COURT OF
APPEAL FOR BRITISH COLUMBIA

Citation:

R. v.
  Salim,

2007 BCCA 44

Date: 20070119

Docket: CA034639

Between:

Regina

Respondent

And

Mohammed
Rassul Salim

Appellant

THE BAN ON PUBLICATION s. 517 (1)
C.C.C.
EXPIRED
SEPTEMBER 9, 2009 WITH THE GUILTY PLEA

Before:

The Honourable Madam
  Justice Rowles

The Honourable Madam
  Justice Ryan

The Honourable Madam
  Justice Newbury

Oral Reasons for Judgment

I. Carter

Counsel for the Appellant

J. Lawton

Counsel for the (Crown) Respondent

Place and Date:

Vancouver, British Columbia

19 January 2007

[1]

RYAN, J.A.
: Mohammed Rassul Salim is charged with
second degree murder of Job Clark.  The offence is alleged to have occurred on
4 September 2006 in the parking lot of a commercial establishment in Burnaby at
about 1:15 in the morning.

[2]

On 24 October 2006
Associate Chief Justice Dohm detained Mr. Salim in custody pending his trial
pursuant to s. 522(2) of the
Criminal Code
.  Mr. Salims
preliminary hearing is now set for 6 July 2007.

[3]

Pursuant to the order
of the Chief Justice we have heard this review pursuant to s. 680 of the
Criminal

Code
.

[4]

The jurisprudence of
this Court (
R. v. Wu
(1998), 117 BCAC 305;
R. v. JWR
(1999), 129 BCAC 232) dictates that on such a review this Court is bound by the
findings of fact by the Supreme Court of Justice, but we are free to substitute
our own conclusions for those of the Supreme Court Justice if we are of the
view that the evidence meets the appropriate statutory criteria.

[5]

The deceased, Mr.
Clark, was 22 years of age at the time of his death.  The applicant, Mr. Salim,
was 41.  They did not know each other before the morning of the killing.  The
evidence as to how they met and for how long they were together is not entirely
clear.  As described by Mr. Clarks cousin, Ms. Wilson, Mr. Clark and Ms.
Wilson were drinking in a park in Burnaby when they met Mr. Salim and a
friend.  The four drank together.  At some point Mr. Salim and his friend
invited the others to go to a video arcade to play video games.  They walked to
Mr. Salims van, Ms. Wilson got into it.  Mr. Clark and Mr. Salim argued about
whether Mr. Clark would get into the van.  Mr. Clark either pushed Mr. Salim
down or Mr. Salim tripped.  Rather than drive, the parties then began to walk
to the video arcade.  In her statement to the police Ms. Wilson said that Mr.
Salims friend pushed Mr. Clark as they walked.  As I understand it, the
Crowns theory is that it was not the friend but Mr. Salim who did the pushing.

[6]

What next happened in
the park was witnessed by Mr. Brennan, a bus driver who had finished work and
was driving home with his two adolescent boys.  He told police that he saw a
younger man swing at older man in the park.  Mr. Brennan described the younger
man as large and about six inches taller than the older fellow.  Not long after
the younger man swung at the older, Mr. Brennan said the younger one ran to a
parking lot with two others following after him.  Mr. Brennan described the two
men as stalking or herding the younger man who was stumbling and appeared
very drunk.  Eventually the two men confronted the younger and one of them
stabbed him three times before he ran off.

[7]

In his statement to the
police Mr. Salim claimed that Mr. Clark was drunk and out of control and that
the stabbing was in self-defence.

[8]

The Associate Chief
Justice detained Mr. Salim solely on the basis of the tertiary ground.  The
bail hearing before him proceeded on the basis that Mr. Salim had established
that his detention is not necessary on either the primary or secondary ground.
In detaining Mr. Salim Associate Chief Jusitice Dohm said this

[2] Two things can be said about that set of
circumstances.  The defence of self-defence may have some application but I, at
this stage, have some difficulty in accepting it.  More importantly, that sort
of conduct, that is the running away by the deceased and the stalking or
herding by the accused and his friend of the deceased, I think moves this case
clearly within the tertiary ground.  Those circumstances are such that it
would, once known, instil fear and unrest in members of the community and I
think would leave many with concerns about the administration of justice if
that sort of individual, namely the accused, was allowed out on bail pending
the disposition of the matter.  I think that feature alone, never mind whether
there is an issue of self-defence and whether it applies, that particular
feature makes it difficult for the accused to meet the tests that he is
obligated to do so under the tertiary ground, and that sort of activity, cowardly
though it was, makes it exceedingly difficult for this court to grant bail.  He
will remain detained.

[9]

Since the time of the
bail hearing, further witnesses have been interviewed.  This includes Mr.
Brennans two children and Mr. Salims friend.  While this Court has a limited
capacity to admit fresh evidence on this hearing (
R. v. Dempsey
(2001), 153 C.C.C. (3d) 311 (B.C.C.A.), I am of the view that it is open to us in
this case to examine the evidence as amplified by the further witness
statements.  In my view, it is fair to say that Mr. Brennans sons support his
version of the events, Mr. Salims friend  who describes Mr. Salim and Mr.
Clark shadow boxing before the stabbing  supports Mr. Salims version of the
events.

[10]

The test that this
Court must apply on this review is set out in the section itself.  Section 515
(10) (c) of the
Code
provides:

515 (10)
For the purposes of this section, the detention of an
accused in custody is justified only on one or more of the following grounds:

(
c
)
on any other just cause being shown and, without limiting the generality of the
foregoing, where the detention is necessary in order to maintain confidence in
the administration of justice, having regard to all the circumstances,
including the apparent strength of the prosecutions case, the gravity of the
nature of the offence, the circumstances surrounding its commission and the
potential for a lengthy term of imprisonment.

[11]

As put by Chief Justice
McLachlin in
R. v. Hall
(2002), 167 C.C.C. (3d) 449 (S.C.C.) at
para. 41:

. . . The judge must be satisfied that detention is
not only advisable but necessary.  The judge must, moreover, be satisfied that
detention is necessary not just to any goal, but to maintain confidence in the
administration of justice.  Most importantly, the judge makes this appraisal
objectively through the lens of the four factors Parliament has specified.  The
judge cannot conjure up his own reasons for denying bail; while the judge must
look at all the circumstances, he must focus particularly on the factors
Parliament has specified.  At the end of the day, the judge can only deny bail
if satisfied that in view of these factors and related circumstances, a
reasonable member of the community would be satisfied that denial is necessary
to maintain confidence in the administration of justice.

[12]

As I read the reasons
of Associate Chief Justice Dohm, the sole reason for detention was his concern
that the evidence as alleged by the Crown at the bail hearing revealed that the
victim has been herded and stalked by Mr. Salim before he was stabbed to
death and that this type of killing would instil fear into the members of the
community.  With great respect I am of the view that the last minutes of the
incident should not be isolated from the broader context.  While the evidence
of Mr. Brennan and his children, if it is viewed alone, is disturbing, this is
not a case where the Crown alleges that the accused randomly chose a person to
victimize on the morning in question.  Something happened between Mr. Salim and
Mr. Clark that turned a friendly meeting into a violent one.  The crime may be
tragic and senseless, but it is not random.

[13]

As Mr. Carter has set
out in his material:

Mr. Salim is a 41 year old father of five.  Until his
detention he lived with his wife and children.  For the last four years he
worked six days a week at a gas station to provide for his family.  Prior to
immigrating to Canada in 2001, he had lived and worked in Afghanistan.  He had
attained a degree in Economics from the Ministry of Higher and Vocational
Education at Kabul University.  In 1996, he fled the Taliban regime in
Afghanistan and took his family to Pakistan.  While in Pakistan he worked for a
non-governmental organization called Medical Refresher Courses for Afghans.  He
has no criminal record.

[14]

I agree with the
submission of Mr. Carter that if the public were fully informed of the
circumstances of Mr. Salim and the case for the Crown that his detention would
not be necessary to maintain confidence in the administration of justice.

[15]

For these reasons, I
would allow the application despite the very capable submissions of Ms. Lawton and
order the release of Mr. Salim on terms and conditions which may be discussed
later.

[16]

ROWLES, J.A.
: I agree

[17]

NEWBURY, J.A.
: I agree.

(discussion with counsel)

[18]

RYAN, J.A.
: After the discussion with counsel, I am
of the view that Mr. Salim should be released in the amount as proposed of $10,000
cash with one surety.  The terms and conditions will be as set out by Mr.
Carters written submissions with the exception that the conditions should also
include a prohibition with respect to alcohol and drugs.  Counsel can work out
the wording of the condition.

[19]

ROWLES, J.A.
: I agree.

[20]

NEWBURY, J.A.
: I agree.

The Honourable Madam Justice Ryan


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

In
          the matter of Agro Pacific Industries Ltd.,

2007
          BCCA 41

Date: 20070123

Docket: CA34498

IN
    THE MATTER OF THE
COMPANIES' CREDITORS ARRANGEMENT ACT
,

R.S.C. 1985, c. C-36, AS AMENDED

AND IN THE MATTER OF THE
COMPANY ACT
, R.S.B.C.
    1996, c. 62

IN THE MATTER OF AGRO PACIFIC INDUSTRIES LTD.

Docket:  CA34502

IN THE MATTER OF THE
COMPANIES' CREDITORS ARRANGEMENT
    ACT
, R.S.C. 1985, c. C-36 AS AMENDED

AND IN THE MATTER OF THE
COMPANY ACT
, R.S.B.C.
    1996, c. 62

IN
    THE MATTER OF AGRO PACIFIC INDUSTRIES LTD.

Before:

The
          Honourable Madam Justice Rowles

(In
          Chambers)

P.J.
          Reardon

Counsel for the Appellant,
Adriana Resources Inc.

J.H.
          Goulden

Counsel for the Appellant,
United Grain Growers d.b.a. Agricore United

G.E.H.
          Cadman, Q.C.

Counsel for the Respondent,
Univar Canada Ltd.

W.C.
          Kaplan, Q.C.

Counsel for the Creditors,
Agrium Inc. and Pioneer Hi-Bred Ltd.

S.C.
          Fitzpatrick

Counsel for the Creditors,
Cargill Ltd., Barenbrug USA Export Inc., Mosaic Gelle Plaine, and International
          Raw Materials

Place
          and Date of Hearing:

Vancouver
,
British Columbia

10
          January 2007

Place
          and Date of Judgment:

Vancouver
,
British Columbia

23January 2007

Reasons
    for Judgment of the Honourable Madam Justice Rowles:

[1]

Having now reviewed the material and submissions, I have come to the
    conclusion that leave to appeal ought to be granted on both applications.

[2]

In
    keeping with the usual practice of this Court, I do not propose to give reasons.

The Honourable
    Madam Justice Rowles


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Kirk
          v. Kirk,

2007
          BCCA 63

Date: 20070124

Docket: CA033877;

CA033878

CA033877

Between:

Anna
    Aaltje Kirk, also known as Anna Kirk

Appellant

(
Plaintiff
)

And

Denis
    Fredrick Kirk, also known as Denis Frederick Kirk

Respondent

(
Defendant
)

CA033878

Between:

Anna
    Aaltje Kirk, also known as Anna Kirk

Appellant

(
Plaintiff
)

And

Denis
    Fredrick Kirk, also known as Denis Frederick Kirk,

Hyper
    Technologies Inc., White Dragon Enterprises Inc.

And
    Faronics Corporation

Defendants

(
Respondents
)

Before:

The
          Honourable Madam Justice Prowse

The
          Honourable Madam Justice Huddart

The
          Honourable Mr. Justice Mackenzie

Oral Reasons for Judgment

I.
          Pietrow

G.F. Gregory

Counsel for the Appellant

P.
          Daykin

Counsel for the Respondent D. Kirk and Defendants
          Hyper Technologies Inc. & White Dragon Enterprises

D.R.
          Bennett

Counsel for the Defendant Faronics Corp.

Place
          and Date:

Vancouver
,
British Columbia

24 January 2007

[1]

MACKENZIE, J.A.
: This is an appeal from an order refusing
    to add the Corporate respondents Hyper Technologies Inc. and Faronics Corporation
    as defendants in a family law action commenced by the plaintiff wife against
    the defendant husband.  The reasons are reported at 2006 BCSC 277.

[2]

The wife applied to add the two corporations together with White Dragon
    Enterprises pursuant to Rule 15(5) of the
Rules of Court
.  The
    application to add White Dragon, a holding company wholly owned by the husband,
    was unopposed and granted by the chambers judge.  At the same time, the judge
    granted applications by the husband and respondent companies pursuant to Rules
    19(24) and 57 to dismiss a separate action by the wife advancing claims in
    trust over assets of the respondents and ancillary equitable relief (the
    second action).  Claims in the second action overlap the claims in the family
    law action.

[3]

The gravamen of the wifes claim essentially is that the husband and
    the companies have implemented a corporate scheme to defeat the wifes claim
    to family assets.  As the matter was framed in this Court, the appellant accepted
    that the appellant did not have a claim in law directly against the assets
    of Hyper Technologies and Faronics.  I am satisfied that the chambers judge
    was correct in striking the pleadings proposed by amendment in the family
    law action and the pleadings in the second action as he did.

[4]

However, in this Court the appellant advances a different claim, not
    against the assets directly but based on her position as shareholder arising
    out of the respective division family assets.  That claim is essentially a
    claim in fraudulent conspiracy to diminish the value of the wifes potential
    shareholdings in Hyper Technologies Inc. and White Dragon Enterprises Inc.
    and, through White Dragon, which is presumably an alter ego of the husband,
    the shares held by White Dragon in Faronics.

[5]

With some reluctance I think that the wife should be given an opportunity
    to attempt to plead those claims in a satisfactory manner.  That would be
    a matter for the trial court to consider.

[6]

Accordingly, in my view, the form of the order in this Court should
    be to uphold the decision of the chambers judge striking the proposed amended
    pleadings in the family action with liberty to re-apply to file revised pleadings
    and to join the two corporate defendants on the basis of those pleadings.
    Also, to strike the statement of claim in the second action leaving the writ
    of summons with a view to permitting the appellant to file a new statement
    of claim with the revised cause of action and leaving it to a judge in the
    Supreme Court to decide, firstly, whether that is a proper pleading and, secondly,
    if so, whether that action should be joined with the family law action for
    purposes of trial.

[7]

PROWSE, J.A.
: I agree.

[8]

HUDDART, J.A.
: I agree.

[9]

PROWSE, J.A.
: The order would be in the form indicated
    by Mr. Justice Mackenzie.  Now, costs.

(submissions by counsel)

[10]

MACKENZIE, J.A.
: In my view, the pleadings that were before
    Mr. Justice Josephson and before us were misconceived.  There is no good reason
    in my view why the action could not have been framed properly at a much earlier
    stage of these proceedings.  Accordingly, I would award the respondents costs
    of this application both here and before Mr. Justice Josephson.

[11]

Any application for amended pleadings in this matter should be filed
    not later than two weeks from today in the Supreme Court in order avoid further
    delay this already too protracted proceeding.

[12]

I should add this, just as a final comment, Mr. Gregory, it appears
    that your client is contemplating going down a road of advancing a claim in
    fraudulent conspiracy against these companies.  I am sure that you will inform
    your client that there are severe cost penalties for advancing such a claim
    and not succeeding.  That strategy is a high risk strategy in terms of potential
    costs consequences.

[13]

PROWSE, J.A.
: I agree with everything that Mr. Justice
    Mackenzie has said.

[14]

HUDDART, J.A.
: I agree.

The Honourable Mr. Justice Mackenzie


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Johnny
          v. I.C.B.C.,

2007
          BCCA 43

Date: 20070125

Docket: CA33074

Between:

Troy
    Jonathon Johnny

Respondent

(
Plaintiff
)

And:

Leonard John Palmantier and Jason Darrin Houde

(Defendants)

And:

Insurance
    Corporation of British Columbia

Appellant

(
Third Party
)

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Mr. Justice Donald

The
          Honourable Mr. Justice Chiasson

A.M.
          Mersey

Counsel for the Appellant

G.
          Hilliker, Q.C. and J.U. Buckley

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver
,
British Columbia

12 January 2007

Place
          and Date of Judgment:

Vancouver
,
British Columbia

25 January 2007

Written
          Reasons by
:

The
          Honourable Mr. Justice Chiasson

Concurred
          in by:

The
          Honourable Chief Justice Finch
The Honourable Mr. Justice Donald

Reasons
    for Judgment of the Honourable Mr. Justice Chiasson:

[1]

This is an appeal from a judgment determining that Mr. Palmantier was
    the driver of an automobile involved in a single vehicle accident in which
    the respondent was an occupant.

[2]

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

Background

[3]

The plaintiff and Mr. Palmantier had been drinking heavily overnight
    and into the day of June 9, 2001.  They left the Toosey Indian Reserve to
    drive 45 km to Williams Lake, British Columbia in Mr. Palmantiers truck (which
    was registered in the name of Jason Houde).  Soon thereafter the vehicle left
    the road and went off a steep slope into a ravine.

[4]

Both the respondent and Mr. Palmantier were thrown out of the vehicle
    and injured.

[5]

The respondent sued Mr. Palmantier and Mr. Houde for damages arising
    out of the accident.  The defendants did not respond to the litigation.  The
    appellant insurer was joined to the litigation as a third party pursuant to
    s. 21 of the
Insurance (Motor Vehicle) Act
, R.S.B.C. 1996, c.
    231.

[6]

After a four-day hearing, the trial judge determined that Mr. Palmantier
    was the driver and adjourned consideration of his negligence, any contributory
    negligence by the respondent, damages and costs.

The trial

[7]

During the course of the trial, evidence was adduced that the respondent
    denied being the driver to a police officer at the scene of the accident and
    that approximately one hour later he admitted being the driver to a nurse
    at a hospital.

[8]

The trial judge held that the statement to the police officer was inadmissible
    hearsay evidence and admitted the statement to the nurse as being a statement
    against interest.

[9]

As to the statement to the police, he said in paras. 31 and 32 of his
    reasons for judgment:

.
    . . there are insufficient circumstantial guarantees of trustworthiness
    to meet the threshold requirement of reliability.

. . .

. . . counsel for the plaintiff argues that the plaintiffs exculpatory
    statement to Cst. Meaver should be admitted as a relevant circumstance to
    be considered in deciding what weight, if any, should be attached to the plaintiffs
    inculpatory statement to nurse Harrison about an hour later . . . I think
    this point is well taken, and I will return to it later in these reasons.

[10]

After accepting the respondents evidence that he did not know who
    was driving, in para. 109 of his reasons for judgment the trial judge stated,
    . . . it would be unfair to ignore the plaintiffs denial of driving to Cst.
    Meaver, when deciding what weight should be given to his admission of driving
    to nurse Harrison.

[11]

In para. 111, the trial judge concluded:  . . . having regard to all
    of the circumstances, little weight should be attributed to the plaintiffs
    admission of driving to nurse Harrison.

[12]

The significance of the admission to nurse Harrison was apparent from
    the trial judges comments in para. 115:

If any appreciable weight could be assigned to the plaintiff's
    admission to nurse Harrison, I have no doubt that the admission would rebut
    the inference that Mr. Palmantier was driving.  That is, it would raise at
    least an equal probability that the plaintiff was driving, with the result
    that the plaintiff would not have met his burden of proof.  However, I have
    decided that almost no weight should be given to the plaintiff's admission
    to nurse Harrison. . . .

Positions
    of the parties

[13]

The appellant asserts that the trial judge erred by using the contents
    of inadmissible hearsay evidence in weighing the contents of admissible evidence.
    It contends that once the statement to the police officer was excluded as
    evidence, it could play no further part in the trial.

[14]

The respondent says that the trial judge was entitled to use the evidence
    as he did because it was not being used for the truth of its contents.  Counsel
    noted that evidence that otherwise is hearsay often is used for purposes other
    than the truth of its contents and referred to the rule concerning prior consistent
    statements.

Discussion

[15]

In my opinion, the trial judge was entitled to use the statement to
    the police officer as part of the narrative or context of the case.

[16]

My view is that the statement was merely one of the factors he took
    into account in assessing the weight to be given to the admission to the nurse.

[17]

At the time of both statements, the respondent was seriously injured,
    in pain and intoxicated.  At trial he did not remember who was driving.  It
    would have been inappropriate for counsel to argue that the respondent was
    the driver because he said so to the nurse and there was no evidence that
    he denied being the driver.  Such evidence did exist.  In my view, it was
    relevant to the weight to be given to the statement to the nurse.

[18]

Although counsel for the appellant contends that the statement to the
    police officer could not have been given to a jury, I see no reason why this
    would have to be the case.  A jury could be instructed that it must not consider
    the statement as true, but that it could take into account the fact that the
    statement was made.  That is, at a minimum it would be relevant to the state
    of mind of the respondent within an hour of giving the statement to the nurse.

[19]

An analogous example of the use of evidence which is inadmissible for
    the truth of its contents is the rule concerning prior consistent statements.
    Such statements are not admissible for the truth of their contents, but can
    be used to rebut an implication of recent fabrication.  (see:
R. v.
    Evans
, [1993] 2 S.C.R. 629 at 643;
R. v. Stirling
, 2007
    BCCA 4.)

[20]

I do not say that the statement to the police officer could rebut or
    supplant the statement given to the nurse and, in my view, that is not the
    use that was made of it by the trial judge.  He was careful to stress that
    the statement given to the police officer was not being used for the truth
    of its contents.  To use the fact that the statement had been made in the
    overall context of considering the weight to be given to the statement made
    to the nurse was proper.  In my view, it would have been an error not to do
    so.

Conclusion

[21]

I would dismiss this
    appeal.

The Honourable
    Mr. Justice Chiasson

I agree:

The Honourable Chief Justice Finch

I agree:

The Honourable
    Mr. Justice Donald


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Speckling
          v. Communications, Energy and  Paperworkers' Union of Canada (Local
          76),

2008
          BCCA 1

Date: 20080102

Docket: CA035357

Between:

Walter
    Speckling

Appellant

(
Plaintiff
)

And

Local
    76 of the Communications, Energy and Paperworkers' Union of Canada, Communications,
    Energy and Paperworkers' Union of Canada, Michael Verdiel, Clark Banks, John
    Belrose, Grant Campbell, Marvin Coe, Jerome Desilets, Ron Gordey, Gary Jackson,
    Doug Long, George Orchiston, Joe Osmond, Harry Raimondo, Bill Spence, Ian
    Thompson, Mike Vallee, Dave Wainwright, Brad Wilson, Dave Coles, Rolf Nielsen,
    Brian Payne, Fred Pomeroy, and others yet unknown

Respondents

(
Defendants
)

Before:

The
          Honourable Madam Justice Kirkpatrick

(In
          Chambers)

B.
          Speckling

Counsel for the Appellant

J.
          Mistry

Counsel for the Respondents,

Local 76 of the Communications, Energy and Paperworkers'
          Union of Canada, Michael Verdiel, Clark Banks, John Belrose, Grant Campbell,
          Marvin Coe, Jerome Desilets, Ron Gordey,

Gary Jackson, Doug Long, George Orchiston, Joe Osmond,
          Harry Raimondo, Bill Spence,

Ian Thompson, Mike Vallee, Dave Wainwright, and Brad
          Wilson

Place
          and Date of Hearing:

Vancouver, British Columbia

14 December 2007

Place
          and Date of Judgment:

Vancouver, British Columbia

2 January 2008

Reasons
    for Judgment of the Honourable Madam Justice Kirkpatrick:

[1]

The respondents (other than Communications,
    Energy and Paperworkers' Union of Canada, Dave Coles, Brian Payne and Fred
    Pomeroy) apply pursuant to s. 24 of the
Court of Appeal Act
,
    R.S.B.C. 1996, c. 77 and Rule 33 of the
Court of Appeal Rules
,
    B.C. Reg. 297/2001 for an order that the respondents be granted security for
    costs and for an order that these proceedings be stayed pending the posting
    of security for costs.

[2]

The underlying appeal is from the order
    of the Supreme Court that allowed the application of the defendant, Local
    76 of the Communications, Energy and Paperworkers' Union of Canada (the "Union"),
    that the plaintiff's action be dismissed as an abuse of process pursuant to
    Supreme Court Rule 19 (24)(d).  The reasons of the chambers judge may
    be found at 2007 BCSC 1016.  Those reasons fully set out the protracted
    and entangled history of these and other proceedings that involve both Mr.
    Speckling and his brother, Bernardus Speckling.

[3]

The underlying dispute in this appeal
    arises from charges that Walter Speckling filed against members of the executive
    of the Union in September 1999.  In response, members of the Union's
    executive board charged Walter Speckling with laying frivolous and vexatious
    charges.  A disciplinary hearing was held.  The disciplinary board
    found that Mr. Speckling's charges against the Union were unfounded.
    Mr. Speckling was suspended from the Union for six months and fined $1,000.
    When Mr. Speckling did not pay the fine, he ceased to be a member in good
    standing of the Union.  The Union demanded that the employer dismiss
    Mr. Speckling pursuant to a union security clause.  The employer's position
    was that it would not discharge Mr. Speckling until any appeal by him under
    the Union's constitution was heard.  The Union filed a grievance against
    the employer's position.  Prior to arbitration, the employer agreed to
    discharge Mr. Speckling.  In May 2000, the employer terminated Mr. Speckling's
    employment because he had not reinstated himself as a member in good standing
    of the Union.  Mr. Speckling grieved his discharge under s. 12 of the
Labour Relations Code
on the basis that the employer did not
    have just cause for his termination.

[4]

Mr. Speckling's brother, Bernardus Speckling,
    also brought a s. 12 complaint against the Union after his employment was
    terminated.

[5]

Following a 16-day hearing, on 9 October
    2003, the Labour Relations Board dismissed Mr. Speckling's s. 12 complaint.
    On the same day, the Board issued two other decisions that dealt with procedural
    and evidentiary issues raised before the Board during proceedings concerning
    both Mr. Speckling and his brother, Bernardus Speckling.

[6]

Both Walter Speckling and Berdardus
    Speckling applied for leave to have their s. 12 complaints reconsidered.
    The reconsideration panel denied leave for reconsideration.  Walter Speckling
    applied for a judicial review of the Board's decision.  A judge of the
    Supreme Court denied that application (2006 BCSC 285).  That decision
    was upheld on appeal (2007 BCCA 153, 66 B.C.L.R. (4
th
) 287).

[7]

In concurrent proceedings, Bernardus
    Speckling commenced an action against the Union on the basis of conspiracy,
    breach of fiduciary duty and intentional interference with contractual relations.
    Bernardus Speckling brought an application in the Supreme Court for a declaration
    that he was a member in good standing of the local and national unions and
    that the Labour Relations Board did not have jurisdiction over the tort claims
    he was advancing.  The defendants cross-applied for an order striking
    the plaintiff's statement of claim pursuant to Rule 19(24)(a).  The chambers
    judge concluded that the essential character of the claim set out in the statement
    of claim fell within the exclusive jurisdiction of the Labour Relations Board
    pursuant to the provisions of the
Code
and declined jurisdiction.
    That decision was appealed to this Court.  At paras. 43-45 of her reasons
    (2006 BCCA 203, 54 B.C.L.R. (4
th
) 88), Madam Justice Southin held:

Is it an "abuse of process" to bring an action alleging one
    is a member in good standing of a union, if one has brought and failed in
    an application under s. 12 of the
Labour Relations Code
,
    in which the allegations are essentially the same as in the statement of claim?

I have previously set out a number of sections of the
Labour Relations
    Code
relied upon by the respondent Local 76.  I do not find it
    necessary to decide whether any or all of those sections would prevent the
    court from entertaining the appellant's action.  At its highest, his
    right was to choose a forum:  either the Labour Relations Board or the
    court.  When a litigant has a choice of forum, by choosing one forum,
    he elects, in my opinion, to accept the decision of that forum as concluding
    the issues.

Having compared the assertions or allegations made by the plaintiff in
    his application under s. 12 and the powers of the Labour Relations Board
    on such applications with the statement of claim, including the prayer for
    relief, in this action, I am of the opinion that the central issues are essentially
    the same in both, and that being so, this action may be dismissed as an abuse
    of process.

[8]

Leave to appeal that decision to the
    Supreme Court of Canada was refused ([2006] S.C.C.A. No. 247 (QL)).

[9]

On 21 May 2002, Walter Speckling filed
    a writ of summons and statement of claim, which was amended on 25 August 2006.
    The defendants include Union members who were on the executive of the Union,
    or who held other positions in the Union at the time when Mr. Speckling's
    grievance first arose.   In that action, Mr. Speckling sought various
    declarations relating to the decisions taken against him by the Union as well
    as damages for conspiracy, breach of fiduciary duty, intentional interference
    with contractual relations and breach of contract.

[10]

On 27 July 2007, the chambers judge
    in the within litigation concluded that he was bound by the decision of this
    Court in the case involving Bernardus Speckling, in which Madam Justice Southin
    found that the central issues in the s. 12 complaint and Bernardus Speckling's
    statement of claim were essentially the same.  He therefore struck Walter
    Speckling's statement of claim as an abuse of process under Rule 19(24)(d).

Security for costs

[11]

In an application for security for costs
    of the appeal, the "ultimate question" is whether the order would
    be in the interests of justice.  The case law identifies four relevant
    considerations:

(i)
    the appellant's financial means;

(ii)
    the merits of the appeal;

(iii)
    the timeliness of the application; and

(iv)
    whether costs will be readily recoverable (see
Lu v. Mau
, 2006
    BCCA 560 (in Chambers)).

[12]

The onus is on the appellant to show
    that it is in the interests of justice that security for costs not be ordered.
    The appellant must demonstrate that he will not be able to prosecute the appeal
    if ordered to secure the respondents' costs.  Further, there is a presumption
    in favour of granting security for costs if there is a serious question as
    to whether recovery may be difficult (see
Edwards (Guardian ad litem
    of) v. Moran
, 2003 BCCA 443, 186 B.C.A.C. 31 (in Chambers) and
Sangha
    v. Azevedo
, 2005 BCCA 125 (in Chambers)).

[13]

Walter Speckling filed no affidavit
    evidence to show that it is in the interests of justice that security for
    costs not be ordered.  His brother, Bernardus Speckling, appeared on
    his behalf on the application for security for costs.  The only evidence
    proffered by Walter Speckling, if it may be called that, were photocopies
    of e-mail exchanges and correspondence with the Union and certain of the respondents
    handed to the Court during the hearing.  Bernardus Speckling submitted
    that this "evidence" belies the Union's allegation that it will
    have difficulty recovering costs in the event that Mr. Speckling's appeal
    fails.

[14]

I turn to the four relevant considerations.

[15]

As I have indicated, there is no affidavit
    evidence before the Court as to Mr. Speckling's financial means.  It
    appears, and the Union does not say otherwise, that Mr. Speckling has paid
    the employer $5,000 in respect of the judicial review hearing.

[16]

Attached to the affidavit of the Union's
    lawyer, was a letter dated 20 July 2006 addressed to Mr. Speckling which enclosed
    a draft bill of costs.  The total fees and disbursements claimed in the
    draft bill were approximately $9,230.  In the letter, the Union asked
    that Mr. Speckling advise them as to any disagreement he had with the bill
    by 12 August 2006.

[17]

The Union's affidavit did not disclose
    an offer contained in a letter dated 12 August 2006 from Bernardus Speckling
    to the Union's lawyer, which stated:

Thank
    you for your letter dated July 20, 2006.  The Employer agreed to settle
    for the amount of $5,000.00.  In fact the Petitioner already provided
    those funds to the Employer.

On
    that basis the Petitioner agrees to settle with the union for the same amount
    and would pay that amount forthwith should the offer be accepted.

However,
    it is clear from the affidavit of the Union's lawyer that the parties were
    unable to reach a settlement of that bill of costs.

[18]

On 27 July 2007, the chambers judge
    struck Mr. Speckling's statement of claim.

[19]

On 28 October 2007, Mr. Speckling submitted
    an offer to settle the appeal as well as the costs arising from the 2006 judicial
    review and the 2007 Rule 19(24) application in the Supreme Court.

[20]

On 1 November 2007, the Union submitted
    a counter-offer in which it proposed to settle the outstanding bills of costs
    for $5,000 subject to an agreement that Mr. Speckling discontinue this appeal
    and forego any other claims arising out of his employment with the employer
    or membership in the union.  It appears that the counter-offer was not
    initially received by Mr. Speckling or Bernardus Speckling.  The letter
    was sent again on 5 November 2007.  Bernardus Speckling confirmed his
    receipt of the counter-offer on 6 November 2007.

[21]

On 7 November 2007, the Union sent a
    letter to Mr. Speckling enclosing a draft bill of costs for the Rule 19(24)
    application.

[22]

On 21 November 2007, Mr. Speckling filed
    and served his appeal book and factum.

[23]

Mr. Speckling has not responded to the
    counter-offer or to the bill of costs forwarded to him on 7 November 2007.
    The Union submits that Mr. Speckling's failure to respond to the Union's counter-offer
    and to the draft bills of costs demonstrates that the Union will have difficulty
    recovering costs.

[24]

In my opinion, the failure of the parties
    to reach agreement on the proposed bills of costs is, standing alone, insufficient
    reason to require Mr. Speckling to post security for costs of the appeal.
    The circumstances would be quite different if the Union had had the bills
    of costs in the Supreme Court assessed and the amount due under the bills
    certified.  In that instance, the failure of Mr. Speckling to pay the
    bills of costs would have provided definitive evidence as to the difficulty
    of recovery.

[25]

As I have noted, there is no evidence
    that Mr. Speckling's ability to pursue this appeal will be compromised if
    an order for security for costs is made.  As the Union points out, Mr.
    Speckling has filed his appeal documents without any apparent difficulty,
    a factor cited by this Court in
Lu v. Mao
, 2006 BCCA 560 at
    para. 15 as supporting an award of security for costs.  Furthermore,
    this is not an application for costs that is made on the eve of hearing, when
    to order security might work an injustice to the appellant (see
M. M
    .v. F. R
. (1997), 43 B.C.L.R. (3
d)
    98 (in Chambers)).  The appeal has not been set down for hearing and
    it might well work an injustice not to award costs if, on a consideration
    of the merits of the appeal, it appears that the appeal is unlikely to succeed.

[26]

As to the
    merits, I note that Mr. Speckling's amended statement of claim amounts, in
    essence, to a re-litigation of his s. 12 complaint before the Board.
    I am unable to discern any substantial difference between the circumstances
    in the appeal brought by Bernardus Speckling, which was dismissed, and that
    brought by the appellant in this case.  Bernardus Speckling argued at
    the hearing of the application for security for costs that this Court misinterpreted
    the application of
Weber v. Ontario Hydro
, [1995] 2 S.C.R. 929,
    to his appeal.  He argues that it cannot be an abuse of process to file
    a writ in circumstances in which the complaint as to duty of fair representation
    has been dismissed by the Labour Relations Board under s. 12.  In my
    opinion, that argument cannot carry much weight, having regard to the Supreme
    Court of Canada's refusal to grant leave to appeal this Court's dismissal
    of Bernardus Speckling's appeal.

[27]

Thus, on
    a consideration of the two factors which weigh in favour of the granting of
    an order for security of costs, namely Mr. Speckling's failure to establish
    that his ability to pursue the appeal would be stifled and the lack of merits
    of the appeal, I conclude that it is in the interests of justice to make an
    award of security for costs.

[28]

As to the
    quantum of security, the Union contends that the security should be ordered
    in the amount of approximately $9,340 based on a bill of costs prepared in
    respect of Bernardus Speckling's appeal.  The parties settled for approximately
    $6,967.  Mr. Speckling contends that, if security for costs is to be
    ordered, it should be in the amount of $3,500.

[29]

In my opinion,
    based on a review of the bill of costs in Bernardus Speckling's appeal, the
    appropriate amount of security for costs is $7,500.

[30]

I therefore order that Mr. Speckling
    deposit with the Registrar the sum of $7,500 as security for costs within
    30 days of the pronouncement of this order.  The appeal is stayed pending
    the deposit of the security for costs.

The Honourable Madam Justice Kirkpatrick

CORRECTION

    2 January 2008

In
    the first sentence of paragraph 24 on page 8 the word pose should read post.


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Italy
          v. Seifert,

2008
          BCCA 25

Date: 20080104

Docket: CA031164

In the Matter of the
Extradition Act

Between:

The
    Attorney General of Canada on behalf of

the
    Republic of Italy

Respondent

(
Requesting State
)

And

Minister
    of Justice of Canada

Respondent

And

Michael
    Seifert

Applicant

(
Person Sought
)

Before:

The
          Honourable Mr. Justice Lowry

(In
          Chambers)

Oral Reasons for Judgment

D.H.
          Christie

Counsel for the Applicant

K.L.
          Swift

Counsel for the Respondent

Place
          and Date:

Vancouver, British Columbia

4 January 2008

[1]

LOWRY, J.A.
: The Republic of Italy seeks the extradition of the
    applicant who was convicted
in absentia
of nine murders said to have
    been committed while he was a guard at a prison camp during the Second World
    War.  He appealed his convictions unsuccessfully, through two levels of appeal
    to Italys highest court.  He has been sentenced to life imprisonment.  These
    extradition proceedings were commenced in 2003.  A committal order has been
    entered in the Supreme Court of British Columbia and the applicants surrender
    has been ordered by the Minister of Justice.  The applicants appeal and application
    for judicial review to this Court has been dismissed.  He has made application
    for leave to appeal to the Supreme Court of Canada and applies now under s.
    679(1)(c) of the
Criminal Code
for judicial interim release
    while that application is pending.  It is his second application in this Court
    for release; the first was dismissed.  While the grounds of his proposed appeal
    were seen as weak they were not all considered to be frivolous, but he failed
    to establish his detention was not, in the public interest, necessary (2007
    BCCA 420).  The justice said:

[24]
    The crimes upon which Mr. Seifert has been ordered surrendered are atrocities
    of the worst order.  I have concluded that none of the grounds of appeal put
    forward can be described as strong or very strong.  Some of them are frivolous,
    and I would describe the balance as weak.  The public interest in the enforceability
    of this Courts order is very high.  In my view, public confidence in the
    administration of justice would be undermined if I were to order Mr. Seiferts
    release in these circumstances.

[2]

The applicant is 83 years of age; he is said to be in ill health.
    He has resided at the same residence in Vancouver, where he lives with his
    wife, for over 50 years.  He has no passport and only a small pension.  He
    lived peacefully and lawfully on bail for over five years until he was taken
    into custody following the judgment of this Court just over four months ago.
    The justice did not consider him a flight risk.

[3]

An application for judicial interim release under s. 679(3) of the
Code
is a fresh application, as opposed to a bail review application
    under s. 680.  On a successive application such as this, the applicant must
    demonstrate, as a preliminary matter, there has been a material change in
    circumstances (
R. v. Baltovich
(2000), 47 O.R. (3d) 761, 144
    C.C.C. (3d) 233 (C.A.);
R. v. Daniels
(1999), 35 O.R. (3d) 737,
    119 C.C.C. (3d) 413 (C.A.);
Saxena v. Thailand
, 2006 BCCA 293,
    227 B.C.A.C. 307 at para. 4;
R. v. Wilder
, 2006 BCCA 290 at
    para. 5).  A material change is one capable
of leading to a different assessment of one
    or more of the factors set out in s. 679(3) of the
Code
:
(a) whether the leave application is frivolous; (b) whether
    the applicant will surrender himself into custody in accordance with the terms
    of any release order; and (c) whether the applicants detention is necessary
    in the public interest (see
Baltovich
at paras. 3-7).

[4]

The applicant contends a decision of the Federal Court in denaturalization
    proceedings that have in some measure paralleled the extradition proceedings
    represents a material change in circumstances.  In
Canada (Minister
    of Citizenship and Immigration) v. Seifert
, 2007 FC 1165, it was determined
    the applicant gained entry into Canada by misrepresentation and non-disclosure.
    It was, however, also determined that the evidence adduced in the Federal
    Court proceedings did not establish, on a balance of probabilities, the applicant
    had committed the crimes at the prison camp that were alleged against him
    in that case.  In particular, the judge said:

[210]
Accordingly, I am not satisfied
    that the allegations against Mr. Seifert ... have been proved on the
    balance of probabilities.  Indeed, in respect of most of those allegations,
    there is simply no evidence before me.  In respect of additional accusations
    made by former prisoners who testified in these proceedings, again, I cannot
    find that they have been proved.  I do not suggest that witnesses fabricated
    evidence, or even that they are mistaken.  I simply conclude that the evidence
    does not establish on the balance of probabilities that Mr. Seifert is responsible
    for the acts alleged against him.

[5]

While some of the evidence may have been common to both proceedings,
    the evidence tendered before the Federal Court was not
the
evidence
    in these extradition proceedings.  In any event, this Court has determined
    that, on the evidence adduced in these proceedings, the applicants extradition
    is sound.  Further, whatever may be said of the evidence against the applicant,
    the Federal Court decision does not undermine in any material way the basis
    on which the applicants interim release was first denied: his failure to
    establish his detention is not, in the public interest, necessary given the
    crimes of which he has been convicted.

[6]

I do not consider the applicant has discharged the burden he bears
    on this application for interim release and his application is dismissed.

The Honourable Mr. Justice Lowry


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Dyke
          v. British Columbia Amateur Softball Assn.,

2008
          BCCA 3

Date: 20080108

Docket: CA033468

Between:

Marena Dyke

Appellant

(
Plaintiff
)

And

British
    Columbia Amateur Softball Association and

British
    Columbia Amateur Softball Association carrying on

business variously as Softball BC, Softball B.C. or Softball City

Respondent

(
Defendant
)

Before:

The
          Honourable Mr. Justice Donald

The
          Honourable Madam Justice Levine

The
          Honourable Madam Justice Kirkpatrick

I.
          G. Nathanson, Q.C., R. B. Webster, Q.C.
and D. F. Corrin

Counsel for the Appellant

E.
          A. Dolden and K. S. Fast

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

November 19, 2007

Place
          and Date of Judgment:

Vancouver, British Columbia

January 8, 2008

Written
          Reasons by
:

The
          Honourable Mr. Justice Donald

Concurred
          in by:

The
          Honourable Madam Justice Levine

The
          Honourable Madam Justice Kirkpatrick

Reasons
    for Judgment of the Honourable Mr. Justice Donald:

[1]

The plaintiff suffered a serious head injury when she was struck by
    a line drive foul ball while acting as scorekeeper for her co-ed slo-pitch
    softball team.  She would have been in the dugout and out of harm's way, but
    the dugout was flooded.  She brought a claim under the
Occupiers Liability
    Act
, R.S.B.C. 1996, c. 337, against the defendant, which operates
    Softball City, a four-diamond ballpark in Surrey where the mishap occurred.

[2]

On a set of agreed facts supplemented by other evidence, the parties
    proceeded to a summary trial on liability under Rule 18A before Mr. Justice
    Wong.

[3]

The plaintiff advanced her claim on the theory that the defendant failed
    in its duty to provide her a safe place to carry out her activities as a scorekeeper.
    Rather than use the below-ground dugout, which was flooded, she stood with
    her team beside the dugout along the first-base line, protected only by a
    four-foot-high steel mesh fence.

[4]

The judge dismissed the action:  2005 BCSC 1422.  He found that there
    were other completely safe alternative locations available to her, and that
    on providing safe alternatives, the plaintiff met the standard of care.  He
    found that, in the alternative, even if the standard of care required a functional
    dugout, the chain of causation was broken when the plaintiff chose to stand
    in an unprotected place and failed to keep a lookout for foul balls.

[5]

The plaintiff appeals on the grounds that the judge:

(i)         made a palpable and overriding error in his
    finding of specific facts, which affected the trial result;

(ii)        erred in law in defining and applying the
    standard of care owed to the plaintiff;

(iii)       erred in law or in drawing inferences from
    facts in finding that any negligence did not expose the plaintiff to an unreasonable
    risk;

(iv)       erred in law in finding that any risks were
    "inherent", and incorporated into the
Occupiers Liability
    Act
; and

(v)        erred in law by incorporating the reasoning
    of "last clear chance" into his analysis.

[6]

I would dismiss the appeal.  In my opinion, the judge made no errors
    of fact that affected the result.  Nor do I think that the judge erred in
    defining the standard of care or in applying the standard to the circumstances
    of this case.  The last three grounds of appeal refer to alternate bases upon
    which the judge denied liability.  I find it unnecessary to decide those
    grounds, although I think it necessary for the development of the law that
    I express my disapproval of the reasoning to which the fifth ground refers.

Facts

[7]

The following is the statement of agreed facts:

1.
    The Defendant, British Columbia Amateur Softball Association and British Columbia
    Amateur Softball Association carrying on business variously as Softball B.C.,
    Softball BC or Softball City (Softball City) is a society and at the material
    time the registered lessee of the Softball City Sports and Entertainment Complex
    including buildings, play fields and facilities located at the corner of 24th
    Avenue and 148th Street in Surrey, British Columbia (the Premises).

2.
    Softball City was built in approximately 1989 by the British Columbia Amateur
    Softball Association and was designed, built and constructed to host softball
    leagues and tournaments at all levels of play from recreational, competitive
    to international championship level and all ages, from children to adults.

3.
    The subject matter of this action is damages for a brain injury sustained
    by the Plaintiff when she was hit in the head at a co-ed slo-pitch softball
    tournament held at Softball City.

4.
    On September 30, 2001, the plaintiff was acting as scorekeeper for a team
    called the Eagles when she was struck on the head by a foul ball hit by
    a player on the opposing team called the Dawgz (the Incident) during a
    co-ed slo-pitch game being played on Diamond One (the Game).

5.
    At the material time, Softball City was the occupier of the Premises as defined
    by the
Occupiers Liability Act
, R.S.B.C. 1996, c. 337 and amendments
    thereto.

6.
    Softball City designed its facility to have fenced dugouts for all participants
    on all four diamonds.

7.
    Softball City was constructed in 1989 with four diamonds.  At that time all
    diamonds, including diamond #1, had two fenced at grade dugouts with cement
    flooring located on the first and third base line.

8.
    Softball City built dugouts for the use of scorekeepers, spares, coaches and
    bat boys and girls (participants) during game play.  The dugouts consisted
    of a roofed area surrounded by chain fencing on four sides, with benches for
    seating inside.

9.
    Diamond #1 at Softball City was modified in 1993 to lower the floor of its
    two dugouts from grade level to below ground level and to expand the seating
    capacity.  The dugouts were lowered to allow increased spectator seating capacity
    and allow for increased revenue from seat sales and for the roof to provide
    a platform for TV cameras.

10.
    When the dugouts on diamond #1 were modified, they were lowered approximately
    3 feet, cement retaining walls were installed, wooden sides and backs were
    installed and the solid roof was installed.  The front, facing the field of
    play, retained the fencing above the retaining wall and below the roof (the
    1993 Modifications).

11.
    There is no evidence that Softball City applied for or received any building
    permits from the City of Surrey, or any building inspection of the dugouts
    when they were modified in 1993.

12.
    After the 1993 Modifications, Softball City installed an automatic sump pump
    underneath the dugouts on diamond #1.  The automatic sump pump, when functioning,
    was triggered by the existence of standing water as it accumulated and pumped
    out the water (the Automatic Sump Pump System).

13.
    When the Automatic Sump Pump System was not functioning, the dugouts would
    fill with water periodically.  When flooded, they would remain flooded until
    the water was pumped out using an electric pump and/or the automatic sump
    pump system was repaired.

14.
    The use of the Automatic Sump Pump System, installed in 1993, was discontinued
    sometime between 1998 and before the Incident.

15.
    The Automatic Sump Pump System was replaced by an arrangement whereby a Softball
    City employee would place an electric pump in the sump in the dugout to remove
    water.

16.
    The removal of accumulated water from dugouts on diamond #1 requires a worker
    to remove the grate covering the flooded sump, place the pump into the sump,
    direct the exhaust hose to drain the water onto the surface under the stands,
    plug the electrical cord of the pump in, and wait 5 to 30 minutes.  The process
    must then be reversed before the dugout can be occupied by participants.

17.
    From at least 1999, Softball City had no written maintenance protocol for
    responding to accumulation of water in the dugouts on diamond #1.

18.
    From at least 1999, Softball City relied solely on complaints or the personal
    initiative of employees to assess and remove water.

19.
    Dugouts are provided as safety equipment for participants in ball games, they
    protect participants from being struck by errant foul balls, overthrows, discarded
    bats, and other hazards (softballs hazards).  Dugouts provide a place of
    safety from Softballs Hazards.

20.
    Dugouts protect participants whose attention is turned away from the play.
    Participants make use of the dugouts during game play because participants
    attention is necessarily diverted from time to time, including by scorekeepers
    keeping score, players adjusting gear, coaches discussing matters with players.

21.
    Some players do not utilize the dugouts on diamond #1, but instead locate
    themselves elsewhere for a variety of reasons, not limited to a poor view
    of the field, darkness, dampness or water in the dugouts, desire to sit near
    friends, desire to be outside.

22.
    The floors of the dugouts on diamond #1 are the lowest point on the Softball
    City property.  The dugouts are susceptible to flooding and accumulation of
    water.

23.
    Water accumulated in the dugouts on diamond #1 from time to time such that
    they were not usable by participants.

24.
    Dugouts which are flooded or have accumulated water cannot reasonably be used
    by participants.

25.
    At the time of the Incident the plaintiff was acting as scorekeeper.  During
    the Game, the Plaintiff was also available to participate as a player, if
    the Eagles were short players.

26.
    For the purposes of the Game, the Eagles were designated the away team and
    the Dawgz were designated the home team.

27.
    During the Game, the Plaintiffs husband, Dave Dyke, was participating both
    as a coach and a player for the Eagles.

28.
    At the time of the Incident, the Dawgz were up to bat and the Plaintiffs
    team mates were defending the in-field and the outfield.

29.
    No evidence has been adduced that anyone who played on Diamond One on September
    30, 2001 complained to Softball City on that day and prior to the Incident
    about water in the Dugout.

30.
    During the Game and at the time of the Incident, the Plaintiff was standing
    beside the 1st base dugout (the Dugout) directly behind the four foot chain
    link fence that separates the playing field from the spectator stands and
    dugouts.

31.
    During the Game, there was accumulated water in the Dugout.

32.
    Due to the presence of the accumulated water in the Dugout, the Plaintiff
    was unable to use the dugout and stood beside the Dugout while keeping score,
    instead of sitting inside it.

33.
    If the dugout was usable, on September 30, 2001 the Plaintiff would have occupied
    the dugout to keep score during the Game.

34.
    The Plaintiff and her team members could not reasonably access the field in
    the usual way through the Dugout during the Game; instead they utilized the
    utility gate beside the 1st base Dugout.

35.
    During the Game, there were numerous empty seats in the area behind the protective
    screening (the Backstop).

36.
    The Backstop on Diamond One originates behind home plate and extends to both
    dugouts but stops before the area in which the plaintiff and her team mates
    were standing.

37.
    At the time of the Incident, the Plaintiff had watched, kept score, and played
    slo-pitch at a recreational level for more than 14 years.

38.
    At the time of the Incident, the Plaintiff was aware that balls are occasionally
    hit out of the playing field and into the stands during the course of a game.

39.
    At the time of the Incident, the Plaintiff was aware that it is important
    to keep ones eyes on the game unless in a protected area.

40.
    At the time of the Incident, the Plaintiff was making note of the score in
    a scorekeepers book provided by the defendant.

41.
    Prior to the Incident, the Plaintiff had played slo-pitch at Softball City
    on numerous occasions.

[8]

In addition to these facts, the plaintiff filed nine affidavits and
    the defendant filed 15.  For the most part, the affidavits speak to softball
    customs, usage and practices, and to the condition of the facilities at Softball
    City.  The plaintiff adduced expert opinion by affidavit as to the industry
    standard for participant safety in softball parks, and the plaintiff read
    in passages from the examinations for discovery of the defendant's representatives.

Issues

[9]

I propose to discuss the following issues:

(1)        Did the judge make any reversible errors of
    fact?

(2)        Did the judge err in defining the standard
    of care or in finding that it was met?

(3)        Did the judge resurrect the "last clear
    chance" doctrine?

Discussion

Factual
    Errors

[10]

There are three points of fact said to be palpable and overriding errors
    (the review standard accepted by the plaintiff):

(1)        the description of the location of the accident;

(2)
    the reference to Surrey's safety standards; and

(3)
    the description of the plaintiff as a "spectator".

[11]

In the introduction to his reasons for judgment, the judge said:

[3]
    At the time of the incident, the plaintiff was keeping score while standing
    in the spectator area to the right of the first base dugout behind the fence
    that separates the playing field from the spectator stands.

[12]

It is not strictly accurate to say that this is a spectator area.
    It would have been more precise to say that the area lay between the grandstand
    and a set of bleachers, but I cannot see that it makes any difference in the
    result.  A series of photographs of the scene clearly shows the location of
    the accident in relation to the seating area for spectators.  The photographs
    were in evidence; the judge could not have been mistaken about where the accident
    occurred.

[13]

The second alleged error concerns standards for fencing.  The judge
    said:

[17]
    In this case, the standards for protective fencing were set by both the City
    of Surrey and the softball facility industry.  The court has received evidence
    from Mr. Todd (at para. 20 of his affidavit) that the protective screening
    on each of the diamonds at Softball City exceeds both the minimum standards
    mandated by the City of Surrey and the industry standard.

[14]

To the extent that this implies Surrey created comprehensive standards
    for fencing, it is not in accordance with the evidence.  Surrey's rules are
    about the diameter of the pipe and the dimensions of the steel mesh used in
    the fencing, not about where fences are required and at what height.  I do
    not think that this potentially misleading description of Surrey's fencing
    standards could have affected the judge's reasoning.  The important standard
    was that set by the industry.

[15]

The third error of fact is said to be the judge's treatment of the
    plaintiff as a spectator rather than as a participant.  I do not know how
    that could be said in light of the judge's reference to the plaintiff as a
    scorekeeper:

[16]
    ... There can be no question that the plaintiff appreciated the risk of being
    struck by a foul ball, since she was an experienced softball player and scorekeeper.
    In the circumstances it was reasonable to expect her to assume such a risk.

Standard
    of Care

[16]

The definition of the standard of care involves a finding of mixed
    fact and law and attracts a high degree of deference:
Housen v. Nikolaisen
,
    2002 SCC 33, [2002] 2 S.C.R. 235.

[17]

In his reasons, the judge expressly adverted to the
Occupiers
    Liability Act
in formulating the standard of care.  He referred to
    these provisions:

Application of Act

2
    Subject to section 3(4), and sections 4 and 9, this Act determines the care
    that an occupier is required to show toward persons entering on the premises
    in respect of dangers to them, or to their property on the premises, or to
    the property on the premises of persons who have not themselves entered on
    the premises, that are due to the state of the premises, or to anything done
    or omitted to be done on the premises, and for which the occupier is responsible
    by law.

Occupiers' duty of care

3
    (1)     An occupier of premises
owes a duty to take that care that in all
    the circumstances of the case is reasonable to see that a person
, and
    the persons property, on the premises, and property on the premises of a
    person, whether or not that person personally enters on the premises,
will
    be reasonably safe
in using the premises.

(2)      The duty of care referred to in subsection (1) applies in relation
    to the

(a)
    condition of the premises,

(b)
    activities on the premises, or

(c)
    conduct of third parties on the premises.

(3)      Despite subsection (1), an occupier has no duty of care to a person
    in respect of risks willingly assumed by that person other than a duty not
    to

(a)
    create a danger with intent to do harm to the person or damage to the persons
    property, or

(b)
    act with reckless disregard to the safety of the person or the integrity of
    the persons property.

[Emphasis of Wong J.]

[18]

The judge defined the standard of care in this way:

[13]
    The plaintiff claims that the standard of care was to "provide an area
    that facilitates quick and easy access to the field of play but that also
    protects participants from Softball's Hazards".  With respect to the
    risk of being struck by a foul ball, the standard of care imposed on occupiers
    is
only to provide adequate fencing in order to protect those persons located
    in 'danger zones'
, those areas where the risk of being struck would otherwise
    be unreasonably high.  There is no obligation under the
Act
to provide an area that is both protected
and
provides quick access
    to the field; the
Act
deals merely with safety.

[Emphasis of Wong J.]

[19]

Subsection 3(1) of the Act talks about reasonableness:  "An occupier
    ... owes a duty to take that care that in all the circumstances of the case
    is
reasonable
to see that a person ... will be
reasonably safe
in using the premises."

[20]

Several facts are significant in determining what care was reasonable
    in the circumstances to ensure that softball participants were reasonably
    safe.  The first is that even when the dugouts are usable, some scorekeepers
    sit in the stands behind the dugout
,
where they can get a better view of the play and are
    not too distant from the players.

[21]

Scorekeepers usually prefer to be with their team, because, in addition
    to keeping the score, they monitor the batting order of both teams.  They
    direct the batters on their own team to go to the plate in the correct sequence,
    and, in relation to the other team, they watch for a change in the batting
    order, which results in an automatic "out".  So when the dugout
    is flooded and the players stand behind the low fence beside the dugout, if
    the scorekeeper wants to be close to the players, she or he also stands there.
    But, and this is the crucial fact, not all scorekeepers work from the same
    location as the players, even when the dugouts are usable.  Some go into the
    stands, and there they enjoy the safety of a full screen.

[22]

The second significant fact is that players do not always stand beside
    the dugouts when they are flooded.

The evidence is far from uniform as to where players
    go when not in the field, on deck, or at bat.  Some sit in the stands to be
    with family and friends.  It is to be remembered that this is recreational
    softball, where team discipline is comparatively relaxed.

[23]

The third fact is that the defendant likely did not know that participants
    were gathering beside the dugout.  The judge noted, at para. 18, that there
    was no evidence that the defendant either set up the location as an alternate
    dugout or was aware that it was being used as such.

I
    have examined all the evidence to see whether the defendant was aware of the
    use of the area beside the dugout as an alternative in the event of flooding,
    and I could find nothing to that effect.

[24]

The judge decided the standard of care on reasonableness in the circumstances
    as he found them.  No conceptual error is evident, nor is there any factual
    finding that fails the palpable and overriding error test.

[25]

I think it was open to the judge to hold that the standard

was to provide a safe place for a scorekeeper, not necessarily the
    most convenient place, and that such a place was provided to the plaintiff.
    That holding brought an end to the liability analysis, and the defendant was
    entitled to an order dismissing the claim.

Last
    Clear Chance

[26]

As mentioned, the judge went on to discuss liability on the postulation
    that the standard was to provide a functional dugout.  He referred to cases
    in Canada and the United States, and an American textbook, dealing with the
    assumption of risk at sporting events.  It is not necessary for me to express
    an opinion on the judge's treatment of this subject.  However, I think it
    is necessary, because the judge felt he was following a current line of authority,
    to deal with his last alternative reason for refusing liability: the "clear
    line" or "last chance" doctrine.

[27]

I wish to say in the strongest terms that the doctrine is extinct and
    occupies no place in the law of torts in this jurisdiction.

[28]

If a defendant breaches a standard of care and a plaintiff fails to
    take care for her own safety, and but for these faults (
Athey v. Leonati
,
    [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235) an injury would not have occurred,
    then, under the
Negligence Act
, R.S.B.C. 1996, c. 333, ss. 1(1)
    and 8, liability is shared according to the respective degrees of fault:

1
    (1)     If by the fault of 2 or more persons damage or loss is caused to one
    or more of them, the liability to make good the damage or loss is in proportion
    to the degree to which each person was at fault.

* * *

8
    This Act applies to all cases where damage is caused or contributed to by
    the act of a person even if another person had the opportunity of avoiding
    the consequences of that act and negligently or carelessly failed to do so.

Drawing
    a clear line between the defendant's and plaintiff's negligent acts gives
    expression to a linear form of thinking and compartmentalizes causes according
    to the timing of events.  What the legislation requires is a lateral analysis
    that examines the weave of causal factors that brought about the loss.  So
    the appropriate image is of a web, rather than a chain where it is said that
    the linkage is broken by the plaintiff's own negligence.

[29]

In this case, it would be wrong to say the plaintiff is solely responsible
    for her injuries because her lack of care came after the failure to drain
    the dugout.  If the defendant had been under a duty to provide a dry dugout,
    then its failure would have been a tortious cause of the harm suffered, because
    it was at least one of the reasons why the plaintiff stood in the place where
    she was injured.

[30]

The history of "last clear chance" and its demise in British
    Columbia was explored in a lively and informative judgment by Mr. Justice
    Esson, dissenting in
Lawrence v. Prince Rupert (City)
, 2005
    BCCA 567, 49 B.C.L.R. (4th) 89.  The plaintiff in that case fell over a power
    pole left lying on a sidewalk by B.C. Hydro.  It was daylight and the plaintiff
    saw the pole, but she stumbled as she tried to avoid it.  The action was dismissed.
    The appeal was taken on the ground that the judge applied the last clear chance
    doctrine.  The majority rejected that ground; they held that the trial judge
    dismissed the action on a finding of remoteness.  Esson J.A. was of the
    opinion that while the judge correctly understood the law, he failed to apply
    it.  The majority took no issue with Esson J.A.'s discussion of the effect
    of the
Negligence Act
on last clear chance.

[31]

Esson J.A. pointed out that s. 8 (then s. 10) was added to the
    Act in 1970 for the "specific purpose of requiring, in cases where both
    parties were found to be at fault, apportionment to be based upon the relative
    degrees of fault and to preclude the court from resorting to the last chance
    doctrine" (at para. 56).  He described, at para. 74, the following
    passage (quoted at para. 73) from the trial judgment (2003 BCSC 465, 16 B.C.L.R.
    (4th) 164) as a correct statement of the law:

[29]
    Some years ago, before the amendment to the
Contributory Negligence Act
in 1970, the issue would often be framed in terms of whether a clear line
    could be drawn between the negligence of the plaintiff and the negligence
    of the defendant, so as to justify the conclusion that the negligence of the
    defendant had ceased to be an operating factor in the accident.  It appears
    to have been the law that, if the defendant had negligently created a situation
    of risk that could cause an accident, and if the plaintiff knew (or ought
    to have known) of that risk and by the exercise of reasonable care could have
    avoided the accident but failed to do so, then, in law, the plaintiff's negligence
    would be the sole cause of the accident.  Examples of this reasoning may be
    found in the cases of:
Malenfant v. McKee
, [1954] S.C.R. 651 (S.C.C.);
Bruce (County) v. McIntyre
,
[1955] 1 D.L.R. 785 (S.C.C.); and
Ward v. R.
(1956), 4 D.L.R. (2d) 597 (S.C.C.).

[30]
    The problem with that analysis is of course that it embodies the "last
    chance" doctrine, which was long ago removed from our law.  Section 8
    of the
Negligence Act
now reads as follows:

[Quotation
    omitted.]

[31]
    It seems to me that, under the old law, where a plaintiff proved that the
    defendant's negligence caused or contributed to the accident, the defendant
    could escape liability by showing that the plaintiff could have avoided the
    consequences of his negligence by the exercise of reasonable care.  If that
    was shown, then the defendant's negligence (which had the potential to cause
    the accident) would "cease to be an operating factor".  In other
    words, even though the plaintiff had made out a prima facie case on the issue
    of causation, proof that the plaintiff had the "last clear chance",
    would break the chain of causation, and the plaintiff would be found solely
    at fault.  That is no longer the law, but the repeal

of the
    last chance doctrine does not absolve the plaintiff from establishing that
    the defendant's negligence was at least part of the cause of the accident.

[32]

While it was debatable whether the trial judge in
Lawrence
applied the last clear chance doctrine, there can be no doubt that the judge
    in this case did so.  He cited, at para. 40, the case of
McKee v. Malenfant
,
    [1954] S.C.R. 651, [1954] 4 D.L.R. 785, for the clear line doctrine,
    which is another name for the same idea:

[40]
    Further, a clear line can be drawn between any negligence of the defendant
    and the negligence of the plaintiff, such as to relieve the defendant of liability.
    The defendants rely on the Supreme Court of Canadas decision in
McKee
    v. Malenfant
, [1954] S.C.R. 651, where the Court held that where a
    clear line can be drawn between the negligence of the plaintiff and the
    negligence of the defendant, then the plaintiff will be held solely responsible.

[33]

For the reasons given by Esson J.A. in
Lawrence
,
    that case is no longer applicable to contributory negligence cases in British
    Columbia.

[34]

The judge also cited a recent trial court decision,
Laface v.
    McWilliams
, 2005 BCSC 291, 29 C.C.L.T. (3d) 219, aff'd (
sub nom.

Laface v. Boknows Hotels Inc.
) 2006 BCCA 227, 39 C.C.L.T. (3d)
    209 (a notice of discontinuance was filed in the Supreme Court of Canada,
    [2006] S.C.C.A. No. 236), as a current application of the clear line doctrine.
    However, in my opinion, the reference to the doctrine in
Laface
was in passing and unnecessary to the result.

[35]

As I read the judgment in
Laface
, the key finding was
    that the action of McWilliams, an intoxicated driver, in passing on the right
    of a vehicle carelessly parked by Laface, and driving into a group of pedestrians,
    was so unexpected that it was too remote an event to be foreseen by Laface.
    The claim against Laface was dismissed on proximity, not clear line.

[36]

The defendant does not attempt to support the judgment by reference
    to the judge's clear line reasoning.  It is content to rely on the proximity
    approach taken by the majority in
Lawrence
, and it submits that
    the failure to drain the dugout was too remote from the injury.  I would prefer
    not to venture an opinion about remoteness in this case, as the appeal can
    be decided on the standard of care issue.

Disposition

[37]

For the foregoing reasons, I would dismiss the appeal.

The Honourable Mr. Justice Donald

I
    agree:

The
    Honourable Madam Justice Levine

I
    agree:

The Honourable
    Madam Justice Kirkpatrick


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Fitzgerald,

2008
          BCCA 11

Date: 20080108

Docket: CA035483

Between:

Regina

Respondent

And

Shaun
    Douglas Fitzgerald

Appellant

Before:

The
          Honourable Madam Justice Newbury

The
          Honourable Madam Justice Saunders

The
          Honourable Mr. Justice Frankel

Oral Reasons for Judgment

J.
          Whysall

Counsel for the Appellant

J.
          Duncan

Counsel for the Respondent

(Crown)

Place
          and Date of Hearing:

Vancouver, British Columbia

7 January 2008

Place
          and Date of Judgment:

Vancouver, British Columbia

8 January 2008

[1]

NEWBURY, J.A.
: Mr. Fitzgerald appeals an effective sentence of eight
    years and two months imprisonment he received after pleading guilty to three
    counts of causing damage by fire to property contrary to s. 434 of the
Code
,
    and one count of breaking and entering contrary to s. 348(1).

[2]

The offences took place in late 2004 and early 2005.  The property
    damaged consisted of an apartment complex inhabited by low income tenants
    called Homeview Apartments (in fact, these apartments were set fire to on
    three different nights by the appellant and others), a pub called Wild Bills
    and another pub called Finnigans Pub.  A great deal of damage, dislocation
    and mental anguish was caused in each instance.  A family business was destroyed,
    people lost their jobs and over one million dollars in property damage occurred.

[3]

At the time of sentencing the appellant had spent 19 months in custody,
    not at a pre-trial center, but in a facility where some programs were available
    to be taken.  He nevertheless received double credit for the 19 months so
    that his net sentence was five additional years.  The Crown had sought eight
    to ten years and the defence a maximum of two years less one day and probation.

[4]

The sentencing judge reviewed in his lengthy and thoughtful reasons
    for judgment the circumstances of each fire.  The first occurred 27 November
    2004 at the apartment complex in the early hours of the morning.  Fortunately,
    the residents were able to escape safely when somebody yelled fire.  Other
    buildings nearby were endangered, but due to great efforts by the fire department,
    did not catch fire.  A second fire was set three days later at the building,
    by then uninhabited, and the third on 28 December 2004.  As mentioned, all
    three were the subject of one count.  The fire at Wild Bills Pub took place
    on 1 December 2004 at 5:27 a.m. resulting in the complete destruction of the
    premises and the business owned by a Mr. Esposito and his family.  He and
    his son spoke in victim impact statements about the devastating effect the
    fire had on them.  The third fire, at Finnigans Pub (which is part of a building
    complex that includes a hotel and banquet facilities), occurred at about 8:00
    a.m. on 6 January 2005.  It endangered nearby apartments and townhouses.
    Again, fortunately, hotel guests and staff were evacuated safely.  Of course,
    it could easily have been a different story.

[5]

Mr. Fitzgerald was charged with four other persons - a Mr. Porsch (who,
    on behalf of an unnamed person, had contracted Mr. Fitzgerald to do the arsons);
    Mr. Fitzgeralds girlfriend, Ms. MacDonald; and two younger people, one Hall,
    one Munro.  The latter three received sentences ranging between 30 and 42
    months, reflecting their lesser participation and the fact they had no or
    only minor criminal records.  Mr. Fitzgerald on the other hand had a long
    record with many failures to comply with court orders.  His past offences
    included many thefts and possession of stolen property, but surprisingly,
    the longest sentence of imprisonment he has received was six months in 1999.

[6]

He was age 26 when sentenced on this occasion, and is addicted to crack
    cocaine.  He told the authorities that he was in debt to a drug dealer who
    paid him to set the fires and also had threatened his life.  The sentencing
    judge noted this at para. 80 of his reasons and then continued:

[81]
    Defence counsel suggests that Mr. Fitzgerald was in a very vulnerable state
    and was easy to single out for someone who was looking for an individual to
    commit these type(s) of crimes.  It is easy to understand, according to defence
    counsel, how Mr. Fitzgerald would be lured into this type of activity with
    the offer of some money, which clearly he saw as being a way to get the drugs
    he needed.

[82]
    I will turn now to the accuseds criminal record, and I am not going to detail
    each entry.  That is done on pages 4, 5 and 6 of the Presentence Report.
    I will summarize it by saying it starts July 18
th
, 1994 in Youth
    Court and once the accused hits the adult age of 18 the record continues virtually
    non-stop through the late 1990s and into the 2000s and right up to these present
    day offences.  As has been pointed out by defence counsel, the vast majority
    of these offences that are recorded can best be described as property offences.
    There are breaches of failing to comply with court orders included and given
    the accuseds substance abuse that is not surprising.

[83]
    The most disturbing and aggravating feature of this record is the entry November
    24
th
, 2003 in Surrey, B.C.  On that date the accused was sentenced
    on a charge of possession of stolen property over $5,000 and failing to stop
    at an accident scene to two years less a day, a conditional sentence order.
    While serving what is often described as a jail sentence in the community
    the accused Fitzgerald was totally out of control, and it is almost beyond
    comprehension how it is that an individual who is on this type of disposition,
    namely one that is supposed to keep him on a very tight leash, could be doing
    what he was doing.  No explanation has been provided and I am reluctant to
    even hazard a guess as to how you could be on this type of sentence, Mr. Fitzgerald,
    as I say supposedly behind bars in the community on tight conditions, including
    what I would expect to be curfew conditions, and you are doing this.

[84]
    I will deal briefly with the issue of remorse.  Mr. Fitzgerald, you have entered
    guilty pleas to these offences and clearly that is a mitigating factor.  I
    always find it difficult to assess the level of remorse that is being expressed
    by an accused, because, as I have mentioned, it is very easy when judgment
    day rolls around to say that you are sorry for all your past misdeeds, and
    I am going to simply leave my comments at that.

[85]
    Defence counsel has provided a number of certificates that you have taken
    part in certain programs, and as I mentioned earlier, that would be the expectation,
    Mr. Fitzgerald, and I am taking that into account that it appears you have
    done well while in a custodial setting.  Mr. Gervin on your behalf suggested
    the appropriate range of sentence, taking into account the time you have spent
    in custody, would be an additional one to two years less a day, and the Court
    imposing some form of probation to follow to monitor your behaviour in the
    community.

[7]

The Court reviewed the principles of sentencing and concluded that
primacy
had
    to be given to the separation of the appellant from society and to a lesser
    degree, denunciation and deterrence.  With respect to the defence argument
    that the sentence should not be
very
much more than those given to
    MacDonald, Hall and Monroe, the sentencing judge said this:

[94]
    Mr. Gervin on your behalf, Mr. Fitzgerald, has emphasized the principle of
    proportionality, namely the principle of similar sentences to be imposed for
    similar offenders for similar offences, and suggests that I have to be very
    aware of what was handed down in the case of the co-accused and that is, of
    course, in reference to Ms. MacDonald and Mr. Hall.  I am mindful of that
    and I conclude, Mr. Fitzgerald, that you fall into an entirely different category.
    Given your record and your involvement in these offences it is not realistic
    for me to put you in the same category as the other accused.  With you the
    concern is, as I mentioned earlier, clearly about protecting the community.

Accordingly,
    he sentenced Mr. Fitzgerald to the additional five years on the four counts.

[8]

On appeal, Mr. Whysall argued that the Court failed to give adequate
    consideration to the objective of rehabilitation, that the sentence should
    have reflected that the appellant had taken various programs available to
    him before sentencing, and that eight years was simply more than what is necessary
    to rehabilitate the appellant (if possible) to beat his drug addiction.

[9]

Counsel referred us to various cases, including
R. v. Quigley
,
    [1998] B.C.J. No. 561 (B.C.C.A.),
R. v. Petropoulos
, [1995] B.C.J.
    No. 1449 (B.C.C.A.),
R. v. Allard
, [1999] B.C.J. No. 1912 (B.C.C.A.),
R. v. Saba
, [2000] B.C.J. No. 2207 (B.C.C.A.) and
R. v.
    Lambert
, [2007] B.C.J. No. 2340 (B.C.C.A.), for the proposition that
    the appropriate range is considerably lower than eight years.  He sought to
    distinguish
R. v. Eng
, 2000 BCCA 31, cited by Crown, on the
    basis that Mr. Eng was psychologically disturbed and unwilling to seek treatment
    for his condition.  Here, in contrast, it is said Mr. Fitzgerald is a good
    prospect for rehabilitation.

[10]

Most of the cases relied on by the appellant, however, are distinguishable
    on the basis of his long record, his role in organizing the arsons and recruiting
    others to assist, and of course, the fact that we are here pleading with three
    counts, and not just one.  Further, I must question whether it is a mitigating
    factor that Mr. Fitzgerald acted because he was in debt to a drug dealer and
    needed money, as opposed to setting fires for revenge or to get insurance
    proceeds.  Certainly no authority was cited for the proposition, made by the
    appellant in his factum, that his culpability is less because he is addicted
    to an illegal drug.

[11]

It is also argued that the appellants sentence was disproportionately
    long in comparison to what was received by the co-accuseds.  These offenders,
    however, were acting at the appellants request and it was he who hired them.
    Again, their circumstances are not as aggravated as Mr. Fitzgeralds - in
    particular, his very long record and the fact he was serving a conditional
    sentence when the subject offences took place.  Mr. Porsch, a person higher
    up on the contractual chain, received a very long sentence for the arsons
    and other offences.

[12]

Mr. Fitzgerald is now the father of three children by Ms. MacDonald,
    and the authorities have taken the children because of the parents drug use.
    Obviously, there is likely a future of more crime and more punishment ahead
    for the appellant unless he makes a dramatic turnaround.  This would take
    a considerable amount of time and effort.

[13]

I acknowledge that the sentence is on the high side in comparison to
    some of the previous authorities, but at the end of the day the question is
    whether the sentence was a fit one.  I am unable to say that it was not, or
    that the sentencing judge erred in failing to give effect to the sentencing
    principles that are engaged in this case.  In particular, I believe he correctly
    emphasized the protection of the public from this offender, and denunciation
    and deterrence.

[14]

In the result, I would extend the time for the appellants filing of
    his notice, grant leave to appeal, but dismiss the appeal.

[15]

SAUNDERS, J.A.
: I agree.

[16]

FRANKEL, J.A.
: I agree.

[17]

NEWBURY, J.A.
: Thank you counsel, the appeal is dismissed.

The Honourable Madam Justice Newbury