribution from the defendants in relation to his payment of $225,000
    against the principal debt.
It is not the plaintiffs position vis-à-vis
    the creditor which determines his status under s. 34(3).  It is his status
    vis-à-vis his co-guarantors.
In the present case, his status brings
    him squarely within s. 34 which limits his right to a contribution from the
    defendants in keeping with that section.

[Emphasis added.]

[15]

Having rejected the claim for the remnant debt, the judge then addressed
    the amount of contribution to which Mr. Abakhan was entitled:

[29]
    The question as I see it is in relation to in what amount are the proportionate
    shares of the co-guarantors to be determined.  Is it the sum of $309,568.63,
    which was outstanding when the plaintiff reduced the debt by $225,000 on June
    16th, 2004, or is it the sum of $233,000, which the plaintiff has paid in
    total after paying $8,000 on December 15th, 2004, for an assignment of the
    debt and the security documents including the guarantees?  As I have
    determined that the plaintiff cannot enforce the assigned debt against the
    co-guarantors beyond the limits imposed by s. 34(3), could the defendants
    ever be called upon to pay more than their proportionate share of $233,000?
    If not, then their respective contributions should be based on a one-third
    share of that amount.  If so, then it should be based on a one-half share
    of the amount by which the plaintiffs contribution exceeded his proportionate
    share of the principal debt.

[30]
    In my view, this is not a case where the debt has been extinguished.
    What has happened is that the plaintiff has settled his liability by paying
    $225,000 down on the debt, and has purchased an assignment of the balance
    of the debt remaining.
The fact that s. 34(3) prevents him from pursuing
    the defendants for the full value of the remaining debt does not mean that
    the defendants could never be called upon to pay that amount if the plaintiff
    assigns it to some third party
.  In my view, therefore, the appropriate
    disposition is to order that the defendants each pay to the plaintiff $64,905
    representing one half of the difference between what the plaintiff paid to
    reduce the debt ($233,000) and his proportionate share of the original debt,
    of $309,568.63 ($103,189.54), being the sum of $129,810.46.

[Emphasis added.]

[16]

Two questions are entwined in the appeal: the nature of the relationship
    between Mr. Abakhan and his two co-guarantors, Mr. Halpen and Mr. Diehl, after
    Mr. Abakhan settled with the Bank and subsequently acquired the assignment;
    and the potential liability of the co-guarantors to a subsequent assignee
    of the remnant debt.

[17]

For the reasons that follow, I conclude respectfully that the trial
    judge was correct in concluding that the settlement with the Bank did not
    alter the nature of the relationship between the then co-guarantors, but incorrect
    in concluding that Mr. Halpen and Mr. Diehl remain vulnerable to a call on
    the remnant debt from a third party.

[18]

Both of these conclusions derive from the essential character of the
    original relationship between the parties, a character first laid out in very
    old authority which has not been altered by recent jurisprudence.

[19]

A guarantee establishes a relationship of principal and surety between
    the original debtor and the guarantor.  The terms guarantor and surety may
    be used interchangeably.  The word surety is used in s. 34(3) of the
Law
    and Equity Act
replicated above, the reasons for judgment of the trial
    judge, and the submissions of the parties refer in the main to the parties
    as co-guarantors.  The distinction in terminology makes no difference.

[20]

The premise of Mr. Abakhans submission is that the temporal sequence
    by which he first settled the Banks claim against him and then took an assignment
    of the debt instruments made him a creditor of Mr. Halpen and Mr. Diehl.
    In my view, this submission is contrary to the weight of authority, the analysis
    of learned authors on the obligations of co-sureties, and the premise of the
    right of contribution.  For example, Henry Anselm de Colyar, in his
A Treatise
    on the Law of Guarantees and of Principal and Surety,
3
rd
ed.
    (London: Butterworths, 1897) observes at p. 341-42:

The
    doctrine of contribution, as has been remarked before, originally was only
    a doctrine of the courts of equity, and, as an equitable doctrine, it is not
    founded
in contract
, but is the result of
general equity
, on
    the ground of equality of burden and benefit.  This independent equity seems
    to arise from the co-sureties towards each other,
at the inception of the
    contract
, so that, each of them being supposed to be equally benefited
    by the credit given to the principal debtor, is bound to bear an equal share
    of the burden which is the consideration for such credit.

[Emphasis in original.]

And,
    at p. 360, he observes as to the equal sharing of benefit:

[S]ureties
    are not only entitled to contribution from each other for monies paid in discharge
    of their joint liabilities for the principal,
but they are also entitled
    to the benefit of all securities which have been taken by any one of them
    to indemnify himself against such liabilities
.

[Emphasis added.]

[21]

More recently David G.M. Marks and Gabriel S. Moss, in
Rowlatt on
    the Law of Principal and Surety,
4
th
ed. (London: Sweet &
    Maxwell, 1982) observed at p. 151:

A
    suretys right to use securities given to the creditor by the principal is
    limited to the recoupment of the suretys indemnity against the principal.
    If the surety makes terms with the creditor and settles the debt for a lesser
    sum, and then obtains an assignment of the creditors securities, he cannot
    recover more from the principal than he has actually paid [citing
Reed
    v. Norris
(1837), 6 L.J. Ch. 197 at 198, 2 My. & Cr. 361 at p. 374-376].

And
    at p. 152-3:

Where
    a co-surety pays the debt, or more than his proportion of it, and the principal
    is insolvent, the co-surety is entitled to contribution from his fellow co-sureties
    to equalise the burden.

[
    . . . ]

The
    underlying principle of equity is that the creditors remedies against the
    co-sureties should be applied so as to apportion the burden rateably.  If
    the remedies have been applied otherwise the court will correct the inequity
    as between the co-sureties.

[22]

Kevin P. McGuinness, in his
The Law of Guarantee,
2
nd
ed. (Toronto: Carswell, 1996) addressed the enjoyment of a benefit obtained
    by a co-surety from the principal in respect to the debt, at p. 516:

A
    surety who obtains a counter-security from the principal to which he may look
    for indemnification in the event that he is called upon to pay must hold that
    security for the benefit of all his co-sureties.  By extension, the surety
    must bring into the hotch-pot for distribution among all co-sureties any amount
    which he receives from the realization of the security, even in cases where
    the surety entered into his commitment on the express understanding with the
    debtor that the security would be for his own exclusive benefit.
The right
    to share in a security is that of the co-sureties and therefore is not liable
    to be defeated by any agreement between one of their number and the principal.
This right is derived from the equitable principal that equality of treatment
    is equitable and that sureties should in general bear the burden of the guarantee
    in equal proportions, and also upon the principal that one co-surety must
    not withdraw something from the estate of the debtor for his exclusive benefit.

[Emphasis added.]

[23]

While these passages do not address the precise circumstances before
    us, their general theme is to the effect that one surety may not act to the
    disadvantage of an equitable sharing of the debt as between the sureties and,
    where, as here, guarantees of all three co-guarantors are assigned to one
    guarantor, the two non-holding guarantors are entitled to share the benefit
    of all the security.

[24]

It is said on behalf of Mr. Abakhan that the assignment of the debt
    permits him to enforce the debt as a creditor.  I do not agree.  Whatever
    arrangement was made between the creditor and Mr. Abakhan did not alter the
    relationship between the co-guarantors.  The legal expectation when the guarantees
    were given was that the burden of the debt guaranteed would be equalized.
    As I have explained above, in the event Mr. Abakhan obtains judgment for the
    amount of the remnant debt, that burden would not be equal  Mr. Abakhan would
    be out of pocket significantly less than either Mr. Halpen or Mr. Diehl.

[25]

The case of
North American Leasing Ltd. v. Federal Business Development
    Bank
(1989), 58 D.L.R. (4
th
) 505, 37 B.C.L.R. (2d) 216
    (C.A.), referred to in the passage from the reasons for judgment replicated
    above, is relied upon by Mr. Abakhan as establishing his entitlement to judgment
    on the assignment.  But
North American Leasing
was a different
    case.  In
North American Leasing
a creditor became a co-guarantor,
    and then improved its position as a creditor.  The case concerned a contest
    between creditors and not co-guarantors, and is simply an example of a case
    in which a creditor successfully improved its position as a creditor.  The
    words of Lord Halsbury in
Quinn v. Leathem
[1901] A.C. 495 at
    506 are apt: . . . a case is only an authority for what it actually decides.

[26]

It is said for Mr. Abakhan that American jurisprudence favours his
    claim, particularly
Fowler v. Strickland
, 107 Mass. 552 (S.J.C.
    1871) and
Manuel v. Hicks Iron Works,
216 Cal. 459, 14 P.2d
    756 (Sup. Ct. 1932).  In
Fowler
the plaintiff payee of a note,
    endorsed the note and then permitted the payor to negotiate it with a third
    party for its full amount.  Upon learning that the payor would not be able
    to meet the note at maturity, the plaintiff purchased the note from the third
    party creditor for a reduced value and successfully sued the payor of the
    note for its face value.  In my view,
Fowler
is unlike the circumstances
    before us as it does not concern competing claims in equity of co-guarantors
    or their relationship.  In
Manuel
a co-guarantor purchased the
    promissory note establishing the debt, as well as the guarantee.  He then
    sued the debtor and his co-guarantors, and obtained judgment against each
    of them (recognizing that he was obliged in that action to pay his proportionate
    share of the note).  On the issue as to the applicable limitation period the
    co-guarantors argued unsuccessfully that the plaintiffs claim was as a guarantor
    for contribution, and not as a creditor.  While
Manuel
on its
    face appears to support Mr. Abakhan in his submission that he was entitled
    to sue as an assignee, the case does not address the issue of equal sharing
    of the benefit of security obtained by a co-guarantor, and I would decline
    to follow it for the proposition advanced.  I prefer instead the approach
    taken in
Merchants Discount Co. v. Federal Street Corp.
,

300 Mass. 167, 14 N.E.2d  155 (S.J.C. 1937).  In
Merchants Discount
    Co.
the Supreme Judicial Court of Massachusetts held that a co-guarantor
    who acquired the guaranteed note upon part payment of the debt could not enforce
    the note against the co-guarantors for its full face value.

[27]

I draw two conclusions.  First, Mr. Abakhan was bound to act in the
    interests of all guarantors in relation to the assigned debt instruments and
    therefore may not re-assign them to the prejudice of his co-guarantors.  This
    means, contrary to the conclusion of the trial judge, that the advantage that
    Mr. Abakhan gained by the settlement and assignment of the debt and security
    was gained for all three.  Second, Mr. Abakhan is not able to seek from his
    co-guarantors more than their proportionate share of the monies he paid to
    corral the debt from the Bank.

[28]

Just as the Court of Chancery in
Reed v. Norris
held
    that a surety cannot settle with a creditor and, instead of treating the settlement
    as payment of the debt, treat it as an assignment of the whole debt to himself,
    Mr. Abakhan can not settle with the Bank, obtain an assignment of the remnant
    debt and enforce it against his co-guarantors.

[29]

I am bolstered in this conclusion by the mischief that may be worked
    against the principle of equal sharing of the burden of a guarantee by judgment
    on a remnant debt in circumstances similar to the ones here present.  It is
    easy to conceive of a case in which the first co-guarantor to make payment
    to a bank may then acquire an assignment of the security instrument and, suing
    upon it, derive a substantial profit from the transaction.  Such a result
    would offend the long standing principles that govern the relationship of
    co-guarantors.

[30]

The appeal was couched in terms of the application of s. 34 of the
Law and Equity Act
.  Section 34 limits a guarantors recovery
    to a proportionate share of the debt for which, as between the co-guarantors,
    they are justly liable.  Here, by the time of the action, Mr. Abakhan had
    ensured that he would not be liable for the remnant debt, and had obtained
    an assignment in his favour.  That is, by his action Mr. Abakhan had determined
    the maximum amount for which the co-guarantors would be liable to the creditor,
    had paid that amount himself, and is entitled to a judgment from each of his
    co-guarantors for one-third that amount.

The Cross Appeal

[31]

In their cross appeal Mr. Halpen and Mr. Diehl contend that the trial
    judge erred in finding that Mr. Abakhan had paid $225,000 to the bank on account
    of the companies debts.

[32]

The finding that is challenged is a finding of fact.  As is well known,
    this Court may not interfere with a finding of fact except in limited circumstances:
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235.

[33]

In my view, it was open to the trial judge, on the evidence, to find
    that the debt of the companies was reduced by the amount of $225,000.  That
    this was done by a separate agreement with the Bank whereby Mr. Abakhan agreed
    to make 11 equal annual payments is a matter between Mr. Abakhan and the Bank.
    The significant aspect is the Banks acknowledgement that the debt guaranteed
    by Mr. Halpen and Mr. Diehl was reduced by $225,000, and that Mr. Abakhan
    was the source of that reduction.

[34]

In summary, I see no basis upon which to interfere with the conclusion
    of the trial judge on this finding of fact.

Conclusion

[35]

For the reasons here stated, I would allow the appeal to the extent
    of setting aside the order and substituting for it an order for judgment in
    Mr. Abakhans favour against each of the respondents in the amount of one-third
    of $233,000 plus interest.  I would dismiss the cross appeal.

The Honourable
    Madam Justice Saunders

I AGREE:

The Honourable Chief Justice Finch

I AGREE:

The Honourable Mr. Justice Hall


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Lindsay,

2008
          BCCA 30

Date: 20080123

Docket: CA032186

Between:

Regina

Respondent

And

David
    Kevin Lindsay

Applicant

Before:

The
          Honourable Mr. Justice Hall

The
          Honourable Mr. Justice Mackenzie

The
          Honourable Mr. Justice Smith

Applicant

Appearing In Person

U.
          Botz

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

21 November 2007

Place
          and Date of Judgment:

Vancouver, British Columbia

23 January 2008

Written
          Reasons by
:

The
          Honourable Mr. Justice Smith

Concurred
          in by:

The
          Honourable Mr. Justice Hall
The Honourable Mr. Justice Mackenzie

Reasons
    for Judgment of the Honourable Mr. Justice Smith:

Introduction

[1]

Mr. Lindsay applies for a review of a chambers order made by Mr. Justice
    Lowry denying him leave to appeal pursuant to s. 839(1) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, from the dismissal of a summary conviction
    appeal.  Section 839(1) provides:

[] an appeal to the court of appeal [] may, with leave of that court
    or a judge thereof, be taken on any ground that involves a question of law
    alone [].

[2]

The standard applicable on the application before Mr. Justice Lowry
    was that described in
R. v. Lord
, 2005 BCCA 165, [2005] B.C.J.
    No. 627 (QL) (Chambers, Saunders J.A.) ¶ 6: the applicant

[] must establish that the appeal is on a question of law alone.  If
    it is, this Court has discretion whether to grant leave to appeal.  The two
    considerations commonly applied are the importance of the issue, and whether
    there is a reasonable possibility of success:
R. v. Westwood
(1995),
    63 B.C.A.C. 236, [1995] B.C.J. No. 2146, and
R. v. Hunt
(1998), 108
    B.C.A.C. 218, [1988] B.C.J. No. 1347, although as observed by Southin J.A.
    in
R. v. Martin
, 2004 BCCA 548, the essential question on the exercise
    of discretion is the interests of justice.

[3]

Mr. Justice Lowry did not determine whether the proposed appeal presented
    a question of law alone.  Rather, he dismissed the application on discretionary
    grounds.  His reasons for doing so can be found at 2005 BCCA 376, 215 B.C.A.C.
    47.  After noting that the appeal had no real prospect of success and that
    the judgment under appeal appeared to be unassailable, he concluded,

[9]        I do not consider Mr. Lindsay has established that it is in
    the interests of justice that discretion be exercised in favour of granting
    leave to appeal.

[4]

Mr. Lindsay must meet a high standard on this application for review.
    As Finch J.A. (now C.J.B.C.) said for the Court in
East Broadway Residents
    Association v. Vancouver (City)
, 2000 BCCA 657, [2000] B.C.J. No.
    2460 (QL):

[11]      The test on an application to review is whether there has been
    an error in principle.  The incorrect exercise of discretion will not suffice.
    In
MacMillan Bloedel v. British Columbia
, [2000] B.C.J. No. 1425, the
    Court said:

It has not been shown to me that the Court of Appeal judge in Chambers fell
    into any error of principle which could leave this court in a position to
    vary his order as sought.  The standard of review by a panel of this court
    of a decision of a single judge has been said to be that the court will not
    interfere unless it is satisfied that the Chambers judge was wrong in the
    legal sense and not merely that he or she exercised discretion incorrectly:
    see
Frew v. Roberts
(1990), 44 C.P.C. (2d) 34 (B.C.C.A.).

Background

[5]

This matter has a lengthy judicial history.

[6]

Mr. Lindsay was convicted on March 25, 2002 in the Provincial Court
    at Kamloops of driving a motor vehicle without a drivers licence, without
    insurance, and without displaying proper licence plates, contrary to provisions
    of the
Motor Vehicle Act
, R.S.B.C. 1996, c. 318.  The offences
    occurred on August 27, 2001.

[7]

On April 11, 2002, Mr. Lindsay filed a notice of appeal from his convictions
    in the Supreme Court of British Columbia.  Before his summary conviction appeal
    was heard, he brought an application for an order that certain sections of
    the
Court Rules Act
, R.S.B.C. 1996, c. 80, and of the
Official
    Reporters Regulation
, B.C. Reg. 224/84, as amended, be declared of
    no force and effect insofar as they purport to impose fees upon the transcripts
    necessary for me to exercise and obtain my fundamental right to justice in
    this matter.  His contention was that the impugned sections infringe his
    constitutional rights since they amount to the selling of justice, which
    is prohibited by
Magna Carta
.
[1]
He relied as well on the English
Bill
    of Rights, 1689
[2]
and the
Act of Settlement, 1701
[3]
.  In comprehensive
    written reasons published on July 30, 2003, Mr. Justice Powers dismissed the
    application and extended the time for Mr. Lindsay to file the necessary transcripts,
    which had expired, with liberty to apply for a further extension if necessary.
    His reasons for judgment are reported: see 2003 BCSC 1203, 110 C.R.R. (2d)
    30.

[8]

Mr. Lindsay filed an appeal from Mr. Justice Powers order but, on
    May 6, 2004, the notice of appeal was quashed for want of jurisdiction by
    a judge of this Court in chambers.

[9]

When Mr. Lindsays summary conviction appeal came on for hearing before
    Mr. Justice Powers on June 28, 2004, he had still not provided transcripts
    of the Provincial Court proceedings.  As a result, Mr. Justice Powers dismissed
    his appeal.

[10]

On June 29, 2005, one year later almost to the day, Mr. Lindsays application
    for leave to appeal to this Court from the dismissal of his appeal came on
    for hearing before Mr. Justice Lowry.  His decision which gives rise to the
    review application now before us was given on July 13, 2005.

The Prior Decisions

[11]

Before Mr. Justice Powers, Mr. Lindsay argued that the
Magna
    Carta
and the English statutes mentioned above are part of the Constitution
    of Canada.  He submitted, as he had before, that these instruments limit the
    legislative power of Parliament and the provinces and, in particular, preclude
    them from enacting legislation that has the effect of selling justice contrary
    to
Magna Carta
.  Accordingly, he contended, it was beyond the
    power of the Provincial Legislature to enact the
Official Reporters
    Regulation
to the extent that it requires him to pay a fee to an authorized
    reporter to obtain a transcript of the proceedings against him in the Provincial
    Court, which was required by s. 6(7) of the
Criminal Rules of the Supreme
    Court of British Columbia
, S.I./97-140, in order to perfect his summary
    conviction appeal.  Further, he submitted that it is a principle of fundamental
    justice that transcripts should be provided to him at no cost.

[12]

Mr. Justice Powers did not accede to Mr. Lindsays submissions.

[13]

First, he rejected Mr. Lindsays submission that the
Magna Carta
is a constitutional document that overrides all federal and provincial statutes.
    Rather, following
R. v. Jebbett
, 2003 BCCA 69, [2003] B.C.J.
    No. 238 (QL), as he was bound to do, he found that
Magna Carta
is subject to modification by provincial legislation.

[14]

Next, he rejected Mr. Lindsays submission that it is a principle of
    fundamental justice that transcripts should be provided at no cost.  On this
    point, he followed
R. v. Robinson
, 2002 BCSC 1062, [2002] B.C.J.
    No. 1693 (QL), in which Blair J. reached that conclusion following, in turn,
R. v. Robinson
(1989), 70 Alta. L.R. (2d) 31, 63 D.L.R. (4th)
    289 (C.A.).  He noted that rights of appeal are created and governed by statute
    and adopted the reasoning of the Alberta Court of Appeal that, there being
    no precedent for the provision of free transcripts and no principle of fundamental
    justice requiring free transcripts, the question was properly one for the
    provincial legislature.

[15]

Finally, he rejected Mr. Lindsays submission that the regulatory requirement
    that fees be paid for the purchase of transcripts amounts to the selling
    of justice and is therefore prohibited by
Magna Carta
.  He
    concluded that the impugned regulation does not require the payment of a fee
    in order to obtain justice, or access to justice.  Rather, he said, it simply
    requires an appellant to provide the materials necessary to properly process
    the appeal.  He noted, as well, that the requirement is not absolute, in that
    Rule 6(7) gives the summary conviction appeal court discretion to relieve
    an appellant of the requirement to provide transcripts in appropriate cases.

[16]

Accordingly, Mr. Justice Powers dismissed Mr. Lindsays application.

[17]

In refusing to grant Mr. Lindsays application for leave to appeal
    from that order, Mr. Justice Lowry said,

[7]        Mr. Lindsay maintains that
R. v. Jebbett
was wrongly
    decided and he seeks to cite additional authorities in support of arguments
    that he considers were not advanced in that case.  He has, however, cited
    no authority on this application that is binding on this Court which undermines
    the conclusion in
Jebbett
.  Given that such rights as may be provided
    by
Magna Carta
have so recently been held by this Court to have been
    modified by the legislation of this province, I do not consider there to be
    any real prospect of the proposed appeal succeeding.  Indeed, the judgment
    from which Mr. Lindsay seeks to appeal appears to me to be unassailable.
     I do not consider leave should be granted here as it was in
Jebbett

on what is essentially the same issue that was decided in that case.

[8]        Mr. Lindsay contends that the issue to be raised on the proposed
    appeal is of general importance because, according to him, there are many
    who are unable to prosecute appeals simply because of the cost of obtaining
    transcripts.  The difficulty with what he says in that regard is that there
    is on this application no sound basis on which it can be said that the requirement
    for transcripts under the
Criminal Rules of the Supreme Court of British
    Columbia
does in fact pose any significant impediment to the prosecution
    of criminal and quasi-criminal appeals.  Certainly the cost of the transcript
    in this case was not such as to have precluded Mr. Lindsay from prosecuting
    his appeal.  He chose not to obtain the required transcript only to attempt
    to prove a point.

Issues on Review

[18]

Mr. Lindsay presents an intricate submission, the essence of which
    is that Mr. Justice Lowry erred in law when he failed to recognize that the
Magna Carta
is the foundation of the rule of law itself and
    that it protects the rights, freedoms, and liberties of all citizens.  In
    his submission,
Magna Carta
was received in Canada as part of
    our constitution by virtue of the preamble to
The Constitution Act,
    1867
, 30 & 31 Vict., c. 3 (U.K.), in which it is stated that the
    Provinces wished to be federally united under the Crown with a Constitution
    similar in Principle to that of the United Kingdom.  Accordingly, he submits,
    it has constitutional status and overrides any federal or provincial statute
    that contravenes its provisions.  He submits that this appeal raises an important
    question of law and urges us to discharge Mr. Justice Lowrys order and to
    grant him leave to appeal.

Discussion

[19]

Mr. Lindsay offers a large selection of judicial
obiter dicta
and academic commentary in an attempt to support his thesis that
Magna
    Carta
trumps all legislation that contravenes its provisions.  The
    volume of this material precludes any practical canvass of it in these reasons.
    Suffice it to say that there is another point of view espoused by some legal
    historians and constitutional scholars which holds that the notion that
Magna
    Carta
provides absolute protection of individual rights against all
    forms of prerogative, judicial, and legislative authority is primarily a political
    conception of the document and that, as a legal instrument, it has never enjoyed
    inviolable constitutional status in England but is part of the common law,
    to be defended and amended as may be necessary from time to time: see, for
    example, B.H. McPherson,
The Reception of English Law Abroad
(Brisbane, Aust.:  Supreme Court of Queensland Library, 2007) at 205; J.C.
    Holt,
Magna Carta
, 2nd ed. (Cambridge:  Cambridge University
    Press, 1992)  at 1-2, 16-17.  In my view, it is not necessary to the resolution
    of this appeal to enter into this scholarly discussion since this Court has
    pronounced upon the point raised by Mr. Lindsay.

[20]

In
Collinge v. Gee
(1968), 64 W.W.R. 321, [1968] B.C.J.
    No. 41 (QL) (C.A.), affirmed on a different point [1968] S.C.R. 948, this
    Court held that
Magna Carta
does not guarantee a right of a
    litigant to have a transcript provided free of charge.  In that case,
the
appellant, who had been convicted following a trial in magistrates
    court, wanted to consult a transcript of the proceedings to see if there were
    grounds of appeal.  He argued, unsuccessfully, that the relevant sections
    of the
Criminal Code

required the respondent court reporter
    to transcribe her notes of the evidence and supply him a transcript free of
    charge.  On appeal, he also relied on the
Canadian Bill of Rights
,
    S.C. 1960, c. 44,

and on chapter 29 (chapter 40 of the 1215 version)
    of
Magna Carta
,

which he submitted prohibited the sale
    of justice.  In dismissing this submission, Robertson J.A., with whom Norris
    J.A. agreed on this point (at 330), wrote, at 353-54:

On my own reading of the quoted
    provisions in the
Canadian Bill of Rights
and
Magna Charta
I
    cannot extract from them what counsel submits I should.  The words do not
    convey to me the meaning which he submits they have.  This being so, there
    is no purpose in elaborating on the language itself, except for one point.
    Under sec. 2 of the
Canadian Bill of Rights
every law ***shall ***be
    so construed and applied as not to abrogate, abridge or infringe ***any of
    the rights or freedoms herein recognized and declared.  The effect of this
    must be a preservative one only; there must be an existing right or freedom
    before there can be any question of abrogation, abridgement or infringement,
    and then such right or freedom may not be abrogated, etc.  The language is
    not apt to create any right or freedom.  No authority in Canada or England
    has been cited that suggests the prior existence of the right contended for
    here.

The third judge, Branca J.A., simply stated, at 342,
    I am unable to see the applicability of the quoted provision of the
Magna
    Charta
.

[21]

Further, in
R. v. Jebbett
, this Court rejected an argument
    on an appeal from conviction on a parking ticket that the
Motor Vehicle
    Act
and the municipal bylaw in question offended the
Magna Carta
and several sections of the
Charter of Rights and Freedoms
,
    Part I of the
Constitution Act, 1982
, being Schedule B to the
Canada Act, 1982
, 1982, c. 11 (U.K.).  In dismissing the appeal,
    Ryan J.A., who gave judgment for the Court, said,

[4]        Unlike the Canadian
Charter of Rights and Freedoms
,
    the
Magna Carta
is not a constitutional document.  As the Canadian
    constitutional scholar, Peter Hogg, has noted in his text,
Constitutional
    Law of Canada
, the
Magna Carta
and the English
Bill of Rights
are simply English statutes amenable to ordinary legislation.  The
Magna
    Carta
was imported into the law of British Columbia by a series of enabling
    statutes.  It remains a part of British Columbia law by virtue of sections
    2 and 3 of the
Law and Equity Act
[R.S.B.C. 1996, c. 253], which provide:

2.
    Subject to section 3, the Civil and Criminal Laws of England, as they existed
    on November 19, 1858, so far as they are not from local circumstances inapplicable,
    are in force in British Columbia, but those laws must be held to be modified
    and altered by all legislation that has the force of law in British Columbia
    or in any former Colony comprised within its geographical limits.

3.
    Section 28 of the
Offences Against the Person Act
,
1828
[24
    & 25 Vict., c. 100 (U.K.)] and all sections of the
Real Property Act,
    1845
are not in force in British Columbia.

[5]        The statute of
Magna Carta
was discussed by Mr. Justice
    McPhillip in
Re: Immigration Act and Munshi Singh
(1914), 6 W.W.R.
    1347 (B.C.C.A.).  At p.1371, he said:

Magna Carta
and
The Habeus Corpus Act
[31 Cha. II, c. 2 (U.K.)],
    ... - having relation to criminal and supposed criminal matters, as well as
    the Act for more effectually securing the liberty of the subject ... having
    relation to other than criminal or supposed criminal matters  is the law
    of British Columbia, but, as we have seen, subject to be modified by all legislation
    having the force of law in the Province of British Columbia.

Applying these principles to the case at hand, if the
Magna Carta
ever provided the rights suggested by the appellant in this case, in my view
    those rights must be taken to have been modified by the passage of the British
    Columbia
Motor Vehicle Act
and the Streets & Traffic Bylaw of the
    City of Victoria.  The appellant's argument, based on
Magna Carta
,
    cannot succeed.

[22]

Mr. Lindsay contends that
R. v. Jebbett
was decided incorrectly.
    However,
R. v. Jebbett
does not stand alone against Mr. Lindsays
    arguments.  The point has also been decided against him by this Court in
Collinge
    v. Gee
and in
Re: Immigration Act and Munshi Singh
,
    which was cited in
Collinge v. Gee
.  Given this consistent line
    of authority, I think it highly unlikely that this Court would change course
    and I must agree with Mr. Justice Lowrys conclusion that an appeal on this
    basis has no real prospect of success.

[23]

Mr. Lindsay presents an alternative argument that he has a constitutional
    right of appeal that cannot be fettered by the charging of fees for transcripts.
    I would not accede to this submission either.  The modern right of appeal
    is a statutory creation:  see, for example,
R. v. Lawrence
(1998),
    104 B.C.A.C. 57, [1998] B.C.J. No. 432 (QL) (Chambers, Southin J.A.); W. Ehrcke,
    Q.C., Appeals, Chapter XVII, in Jerome J. Atrens, Peter T. Burns, and James
    P. Taylor,
Criminal Procedure:  Canadian Law and Practice
, vol. 3 (Markham,
    Ont.:  LexisNexis Butterworths), updated to October 2000, at XVII-1 and XVII-2.
    As such, it is subject to all duly enacted statutory qualifications and limitations,
    including the rules that govern appeals.

[24]

I would not accede
    to Mr. Lindsays submissions.  In my view, Mr. Justice Lowry did not err in
    principle and he did not act contrary to the interests of justice.  I agree
    with him that this appeal has no real prospect of success and I would dismiss
    this application for review.

The Honourable Mr. Justice Smith

I agree:

The Honourable Mr. Justice Hall

I agree:

The Honourable Mr. Justice Mackenzie

[1]
C. 29
    of
Magna Carta, 1225
, 9 Hen. III, c. 3 (U.K.) (c. 40 of
Magna Carta,
    1215
) provides:

To no one will we sell,
    to no one deny or delay right or justice.

[2]

An Act declaring the Rights and Liberties of the Subject, and settling
    the Succession of the Crown
, 1 Will & Mar.
    sess. 2 c. 2 (U.K.).

[3]

An Act for the further Limitation of the Crown, and better securing
    the Rights and Liberties of the Subject
, 12 &
    13 Will. III c. 2 (U.K.).


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Newson,

2008
          BCCA 28

Date: 20080123

Docket: CA034735

Between:

Regina

Respondent

And

John
    Wayne Newson

Appellant

Before:

The
          Honourable Mr. Justice Hall

The
          Honourable Madam Justice Saunders

The
          Honourable Mr. Justice Tysoe

H.
          Patey

Counsel for the Appellant

W.P.
          Riley

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

December 6, 2007

Place
          and Date of Judgment:

Vancouver, British Columbia

January 23, 2008

Written
          Reasons by
:

The
          Honourable Madam Justice Saunders

Concurred
          in by:

The
          Honourable Mr. Justice Hall

The
          Honourable Mr. Justice Tysoe

Reasons
    for Judgment of the Honourable Madam Justice Saunders:

[1]

Mr. Newson seeks leave to appeal and, if leave is granted, appeals
    from a sentence of six years incarceration for conspiracy to traffic in cocaine.
    He was convicted on a guilty plea after a preliminary hearing and sentenced
    on November 16, 2006 by Associate Chief Justice Dohm.  The reasons for sentence
    are not indexed.

[2]

Mr. Newson has also applied to adduce fresh evidence in the form of
    an affidavit from his step-father concerning the circumstances of Mr. Newsons
    daughter since Mr. Newson was sentenced.  In the affidavit Mr. Newsons step-father
    sets out his concerns that the quality of care the child receives from her
    mother is deficient and expresses his anxiety as to the childs well-being.

[3]

Mr. Newson was one of four persons before the Associate Chief Justice
    on the occasion of his sentencing.  All four were involved in what is commonly
    referred to as a dial-a-dope operation.  The Associate Chief Justice found
    that the criminal activity was organized, saying it was to a large degree,
    sophisticated.  He found there was some planning and deliberation on the
    part of the participants to the point where business cards were ordered and
    no doubt circulated, on which are phone numbers to lead persons who are desirous
    of purchasing cocaine to these persons . . . or persons acting on
    their behalf.  Associate Chief Justice Dohm found that the operation occurred
    in five areas of the Lower Mainland: Abbotsford, Langley, Cloverdale, Surrey
    and White Rock.

[4]

One of the accused, Mr. Montgomery, took the position that he led the
    organization.  He received a sentence of eight years incarceration.  In addition
    to Mr. Montgomery and Mr. Newson, there were two other accused, Mr. Zopf and
    Ms. Mikelsons.  At the sentencing hearing Crown counsel suggested that Mr.
    Zopf was in a different position than Mr. Newson but that the two men should
    receive the same sentence, and agreed that Ms. Mikelson was at a third level
    for sentencing purposes.  Mr. Newson disputed his equivalency with Mr. Zopf.
    Associate Chief Justice Dohm found that Mr. Zopf and Mr. Newson had different
    functions, but said from my analysis, they are in the same category.  He
    sentenced Mr. Zopf and Mr. Newson to the same sentence, six years incarceration,
    and Ms. Mikelsons to a sentence of four years incarceration.

[5]

As to Mr. Newson he held:

[7]
    Overall, there is no doubt on the evidence that Mr. Newson had the ability
    to bring about a great many sales and was the knowledgeable person, generally,
    about the necessity for the use of the telephone and the various lines that
    were required in order to carry on this business.  The term dial-a-dope
    operation really says it all and I need not really go further other than to
    say that.  [. . .]  Along with the business cards that I referred to, there
    were ledgers kept by Ms. Mikelsons, for one, Montgomery by the other and so
    also with Mr. Zopf.  No ledger was found associated with Mr. Newson.

[.
    . . ]

[9]
    One other comment I would like to make is that until the final curtain dropped
    on this operation, one or more of the accused were arrested.  My recollection
    is, that it was Ms. Mikelsons and Mr. Newson and the indication is, that after
    those arrests, the accused were released.  Whether they were released on some
    undertaking or bail or whatever, it matters not.  The fact is that whatever
    their reason for the release it seemed not to deter the accused from continuing
    in their former ways.  That is to say, they went right back at the very jobs
    that they were doing prior to the temporary interruption.  That, in my view,
    is a factor that the court ought to consider in dealing with the matter of
    sentence.

[6]

Associate Chief Justice Dohm found that the operation lasted for at
    least six to eight months.  He held that this is not a loose-knit operation.
    This is not an unsophisticated one.  This is not one that was hatched overnight.
    It required a good deal of planning and deliberation for its continued success
    and it is in that light that I intend to sentence the four accused.

[7]

In imposing sentence the Associate Chief Justice recognized that the
    amount of cocaine involved at the time of the arrest was less than in other
    cases, and that Mr. Newson did not have a criminal record that affected the
    sentencing.  He referred to the letters filed in support of each accused and
    then he imposed sentence on each of the four offenders before him.

[8]

Crown counsel says, in amplification of the reasons of the Associate
    Chief Justice, that it is undisputed that the enterprise had a wholesale distribution
    component in addition to the retail dial-a-dope aspect, and that Mr. Newson
    was a central figure in both parts of the business.  It is apparent from the
    appeal record that Mr. Newson worked on three different routes during the
    course of the investigation, and that he was central to the dispersal of a
    large volume of drugs.  When he was arrested he was found in possession of
    45 flaps of cocaine, methamphetamine and $2,000 in cash.  His role and his
    knowledge of the workings of the enterprise are illustrated in a conversation
    with an undercover police officer in which he said the operation had 20 employees
    and that they made $5,000 a day in Langley alone as well as other monies on
    other routes, and in another conversation with an undercover police officer
    in which he said that when he was working on the Langley route, the group
    was making $110,000 per month.  After Mr. Newsons arrest, the police searched
    his residence and found 400 printed business cards with different phone numbers
    on them, some with the numbers 24/7.

[9]

The evidence of the wholesale operation came largely from Mr. Newsons
    dealings with an undercover police officer, in the course of which, over a
    seven-month period, he negotiated 12 separate sales of cocaine in quantities
    beyond retail sale.

[10]

At the time of his sentencing, Mr. Newson was 43 years old.  He had
    a dated prior criminal record with convictions for drunk driving and possession
    of stolen property.

[11]

Mr. Newson has one child, a daughter seven years old at the time of
    sentencing.  At the sentencing hearing Mr. Newsons counsel advised the court
    that Mr. Newson was involved in raising the child, taking her to school and
    recreational activities, and acting as a primary caregiver at least some of
    the time.  That submission was repeated to this Court.  The child now resides
    with her mother who has a substance addiction.  The fresh evidence sought
    to be adduced concerns the circumstances of this child and Mr. Newsons parents
    concern on her behalf.

[12]

Mr. Newsons counsel advised the court at the sentencing hearing, and
    again in the hearing before this Court, that Mr. Newson first became involved
    in the drug world after he became addicted to a drug prescribed for pain for
    injuries arising from an accident and, unable to sustain employment, started
    to work as a driver in the dial-a-dope business on a part-time basis to
    augment his disability income.  Mr. Newson, it is said, himself became addicted
    to cocaine, and became involved on a full time basis working in this criminal
    enterprise.

[13]

Mr. Patey, on behalf of Mr. Newson, contends that Associate Chief Justice
    Dohm erred in his characterization of the position of Mr. Newson in the organization,
    and in failing to give sufficient reasons explaining his conclusion that Mr.
    Newson should be sentenced as if he held a comparable position to Mr. Zopf.
    He says that Mr. Newson was labour rather than management.  He refers to
    the parity principle, says that the sentences imposed in respect to the scheme
    should reflect differences in rank, and submits that Mr. Newson therefore
    should receive a lesser sentence than Mr. Zopf.  Further, he contends that
    Mr. Newsons personal circumstances were not accorded sufficient consideration.
    He notes that Mr. Newson was addicted to cocaine, refers to his parental responsibility
    and argues that Mr. Newson did not become wealthy from the scheme but rather
    worked in this drug enterprise to earn income to augment his disability benefits.

[14]

In reviewing the reasons for sentence, it is important to bear in mind
    that sentence was imposed on the same day as submissions, that they dealt
    with a conspiracy involving four persons, and that the essential facts were
    not in dispute.  Of course, it is the reasons for sentence that we must scrutinize
    to determine if there is error demonstrated, but they must be read in the
    context of the entire sentencing proceedings.  Mr. Newson contends that the
    Associate Chief Justice erred in finding that he was at an equivalent level
    of the organization as Mr. Zopf.  This is a dispute as to an inference drawn
    by the sentencing judge.  This Court, of course, may not interfere lightly
    with the inference of a trial judge as the drawing of inferences is a matter
    particularly within the purview of the trier of fact.

[15]

In this case, Associate Chief Justice Dohm demonstrated his awareness
    of the difference in the roles played by the two men.  He acknowledged that
    the Crown considered that Mr. Zopf and Mr. Newson were in different positions,
    to some extent, but concluded that they should be sentenced at the same level.
    Contrary to submissions, however, this is not a finding that Mr. Newson was
    at a second in command level.  Rather it is a conclusion that the degree of
    involvement and culpability in the overall enterprise is roughly equivalent.
    On a review of the record, this is a conclusion that was open to the sentencing
    judge to make.  A significant portion of Mr. Newsons submissions on sentencing
    were directed to that issue and Associate Chief Justice Dohm simply rejected
    Mr. Newsons minimization of his importance to the scheme.  I cannot say he
    erred in his conclusion.

[16]

Nor, in my view, is the brevity of the reasons for sentence, in relation
    to Mr. Newson, a basis on which to interfere.  They are sufficient to permit
    appellate review and to inform Mr. Newson why he attracted the sentence imposed.
    The record, including the submissions made by Crown counsel and the four defence
    counsel, amply demonstrates the significance of the enterprise in which Mr.
    Newson was engaged, and the importance of his participation.  It is undisputed
    that he accounted for a disproportionately large share of the drug sales,
    and he was involved in sales in the nature of warehouse sales.  I do not consider
    the absence of extended reasons, in this case, an error in principle entitling
    this Court to substitute a sentence for the one imposed.

[17]

The real issue is whether the sentence is demonstrably unfit.  It is
    to this issue that the submissions as to Mr. Newsons character, lack of relevant
    prior criminal record, and potential for rehabilitation are relevant.

[18]

In making this submission Mr. Newson sought to rely upon the fresh
    evidence.  Notwithstanding the earnest submissions made on his behalf, I do
    not consider that the new evidence meets the test for admissibility.  Although
    addressed to the plight of Mr. Newsons daughter since he was sentenced, the
    fresh evidence focuses upon the mothers substance addiction and weaknesses
    as a custodial parent, both matters known to the sentencing judge.  To this
    extent the evidence is not really new, but rather more of the same concern
    that was addressed at the sentencing hearing.  Further, the fresh evidence
    would not make a difference in the sentence imposed.  It is often the case
    that a parents criminal offending creates hardship for members of the family.
    That children are often deprived of parental guidance and care when a parent
    is incarcerated is inevitable in cases of serious offending by a parent.
    Here, even upon his counsels submissions, Mr. Newson faces a significant
    period of incarceration.  Separation from his daughter is one of the hard
    realities of the situation Mr. Newson has created, and not one that may be
    cured in the circumstances before us.  I would note, further, that it is not
    inevitable that Mr. Newsons daughter must reside in an inappropriate situation,
    if that be the case, as other avenues for assistance are available.  For these
    reasons, I would not allow the application to adduce fresh evidence.

[19]

I turn then to the fitness of sentence on the record before us.  Here
    it is said that Associate Chief Justice Dohm did not have due regard to Mr.
    Newsons addiction, contrition, and potential for rehabilitation, with the
    result that the sentence imposed is demonstrably unfit.

[20]

Associate Chief Justice Dohm took a stern view of Mr. Newsons role
    in the enterprise.  I agree with that view, and with his conclusion that the
    most significant principles of sentencing in the circumstances are denunciation
    and general deterrence.  The offence was part of a sophisticated, extensive,
    and long-lasting enterprise, involved the widespread trafficking of highly
    addictive drugs, and demonstrated a high degree of criminal organization.
    Mr. Newson was a key person in that enterprise at the street level and in
    selling greater quantities in what may be termed wholesale sales.

[21]

Nor do I consider the absence of evident wealth arising from the enterprise
    significant.  As I understand Mr. Newsons submission, it is that he became
    involved in the scheme because he had a debt incurred to support an addiction
    to cocaine, and because his disability pension was not sufficient to support
    his family, not to become wealthy. His counsel refers us to
R. v. Iverson
,

2007 BCCA 3 in which this Court reduced a sentence for two counts
    of possession of methamphetamine and ecstasy for the purpose of trafficking
    and two counts of production of the drugs, from six years to four years.
    In
Iverson
the Court said The appellants addiction to heroin,
    while not his primary motivation, obviously contributed to his financial and
    social disintegration and distinguishes this case from those involving non-addicts
    who are solely motivated by greed.

[22]

But this case is not
Iverson.
This case concerns a
    relatively long lasting and sophisticated operation in which Mr. Newson was
    a central figure in the distribution of drugs, and his sales were prolific.
    These facts and the convictions of all four offenders, establish that Mr.
    Newson was part of a criminal organization.  In my view, any role that Mr.
    Newsons addiction played in his offending is overtaken by the seriousness
    of the offence, his role in it, and the collective feature of the offence.
    I conclude that the fact of addiction does not justify a reduction of sentence
    by this Court and does not make this sentence unfit.

[23]

While Mr. Newson was not at the top of the organization as was Mr.
    Montgomery, and therefore not to the level of the offender in
R. v.
    Pham
, 2002 BCCA 560, 176 B.C.A.C. 318 who attracted an eight-year
    sentence in addition to pre-trial custody, in my opinion the sentence of six
    years is not a marked departure from sentences customarily imposed for such
    offences in like circumstances (
R. v. M. (C.A.)
, [1996] 1 S.C.R.
    500, 105 C.C.C. (3d) 327) and thus not demonstrably unfit.

[24]

For these reasons I would give leave to appeal sentence, and dismiss
    the appeal.  I would, as well, dismiss the application to adduce new evidence.

The
    Honourable Madam Justice Saunders

I AGREE:

The
    Honourable Mr. Justice Hall

I AGREE:

The
    Honourable Mr. Justice Tysoe


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Fisher
          v. Lakeland Mills Ltd.,

2008
          BCCA 42

Date: 20080124

Docket: CA032674

Between:

Kathleen
    Fisher

Appellant

(
Plaintiff
)

And

Lakeland
    Mills Ltd.

Respondent

(
Defendant
)

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Madam Justice Levine

The
          Honourable Mr. Justice Chiasson

Oral Reasons for Judgment

J.W.
          Craddock

Counsel for the Appellant

S.B.
          Margolis

Counsel for the Respondent

Place
          and Date:

Vancouver, British Columbia

24 January 2008

[1]

CHIASSON, J.A.
: This is an appeal and cross-appeal arising out of a
    wrongful dismissal claim brought by Ms. Fisher against Lakeland Mills.  At
    trial, Mr. Justice Crawford held Ms. Fisher had been dismissed constructively
    and he awarded her 10 months pay in lieu of notice, a $2,000 bonus for 2003
    and 10 months insurance premiums.  He refused to award additional damages
    for misconduct based on
Wallace v. United Grain Growers Ltd.
.
    [1997] 3 S.C.R. 701.  Crawford J.s reasons for judgment are indexed as 2005
    BCSC 64.

[2]

Ms. Fisher contends the notice period was not long enough and that
    additional damages should have been awarded.  Lakeland Mills submits Ms. Fisher
    was not dismissed constructively.

[3]

Lakeland Mills manufactures lumber primarily for export to the United
    States.  Ms. Fisher began her employment with the company in 1985 when she
    was 48 years old.  She started as a switchboard operator/receptionist and
    over the years did some secretarial work and took on the responsibility for
    accounts receivable and payable.

[4]

Ms. Fisher turned 65 in April 2002.  There is no compulsory retirement
    age in the company, but visitors to the office often raised the topic of retirement
    with Ms. Fisher.  This upset her and in April 2003 she spoke after hours with
    the company president, Mr. Andersen.  He assured her that there was no concern
    and she could stay with the company as long as she wanted to do so.

[5]

In July 2003, a staff member who provided back-up for the office staff
    resigned.  This prompted Ms. Horning, the office manager, to send a memorandum
    to Mr. Andersen in which she expressed concern with the ability of the existing
    staff to carry the workload without considerable disruption: for example,
    no regular holiday or emergency coverage and an inability to have more than
    one person away at the same time.  She stated that Ms. Fisher would have to
    be trained to cover the shipping duties of another employee in the instances
    that I have other pressing [deadlines] to meet; and Im not sure she is capable
    of doing this.  This referred to the fact the job required computer skills.
    Ms. Horning added:

Third
    this position is not really full time at this point.  Should Kay [Fisher]
    give a retirement date, we could plan for a full time position.  Unfortunately,
    the multi-tasking that is required usually has conflicting requirements with
    existing staff schedules so we cant download onto existing staff.

To
    conclude, I am not sure how to post this vacancy.  We almost need a part-time
    possibly full-time flexible, multi-tasking person that is keen enough to learn
    payroll, shipping, purchasing/receiving, accounts payable, accounts receivable,
    contract logging, etc.  I am going to talk to my staff to see what responsibilities
    they could take on full time but again we will be left with no coverage.

[6]

After meeting with the office staff, Ms. Horning wrote again to Mr.
    Andersen stating:

Further
    to my memo of July 28
th
, I have since spoken with my office staff
    to get their ideas on whether we need another person or not.  We have come
    to the conclusion that with utilization of Annette, we can cover off the extra
    things Lisa did.  I recommend we try this for now and if it becomes unmanageable,
    we will look at hiring an extra part time person who is flexible with hours.

Annette
    has been asking for extra duties for some time and is more than willing to
    take on additional responsibilities.  Brian has approved this.

[7]

Steps were taken to train Ms. Fisher, but she found the task difficult
    and was not comfortable doing it.  When Ms. Horning returned from a brief
    holiday, she was informed Ms. Fisher was not doing well and she reported this
    to Mr. Andersen, indicating if Ms. Fisher was not able to do the backup shipping
    dutiesshe would need to look at alternatives (Reasons for Judgment, para.
    20).

[8]

On August 25, 2003, Ms. Horning met with Ms. Fisher who said the training
    was proceeding well.  Ms. Horning stated the training would continue and talked
    to Ms. Fisher about retiring, stating if she were to retire soon, the company
    could muddle along, but if it were to be later, the company needed to hire
    a backup employee who would need to pick up some of Ms. Fishers duties, perhaps
    the accounts payable as the new employee could not sit idle (para. 21).

[9]

The trial judge described Ms. Fishers assessment of the situation
    in para. 26:

[] she felt she was being given no choice, that either
    she had to learn the additional duties as backup shipping clerk, orthe company
    would take steps to hire a new person who would take over part of her work,
    particularly accounts receivable and accounts payable.

[10]

Ms. Fisher again went to Mr. Andersen.  She told him that although
    she did not want to do so, she felt she had to retire because she could not
    do the shipping relief.  In para. 30 the judge quoted from the examination
    for discovery of Mr. Andersen:

Q
    And the reason for this was because Kay felt that Annie Horning wanted to
    get rid of her.  Did she say that?

A
    She said that she felt that Annie was trying to force her out because she
    couldnt do her job.

[11]

Mr. Andersen did nothing to disabuse Ms. Fisher of her perception.

[12]

In para. 43 the trial judge set out the law of constructive dismissal
    as stated by the Supreme Court of Canada in
Farber v. Royal Trust Co.
,
    [1997] 1 S.C.R. 846:

[33] [] it has been established in a number of Canadian
    common law decisions that where an employer unilaterally makes a fundamental
    or substantial change to an employees contract of employment  a change that
    violates the contracts terms  the employer is committing a fundamental breach
    of the contract that results in its termination and entitles the employee
    to consider himself or herself constructively dismissed.  The employee can
    then claim damages from the employer in lieu of reasonable notice.

[13]

The judge noted that the process began innocently with a suggested
    reorganization of staff, but it progressed to the point where a significant
    change to Ms. Fishers employment occurred.  He said in paras. 57 and 58:

[] Ms. Fisher had been faced with unilateral changes
    of a substantial kind to her employment.  She stated that she felt she had
    been forced to retire and did not want to.

58 Mr. Andersen did not perceive the possible solution,
    namely to assure her she could continue in her old position. []

[14]

The judge concluded that Ms. Fisher had been dismissed constructively.
     In my view, he was entitled to reach that conclusion.

[15]

The company contends that the judge erred by applying a subjective
    rather than an objective test to determine whether there had been a unilateral
    and fundamental change to Ms. Fishers employment contract.  It asserts no
    change was implemented and Ms. Fishers belief that a change had occurred
    is not relevant.

[16]

The company relies on
Orth v. MacDonald Dettwiler & Associates
    Ltd.
, (1986), 8 B.C.L.R. (2d) 1 (C.A.), 16 C.C.E.L. 41 and
Cayen
    v. Woodwards Stores
(1973), 75 B.C.L.R. (2d) 110 (C.A.), 45 C.C.E.L.
    264, 100 D.L.R. (4
th
) 294.  Those cases stand for the proposition
    that the test for determining whether a change is fundamental is objective.
    In this case, it does not appear to be in dispute that the addition of shipping
    work and the deletion of other duties would constitute a fundamental change
    in Ms. Fishers employment contract.  In its factum the company says: [i]f
    the proposed change had, in fact, been imposed, Fisher might have been justified
    in making the election she did.  In my view, the judge had ample evidence
    on which to conclude objectively that the changes were fundamental.

[17]

Mr. Andersens silence was an affirmation that Ms. Fisher was obliged
    to take on the shipping duties or leave.  Those duties represented a significant
    change in her employment that the company was not entitled to impose unilaterally.
    There was evidence to support the judges conclusion and I see no error in
    principle which would allow this Court to interfere.

[18]

The parties provided authorities to the judge and to this Court addressing
    the range of notice that would be appropriate in this case.  The judge stated
    the range was six to 18 months (para. 65).  The appellant says the actual
    range in the cases provided to the judge was up to 20 months.

[19]

In para. 63, the judge referred to
Ansari v. British Columbia
    Hydro and Power Authority
(1986), 2 B.C.L.R. (2d) 33, affd 55 B.C.L.R.
    (2d) xxxiii (C.A.) in which at p. 37 McEachern C.J.S.C. quoted from
Bardal
    v. Globe & Mail Ltd.
, [1960] O.W.N. 253, 24 D.L.R. (2d) 140 (H.C.):

There can
    be no catalogue laid down as to what is reasonable notice in particular classes
    of cases.  The reasonableness of the notice must be decided with reference
    to each particular case, having regard to the character of the employment,
    the length of service of the servant, the age of the servant and the availability
    of similar employment, having regard to the experience, training and qualifications
    of the servant.

[20]

In para. 64 the judge addressed Ms. Fishers circumstances:

Ms. Fisher had many years of service with the company,
    she was 66, and intended to work for some time further.  Ms. Fisher did not
    have management responsibilities but she was the face that greeted visitors
    to the company and that is always an important position, and there was no
    criticism of her basic front office capabilities.  Further, at her age it
    is not easy to obtain similar or like employment.

As
    noted, he determined she was entitled to 10 months notice.

[21]

Ms. Fisher relies on
Burry v. United Communications Inc
(1997), 46 B.C.L.R. (3d) 349 (C.A.), 34 C.C.E.L. (2d) 314 at para. 12, and
    states this Court should increase the notice period because it clearly  fall[s]
    outside the range of such awards and constitute[s] palpable error.  In her
    factum, she contends she should have received between 16 to 20 months basic
    notice, plus four months because she was assured employment (
Singh v.
    British Columbia Hydro & Power Authority
2001 BCCA 695, 95 B.C.L.R.
    (3d) 238, 12 C.C.E.L. (3d) 214 and one further month because she was misled
    (
Wallace
).

[22]

The company reviewed the cases presented to this Court by Ms. Fisher
    and asserts they either are distinguishable or support the 10 months ordered
    by the trial judge.

[23]

As Ms. Fisher concedes in her factum, [f]inding other decisions of
    this Court that are on all fours with this case is difficult.  In my view,
    the judge applied the correct analytical framework and having considered the
    cases presented by the parties, I am not satisfied his conclusion of 10 months
    notice is clearly outside the appropriate range.

[24]

The judge did not address
Singh
in his reasons.  It likely
    was not referred to him.

[25]

In my view, additional notice based on Mr. Andersens assurances to
    Ms. Fisher is not warranted.  Mr. Singh had been induced to continue his employment
    and had made an extra effort to return to work after an illness. Ms. Fisher
    did not alter her situation in response to the assurance.   It merely reassured
    her that she did not have to retire.

[26]

Ms. Fisher contends she is entitled to
Wallace
damages
    because Mr. Andersen did not tell her she did not have to do the shipping
    work to keep her job.
Wallace
damages address egregious conduct
    by an employer in dismissing an employee.  The trial judge concluded a failure
    to communicate between a sensitive employee, an office manager seeking to
    plan ahead, and a kindly company presidentare not circumstances giving rise
    to additional damages (para. 69).  I see no error in this conclusion.

[27]

I would dismiss the appeal and cross-appeal.

[28]

FINCH, C.J.B.C.
: I agree.

[29]

LEVINE, J.A.
: I agree.

[30]

FINCH, C.J.B.C.
: The appeal and cross-appeal are dismissed.

The Honourable
    Mr. Justice Chiasson