COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Bohun
          v. Segal,

2008
          BCCA 23

Date: 20080122

Docket: CA034887

Between:

Pamela
    Bohun

Respondent

(
Plaintiff
)

(Appellant on Cross Appeal)

And

Dr.
    Jean Michael Segal

Appellant

(
Defendant
)

(Respondent on Cross
    Appeal)

Before:

The
          Honourable Madam Justice Kirkpatrick

The
          Honourable Mr. Justice Frankel

The
          Honourable Mr. Justice Tysoe

J.
          M. Lepp, Q.C.  and C.L. Khanna

Counsel for the Appellant

S.H.
          Ashcroft and C. Sweet

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

13 November 2007

Place
          and Date of Judgment:

Vancouver, British Columbia

22 January 2008

Written
          Reasons by
:

The
          Honourable Madam Justice Kirkpatrick

Concurred
          in by:

The
          Honourable Mr. Justice Frankel

The
          Honourable Mr. Justice Tysoe

Reasons
    for Judgment of the Honourable Madam Justice Kirkpatrick:

[1]

The central issue in this appeal is whether the trial judge erred in
    principle in adopting the material contribution test of causation.  The case
    at trial concerned the delayed diagnosis of breast cancer.  The trial judge
    found that when the plaintiff, Pamela Johnston (who was known as Pamela Bohun
    at the time the writ of summons was filed), first saw the defendant, Dr. Segal,
    she was suffering from undiagnosed breast cancer.  The trial judge found that,
    at that time, Ms. Johnston had about a 79% chance of survival and a 21% chance
    of death from the disease.  The trial judge found that Dr. Segal was in breach
    of his duty of care to Ms. Johnston by failing to perform a biopsy which,
    if performed, would have disclosed the breast cancer and resulted in the removal
    of the tumour at that time.  The tumour was later excised.  The trial judge
    found that the delay in diagnosis decreased Ms. Johnston's chance of survival.

[2]

Ms. Johnston claimed damages for her reduced life expectancy or "lost
    years" and her increased pain and suffering during those years.

[3]

The trial judge concluded that, since the plaintiff could not prove
    whether the cancer had metastasized before or after she first saw Dr. Segal,
    he ought to adopt the "material contribution" test of causation.
    He found in favour of the plaintiff.

[4]

Dr. Segal appeals from the finding of liability.  Ms. Johnston filed
    a cross appeal on 2 April 2007 from the trial judge's assessment of damages.
    She died prior to the hearing of the appeal.

[5]

The essential facts of the case are not in dispute.

[6]

On 12 April 2001, Ms. Johnston attended at the office of her family
    physician, Dr. Sennewald, because she was concerned about a breast lump she
    had noticed a few days earlier.  The expert medical evidence was that the
    size of the tumour is a critical factor in the diagnosis, treatment and prognosis
    of breast cancer.  Ms. Johnston testified that the lump was then the size
    of a pea.  Dr. Sennewald palpated the breast.  Her impression was that the
    lump was approximately 2 cm in size, which she recorded in Ms. Johnston's
    chart.  The trial judge accepted Dr. Sennewald's evidence.

[7]

Dr. Sennewald considered that Ms. Johnston probably had fibrocystic
    breasts, a benign diagnosis. However, because of her patient's concern, Dr.
    Sennewald referred Ms. Johnston for an ultrasound and mammogram, which were
    scheduled for 8 May 2001.

[8]

On 8 May 2001, prior to ultrasound and mammogram tests, Ms. Johnston
    had a complete physical examination by Dr. Sennewald.  Ms. Johnston testified
    that she told Dr. Sennewald at that time that the lump had grown from the
    size of a pea to approximately the size of a quarter.  Dr. Sennewald's clinical
    notes indicate that there had been no change in the size of the lump.  The
    trial judge again accepted Dr. Sennewald's evidence.

[9]

The mammogram report was interpreted as showing "[D]ense irregular
    fibrocystic stoma.  No evidence of mass or malignant change identified".

[10]

The ultrasound report showed a 24 x 13 x 23 mm solid, irregular mass.
     The ultrasound was interpreted as showing a "[r]ight breast mass, just
    above and behind the nipple.  May be a cyst with a clot or a fibroadenoma.
    Biopsy is recommended, however, for further assessment."

[11]

Dr. Sennewald testified that, after reviewing the mammogram and ultrasound
    results, she referred Ms. Johnston to the defendant, Dr. Segal, a general
    surgeon who specializes in the treatment of breast cancer, to "rule out
    cancer and for biopsy or as per [his] advice".  Dr. Sennewald was a defendant
    at trial.  The trial judge found that she met the standard of care of a general
    practitioner and dismissed the action against her.  There is no appeal from
    that order.

[12]

Ms. Johnston first saw Dr. Segal on 15 June 2001.  He examined her
    breast and found a mobile, smooth, discrete mass that he measured with a ruler
    to be 2.5 cm in size.  His impression was that Ms. Johnston had a benign right
    breast mass likely to be a fibroadenoma.

[13]

On 15 June 2001, Dr. Segal wrote to Dr. Sennewald and advised her that
    Ms. Johnston's "benign right breast mass" would be observed over
    the following three months.  Ms. Johnston was to contact him if there were
    any changes.

[14]

The trial judge found that Dr. Segal did not follow his standard practice
    of recommending that a biopsy be performed and that the failure to do so was
    a breach of the standard of care.  No appeal is taken from that finding.

[15]

Ms. Johnston missed her next scheduled appointment with Dr. Segal on
    24 September 2001.  She saw him for follow-up on 22 October 2001.  Dr. Segal's
    notes indicate that Ms. Johnston told him that the lump was increasing in
    size.  His examination, again with a ruler, indicated that the lump was still
    2.5 cm in size.  He observed that the breast was tender and made arrangements
    to have the lump removed.

[16]

On 10 January 2002, Dr. Segal performed an excisional biopsy.  The
    pathological size of the tumour was 4.5 cm in size.  The trial judge accepted
    that Dr. Segal's clinical assessment of 2.5 cm to 3 cm at the time of surgery
    was different from the pathological size because clinical assessments cannot
    measure the microscopic extensions of the tumour.  The pathological findings
    of tumour extension necessitated further surgery to ensure that all of the
    tumour was removed.

[17]

On 28 January 2002, Dr. Segal performed a right partial mastectomy
    and axillary dissection (also known as breast conserving surgery).  The pathology
    report following that surgery indicated that there was no evidence of residual
    malignancy and eight nodes were found to be negative for metastatic carcinoma.
    The surgery was followed by radiation therapy.

[18]

Ms. Johnston underwent four cycles of chemotherapy from May to June
    2002, followed by radiation therapy in July 2002.

[19]

Ms. Johnston married in May 2003.  On 5 May 2004 she gave birth to
    her daughter.  The trial judge described the events that followed at paras.
    2930 of his reasons (2007 BCSC 269, 46 C.C.L.T. (3d) 138):

In April 2004, near the end of her pregnancy she felt something at the source
    of her earlier tumour.  An ultrasound was negative.  In June 2004, another
    ultrasound test was performed followed by a needle biopsy which determined
    that her breast cancer had recurred at the same site.  A treatment plan was
    discussed and it was determined that both breasts should be removed.

Prior to surgery taking place, however, test results from a CT scan showed
    that the cancer had spread to her lungs.  Surgery was no longer a viable treatment
    option.  By July 2006, the cancer had spread to Ms. Johnstons hip, liver
    and bone area.  Tumours had grown in her lungs, as had the lump in her breast.
    She is now in a palliative care program.  Her prognosis is very poor and she
    has but months to live.

[20]

Ms. Johnston died in June 2007, approximately four months after the
    trial.

[21]

As I have noted, the central issue at trial was the effect of the delay
    in diagnosis between June 2001 (when Ms. Johnston first saw Dr. Segal) and
    January 2002 (when the excisional biopsy was performed).

[22]

The defendants called Dr. Olivotto, a radiation oncologist at the B.C.
    Cancer Agency (the "Cancer Agency"), who was the only expert qualified
    to give evidence as to how a delay in diagnosis affects the prognosis of patients
    with breast cancer.

[23]

The plaintiff's expert surgeon, Dr. Woo, was qualified to give an opinion
    on the standard of care.  Dr. Woo's practice is to leave specific discussions
    of a patient's prognosis to the oncologists at the Cancer Agency.

[24]

There was no dispute that a delay in diagnosis and treatment increases
    the risk of relapse of the cancer and death.  Dr. Olivotto testified that
    the ten-year risk of death from breast cancer for a tumour 2.1 cm to 3.0 cm
    in size was 21%, and for a tumour 3.1 cm to 5.0 cm the risk was 25%.

[25]

The trial judge summarized the scientific and medical evidence and
    his findings in respect of the effects of delay in diagnosis at paras. 8992
    of his reasons:

It is a complicated task to integrate the effects on risk estimates of all
    the clinical, pathology and treatment factors to determine a valid estimate
    for the risk of recurrence or death from breast cancer for an individual woman.
    In recent years, a web-based algorithm has been developed that provides a
    convenient and reliable way to incorporate an individual womans clinical
    and pathological features at the time of diagnosis with the estimates of the
    [effects] of various chemotherapy and hormonal treatment that she might receive.
    The program known as ADJUVANT! is accepted as a reliable predictor of ultimate
    outcomes.

Dr. Olivotto used ADJUVANT! to calculate the risk of relapse from breast cancer
    for a woman whose age and cancer was that of Ms. Johnstons.  The 10-year
    risk of death for a woman with a tumour of 2.1 cm to 3.0 cm was 21%.  For
    a tumour measuring 3.1 cm to 5.0 cm, the 10-year risk of death was 25%.  Growth
    from 2.5 cm to 4.0 cm would increase a young womans risk of spread or death
    from breast cancer about 3% to 4%.  A change from 3.0 cm to 4.5 cm as exists
    in this case, would increase the risk of death by approximately 2% to 3%.
    Stated another way, if Ms. Johnstons tumour had been removed in June 2001,
    it would have increased her chances of survival by 10% to 15%.

ADJUVANT! does not take into account the form of Ms. Johnstons cancer.  As
    previously noted, ACC [adenoid cystic carcinoma] is a very rare tumour which
    accounts for less than 1% of all breast cancers.  Research indicates that
    ACC tumours are slow growing and rarely metastasize.  Patients with such tumours
    generally have a more favourable prognosis than other breast cancer patients.
    Dr. Olivotto did not reduce the risk factors because he considered the tumour
    a variation of ACC, which he believed was more likely to act like other cancers.
    He acknowledged that the rareness of the tumour made the determination more
    difficult.

I accept generally Dr. Olivottos evidence in regard to the impact that
    delay of the diagnosis had on Ms. Johnston.  Even if the tumour had been diagnosed
    in June, as it should have been, there was a significant risk that she would
    die.  The growth of the tumour subsequent to June 15, 2001 reduced her chance
    of survival by a further 10% to 15%.  This number must be adjusted to take
    into account the nature of her cancer.
In making this adjustment, I am
    aware that the pathologist suggested that this was a variant of ACC of which
    little is known.  However, given the evidence that ACC is rarely fatal, I
    find that if Dr. Segal had removed the tumour in June 2001, Ms. Johnston had
    a 20% increased chance of survival.

[Emphasis added.]

[26]

It appears that the trial judge confused the plaintiff's increased
    risk of death with her decreased likelihood of survival.  For example, he
    noted that the growth of the tumour subsequent to 15 June 2001 reduced the
    plaintiff's likelihood of survival by 1015%.  In fact, based on the scientific
    evidence accepted by the trial judge, the plaintiff's
risk of death
was increased by a relative 1015% due to the delay in diagnosis.  Her likelihood
    of survival decreased by a nominal amount, 34%, which is a relative decrease
    of 3.85%, due to the delay.  This error is an unintended transposition of
    two easily confused terms (risk of death versus likelihood of survival).
    As will be seen, this error is of no consequence in the final analysis of
    causation.  However, in these reasons, I have chosen to correct the unintended
    transposition, and I rely on the facts that the trial judge must have intended
    to find, namely that the plaintiff's risk of death increased by a relative
    1015% due to the delay in diagnosis.

[27]

Following his erroneous expression as to the plaintiff's likelihood
    of survival, the trial judge adjusted the figure from 1015% to 20% to account
    for the rare type of cancer suffered by the plaintiff.  By properly expressing
    the trial judge's finding as to the risk of death versus likelihood of survival,
    it is clear that the plaintiff's relative risk of death was increased by 20%
    due to the missed diagnosis and the type of cancer she had.

[28]

As I have noted, the trial judge found that Dr. Segal breached the
    standard of care by failing to recommend a biopsy in June 2001.  He found
    that the plaintiff would have undergone the procedure and that the cancer
    would have been detected.  He then considered whether the failure to detect
    the cancer in June 2001 caused damage to the plaintiff.

[29]

The trial judge first considered the principles of causation recently
    restated by the Supreme Court of Canada in
Resurfice Corp. v. Hanke
,
    2007 SCC 7, [2007] 1 S.C.R. 333.

[30]

The trial judge described the parties' positions at paras. 71 and 75:

Ms. Johnston submits Dr. Segals failure to discover the cancer in June 2001
    was a material contribution to her injury and loss.  She says that the plaintiffs
    injury clearly falls within the ambit of risk created by Dr. Segals breach
    of the standard of care.  She submits that liability may be imposed, even
    though the but for test is not satisfied, because it would offend basic
    notions of fairness and justice to deny liability in these circumstances.

[.]

The defendants submit the plaintiff has not proved that but for the alleged
    delay there would not have been a reoccurrence of Ms. Johnstons breast cancer.
    They submit that the evidence has established that the more likely cause of
    the reoccurrence and spread is the breast cancer itself.

[31]

He concluded his analysis of causation at paras. 9395:

This discussion returns us to the submissions of the parties on causation.
    The defendant submits that Ms. Johnston has not proven that but for the
    alleged delay she would not have had a recurrence of her breast cancer.  In
    their submission, the most likely cause of the recurrence and spread is the
    breast cancer itself.  They submit that at best, Ms. Johnston has established
    a lost chance, and that such a loss is not sufficient to establish causation:
Laferriere v. Lawson
, [1991] 1 S.C.R. 541.

I do not agree.  This is not a lost chance case, but a causation case.
    This case meets the special circumstances that require an application of the
    material contribution test.  In the language of
Resurfice
, it is impossible
    for Ms. Johnston to prove that Dr. Segals negligence caused her injury using
    the but for test.  The impossibility is due to factors that are outside
    of her control.  While it is known that the cancer metastasized to other parts
    of Ms. Johnstons body prior to the first surgery in January 2002, it is impossible,
    due to the current limits of scientific knowledge, to know whether that migration
    took place before or after June 2001.

Dr. Segals negligence caused the delay in diagnosis and treatment.  Any delay
    in the treatment of breast cancer increases the risk.  The delay in treatment
    materially contributed to the fatal outcome Ms. Johnston now faces.  Ms. Johnstons
    injury falls within the ambit of the risk created by Dr. Segals negligence
    when he failed to do a biopsy in June 2001.

[32]

The trial judge discussed damages at paras. 9798:

The measure of damages is subject to any contingencies that might reduce them.
    Ms. Johnston is only entitled to be returned to the position she would have
    enjoyed, with all its attendant risks and shortcomings, but for Dr. Segal's
    negligence:
Athey v. Leonati
, [1996] 3 S.C.R. 458.

The contingency of unsuccessful treatment and recurrence must be considered
    and taken into account in the assessment of damages.  I have found that if
    Ms. Johnston's condition had been properly diagnosed in June 2001 that her
    chances of survival would have increased [by] 20%.  Except for the award for
    psychological damage, the damage awards must be discounted by a global contingency
    of 80% to reflect that fact.

[33]

The trial judge then assessed Ms. Johnston's damages which are summarized
    at paras. 117118:

I award the plaintiff the following sums:

1.
            Non-pecuniary damages:

$ 100,000.00

2.
            Past wage loss:

42,500.00

3.
            Loss of Future Earning Capacity:

100,000.00

4.
            Special Damages:

30,073.39

Total:

$272,573.39

The above awards are subject to an 80% deduction to reflect the contingency
    that Ms. Johnston may not have survived even if Dr. Segal had properly diagnosed
    her cancer in June 2001.  This reduces the award to $54,514.67.  In addition,
    I award Ms. Johnston $25,000 in psychological damages, which award is not
    subject to deduction.  Judgement is awarded against Dr. Segal for $79,521.52.

Arguments on Appeal

[34]

The appellant's fundamental argument is that the trial judge erred
    in principle when he found Dr.Segal's delay in treatment caused the harm even
    though the relative increase in the risk of harm from that delay was only
    20%.

[35]

The respondent cross-appeals on the basis that the trial judge erred
    in principle in reducing by 80% her damages for non-pecuniary loss, past wage
    loss, loss of future earning capacity and special damages, and in awarding
    the amounts he did for non-pecuniary damages, past wage loss and future earning
    capacity.

[36]

Dr. Segal, as respondent on the cross-appeal, concedes that the trial
    judge erred in reducing Ms. Johnston's damages by 80%.  Based on the principles
    enunciated in
Athey v. Leonati
, [1996] 3 S.C.R. 458, Dr. Segal
    agrees that once causation is established, a defendant is fully liable for
    the damages suffered by a plaintiff subject to any negative contingencies
    to be applied.  Dr. Segal contends that in this case, if causation were established,
    the appropriate negative contingency would be 21% based on the fact that Ms.
    Johnston already had a 21% chance of dying at the time the diagnosis should
    have been made.  Ms. Johnston's counsel urged a 10% negative contingency based
    on Ms. Johnston's existing 21% risk of death, less 11% to take into account
    her relatively rare and rarely fatal form of breast cancer.

[37]

Because I hold the view that the trial judge erred in principle in
    finding causation, I need not discuss the assessment of damages, other than
    to say that I agree that the trial judge erred in reducing damages in the
    manner he did as offending well-established principles of damage assessment.
    In my opinion, the trial judge conflated the evidence in respect of causation
    with the appropriate negative contingency applicable in determining the appropriate
    measure of damages.

[38]

The appellant, Dr. Segal, conceded that, regardless of the success
    of the appeal, Ms. Johnston remains entitled to the $25,000 awarded to her
    for the psychological damages she suffered due to the failure to diagnose
    her condition.  Dr. Segal concedes that the award of those damages is not
    contingent on a finding of causation in that Dr. Segal accepts that Ms. Johnston
    experienced psychological distress from the knowledge of her missed diagnosis.

[39]

I turn now to the central issue, causation.

Causation

[40]

As I have noted, the trial judge referred to the recent Supreme Court
    of Canada decision in
Resurfice Corp. v. Hanke
, in which the
    court, per McLachlin C.J., summarized the applicable principles of causation:

20
    Much judicial and academic ink has been spilled over the proper test for causation
    in cases of negligence.  It is neither necessary nor helpful to catalogue
    the various debates.  It suffices at this juncture to simply assert the general
    principles that emerge from the cases.

21
    First, the basic test for determining causation remains the "but for"
    test.  This applies to multi-cause injuries.  The plaintiff bears the burden
    of showing that "but for" the negligent act or omission of each
    defendant, the injury would not have occurred.  Having done this, contributory
    negligence may be apportioned, as permitted by statute.

22
    This fundamental rule has never been displaced and remains the primary test
    for causation in negligence actions.  As stated in
Athey v. Leonati
,
    at para. 14,
per
Major J., "[t]he general, but not conclusive,
    test for causation is the 'but for' test, which requires the plaintiff to
    show that the injury would not have occurred but for the negligence of the
    defendant."  Similarly, as I noted in
Blackwater v. Plint
, at
    para. 78, "[t]he rules of causation consider generally whether 'but for'
    the defendant's acts, the plaintiff's damages would have been incurred on
    a balance of probabilities."

23
    The "but for" test recognizes that compensation for negligent conduct
    should only be made "where a substantial connection between the injury
    and defendant's conduct" is present.  It ensures that a defendant will
    not be held liable for the plaintiff's injuries where they "may very
    well be due to factors unconnected to the defendant and not the fault of anyone":
Snell v. Farrell
, at p. 327,
per
Sopinka J.

24
    However, in special circumstances, the law has recognized exceptions to the
    basic "but for" test, and applied a "material contribution"
    test.  Broadly speaking, the cases in which the "material contribution"
    test is properly applied involve two requirements.

25
    First, it must be impossible for the plaintiff to prove that the defendant's
    negligence caused the plaintiff's injury using the "but for" test.
    The impossibility must be due to factors that are outside of the plaintiff's
    control; for example, current limits of scientific knowledge.  Second, it
    must be clear that the defendant breached a duty of care owed to the plaintiff,
    thereby exposing the plaintiff to an unreasonable risk of injury, and the
    plaintiff must have suffered that form of injury.  In other words, the plaintiff's
    injury must fall within the ambit of the risk created by the defendant's breach.
    In those exceptional cases where these two requirements are satisfied, liability
    may be imposed, even though the "but for" test is not satisfied,
    because it would offend basic notions of fairness and justice to deny liability
    by applying a "but for" approach.

[41]

Lord Hoffmann recently stated the English equivalent of the "but
    for" test in
Barker v. Corus
, [2006] UKHL 20, [2006] 3
    All E.R. 785 at para. 1:

The
    standard rule is that it is not enough to show that the defendant's conduct
    increased the likelihood of damage being suffered and
may
have caused
    it.  It must be proved on a balance of probability that the defendant's conduct
did
cause the damage in the sense that it would not otherwise have
    happened.

[Emphasis in original.]

[42]

The medical and scientific evidence in the case at bar was unique in
    that it provided highly accurate predictions of the increased likelihood of
    death depending on the size of the breast cancer tumour.

[43]

It was a matter of no controversy that a diagnosis of breast cancer
    alters the prognosis of the patient.  Dr. Olivotto testified that life expectancy
    following a diagnosis of breast cancer is determined by a number of factors:

·
age of the patient;

·
whether
    the tumour has spread to the lymph nodes under the arm;

·
the size of the tumour; and

·
certain
    features of the tumour such as cell grade or the degree of microscopic abnormality.

Both
    Dr. Olivotto and Dr. Woo considered the size of the tumour at the time it
    could have been diagnosed to be an important factor.

[44]

In his medical legal report, Dr. Olivotto outlined the various factors
    that are taken into account in arriving at a prognosis:

The
    prognosis of breast cancer is related to a number of clinical and pathological
    features that can be determined at the time of diagnosis.  The factors which
    have most consistently been demonstrated to influence the subsequent likelihood
    of relapse or death from breast cancer include the number of involved axillary
    lymph nodes, the size of the primary tumor, the tumor's grade (a measure of
    how abnormal the cells look on microscopic examination, typically scored on
    a scale of 1 to 3) and the presence of lymphatic or vascular space invasion
    in the tumor.  Patients who are younger (age <40 years) and those with
    Estrogen Receptor (ER) negative tumors also have a higher risk of recurrence
    and death.  Various publications from the Breast Cancer Outcomes Unit, as
    well as elsewhere, have confirmed that these features can reliably be used
    to predict the future outcome after a diagnosis of breast cancer.

[45]

In his evidence at trial, Dr. Olivotto confirmed that the pathological
    measurement of the tumour is closely associated with outcomes.

[46]

Dr. Segal agreed in cross-examination that tumour size directly correlates
    with survival.

[47]

As can be seen from the trial judge's summary of the scientific and
    medical evidence, a unique feature of this case was the availability of the
    ADJUVANT! prognostic tool.  Dr. Olivotto testified at some length as to the
    ADJUVANT! program.  He stated that the program was shown to predict, within
    one per cent, the outcomes for patients with breast cancer. As Dr. Olivotto
    explained, the algorithm clusters the tumours into groups of less than one
    centimetre; 1 to 2 centimetres; 2.1 to 3 centimetres; 3.1 to 5 centimetres,
    and so on.  When applying the ADJUVANT! model to Ms. Johnston's circumstances,
    Dr. Olivotto inputted a tumour of between 2.1 to 3 centimetres and then stated:

[]
    when we incorporate the risk of dying from the breast cancer minus the potential
    benefit of chemotherapy it comes to about a 21% chance of mortality, or, in
    other words, a 79% chance of being alive 10 years later.  If the tumor was
    four-and-a-half centimetres but otherwise the same characteristics that were
    seen in the pathology report:  grade II, ER negative, 34-year-old womanitit
    comes out toit was about 24-and-a-half per cent and I round it up to 25%
    chance of death 10 years from diagnosis, or about a 75% chance of being alive,
    and that's including the benefits of chemotherapy that she received.  So,
    inin summary, about a 4% difference if the growth was from two-and-a-half
    to four-and-a-half centimetres.  If the growth was less than that then the
    magnitude of benefit of adverse effect on survival would be a bit lower, so
    somewhere between 1 and 4% is probablyprobably reality.

The
    trial judge accepted Dr. Olivotto's explanation as to the application of the
    ADJUVANT! program.  Alive to the difference between clinical and pathological
    measurement, and the need to track tumour growth by reference to one method
    of measurement, the trial judge accepted expert opinion as to the likely pathological
    size of the tumour in June 2001 and incorporated in his own analysis tumour
    growth of either 2.5 cm to 4.0 cm or 3.0 cm to 4.5 cm.  Depending on which
    set of numbers is chosen, the increase in absolute risk of death fluctuates
    by, at most, one per cent and does not alter the analysis of causation.

[48]

The trial judge was aware that tumour size is key in determining prognosis.
    He noted at paras. 8687 of his reasons:

All witnesses agreed that a delay in the diagnosis of breast cancer is associated
    with a poor outcome.
Delays of diagnosis allow a

tumour to enlarge
    and spread and for the cancer to travel to other parts

of the body
where it may for some years sit dormant before recurring.

The prognosis of breast cancer is related to a number of clinical and pathological
    features including the size of the primary tumour, the number of involved
    axillary lymph nodes, the tumours grade and the age of the patient.  Patients
    who are younger than 40 years old have a higher risk of recurrence and death.

[Emphasis
    added.]

[49]

The evidence before the trial judge, and accepted by him, established
    that the delay in diagnosis increased Ms. Johnston's risk of death from breast
    cancer from 21% (her risk from dying from breast cancer on 15 June 2001 when
    the tumour ought to have been diagnosed) to 23 or 24% (rounded to 25%, as
    explained earlier).  In other words, accepting the trial judge's findings
    of fact, and his allowance for the rare type of cancer the plaintiff had,
    the missed diagnosis relatively increased the plaintiff's risk of death by
    20% and in absolute terms the plaintiff's risk of death rose from 21% (if
    the tumour had been diagnosed and removed immediately) to approximately 25%.
    That is, a 4% absolute increase in the plaintiff's risk of death represents
    an approximate 20% relative increase.  The 20% relative increase in the plaintiff's
    risk of death represented a causation probability of 20%.

[50]

The trial judge placed critical emphasis on the 21% figure, and on
    the increase to 25%, which were statistical probabilities indicating the increasing
    risk of death for Ms. Johnston, who had a growing tumour in her breast. Having
    accepted this medical and statistical evidence, the trial judge had a sufficient
    and appropriate basis for conducting the but for analysis.

[51]

However, the trial judge anchored his decision to apply the material
    contribution test in the fact that it is impossible [] to know whether the
    migration took place before or after June 2001 (para. 94). This solitary
    statement, which appears late in his reasons, propelled the remainder of his
    causation analysis, but completely devalued the significance of the ADJUVANT!-generated
    evidence, which the trial judge accepted and used as the basis for his earlier
    statistical exposition of the plaintiffs increased risk of death due to her
    enlarged tumour.  The weight of the medical evidence accepted by the trial
    judge was that the size of the tumour is predictive of the probability of
    recurrence, spread and death.  In other words, a prognosis generated by ADJUVANT!
    incorporates the potential eventuality of migration or metastasis.

[52]

The appellant thus contends, and I agree, that based on the evidence
    of Dr. Olivotto and the application of the ADJUVANT! program to the circumstances
    that confronted the plaintiff, the defendant, while obviously not obliged
    to do so, had disproved causation.  In order for the plaintiff to succeed,
    she had to prove that it was more probable than not that proper and timely
    diagnosis and treatment would have prevented her loss  namely, that she would
    likely have lived longer had Dr. Segal not been negligent (see
Hotson
    v. East Berkshire Area Health Authority
, [1987] 2 All E.R. 909 (H.L.)).
    To state it another way, Ms. Johnston had to establish that Dr. Segals conduct
    made it more probable than not that the delayed diagnosis of her cancer would
    cause her death to occur earlier than it would have but for Dr. Segals negligence.
    As Lord Hoffmann stated in
Barker v. Corus
, it was not enough
    to show that the defendant's conduct increased the likelihood of damage and
    may have caused it.  The evidence of causation in this case fell far short
    of proof on a balance of probabilities.

[53]

Having failed to establish causation on the available "but for"
    test, the causation analysis ought to have come to an end. It was not open
    to the plaintiff to prove, or to the trial judge to consider, the material
    contribution test. As stated in
Resurfice
,

it
    must be impossible to prove negligence using the "but for" analysis
    before resort can be made to the material contribution analysis.  I do not
    read
Resurfice
to mean that, because a plaintiff fails to prove
    causation on the "but for" analysis, a plaintiff may then resort
    to the less stringent material contribution test. As this Court recently stated
    in
B.S.A. Investors Ltd. v. DSB
, 2007 BCCA 94, 69 B.C.L.R. (4
th
)
    292, leave to appeal to S.C.C. requested, where the reasons of the trial judge
    indicate that the plaintiff could not meet the burden of proving causation,
    then the plaintiff's action should be dismissed (at para. 33).

[54]

It follows that I would allow the appeal and dismiss the cross-appeal
    except to the extent agreed to by the appellant, namely the preservation of
    the $25,000 award for psychological damage suffered by Ms. Johnston from the
    knowledge of the delayed diagnosis.

The Honourable Madam Justice Kirkpatrick

I
    agree:

The
    Honourable Mr. Justice Frankel

I
    agree:

The
    Honourable Mr. Justice Tysoe


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Murphy
          v. Wynne,

2008
          BCCA 26

Date: 20080122

Docket: CA034348

Between:

John
    Murphy

Appellant

(
Plaintiff
)

And

John
    Wynne, William Holmes, William Kinlock, James Dougan, Barry Clark, Richard
    OBrien, Russell St. Eloi, Tom Millar, Tom Tomko, Anne St. Eloi, Alexander
    McDonald, James Brady, Al Phillips, Ray Callard, Local 170 of the United Association
    of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of
    the United States and Canada, and Nelson, Barkman & Tanaka, Chartered
    Accountants

Respondents

(
Defendants
)

Before:

The
          Honourable Chief Justice Finch

(In
          Chambers)

J.
          Murphy

Appearing on his own behalf

A.
          Howarth

Counsel for the Workers Compensation Board

Place
          and Date of Hearing:

Vancouver, British Columbia

24 October 2007

Written
          Submissions Received:

15 November 2007

Place
          and Date of Judgment:

Vancouver, British Columbia

22 January 2008

Reasons
    for Judgment of the Honourable Chief Justice Finch:

I.  INTRODUCTION:

[1]

Mr. Murphy applies for various remedies including orders that this
    appeal be removed from the inactive list, that an earlier order requiring
    him to post security for the costs of appeal be set aside, that a five judge
    panel be appointed to hear his appeal, and that he be granted indigent status.
    No parties appeared in opposition to these applications.  Mr. Howarth appeared
    for the Workers Compensation Board as a matter of courtesy to the Court.
    The Workers Compensation Board is not a party to this appeal.

[2]

At the conclusion of the oral hearing on 24 October 2007 I asked Mr.
    Murphy to make submissions in writing setting out the basis of the applications
    before me, with such supporting material as he thought necessary.  Mr. Murphy
    complied with that request on 15 November 2007.

[3]

This appeal, brought by Mr. Murphy under Court of Appeal file number
    CA034348 is in respect of proceedings commenced in the Supreme Court of British
    Columbia under file numbers C946213 and S011288.  In particular, the appeal
    is from the order of Mr. Justice Groberman of 14 July 2006 striking out Mr.
    Murphys statement of claim and dismissing his actions against all defendants.

[4]

Mr. Murphy has a second proceeding in this Court, brought under Court
    of Appeal file number CA034995.  That appeal also concerns proceedings in
    the Supreme Court of British Columbia under file numbers C946213 and S011288.
    However, appeal number CA034995 relates in particular to the counterclaim
    advanced by the defendants against Mr. Murphy.  In his oral reasons for judgment
    of 14 July 2006 Mr. Justice Groberman suggested that the issues surrounding
    the counterclaim might be addressed by an application for leave to discontinue
    the counterclaim.

[5]

The defendants brought an application to have the counterclaim dismissed
    without costs.  An order to that effect was granted by Mr. Justice Groberman
    on 13 April 2007.

[6]

Mr. Murphy applied for leave to appeal that order.  On 31 August 2007
    Mr. Justice Chiasson granted Mr. Murphy leave to appeal the order of 13 April
    2007, granted Mr. Murphy indigent status in those proceedings, and refused
    Mr. Murphys request for a stay of proceedings:
Murphy v. Wynne
,
    2007 BCCA 434.

[7]

These reasons for judgment address only the applications brought by
    Mr. Murphy in appeal number CA034348.  They do not address appeal number CA034995,
    Mr. Justice Grobermans order of 13 April 2007, or Mr. Justice Chiassons
    order of 31 August 2007.

II. HISTORY OF THE PROCEEDINGS:

[8]

Mr. Murphy, a plumber, was at one time a member of the Building Trades
    Division Local 170 (Local 170) of the United Association of Journeymen and
    Apprentices of the Plumbing and Pipefitting Industry in the United States
    and Canada (the Union).  In 1991, elections were held to fill positions
    as officers of the union.  Mr. Murphy took issue with the elections, and the
    subsequent interference with his rights which he says have flowed through
    to other elections since then.  In 1994, Mr. Murphy commenced action number
    C946213 seeking an injunction.

[9]

1n 1996, Mr. Murphy was charged by his union with circulating letters
    of falsehood contrary to s. 199 of the union constitution.  The union claimed
    that Mr. Murphy had forged signatures of other union members on motions that
    he wished to bring before the union.  In 1996, Mr. Murphy was fined and expelled
    from the union following a hearing which he did not attend because union officials
    told him he could not be represented by a lawyer.  This fine and expulsion
    was later confirmed by the parent union (The International Union).

[10]

On 6 March 2001 Mr. Murphy commenced action number S011288 against
    the union and various members of the union seeking redress for his alleged
    wrongful expulsion.  Mr. Murphy also sought redress for a number of other
    alleged wrongs, including irregularities in managing certain trust funds and
    failure to represent him before the Workers Compensation Board.  He has also
    taken issue with the qualifications of various members of the union executive
    to hold office, and with their refusal to prove their qualifications to him.

[11]

Several judges dealt with these applications up until 2003.  Significant
    rulings were made by Williamson J. (
Murphy v. Wynne
, C946213,
    Vancouver Registry, 22 February 2002), Edwards J. (
Murphy v. Wynne
,
    2002 BCSC 1835), and Humphries J. (
Murphy v. Shortt
, 2003 BCSC
    507).  In 2003, Mr. Justice Groberman was appointed case management judge
    over Mr. Murphys litigation.  In 2004, Mr. Justice Groberman heard the petition
    in
Murphy v. Shortt
, 2004 BCSC 1362.

[12]

In his judgment of 14 July 2006 in
Murphy v. Wynne
, Mr.
    Justice Groberman held that the four rulings referred to above disposed of
    the bulk of Mr. Murphys claims.  Mr. Justice Groberman hoped that the guidance
    he gave in his 2004 judgment would allow Mr. Murphy to proceed in an expeditious
    and orderly manner with what was left of his claims.  At three case management
    conferences in 2004 and again in 2005, Mr. Justice Groberman urged and directed
    Mr. Murphy to provide the court with a brief plan of how he was going to bring
    the litigation to trial so that it could be dealt with without further delay.
    Mr. Murphy first insisted that the proceedings be delayed while he unsuccessfully
    pursued certain claims before the Labour Board, and then let the matter lie
    dormant for a considerable length of time.

[13]

In January 2006, Mr. Murphy filed a 44 page document entitled, Amended
    Statement of Claim.  Mr. Justice Groberman described this document as a:

hodgepodge
    consisting of allegations, copies of documents, lists of alleged facts, references
    to affidavits, and disjointed discussion replete with legal jargon.  Allegations
    and claims are made against non-parties, and many of the named defendants
    have no specific allegations or claims made against them.  (
Murphy v.
    Wynne
, S011288, Vancouver Registry, 14 July 2006 at para. 7)

[14]

Mr. Justice Groberman said the document consists, in the main, of allegations
    and claims that had already been dismissed in the earlier proceedings, and
    is not an orderly or proper document on which Mr. Murphy can base a claim.
    As a result, Mr. Justice Groberman struck the statement of claim and dismissed
    the action.

[15]

On 10 August 2006 Mr. Murphy filed his notice of appeal.  He applied
    for indigent status.  On 31 October 2006 I dismissed Mr. Murphys application
    for indigent status.  At the same time, I granted the defendants applications
    for security for costs of the appeal, security for costs in the court below,
    and ordered a stay of the appeal until security is posted:
Murphy v.
    Wynne
, 2006 BCCA 588.

[16]

Mr. Murphy applied to review that order.  That application was dismissed
    by a division of this Court:
Murphy v. Wynne
, 2007 BCCA 156.

[17]

On 24 September 2007 the registry sent a letter to Mr. Murphy advising
    him that, pursuant to s. 25(1) of the
Court of Appeal Act
, this
    matter had been placed on the inactive appeal list.

[18]

That is the background leading to Mr. Murphys application now before
    me.  As mentioned, in the application of 24 October 2007, as now amplified
    by Mr. Murphys written submission, he applied to remove appeal number CA034348
    from the inactive list.  He also applied to consolidate evidence and appeal
    costs.  He sought the hearing of his appeal by a five judge division of the
    Court.  He sought to set aside the order for security for costs.  He also
    sought interim orders that the union reinstate his membership in health and
    welfare plan coverage.  He sought indigent status, leave to appeal, and joinder
    of this appeal with those proceedings numbered CA034995.  He also asked for
    an extension of time within which to file his factum.  Mr. Murphy filed a
    written submission on 15 November 2007, together with voluminous supporting
    materials.

III. REMOVAL FROM THE INACTIVE LIST:

[19]

Section 25 of the
Court of Appeal Act
governs inactive
    appeals.  There is no rigid test on an application to reinstate.  The overriding
    issue has been said to be whether it is in the interests of justice to grant
    the application:
Kar Recovery Ltd. v. KDA
, 2004 BCCA 503.  Factors
    which have been considered by the Court in removing a case from the inactive
    list are the extent of the delay, any explanation for the delay, the existence
    of prejudice arising from the delay, and the likelihood of success on appeal.

[20]

The applicant bears the onus of establishing a good reason for reactivating
    the appeal under s. 25(2): see
Galiano Conservancy Association v. British
    Columbia (Ministry of Transportation and Highways)
(1997), 40 B.C.L.R.
    (3d) 171 (C.A.) at 176.

[21]

Where a litigant appears in person, the Court will not be overly strict
    about form: see
Berg v. Berg
, 2000 BCCA 574.

[22]

In my opinion, it would not be in the interests of justice to remove
    this appeal from the inactive list.  Mr. Murphy seeks to attack the order
    of Mr. Justice Groberman made on 14 July 2006 striking out his statement of
    claim and dismissing the action against all defendants.  In making that order
    Mr. Justice Groberman said:

I
    have no hesitation in finding it (the amended statement of claim) to be an
    abuse of process because it consists largely of claims that have already been
    dismissed, irrelevant allegations against non-parties, pleadings of evidence,
    cross references to affidavits, and disjointed pleadings of law unsupported
    by pleadings of material facts.

Quite
    apart from these improprieties, the document is almost unintelligible.  It
    can in no way serve as the basis for an orderly legal process.

[23]

It is evident that there is no prospect of success in an appeal of
    that order.  Continuing these proceedings would be a further abuse of the
    Courts processes.

[24]

I dismiss the application to remove the appeal from the inactive list.

IV. THE OTHER APPLICATIONS:

[25]

In light of this disposition, Mr. Murphys other applications, to set
    aside the order that he post security for costs, the request for a five judge
    panel, and the request for indigent status, are all moot.  They are therefore
    dismissed as well.

V. CONCLUSION:

[26]

All applications in file number CA034348 are dismissed.  Mr. Murphy
    appeared in person.  He has shown reluctance in the past to draw orders, or
    to approve orders that are adverse to his interest.  No one appeared in opposition
    to his various applications.  I therefore direct that the registry staff draw
    and enter the order giving effect to these reasons.  A copy of the order is
    to be delivered to Mr. Murphy.

The Honourable Chief Justice Finch


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Bodnarchuk,

2008
          BCCA 39

Date: 20080122

Docket: CA033147

Between:

Regina

Respondent

And

Mervin
    Michael Bodnarchuk

Appellant

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Madam Justice Levine

The
          Honourable Mr. Justice Chiasson

Oral Reasons for Judgment

M.
          Tammen

Counsel for the Appellant

S.D.
          Cooke

Counsel for the (Crown) Respondent

Place
          and Date:

Vancouver, British Columbia

22 January 2008

[1]

LEVINE, J.A.
: The appellant, Mervin Melvin Bodnarchuk, was convicted
    in British Columbia Supreme Court in February 2005 of 14 counts of theft under
    s. 332 of the
Criminal Code
.  He was sentenced to 12 to 18 months
    in prison in July 2005, and restitution orders were made in the total amount
    of $65,000.   His conviction appeal was dismissed by this Court on August
    20, 2007.  He was granted leave to appeal the sentences on August 30, 2007.

[2]

The circumstances of the appellant and the offences for which he was
    convicted are reviewed in the trial judges reasons for judgment (2005 BCSC
    150) and reasons for sentence (July 8, 2005, Vancouver Registry CCO11121),
    and in the reasons of this Court dismissing the conviction appeal (2007 BCCA
    417).

[3]

In essence, the appellant was found guilty of promoting the sale of
    a companys shares to investors, on promises that the shares would be listed
    on a stock exchange, and delayed or failed to provide share certificates to
    the investors, with the result that the investors could not deal with their
    shares.  The appellant was the directing mind of the company.  The business
    venture to be undertaken by the company never came to fruition  indeed, it
    may never have been launched.  The company was indebted to the appellant for
    shareholders loans, and the appellant used the investors money for personal
    and other business purposes.

[4]

This Court found the appellant was entitled to use the investors funds
    for his own purposes, because of the shareholders loans owed to him (at para.
    27).  The deliberate delay in providing the investors share certificates,
    however, amounted to being in receipt of money that he fraudulently and contrary
    to a direction employed for another purpose.  As Hall J.A. put it (at para.
    33):

The
actus reus
of the offence was the appellant's
    use of the investment monies and failure to timeously have issued that for
    which the monies had been furnished.  The
mens rea
of the crime, impelled
    by the motivation I have described above, was his intent to keep the investors
    out of their property as long as possible to serve his own economic ends.
    There was here, as in
Skalbania
, an intentional and unmistaken
    misappropriation of the funds provided by the investors.  The appellant conceived
    and executed a scheme to obtain funds from investors to keep him from financial
    distress and the successful operation of the enterprise required him to ensure
    that share certificates not be delivered in any timely way to investors.
    The true state of affairs was never disclosed to the investors.  I consider
    it was open to the trial judge to find both the
actus reus
and the
mens rea
of theft under s. 332 made out on the facts of this case.

[5]

At the appellants sentencing, defence counsel proposed three alternative
    sentences: a conditional discharge; a sentence of six months to be served
    in the community as a conditional sentence plus a restitution order; and a
    fine in the range of $25,000 plus a restitution order.  The trial judge rejected
    all of these suggestions, in favour of sentences of imprisonment of 12 to
    18 months.

[6]

The appellants grounds of appeal on sentence are that the trial judge
    erred in failing to impose conditional sentences, and in failing to reduce
    the length of the sentences to take into account the restitution order.

[7]

As the appellant acknowledges, the trial judge did reduce the length
    of the sentences she imposed to take into account the restitution orders.
    She noted (at para. 55):  An order for restitution, it must be remembered,
    is itself punishment and, accordingly, it must serve to reduce what would
    otherwise be an appropriate term of imprisonment.  This statement reflects
    the principle relied on by the appellant, as stated in
R. v. Siemens
(1999), 136 C.C.C. (3d) 353 at para. 8(1) (Man. C.A.), and adopted by this
    Court in
R. v. Yates
(2002), 169 C.C.C. (3d) 506 at para. 20,
    2002 BCCA 583, that a restitution order must be included as a factor in the
    totality of the punishment imposed.

[8]

The trial judge found (at para. 53) that the range of sentences of
    imprisonment was 18 to 22 months, depending on the amount involved.  Taking
    into account the restitution orders, she said,  the sentence may be reduced
    from the range which I have expressed (at para. 55).  The sentences she imposed
    were 12 to 18 months.

[9]

The appellant argues, however, that the trial judge should have expressly
    considered the restitution order when determining whether a conditional sentence
    could adequately address the principles of denunciation and deterrence, did
    not give sufficient effect to the restitution order, and should have reduced
    the longest sentence to 12 months.  He notes that in
Yates
the
    Court said (at para. 7):

The authorities establish that restitution orders give
    effect to many of the principles of sentencing including denunciation, specific
    and general deterrence and rehabilitation.

[10]

The appellants primary argument, however, is that this Courts decisions
    in
R. v. Burkart
(2006), 214 C.C.C. (3d) 226, 2006 BCCA 446
    and
R. v. Dickson
, 2007 BCCA 561, have changed the landscape
    with respect to the availability of conditional sentences to offenders convicted
    of serious breach of trust offences.  In both of those cases, the Court substituted
    conditional sentences for sentences of imprisonment imposed at trial for serious
    breach of trust offences against employers by their employee.  The appellant
    says that these cases reversed the prevailing view that in cases of fraud
    and breach of trust, incarceration was the appropriate and effective form
    of sentence to demonstrate societal denunciation of such crimes and to deter
    others from committing them:  see
R. v. Hoy
(1998), 113 B.C.A.C.
    155,
[1998] B.C.J.
    No. 1649;

R. v. Skalbania
(1998), 131 C.C.C. (3d) 166;
R. v. Schneider
,
    2002 BCCA 143;
R. v. Khan
, 2002 BCCA 703;
R. v. Autenrieth
;

2003 BCCA 521;
R. v. Zeek
, 2004 BCCA 42;
R. v.
    Stephenson
, 2006 BCCA 104;

and
R. v. Ireland
,
    2007 BCCA 387.

[11]

Burkart
and
Dickson
recognize that, in accordance
    with the
Criminal Code
and the authorities, conditional sentences
    should be considered in every case where the minimum criteria are met.  As
    the Chief Justice said in
Dickson
(at para. 35):

Applying the law as laid down in
Proulx
,
    the proper approach when the minimum criteria for a conditional sentencing
    order are met is to consider, taking into account the fundamental purpose
    and principles of sentencing, whether there are sufficient reasons for not
    imposing a conditional sentence, or whether there are considerations which
    would mandate imprisonment, even though a conditional sentencing order would
    otherwise be appropriate.  There is no presumption one way or the other.

See
    also paras. 63-64, where the Chief Justice said:

This Court has said more than once that general deterrence
    is central to the sentencing process in cases involving large scale frauds
    with serious consequences for the victims.  In many cases, convictions for
    serious fraud have led to the imposition of custodial sentences: see
R.
    v. Khan
, [2002] B.C.J. No. 2950, 2002 BCCA 703 and
R. v. Autenreith
,
    [2003] B.C.J. No. 2291, 2003 BCCA 521.

However, in cases of serious fraud or serious theft where
    there are extreme personal mitigating circumstances, the courts have held
    that the principle of general deterrence can be satisfied by a conditional
    sentence: see
R. v. Bunn
, [2000] 1 S.C.R. 183,
R. v. Kratky
,
    [1997] B.C.J. No. 3167 BCSC and
R. v. Anderson-Davis
, [2000]
    B.C.J. No. 88, 2000 BCSC 42.

[12]

The trial judge proceeded exactly as mandated by
Dickson
,
    and by
R. v.

Proulx
, [2000] 1 S.C.R. 61, which
    she cited (at paras. 44 and 45) for the principles that an offender should
    not be sentenced to jail if less restrictive sanctions may be appropriate
    in the circumstances, that denunciation and deterrence may be addressed by
    a longer conditional sentence with onerous terms, and that incarceration will
    generally be the preferable sanction to express denunciation and to deter
    others from similar conduct.

[13]

She reviewed the aggravating features of the offences.  These were:
    the offences were serious, perpetrated on vulnerable victims (at para. 16);
    the appellant used promotional tactics, recruiting known and trusted individuals
    in their communities to at act as attractive magnets for other investors
    (at para. 17);  the sheer multiplicity of offences which occurred over a lengthy
    period of time, at different locations through the country, over a period
    of four years, involving different individuals (at para. 22); the appellant
    had previous convictions for securities offences in Alberta, Saskatchewan,
    and Manitoba, where he pled guilty to 80 offences committed between 1990 and
    1993 (at para. 24).  She found that the appellant did not have any real insight
    into the impact of his actions on the complainants, nor did he understand
    the criminal nature of his actions.

[14]

She also referred to the mitigating factors.  These were that the appellant
    had no criminal record, and was apparently a married family man (at para.
    29).

[15]

She concluded her consideration of the alternative of a conditional
    sentence (at para. 47):

Again, given the circumstances of this case, the amounts
    involved, the number of victims, the period of time over which the offences
    were committed, the type of promotion used and the accuseds own history in
    the securities industry, I am not satisfied the principles of deterrence and
    denunciation can be satisfactorily addressed by the imposition of a conditional
    sentence.

[16]

The sentencing judge did not separately consider the restitution orders
    in the context of whether a conditional sentence would be appropriate.

[17]

The Crown argues that the restitution orders in this case were not
    significant factors in the determination of whether a conditional sentence
    was appropriate in the circumstances, and did not require express consideration
    in that context.

[18]

In
Siemens
, the Court commented (at para. 8(1):

In
    some cases, a restitution order will be a significant factor, while in others
    it will be trivial, depending on the circumstances, but it must be included
    as a factor in the totality of the punishment imposed.

And
    at para. 8(4) said:

The
    shorter the sentence, the more likely it will be that a restitution order
    will be appropriate.  Where the amount is manageable, there is every reason
    to impose an order of restitution when a sentence either does not involve
    imprisonment or is so short that it does not affect the offenders employment
    or the sentence can be served conditionally.  Conversely, as an incarceratory
    sentence becomes longer, the futility of an order of restitution will become
    increasingly apparent.

[19]

Based on these principles a restitution order may be a factor in the
    determination of the appropriateness of a conditional sentence, bearing in
    mind that a restitution order provides a measure of denunciation and deterrence.
    It is not an error in principle, however, not to expressly consider it.  The
    sentencing judge in this case expressly reduced the length of the jail sentences
    to reflect the effect of the restitution orders.

[20]

In my opinion, the aggravating factors overwhelmed the mitigating factors
    in this case to such a degree that they mandated imprisonment for these serious
    offences: see
Dickson
at para. 35;
R. v. Mohebtash
,
    2007 BCCA 427 at para. 10.  The sentencing judge properly emphasized the need
    for denunciation and deterrence, and took into account the proper principles,
    including the reduction required as a result of the restitution orders, in
    determining the length of the sentences.

[21]

In the result, I would dismiss the appeal.

[22]

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

[23]

CHIASSON, J.A.
: I agree.

[24]

FINCH, C.J.B.C.
: Leave to appeal is granted.  The appeal is dismissed.

The Honourable
    Madam Justice Levine


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Gunning,

2008
          BCCA 22

Date: 20080122

Docket: CA034914

Between:

Regina

Respondent

And

Jody
    James Gunning

Appellant

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Mr. Justice Smith

The
          Honourable Mr. Justice Frankel

G.
          Orris, Q.C.

Counsel for the Appellant

A.
          Budlovsky, Q.C.

Counsel for the Respondent

Place
          and Date of Hearing and Judgment:

Vancouver, British Columbia

15 November 2007

Date
          of Written Reasons:

22 January 2008

Written
          Reasons by
:

The
          Honourable Mr. Justice Smith

Concurred
          in by:

The
          Honourable Chief Justice Finch
The Honourable Mr. Justice Frankel

Reasons
    for Judgment of the Honourable Mr. Justice Smith:

[1]

At the hearing of this sentence appeal, we granted leave to appeal
    and allowed the appeal with reasons to follow.  The appeal was brought from
    a sentence of five and one-half years imprisonment (after credit of two and
    one-half years for pre-sentencing custody) imposed on March 22, 2007 by Mr.
    Justice Parrett in the Supreme Court of British Columbia upon the appellants
    plea of guilty of manslaughter.  We set aside the sentence and substituted
    a sentence of three years imprisonment.  These are my reasons for that disposition.

[2]

The appellant entered his plea with the consent of the Crown after
    a ruling of Mr. Justice Parrett on a
voir dire
at the commencement
    of the appellants second trial on an indictment charging him with second
    degree murder of Chester Charlie, who was shot to death at the appellants
    home in Fraser Lake on May 6, 2000.  On October 3, 2001, the appellant was
    convicted by a jury of second degree murder and was sentenced to life in prison
    without eligibility for parole for ten years.  On September 9, 2003, this
    Court dismissed his appeal:  see 2003 BCCA 477, 186 B.C.A.C. 225.  On May
    19, 2005, the Supreme Court of Canada allowed his further appeal, set aside
    his conviction, and ordered a new trial:  see [2005] 1 S.C.R. 627, 2005 SCC
    27.

[3]

I will adopt the summary of the circumstances of the offence set out
    in the reasons given by the Supreme Court of Canada:

[8]
    In the early morning hours of May 6, 2000, in Fraser Lake, British Columbia,
    at the end of a long night of drinking, an altercation between two men left
    one dead and another in police custody.  The evening before, Mr. Gunning had
    a party at his home, inviting some friends.  Although the party did not really
    get started until later in the day, Mr. Gunning started his drinking in the
    early afternoon of May 5.  His common law spouse left the party some time
    between 11 p.m. and midnight to have a few drinks with some friends at a local
    pub.  She returned around 3 a.m. and many of the pub occupants followed, none
    of whom were invited.  Among them was Chester Charlie.  He did not know Mr.
    Gunning or his common law spouse.

[9]
Shortly before the shooting, Mr. Gunning found
    Mr. Charlie sitting on the edge of his bed going through the bottom drawer
    of his night stand.  He became angry and asked Mr. Charlie "what the
    fuck he was doing".  He told Mr. Charlie to get out, to which Mr. Charlie
    responded "get the fuck out".  Mr. Gunning told Mr. Charlie that
    it was his house and that he should get out.  Mr. Charlie then laid back on
    the bed, crossed his feet and said "[m]ake me".  When Mr. Gunning
    went to brush Mr. Charlie's feet off the bed, Mr. Charlie kicked him back
    up against the door.  Mr. Gunning testified that he was scared, wanted Mr.
    Charlie out of his house, felt he needed to intimidate or scare him and was
    too drunk to fight.

[10]

Mr. Gunning
    kept a shotgun, unloaded, in a locked storage locker, the keys to which were
    kept in a toolbox in the basement.  Mr. Gunning had no recollection of going
    to the basement, getting his keys, opening the locker, obtaining and loading
    the shotgun or returning upstairs.  He did remember going back into the bedroom
    with the shotgun in hand.  Mr. Charlie was sitting on his bed. He testified
    that he did not threaten or point the gun at Mr. Charlie.  When he told Mr.
    Charlie to get out of his house, Mr. Charlie laughed, called him a "real
    pussy", left the bedroom and started walking down the hall.

[11]

Mr. Gunning testified that, relieved Mr. Charlie was leaving, he followed
    him down the hall.  Believing Mr. Charlie had gone, Mr. Gunning began to go
    down the stairs to the basement when he heard a noise.  He went back upstairs
    and saw Mr. Charlie leaning over a coffee table in the living room.  He asked
    Mr. Charlie what his problem was.  Mr. Charlie responded by saying "fuck
    you" and spat at him.  Mr. Gunning "shook his fists" at Mr.
    Charlie and said "[j]ust get out."  In that instant, he saw Mr.
    Charlie lying on the coffee table in a pool of blood. Mr. Gunning testified
    that he had been holding the shotgun in one hand, "like you'd hold a
    pistol".  He testified that he ejected the shell from the shotgun, and
    at that moment "everything closed in on [him]". The time was around
    6 a.m.

[12]
At approximately 6:10 a.m. Mr. Gunning placed
    a call to Sgt. Appleton, whom he knew, telling him that he had shot someone
    and that he had a "shotgun with two shells in it".  Mr. Gunning
    testified that he did not remember any of the conversation.  Mr. Gunning was
    soon after arrested in his basement.  The shotgun was found on a couch in
    the basement holding an additional shell in its chamber.  Another live round
    was found on the couch beside the weapon.  A live shell was also found beside
    the deceased's head, along with a spent shell, fired from the weapon, under
    his leg.

[4]

The appellant was arrested on May 6, 2000 shortly after the homicide.
    He was granted bail ten days later and remained on bail until his conviction
    on October 3, 2001.  Thereafter, he was released on bail for periods of time
    pending his appeal to this Court and, after his appeal to the Supreme Court
    of Canada was allowed, pending his new trial.  He was returned to prison when
    the sentence herein was imposed, where he has remained to date.  His sentencing
    proceeded on the basis that, as of the sentencing date, he had served 886
    days of his life sentence for murder and had been on bail and bound by restrictive
    conditions for 1,567 days.

[5]

In accepting the plea of guilty of manslaughter, the Crown acknowledged
    that the appellants consumption of alcohol raised a reasonable doubt as to
    his intention to kill Mr. Charlie.  The Crown submitted that the appropriate
    range of sentence in the circumstances was eight to 12 years, subject to double
    credit for the first ten days of custody and to one-for-one credit for the
    approximately two and one-half years served by the appellant on the murder
    sentence.  The appellant sought credit of three-for-one or two and one-half-for-one
    for the time served on the basis that he had been wrongly stigmatized as a
    murderer and that the time served amounted to very hard time, which was
    exacerbated by the restrictive conditions of his bail and the long delay from
    the inception of criminal proceedings to their final disposition.  He sought
    a sentence of one day which, on his calculation of pre-sentencing credit,
    would have represented an effective sentence of approximately six to seven
    and one-half years.

[6]

The learned trial judge did not accede to the appellants submissions.
    After concluding that eight years would be a fit sentence, he said,

[52]      I have read with interest Mr. Orris's [appellants counsels]
    submissions and cases on the submission that this accused should be credited
    at a rate of 2.5 to one or three to one for the time he has served.  While
    the rule of thumb for pre-trial custody is two to one, it is no hard and fast
    rule.  The extension of that proposition has been a fertile field for defence
    counsel for some years, and the present case is, I suggest, an innovative
    approach by counsel.

[53]      In my view, such an approach would ignore the entire underlying
    rationale for the increased credit as it is outlined in the authorities.
    This accused was released on bail after 10 days pre-trial custody.  The balance
    of time served was on his sentence after his conviction in relation to the
    present offences albeit for a conviction that has since been set aside.  In
    my view, he had full access to all programs and other benefits of the jail
    system as any prisoner under sentence would, and the underlying principle
    and rationales are restricted in their application and should not be extended
    in the circumstances of this case.

[54]      I would credit the accused at a rate of two to one for his pre-trial
    custody, but only straight time for the balance of the time served.  I sentence
    you, Mr. Gunning, sir, to serve a term of imprisonment of eight years less
    2.5 years for the time you have already served.

(His reasons are indexed at 2007 BCSC 505, [2007] B.C.J.
    No. 750 (QL)).

[7]

Before us, the appellant contended that the trial judge had made a
    number of errors in principle.  I find it necessary to deal with only one
    of these contentions.

[8]

I agree with the appellants submission that the trial judge erred
    in principle in paragraph 53 of his reasons, quoted above.  The absence of
    rehabilitative programs is not the entire rationale for increased credit
    for pre-sentencing time served in custody.  The trial judge overlooked the
    companion consideration  pre-sentencing custodial time does not normally
    count for purposes of parole eligibility and statutory release.  Justice Laskin
    explained the rationale in
R. v. Rezaie
(1996), 31 O.R. (3d)
    713, 112 C.C.C. (3d) 97 (C.A.) at 104:

Section
    721(3) [now s. 719(3)] of the
Criminal Code
provides:

In
    determining the sentence to be imposed on a person convicted of an offence,
    a justice, provincial court judge or judge may take into account any time
    spent in custody by the person as a result of the offence.

Although this section is discretionary, not mandatory,
    in my view a sentencing judge should ordinarily give credit for pre-trial
    custody.  At least a judge should not deny credit without good reason.  To
    do so offends one's sense of fairness.  Incarceration at any stage of
    the criminal process is a denial of an accused's liberty.  Moreover,
in two respects, pre-trial custody is even more onerous than post-sentencing
    custody.  First, other than for a sentence of life imprisonment,
    legislative provisions for parole eligibility and statutory release do
    not take into account time spent in custody before trial (or before sentencing)
.
    Second, local detention centres ordinarily do not provide educational, retraining
    or rehabilitation programs to an accused in custody waiting trial.  For
    these reasons, pre-trial custody is commonly referred to as  "dead
    time", and trial judges, in deciding on an appropriate sentence, frequently
    give credit for double the time an accused has served.

[My emphasis.]

These remarks were adopted by this Court in
R.
    v. Mills
, 1999 BCCA 159, 133 C.C.C. (3d) 451, at para. 42 and by the
    Supreme Court of Canada in
R. v. Wust
, [2000] 1 S.C.R. 455,
    2000 SCC 18, at para. 28.

[9]

Here, the 886 days served by the appellant on his life sentence for
    murder does not count for parole eligibility or statutory release and, by
    giving one-for-one credit against the eight-year sentence for manslaughter,
    the trial judge denied him this benefit.  The loss of this benefit works unfairly
    to the appellant in a way that becomes readily apparent when the effect on
    the manslaughter sentence of his time served under the life sentence is examined.
    The trial judge gave the appellant two and one-half years credit (30 months)
    against a fit sentence of eight years for manslaughter, and imposed a sentence
    of five and one-half years (66 months).  The appellant will be eligible for
    parole after serving one-third, or 22 months, of that sentence:
Corrections
    and Conditional Release Act
, S.C. 1992, c. 20, s. 120(1).  However,
    given the 30 months he served on the life sentence for murder, he will have
    served a total of 52 months by his parole eligibility date.  Thus, if he is
    released at the earliest opportunity under the current sentence of five and
    one-half years, he will have been in custody for 20 months longer than if
    he had been convicted of manslaughter and sentenced to eight years after his
    first trial.  Looking at the sentence another way, parole eligibility after
    52 months would translate to a sentence of 156 months or 13 years.  Upon recognizing
    this unfairness during the hearing of this appeal, Crown counsel conceded
    that the appellant should be placed in the same position as if he had been
    convicted of manslaughter and sentenced to eight years after his first trial
    and that the sentence must therefore be adjusted.

[10]

However, it is not possible to superpose a fit sentence on an eight-year
    sentence notionally imposed after the first trial such that parole eligibility
    and statutory release coincide perfectly.  A sentence focussed entirely on
    reconciliation of parole eligibility and statutory release dates would not
    be a fit and just sentence for the appellants crime.  Rather, it would be
    a very short sentence in a provincial institution.  As well, there would be
    no subsequent period of supervised parole to assist in the appellants reintegration
    into the community.

[11]

Accordingly, in my view, two-for-one credit should be given for the
    30 months served on the life sentence rather than the one-for-one credit given
    by the trial judge.  This would reduce the eight years by 60 months and would
    result in a sentence of three years, which I would substitute for the five
    and one-half years imposed by the trial judge.

[12]

On this basis, the appellant will be eligible for parole after serving
    one year, that is, on March 23, 2008.  His total time served as of his parole
    eligibility date will be 42 months (the 30 months served on the earlier life
    sentence plus 12 months served on the current manslaughter sentence).  This
    translates notionally to a sentence of ten and one-half years which, although
    greater than the eight years considered fit by the trial judge, is not so
    much greater that it could be said to be demonstrably unfit.  Moreover, it
    is significantly less than the notional sentence of 13 years that the trial
    judge effectively imposed.  In the result, if the appellant should be granted
    parole at the earliest available date, which seems likely since we are advised
    he has been a model prisoner, the result will be that he will have served
    ten months more than if he had been sentenced to eight years for manslaughter
    after his first trial, and ten months less than he would serve under the impugned
    sentence.  As well, he will be subject to supervised parole when he is released.
    This sentence strikes an appropriate balance in the unusual circumstances
    of this case between the interest of the appellant in obtaining early release
    for good behaviour and the interests of society in his serving a fit and just
    sentence and, as well, in his rehabilitation and orderly reintegration into
    society as a law-abiding citizen.

[13]

It is for those reasons
    that I concluded that the appeal should be allowed, the sentence of five and
    one-half years set aside, and a sentence of three years substituted.

The
    Honourable Mr. Justice Smith

I agree:

The Honourable Chief Justice Finch

I agree:

The Honourable Mr. Justice Frankel


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Shieh
          v. Certified General Accountants Association,

2008
          BCCA 24

Date: 20080122

Docket: CA034881

Between:

Michael
    Shieh

Appellant

And

Certified
    General Accountants Association of British Columbia

Respondent

Before:

The
          Honourable Mr. Justice Chiasson

(In
          Chambers)

In
          person by telephone

Appellant

R.
          Hungerford and S. Haywood-Farmer

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

4 December 2007

Place
          and Date of Judgment:

Vancouver, British Columbia

22 January 2008

Reasons
    for Judgment of the Honourable Mr. Justice Chiasson:

[1]

On December 4, 2007, several applications potentially were before me
    in this matter.  They included an application for indigent status filed by
    Mr. Shieh on March 14, 2007 and a number of applications filed by him on October
    22, 2007 seeking orders relieving him from complying with a number of court
    rules.  In addition, the respondent applied for an order dismissing the appeal
    on the basis Mr. Shieh had failed to comply with the
Court of Appeal
    Act
, R.S.B.C. 1996, c. 77, the
Court of Appeal Rules
,
    B.C. Reg. 297/2001, as amended and an order of Madam Justice Prowse.

[2]

On October 30, 2007, Prowse J.A. dismissed Mr. Shiehs application
    to dispense with the requirement of Rule 39(3), which requires parties to
    provide an address for service in British Columbia.  She adjourned the other
    applications to December 4, 2007 and directed Mr. Shieh to provide an address
    in the Province in the interim.

[3]

Mr. Shieh has failed to comply with several of the various rules relating
    to preparation, filing and service of notice of appeal, appeal book, appeal
    record and appellants factum, putting him in violation of Rules 11, 19, 21
    and 26, in addition to Rule 39(3) mentioned above.

[4]

Mr. Shieh sought the following relief from his violations of the Rules:

1.
    permit him to file a brief and reply brief longer than 30 pages because
    the volume of information and documents generated by the CGA Tribunal and
    Supreme Court hearings cannot be summarized in 30 pages;

2.
    accept his Appeal Record as filed;

3.
    permit him to file an Appeal Book larger than 300 pages in a single binder;

4.
    accept his USA address as the mail service address because he resides in the
    USA and does not have a Canadian address to serve as an address for service
    of documents;

5.
    allow both sides an additional 15 days in addition to the normal filing time
    because:

a.
    as Mr. Shieh lives in the USA, mailings and endorsements are taking longer
    to reach their destination than the normal time, and

b.
    Mr. Shieh filed his appeal record on May 4 within the required time period
    but it was not in the proper form; he filed a revised version shortly after
    the time period expired and was told by the registry that it was in proper
    form and was filed timely; he did not know it was not accepted by the registry
    until July.

[5]

As noted, the relief sought in para. 4 was denied by Prowse J.A.  At
    the hearing before me Mr. Shieh adduced evidence to support the difficulty
    he has providing an address for service in British Columbia.  It is not open
    to me to revisit the direction of Prowse J.A., which was unequivocal:

THE
    COURT: Mr. Shieh, you have to provide an address in British Columbia for service.
    You have to.  Youre obliged to.  It is not good enough to say I live in California.

[.]

No.
    The answer is no, Mr. Shieh.  You are going to have to provide an address
    in British Columbia.  Period.  There must be somebody you know

[.]

If
    youre proceeding  if you want to proceed with an appeal in British Columbia,
    you have to make yourself available through an address for service in British
    Columbia.

[.]

That
    is what you are obliged to do.  I will not make an order that you do not have
    to provide an address in British Columbia for service.  You are going to have
    to do that.  That is your choice.  If you do not then youre not going to
    be able to proceed because you wont be receiving anything thats relevant
    because you havent provided the address.

[.]

MR.
    SHIEH: Well, I like to comply with the rules and regulations, Your Honour.
     It is not my idea to violate rules, so that I dont have the opportunity
    to present my case to the court.

THE
    COURT: Thats your choice, Mr. Shieh.

MR.
    SHIEH: But I dont have the address, thats why I made the motion to ask the
    court to grant me that - -

[.]

THE
    COURT: The answer is no, Mr. Shieh.  I will not grant you that application.
     That application is dismissed, and Im making a direction that on or before,
    lets make it, November the 7
th
, you will provide to the registry
    with a copy to the respondent an address for service for you in British Columbia.

[.]

[I]f
    you dont get assistance, I fear that whats going to happen is your appeal
    is going to be dismissed and to the extent you may have valid grounds of appeal,
    I think thats unfortunate.  I cant assess whether you have a valid ground
    of appeal there or not because you buried  youve buried it under so much
    paper.  Youve buried any ground  any legitimate grounds of appeal under
    so much paper that its really hard to dig them out, so thats why you need
    assistance.  [.] So what Im going to do is, Ive given the direction that
    you provide an address for service.  In the meantime, Im going to ask for
    one further indulgence from the respondent and that is that they provide the
    memorandum of argument in this case to you at your California address, Mr.
    Shieh.  So youll get that memorandum of argument and youll have everything
    up to date, but after that, you have to have an effective [] address for
    service, and then what Im going to do is Im going to adjourn your application
     your various applications [].

[.]

Right.
     Im going to direct you, Mr. Shieh, to provide  Im going to give you a
    further week to provide an address  address for service.  Im going to give
    you until, lets make it the 16
th
of November to provide an address
    for service.  That gives you some additional time to consult  hopefully to
    consult this pro bono group.  Perhaps they will put you [in] touch with a
    lawyer, and that lawyer may be able to assist with the question of getting
    an address for service.

So
    Im going to say until November the 16
th
, and thats to provide,
    again, the registry and also the respondents with an address for service in
    British Columbia and Im hoping youll be able to get some assistance with
    that.

[6]

I am satisfied that consideration of the balance of Mr. Shiehs applications
    was conditional on him complying with Madam Justice Prowses direction by
    providing an address for service in the Province.  In my view, the only application
    before me is the respondents application to dismiss the appeal as abandoned
    because Mr. Shieh has not complied with the condition precedent of a hearing
    of his applications for relief from the Rules and it is apparent he has no
    intention to do so.

[7]

The respondents application is based on ss. 10(2)(e) and 28(a) of
    the
Court of Appeal Act
.  Both authorize a Justice of the Court
    to dismiss an appeal as abandoned for non-compliance with the
Act
or
    the Rules.  That jurisdiction can be exercised when a party has failed to
    comply with an order of the Court:
Stromotich v. Stromotich
,
    2005 BCCA 82, [2005] B.C.J. No. 251 (Chambers);
Farmers Insurance Co.
    of Oregon v. Brown
, 2005 BCCA 577, 218 B.C.A.C. 285;
International
    Hi-Tech Industries Inc. v. FANUC Robotics Canada Ltd.
, 2007 BCCA 639
    (Chambers).

[8]

Because he has failed to comply with the order of Prowse J.A., Mr.
    Shiehs non-compliance with the Rules stands unredressed.  The failure to
    provide an address for service within the Province is itself a serious violation
    of the Rules, as was made clear by Prowse J.A.  In the absence of such an
    address, the administration of the appeal is unworkable.  Mr. Shieh has given
    no indication that he intends to provide the required address and he remains
    in violation of an order of this Court.  In my view, this appeal should end.

[9]

This appeal is dismissed as abandoned.

[10]

I direct that the order resulting from this application need not be
    signed by Mr. Shieh and the respondent shall deliver to Mr. Shieh a copy of
    these reasons and of the order to his address in the United States.

The Honourable Mr. Justice Chiasson