Citation:

Prince
          George (City) v.

Rahn
          Bros. Logging Ltd.

Date:  20030117

Docket:  CA028952

2003
          BCCA 31

COURT
          OF APPEAL FOR BRITISH COLUMBIA

BETWEEN:

CITY OF PRINCE GEORGE

RESPONDENT

(PLAINTIFF)

AND:

RAHN BROS. LOGGING LTD.

APPELLANT

(DEFENDANT)

Before:

The
          Honourable Madam Justice Rowles

The
          Honourable Madam Justice Prowse

The
          Honourable Mr. Justice Thackray

C.
          G. Fletcher and

D.
          M. Marcotte

Counsel
          for the Appellant

R.
          J. Stewart, Q.C.

Counsel
          for the Respondent

Place
          and Date of Hearing:

Vancouver,
          British Columbia

November 7, 2002

Place
          and Date of Judgment:

Vancouver,
          British Columbia

January 17, 2003

Written
    Reasons by:

The
    Honourable Madam Justice Rowles

Concurred
    in by:

The
    Honourable Madam Justice Prowse

The
    Honourable Mr. Justice Thackray

Reasons for Judgment of the Honourable
    Madam Justice Rowles:

I.  Overview

[1]

The measure of damages for the tort of negligent misrepresentation
    is that the plaintiff is to be put in the position it would have been in had
    the misrepresentation not been made:
BG Checo International Ltd. v.
    British Columbia Hydro and Power Authority
, [1993] 1 S.C.R. 12 at
    37.  This appeal raises issues concerning the application of that principle
    in a case in which the respondent's negligence in the issuance of building
    permits in 1985 and 1993 allowed the construction of a building and facilities
    used in the appellant's business as a logging contractor and forestry road
    builder on lands (the "property") not zoned for the purpose.

[2]

The adverse consequences of the respondent's negligent misrepresentations
    as to the allowable use of the property were not felt by the appellant until
    2000, when the respondent brought an action seeking a declaration that the
    appellant and its tenant were in violation of the zoning bylaw and an injunction
    restraining them from operating a business of parking or storing logging equipment
    or other businesses contrary to the provisions of the zoning bylaw.  Reasons
    for judgment granting the interim injunction restricting the use of the property
    were issued 29 August 200.  (See 13 M.P.L.R. (3d) 308, 2000 BCSC 1295.)

[3]

The trial judge concluded, in reasons for judgment dated 16 August
    2001, that but for the respondent's negligence in issuing the permits, the
    appellant would have constructed the building and facilities it used in its
    business on other lands zoned for the purpose.  The appellant sought damages
    based on the unchallenged evidence of the estimated cost to replace its building
    and other facilities but the trial judge rejected that approach.  In doing
    so, the trial judge stated that he was not satisfied, "on the balance
    of probabilities", that the appellant had need of a similar facility
    for the future and that "it would be unreasonable to assess damages as
    the present cost of providing a similar structure on some other piece of land
    properly zoned for the purpose."  (See para. 53, 203 D.L.R. (4th) 499,
    2001 BCSC 1200.)

[4]

There was evidence that in 1997, during a downturn in the logging industry,
    the appellant had sold a valuable replaceable volume logging contract and
    about two-thirds of the equipment it used in its business, but it continued
    to operate its business on a reduced scale and rented out part of it facilities
    on the property to T.H.R. Trucking Ltd.

[5]

The trial judge awarded damages of $125,541.87 plus $7,097.07 for the
    cost of the appellant's attempt to obtain a favourable rezoning of its property.
    To arrive at his damage award the trial judge took figures from a statement
    of assets prepared by the appellant's accountants to determine the original
    cost of construction of the building and the 1993 addition, adjusted those
    figures for inflation using the Consumer Price Index, and then made a deduction
    to reflect the portion of the building's useful life that would already have
    been expended.

[6]

The appellant's position is that the trial judge's award does not give
    effect to the
restitutio in integrum
principle and must be set aside.
    The appellant submits that regardless of whether its business was operating
    on a reduced scale after the downturn in the logging industry in 1997, it
    continued to make use of its building and facilities and would have continued
    to do so in the future.  The appellant contends that if it is to be placed
    in the position it would have been in had the negligent misrepresentations
    not been made as to the use it could make of the property, it is entitled
    to a damage award that would enable it to have replacement facilities built
    on other lands with appropriate zoning.

[7]

A second ground of appeal is that the trial judge erred in not awarding
    damages for the appellant's loss of rental income from the property from the
    date the interim injunction was granted restraining the appellant from permitting
    its tenant from using the property for the storage or parking of logging equipment
    to the date a new facility could be constructed on other property.  No reference
    is made to the appellant's loss of rental income in the reasons of the trial
    judge.

[8]

The third ground of appeal concerns the terms of a permanent injunction
    the trial judge granted.  While the appellant agreed at trial that a permanent
    injunction should issue, it now argues that the terms imposed by the trial
    judge are more restrictive of the use of its property than would be permissible
    even under strictly residential zoning.  The respondent agrees the wording
    may be too restrictive but points out that the terms imposed by the trial
    judge were not those the respondent had sought.  The parties' disagreement
    about the proper terms of the injunction carries over into their submissions
    on the issue of whether the trial judge erred in his approach to the assessment
    of damages.

[9]

In my opinion, the trial judge failed to give effect to the
restitutio
    in integrum
principle, and he did so, at least in part, by requiring the
    appellant to prove, on a balance of probabilities, that in future it will
    build replacement facilities on other lands, rather than assessing the chances
    of that event occurring.

[10]

I
    would allow the appeal of the damage award, not including the claim for income
    loss, and would substitute an award based on the unchallenged evidence of
    the cost of replacement of the building and related facilities, subject to
    a reduction for deterioration and obsolescence over time and some discounting
    for contingencies.  I would also allow the appeal as it relates to the terms
    of the permanent injunction and would substitute an order that enjoins usage
    that is not permitted under the applicable zoning bylaw.

II.  Background

[11]

The
    appellant, Rahn Bros. Logging Ltd., was incorporated in 1964 with two brothers
    as the shareholders.  The appellant has carried on the business of log harvesting
    and construction of forestry roads since the early 1970's.  The present shareholders
    are Gordon Rahn and his wife Catherine.  Gordon Rahn is the son of Eric Rahn,
    one of the original shareholders.  Eric Rahn died before the action was commenced.
    Gordon Rahn has worked in the business since he was 17.  He was 43 at the
    time of trial.

[12]

In
    1979, Eric Rahn, then the principal of the appellant company, purchased the
    property which was located on Zilkie Road on the outskirts of the City of
    Prince George near the airport.  The property was a 6.9 acre parcel and had
    a house on it.  A small garage in which to repair equipment and store parts
    was built on the property later that year.  Initially, Eric Rahn and his wife
    lived there.

[13]

At
    the time of its purchase and prior to 1980, the property was subject to Community
    Planning Area #7 Zoning Bylaw No. 23-1 and was included in the Rural Residential
    zone.  In 1980, the respondent's Zoning Bylaw 3482 repealed and replaced that
    bylaw.  Under the new bylaw, the applicable zoning district designation for
    the property became AFO-2.  That designation permitted agricultural and forestry
    use.

[14]

By
    1984 one aspect of the appellant's business that had begun to increase was
    the operation of a repair, maintenance and storage facility for logging trucks
    and equipment.  As a result of the company's need for such facilities, Mr.
    Eric Rahn sought out a contractor to put up a suitable building.  Mr. Ross
    Russell, the contractor Mr. Rahn selected, took responsibility for obtaining
    the required building permit.

[15]

Mr.
    Russell applied for the permit for the construction of a 3600 square foot
    building in August 1984. In the course of reviewing the application, the respondent
    advised Mr. Russell that the Rahn property was zoned AFO-2 and that the proposed
    storage, maintenance and repair facility was not a permitted use.  Mr. Russell
    was also told that should the desired building be constructed and used for
    its intended purpose, authorization would have to be obtained under the Special
    Home Occupation ("SHO") Overlay Zoning District provisions of the
    bylaw.

[16]

The
    zoning bylaw defined "Home Occupation, Special" to mean any occupation
    or business carried on for gain by a resident of a dwelling unit within such
    dwelling unit or an accessory building.  The floor area of any accessory building
    could not exceed the floor area of the primary building on the site, in this
    case a residential dwelling of approximately 2,880 square feet.  The bylaw
    specified that the SHO overlay provisions were designed to accommodate small-scale,
    family-operated, home-craft industry or equipment storage, maintenance or
    repair services in an AFO area subject to limitations on scale, performance
    characteristics, commercial or industrial character, and visibility from bounding
    roads or adjoining property.

[17]

Mr.
    Russell and the appellant were advised by the respondent to proceed under
    the SHO provisions and to file a voluntary development permit application
    with the object of varying the size restriction in order to obtain approval
    for the construction of the 3,600 square foot structure.  As the trial judge
    noted, the respondent seemed not to have been concerned that the logging operator
    that would use the building was a limited company and was neither the owner
    nor occupant of the dwelling unit on the lands.

[18]

After
    the appellant had filed a development permit application, the respondent's
    Technical Planning Committee reviewed the application and obtained a legal
    opinion stating that the development permit process could not be used to vary
    the SHO restriction on permitted building size.  The legal opinion stated
    that a variance of the desired kind would require an amendment to the zoning
    bylaw.

[19]

In
    October 1984 the respondent's planning technician, Ms. Kerry Pateman, wrote
    to Mr. Russell, in part, as follows:

As
    the zoning of the property is AFO1 (Forestry and Agriculture) and the site
    area is 6.9 acres, the Planning Department has no objections to the project.
    The proposed building, together with other buildings on the land, would not
    exceed 3% site coverage.

In
    view of the decision that a voluntary development permit cannot be used to
    permit the construction of this building, the Planning Department is reviewing
    the existing size regulations for accessory buildings with a view to having
    only site coverage govern the size.  We are currently initiating a rezoning
    application to amend the Special Home Occupation Overlay District.  The amendment
    would permit the shop as proposed by Rahn Brothers Logging Ltd.

[20]

In
    fact, the Planning Department did not initiate any process with a view to
    amending the SHO size restriction in the manner suggested in Ms. Pateman's
    letter.  Nevertheless, on 4 March 1985, Ms. Pateman signed a document called
    a Zoning Confirmation required by the Permit Department as a pre-condition
    to the issuance of a building permit.  The Zoning Confirmation was intended
    to assure the Permit Department that the proposed structure conformed to zoning
    requirements but, as Ms. Pateman was aware, it did not.

[21]

The
    building permit was issued on 5 March 1985 allowing construction of the facility
    to proceed.  Construction was completed in early 1986.

[22]

In regard to the
    respondent's liability for damages in connection with the issuance of the
    1985 permit, the trial judge found as follows:

[38]
    The City admits it was negligent when it issued the building permit in 1985.
     The admission is justified.  Ms. Pateman was aware that the bylaw did not
    permit the construction of a repair and maintenance shop of the size that
    was approved.  She admits she did not discharge her duty with reasonable
    care when she anticipated that the bylaw would be amended and signed the zoning
    confirmation that resulted in the issue of the permit.  She admits she was
    aware of the risk of harm to RBL and the Rahns from doing so.  The City is
    liable for damages as a result.

[23]

The
    appellant's storage, repair and maintenance needs continued to increase after
    1986.  By the early 1990's the appellant owned about 30 pieces of logging
    equipment.  In 1993, Mr. Gordon Rahn decided that a 2,000 square foot addition
    to the 1985 building was needed.  Mr. Russell was again retained by the appellant
    for the construction of the addition and he applied for the necessary permit.

[24]

On 25 May 1993,
    Mr. Bloodoff, the respondent's director of development services wrote to the
    appellant, in part, as follows:

My
    recent discussion with Mr. Russell has clarified that the building in actual
    fact does not house a business, rather, it is utilized as part of a forestry
    use which is located on the parcel.  It is our understanding that the machinery
    repaired on the site belongs primarily to your company and therefore the use
    is not a home occupation.

Based
    on the above, it is my interpretation that the shop can be expanded by the
    2000 square feet as you requested....

[25]

Mr.
    Bloodoff could not be called as a witness for he had died prior to trial.
    However, the respondent argued that Mr. Bloodoff's letter plainly communicated
    his belief that the appellant was engaged in logging on the site and that
    the appellant had misrepresented the use to which the structure would be put
    by not correcting Mr. Bloodoff's erroneous impression.

[26]

The
    trial judge found as a fact that neither Mr. Russell nor the appellant misrepresented
    the usage of the property to the respondent.  As the trial judge's reasons
    are readily available and his findings of negligence in regard to the issuance
    of the 1993 permit are not challenged on appeal, I need not make further reference
    to the evidence or the trial judge's reasons for arriving at the conclusion
    he did in respect of that permit.

[27]

The
    application for a building permit for the 2000 square foot addition was filed
    on 25 August 1993 and the zoning confirmation that erroneously assured the
    Permit Department that the proposed use conformed to the zoning bylaw was
    sent on the same date.  The building permit was issued to the appellant on
    2 September 1993 and the construction was completed in 1993.

[28]

In
    1996, the property was transferred into the name of the appellant.  Gordon
    Rahn and his wife, who were then living on the property, moved away and an
    employee of the company took up residence on the site.

[29]

During
    an economic downturn in 1997, the appellant sold its replaceable volume logging
    contract, commonly called an "evergreen" contract, and approximately
    two-thirds of its logging equipment.  Gordon Rahn testified that the company
    had received net about $1.5-$2.0 million from the sale of the equipment.

[30]

After
    1997, the appellant engaged in intermittent freelance logging and forestry-related
    road building work using the equipment it retained after the sale.  It also
    rented out part of the property and building to T.H.R. Trucking Ltd. for $2500
    per month.

[31]

The
    respondent brought its action against the appellant and its tenant, T.H.R.
    Trucking Ltd., in February 2000.  In its Statement of Claim, the respondent
    sought an order:

...
    restraining the defendants and either of them or their employees or agents
    from storing or parking logging equipment on the Lands or operating a business
    of parking or storing logging equipment on the Lands or such other businesses
    as are carried on on the Lands contrary to the provisions of the Business
    Licence Bylaw or the Zoning Bylaw.

An
    interim injunction was granted on 29 August 2000.

[32]

The
    appellant filed a defence and counterclaim to the respondent's action, seeking
    damages for negligent misrepresentation in the issuance of the building permits
    which contemplated the use to which the appellant subsequently put the building
    and related facilities on the property.  In its pleadings, the appellant alleged
    that representations made by the respondent with respect to the applicable
    zoning were made in circumstances in which the respondent owed a duty of care
    to the appellant, and that the representations were made negligently and with
    the knowledge that the appellant would rely on them.  The appellant sought
    damages based on estimates of the current replacement cost of the building
    and related facilities.

[33]

The
    respondent did not file a defence to the counterclaim until immediately before
    the trial was to begin.  As noted earlier, the respondent conceded that it
    had been negligent in the issuance of the 1985 permit but not the 1993 permit.

[34]

When
    the trial began, counsel for the appellant agreed that the respondent was
    entitled to a permanent injunction but the parties were not in agreement as
    to its terms.

[35]

Three
    witnesses gave evidence for the appellant:  Gordon Rahn, Kenneth Kruger and
    Ross Russell.  Ms. Kerry Pateman was the only witness called by the respondent
    and her testimony was directed to the issuance of the building permits.

[36]

Gordon
    Rahn testified that the building constructed in 1985 is a freestanding structure
    engineered to accommodate an overhead crane system.  He described the additional
    facilities used in the business, including the 1993 addition, a large parking
    lot with an equipment washing area, and a security fence.

[37]

Mr.
    Rahn testified that he no longer had records from the construction that had
    taken place some 17 years earlier but he produced a document prepared by the
    appellant's accountants headed "Assets Description Report".  The
    document purports to set out the costs of the land and buildings, computer
    equipment, office equipment, fencing (under shop and miscellaneous), logging
    equipment and automotive.  Columns across the top of the document are headed
    gross cost, net cost, accumulated depreciation and net book value.  From the
    trial judge's reasons, it is plain that he relied on this document as the
    starting point in arriving at his assessment of the appellant's loss.

[38]

Mr.
    Rahn obtained estimates for the cost of replacement of the building from two
    construction companies:  Heartland Steel Structures Ltd. and Denny's Woodwork
    & Construction Ltd.  Heartland's estimate was for $671,273.00; Denny's
    for $660,720.00.  Two estimates were obtained for the cost of replacing the
    equipment storage area: one for $160,500.00 and the other for $171,782.94.
    Two estimates were obtained for the

cost of putting up the security
    fence of the kind the appellant had installed on the property to safeguard
    the equipment.  One of the estimates for supplying and installing a chain
    link fence was for $19,100.00 and the other for $12,000.00.  All of the estimates
    Mr. Rahn obtained were entered as exhibits.

[39]

Mr.
    Kruger, one of the principals of Heartland Steel Structures Limited, testified
    that he had been asked by Gordon Rahn to provide an estimate of the cost of
    replacing the building.  The estimate, which was dated 28 February 2001, included
    the cost of the framing required to accommodate a crane system of the kind
    the appellant had installed in the existing building.  Mr. Kruger was not
    cross-examined on his evidence.

[40]

Mr.
    Ross Russell was the contractor for the construction of the 1985 building
    and the 1993 addition.  Among other things, Mr. Russell testified about the
    nature and course of the construction in 1985 and 1993, and the structural
    measures required to withstand the weight of heavy equipment and the crane
    system that was installed.  Mr. Russell was cross-examined on the cost figures
    he had used on the building permit applications.  He said he had arrived at
    the estimated cost on the permit applications by applying a standard square
    foot rate for the construction costs.  Mr. Russell explained that for various
    reasons, there were serious cost overruns and that the cost of construction
    considerably exceeded the estimate he had given in each instance.

[41]

The
    respondent presented no evidence on the replacement cost of the building and
    other facilities or on the residual value of the building and facilities.

III.  The alleged errors in judgment

[42]

The
    alleged errors in judgment, as set out in the appellant's factum, are that
    the trial judge erred in law:

(1)
    in failing to award the replacement cost of the facility, which was the proper
    measure of damages for the appellant's loss in the circumstances of this particular
    case;

(2)
    in deciding that the appellant must prove a specific future need of the appellant
    company to use the facility for its own repairs, maintenance and storage in
    order to recover replacement cost;

(3)
    in the alternative or in addition to the preceding paragraph, in failing to
    draw the necessary inference, from the evidence and from the facts as he found
    them, that the appellant on the balance of probabilities would have need for
    functionally similar facilities in the future;

(4)
    in having determined that the measure of damages for pure economic loss is
    that which the appellant can establish to be the direct and foreseeable economic
    loss flowing from a breach of duty, in failing to apply that test to the facts
    which he had found and failing to find that the inability to use the facility
    for the Use was a direct and foreseeable economic loss flowing from the negligence
    of the respondent;

(5)
    in failing to award to the appellant an amount to compensate the appellant
    for the loss of the rental of the premises from the date of the interlocutory
    injunction to the date when a new facility would be available;

(6)
    in issuing an injunction which is more restrictive of the use of the Property
    [than] would be expected under even a solely residential zoning.

IV.  The permanent injunction

[43]

As
    noted above, the respondent brought the proceedings seeking an interim and
    permanent injunction to enjoin certain activities and businesses on the property
    that contravened the respondent's zoning bylaw.

[44]

An
    interim injunction was granted by Mr. Justice Meiklem in August 2000 in these
    terms:

THIS COURT ORDERS THAT

1.
    On or after September 15, 2000, the Defendants, and each of them, shall cease
    using as a truck compound or repair facility for logging trucks lands more
    particularly known and described as:

....

2.
    Provided that the Defendant, Rahn Bros. Logging Ltd., may continue to use
    the Land for its repair and storage of their own equipment, at the level of
    usage that has persisted since 1997.

[45]

In granting the
    order he did, Meiklem J. expressed, in paragraph 14 of his reasons for judgment,
    the view that "there would be no irreparable harm to Rahn Bros. if they
    lost the benefit of the lease to T.H.R., because damages are easily calculated,
    and the City is able to pay them."  He went on to say:

[15]
    However, if Rahn Bros. is forced to discontinue its own present use of the
    property with its large shop for storage and repair of its remaining equipment,
    a use which has been enjoyed by the corporate defendant and its principals
    for at least an undisputed 17 years, the harm approaches the irreparable level.

[46]

Mr.
    Justice Meiklem considered that what had been said by Cumming J.A., for the
    majority, in
Maple Ridge (District) v. Thornhill Aggregates Ltd.
(1998), 162 D.L.R. (4th) 203, 54 B.C.L.R. (3d) 155, 47 M.P.L.R. (2d) 249 (B.C.C.A.)
    commencing at paragraph 9, could be distinguished on the basis that the order
    the respondent sought was interim, not permanent, and that the balance of
    convenience was not necessarily excluded from consideration where there is
    a triable issue.  The correctness of that decision is not before us.

[47]

In his concluding
    submissions at trial, respondent's counsel submitted that a permanent injunction
    should issue in these terms:

MR.
    STEWART:  ...

And
    the only relief we're seeking is that -- wording to this effect:  third party,
    non-resident logging truck or trucking operations shall not use the land as
    a base for their operations.  It's a recognition of the terms of the previous
    Order, which directs itself to that and, if that is the order, it does not
    put this Court or Rahn Brothers in the position of violating a Court Order
    if they continue to carry on as they have without complaint and the City continues
    in its efforts to deal with this subject by tolerating the situation.

[48]

The
    reason for the respondent's proposed limitation is apparent from the following
    exchange between the trial judge and counsel for the respondent:

THE
    COURT:  Well, the question I have - Mr. Stewart, perhaps this should be directed
    to you - is the buildings that are on there in contravention to the bylaw,
    and it doesn't seem to me that it's appropriate for the Court to be involved
    in condoning the continuing existence of those or to be seen as condoning
    the continuing existence of those properties.

MR.
    STEWART:  I think I can address that.

THE
    COURT:  How do I - how does the Court get around that?

MR.
    STEWART:  I think the Court has to look at its role in this - in this fashion.
    The City, which is the administrator and policer of its bylaws, also decides
    to initiate or not initiate proceedings to enforce them.  Or if in the course
    of such proceedings it determines that the use of its budget, manpower and
    resources would be ill-served or illogic in the course of that, it should
    be at liberty to limit the direction or the scope of its efforts under the
    bylaw.

My friend's damage evidence would put at its maximum, as I see it, eight hundred
    and some odd thousand dollars as a risk to the City of seeking to stop them
    from using, in terms of the 1984 building, 720 square feet, and in terms of
    the '93 building, 2,400 square feet.  That seems, to any reasonable person,
    I submit, an inordinate price to pay for the enforcement of a bylaw, and the
    City's resources are limited and it has the ability to deal with other things
    than to spend it in that fashion.

So I'm suggesting to Your Lordship that the Court, taking into account the
    prudence and reasonableness that has to accompany the enforcement of bylaws,
    doesn't have to in every instance in which an injunction is sought impose
    the maximum penalty.  It can tailor the terms of the injunction to suit the
    relief that would be adequate and reasonable in the circumstances and, consequently,
    that -- in that role the Court can serve the interests of the community it
    seeks -- that is the community seeks, and avoid inordinate effects from such
    a matter.

[49]

The
    effect of the position the respondent was taking was confirmed in the following
    exchange between the trial judge and counsel for the respondent:

THE
    COURT:  Well, as I understand the City's position, it really is that it's
    not going to quarrel with the fact that the building is of an excessive size.

MR.
    STEWART:  Right.

*
    * *

THE
    COURT:  So what you're saying is that you would be prepared to leave the buildings
    on there, but they cannot be used -- or, at least, put it this way, what is
    there is there.  What the City wants to do is to enjoin the company from carrying
    on any activity not authorized by the bylaws?

MR.
    STEWART:  No, My Lord.  In the wording I suggested --

THE
    COURT:  And the wording you've suggested is that it should be third parties
    only.

MR.
    STEWART:  Yes, My Lord.

[50]

Although
    we do not have before us a transcript of the closing submissions of counsel
    on anything other than the injunction, it appears from the trial judge's reasons
    that one of the arguments the respondent put forward was that the appellant
    had suffered no compensable damage.  The respondent had argued that the appellant's
    inability to use the property under the SHO provision of the zoning bylaw
    resulted from the fact that Gordon Rahn had transferred the property to the
    appellant in 1996 and a corporate landowner could not avail itself of the
    SHO exception.  The respondent's position was that the appellant's loss was
    therefore caused by the transfer of the property and not by any action on
    the respondent's part.

[51]

In
    rejecting that argument, the trial judge noted that the implication to be
    taken from the respondent's submission was that if the property had not been
    transferred to the appellant, the respondent would have permitted the continued
    use of the building under the SHO overlay provisions of the bylaw even though
    the building exceeded the size permitted for such a purpose.  However, the
    trial judge found that the respondent knew from the outset in 1985 that the
    appellant was the intended user of the property and, in the circumstances,
    it was not open to the respondent to seek refuge in the fact that the property
    was transferred from personal to corporate ownership.

[52]

The
    trial judge granted the respondent's application for a permanent injunction
    but not in the terms the respondent sought.  He said:

[65]
    The City is entitled to a permanent injunction. I am not prepared to agree
    that the terms should be those used in the temporary injunction.  It is not
    for the court to condone what is arguably an unlawful use of the buildings
    and property, namely the SHO use of lands by a company. Rather the court may
    enjoin that which is contrary to law.

[66]
    It follows that RBL shall be permanently enjoined from permitting the use
    of its land or buildings by anyone other than RBL, whether or not for economic
    gain, for the purpose of storing, repairing or maintaining motor vehicles
    or equipment of every nature and kind.

[67]
    The City can decide whether any other use to which the lands may actually
    be put by RBL will be permitted.

[53]

In
    the formal order, the permanent injunction is couched in these terms:

...
    THIS COURT ORDERS THAT:

* * *

3.
    The defendant Rahn Bros. Logging Ltd. be permanently enjoined from permitting
    the use of its land or buildings by anyone other that Rahn Bros. Logging Ltd.,
    whether or not for economic gain, for the purpose of storing, repairing or
    maintaining motor vehicles or equipment of every nature and kind;

[54]

In my respectful
    view, the injunctive relief the respondent sought at trial does not comport
    with the jurisprudence.  The proceedings seeking injunctive relief were brought
    on the footing that both the appellant and its tenant were infringing the
    zoning bylaw.  The foundation for the injunctive relief the respondent sought
    was statutory rather than equitable.  As Cumming J.A. pointed out in
Maple
    Ridge (District) v. Thornhill Aggregates Ltd.
,
supra
, at para.
    7, "Factors that might be considered by a court in an application for
    an equitable injunction will be of limited, if any, application to the grant
    of a statutorily based injunction."  The court retains a discretion to
    refuse to grant a statutory injunction but where a clear breach has been established,
    the court should only refuse the application in exceptional circumstances:
    see
Attorney-General v. Bastow
, [1957] 1 Q.B. 514, [1957] 2
    W.L.R. 340, [1957] 1 All E.R. 497, and
Maple Ridge (District) v. Thornhill
    Aggregates Ltd.
,
supra
.  As Mr. Justice Donald noted in
Coquitlam
    (City) v. Aweryn
(2001), 18 M.P.L.R. (3d) 208, 2001 BCCA 373, at paragraph
    4:

It
    has been held by this court that a judge has a discretion to refuse enforcement,
    but it is narrow in scope having regard to the public nature of the right
    sought to be enforced:
Burnaby (City) v. Pocrnic
(1999), 6
    M.P.L.R. (3d) 250 at 254-5 [1999 BCCA 652].

[55]

In
    this case, the respondent brought its action seeking a declaration that its
    zoning bylaw was being infringed and it sought to enforce its bylaw by injunction.
    When the matter came to trial, the appellant conceded that the respondent
    was entitled to a permanent injunction.  The contentious issues were whether
    the respondent had been negligent in issuing the 1993 building permit, whether
    the appellant was entitled to damages and, if so, in what amount, and the
    wording of the permanent injunction.  The permanent injunction the respondent
    sought at trial was not what had been pleaded.  Instead, the respondent sought
    to enjoin only use of the property by third parties rather than restricting
    any use not in compliance with the bylaw.  The purpose of doing so was to
    limit the extent of the damages that might flow from the respondent's negligent
    misrepresentations about the use of the property.

[56]

To
    accept the respondent's submission that the activity to be enjoined was limited
    to third parties would undermine the efficacy of the very bylaw the respondent
    sought to enforce and would not respect the public nature of the right being
    enforced.

[57]

On
    the appeal, the following paragraph in the respondent's factum sets out its
    present position on the wording of the injunction:

16.
    It is conceded by the Respondent that the injunction wording was not what
    was requested by the Respondent and may be too restrictive in view of the
    by-law language.  However, it is apparent that the learned trial judge independently
    determined what was all encompassing language for the activities the learned
    trial judge considered would be contrary to the by-law.  The Respondent is
    entitled at any time to decide whether other uses of the land by the Appellant
    would be permitted under the applicable bylaws.  Therefore, if this Honourable
    Court decides to substitute its own language for the injunction, the Respondent
    will not object.

[58]

That
    submission echoes the position the respondent took at trial, which was to
    exclude the appellant's business activities on the property from the use to
    be enjoined.  During oral argument, respondent's counsel again referred to
    the SHO overlay provisions as being available for an operation such as that
    conducted by the appellant after 1997.  With deference, that submission appears
    to me to be untenable.  An application for an injunction has to be dealt with
    on the basis of the zoning bylaw as it stands.  In her testimony, Ms. Pateman
    confirmed that the section dealing with Special Home Occupation had not changed
    since 1984.  The appellant's building far exceeds the size permitted under
    the SHO provisions, and the use the appellant was making of it, both before
    and after 1997, contravened the bylaw.  That was so quite apart from the fact
    that the appellant had rented out part of its property and facilities to T.H.R.
    Trucking Ltd.

[59]

On
    the issue raised by the appellant of whether the injunction was couched in
    language that was too restrictive, I agree the wording is too broad, for it
    could catch activities in relation to motor vehicles and equipment that would
    not be a prohibited use under the applicable zoning bylaw.  The words "equipment
    of every nature and kind" would include, for example, lawnmowers and
    power tools which are in common use in areas zoned for residential use.  As
    the appellant has submitted, a residential owner or tenant may reasonably
    be expected to permit others to store or repair or maintain motor vehicles
    and equipment on their property so long as the activity does not fall within
    some other prohibition, such as running a business that is not permitted under
    the existing zoning.

[60]

I
    would set aside the order made by the trial judge and substitute an order
    that the appellant be permanently enjoined from using its property, or permitting
    others to use its property, for any purpose contrary to the provisions of
    the respondent's Zoning Bylaw 3482.

IV.  The assessment of damages

(a)
    Trial judge's approach to the quantification of damages

[61]

The
    trial judge referred to the nature of the loss claimed and the positions taken
    by the parties in the following paragraphs of his reasons:

[48]
    This is a case of pure economic loss. It is not a case of damage occasioned
    by the destruction of, or damage to, property.  What, then, is the appropriate
    measure of damages?

[49]
    RBL claims that in accordance with the principle of reinstatement, the appropriate
    measure of damages is the amount it would be required to spend at present
    to construct comparable facilities on a site where the intended use is permitted.
     RBL justifies the claim on the basis that if the City had not been negligent
    and permits had been denied, the company would have constructed comparable
    facilities elsewhere.

[50]
    The City claims that the more appropriate measure of damages is the cost of
    the building and addition in current dollars less a credit for the proportion
    of their useful life that has been consumed to date.

[62]

The way in which
    the trial judge went about determining the appellant's loss appears in the
    following paragraphs of his reasons:

[53]
    In this case, I am satisfied that RBL would have constructed a building and
    addition suitable to its needs in 1985 and 1993 had the City declined to issue
    the building permits.  For the reasons earlier stated, I am not satisfied,
    on the balance of probabilities, that RBL has need of a similar facility for
    the future.  As a result, it would be unreasonable to assess damages as the
    present cost of providing a similar structure on some other piece of land
    properly zoned for the purpose.

[54]
    In my opinion, the appropriate measure of the loss suffered in this case is
    the proportion of 1985 and 1993 building costs in current dollars at August
    31, 2000 that remaining useful life is of total original estimated life.
    There should be added to that amount the cost incurred in attempting to rezone
    the property and the cost of the parking area in current dollars at August
    31, 2000.  Some allowance would have to be made for the fact that the parking
    area has been used by RBL for some portion of its useful life.  Finally, the
    present value of the building and the parking lot should be deducted from
    the total derived in the manner I have described.

[55]
    On the evidence adduced by RBL, the estimated useful life of the building
    was 41 years from 1985. It follows that the original facility was used for
    its intended purpose for 16 years and the 1993 addition was so used for 7
    years.  There is no evidence that the addition will have a useful life longer
    than that of the original building. It follows that the remaining useful life
    of the entire structure is 25 years.

[56]
    The RBL books of account record the capital cost of 1985 improvements at $91,595.62
    and the cost of the 1993 improvements at $68,372.83.  Using consumer price
    index changes from year to year, the costs of the 1985 building and the 1993
    addition in August 31, 2000 dollars are $129,516.21 and $76,372.45, respectively.

[57]
    The proportion of the cost attributable to the remaining useful life of the
    1985 improvements is $78,973.30 and that of the 1993 improvements is $46,568.57.
    The total is $125,541.87.

[63]

The
    trial judge assessed the appellant's damages at $125,541.87 with pre-judgment
    interest from 31 August 2000, plus $7,097.07 for the cost incurred by the
    appellant in its attempt to obtain a favourable rezoning of its property,
    together with pre-judgment interest from the date those costs were incurred.

(b)  Submissions
    of the parties on the issue of whether the trial judge erred in his approach
    to the assessment of damages

[64]

The
    appellant argues that the trial judge ought to have applied the reasoning
    of Wood J.A. in
Nan v. Black Pine Manufacturing Ltd.
(1991),
    80 D.L.R. (4th) 153, 55 B.C.L.R. (2d) 241 when applying the
restitutio
    in integrum
principle to the evidence in this case.

[65]

The
    appellant submits that while it is clear that the trial judge applied his
    mind to the question of whether it was reasonably foreseeable to the respondent
    that the appellant would lose the actual money expended by it for the facilities
    it constructed, he failed to take the next step, which was to consider whether
    it was reasonably foreseeable that the appellant would suffer the damage occasioned
    by the loss of its use of the property.  The appellant contends that when
    the respondent is the very statutory authority which commonly initiates court
    actions to restrain usages of property which are contrary to zoning by-laws,
    it was or ought to have been aware that its negligently made representations
    would be likely to cause the appellant loss from not being able to use the
    property to carry on its business.

[66]

The
    appellant contends that its inability to use the building and facilities for
    the storage, repair and maintenance of logging trucks and logging equipment
    without contravening the zoning bylaw was a direct and foreseeable economic
    loss which flowed from the respondent's negligently made representations about
    the use to which the property could be put.  The appellant argues that regardless
    of the trial judge's finding that the appellant would not resume its activities
    to the extent it carried on those activities before, there can be no question
    that in 2000, when the interim injunction was issued, the appellant had an
    ongoing business which required the use of the building and facility to repair,
    maintain and store logging trucks and equipment.

[67]

The
    appellant argues that when the use for which the building and facilities was
    intended is no longer possible, it is the equivalent of an actual destruction
    or the tortious deprivation of them because, for commercial purposes, a structure
    without a use has little or no value.  In that regard, the appellant points
    out that it is the ability to use its buildings and facilities, not their
    mere existence, that gives them commercial value.

[68]

The
    respondent's position is that the trial judge was correct in not awarding
    damages based on the alleged cost to replace the building as established by
    estimates from contractors.  In the respondent's submission, to award damages
    on a replacement basis would simply provide the appellant with a windfall
    unless there were some requirement to rebuild.  The respondent contends that
    it was reasonable for the trial judge to conclude that if the principal of
    the company testified that he could retire and live comfortably on his assets
    from the sale of the evergreen contract and about two-thirds of its equipment,
    it is unlikely that the company would now acquire more costly capital assets
    to resume operations in an industry widely acknowledged to be depressed at
    the time of trial in July 2001.

(c)
    Analysis

[69]

The
    general requirements to establish the tort of negligent misrepresentation
    are set out in
Queen v. Cognos Inc.
, [1993] 1 S.C.R. 87.  That
    the respondent in this case had a duty of care to the appellant and that the
    appellant relied on the representations made by the City as to the use to
    which the property could be put are not in issue.

[70]

As
    the trial judge found, Ms. Pateman was aware the bylaw did not permit the
    construction of a repair and maintenance shop of the size approved; she admitted
    she did not discharge her duty with reasonable care when she signed the zoning
    confirmation, anticipating that the bylaw would be amended; and she was aware
    of the risk of harm to the appellant and to the Rahns from doing so.  I agree
    with the appellant that, in the circumstances, it was foreseeable that damages
    could be occasioned if the bylaw were not amended because the appellant could
    not then lawfully use the property as intended in its business.  While the
    effect of his judgment is to limit the damages, I see nothing in the trial
    judges reasons to suggest that he did so on the basis that the appellant's
    loss was not reasonably foreseeable or was too remote.

[71]

The
    trial judge concluded that if the misrepresentation had not been made in 1985,
    other suitably zoned lands would have been acquired for the appellant's use,
    but he limited the damage award based on his finding that the appellant would
    not have need for such a property in the future.  In my respectful view, it
    is the latter finding, along with the path the trial judge took to reach it,
    that is manifestly in error.

[72]

The
    trial judge applied a balance of probabilities test when considering what
    the appellant would do in the future in relation to its business.  That a
    balance of probabilities test was applied is apparent from the trial judge's
    reasons for he stated, in paragraph 53, that he was not satisfied, "on
    the balance of probabilities", that the appellant had need of a similar
    facility for the future.  That the trial judge limited the damages on that
    basis is also apparent from his reasons for he went on to hold that in view
    of his finding that the appellant would not have need of a similar facility
    in the future, "it would be unreasonable to assess damages as the present
    cost of providing a similar structure on some other piece of land properly
    zoned for the purpose."

[73]

In
    assessing damages in a case such as this, a court must consider what the claimant
    would have done had the misrepresentation not been made and also consider
    what the claimant would likely do in the future.  In doing so, it is necessary
    to make an estimate of the chances that certain things will happen.  That
    point was made in
Mallet v. McMonagle
, [1970] A.C. 166 at p.
    176 (H.L.), and referred to with approval in
Athey v. Leonati
,
    [1996] 3 S.C.R. 458 at 471, para. 29:

The role of the court in making an assessment of damages which depends upon
    its view as to what will be and what would have been is to be contrasted with
    its ordinary function in civil actions of determining what was.  In determining
    what did happen in the past a court decides on the balance of probabilities.
    Anything that is more probable than not it treats as certain.  But in assessing
    damages which depend upon its view as to what will happen in the future or
    would have happened in the future if something had not happened in the past,
    the court must make an estimate as to what are the chances that a particular
    thing will or would have happened and reflect those chances, whether they
    are more or less than even, in the amount of damages which it awards.

[74]

As
    previously noted, the trial judge concluded that had the negligently made
    representations not been made, the appellant would have put its building and
    facilities on property that was zoned to accommodate its use.  Whether the
    trial judge applied a "balance of probability test" with respect
    to that question is of no moment because the evidence all points to the conclusion
    that had the respondent not been negligent in the representation it made in
    1985, the appellant would simply have located its buildings and facilities
    on lands where the zoning would accommodate their intended use.

[75]

The
    error of consequence is that when it came to the  assessment of damages, the
    trial judge required proof on the balance of probabilities that the appellant
    would take a specific action in the future, that is, replace its existing
    building and facilities on other property, rather than by making, in the words
    of Lord Diplock in
Mallett v. McMonagle
,
supra
, quoted
    above, "an estimate as to what are the chances that a particular thing
    ... would have happened and reflect those chances, whether they are more or
    less than even, in the amount of damages which it awards".

[76]

In
    applying a balance of probabilities test to the question of what the appellant
    would do in the future, the trial judge used some credibility findings to
    arrive at his conclusions.  Making credibility findings as to what someone
    has done or not done in the past is obviously unobjectionable but making credibility
    findings in relation to future events is problematic because it is not possible
    to prove what someone will do in the future.

[77]

Using
    evidence of what someone has done in the past as a guide to determine what
    the person is likely to do in the future does fit with the kind of analysis
    necessary when hypothetical or future events must be considered but that is
    not what the trial judge did in this case.

[78]

Mr.
    Rahn said he anticipated that when the economy in the logging industry picked
    up again, the appellant would expand its activities and buy more equipment.
    Mr. Rahn could not say when or whether the logging industry was going to improve.
    What he could and did say was that the appellant company had been in business
    many years, there had been ups and downs in the logging industry in the past,
    and that he expected the downsizing of the company in 1997 to be temporary
    in nature.

[79]

The trial judge did not consider the chances of the appellant continuing
    to conduct its business in the fashion it had over the years, which included
    buying and selling equipment as the economy in the logging industry demanded,
    so that he could reflect those chances in his damage assessment.  Instead,
    the trial judge proceeded on the basis that as the company had downsized in
    1997 and no recovery in the logging industry was evident at the time of trial,
    the appellant had failed to establish on the balance of probabilities that
    it "has need of a similar facility for the future".

[80]

The
    trial judge found, at paragraph 34, that "the business will continue
    on the greatly reduced scale at which it has been carried on since the sale
    in 1997".  Again, that "finding" was in relation to future
    events and ought not to have been treated as a matter susceptible of proof
    on the balance of probabilities.

[81]

I
    note as well that in making the finding he did, the trial judge was obviously
    referring to the appellant's own operations as a logging contractor and forest
    road builder, for he ignored or overlooked the potential the facilities had
    to produce rental revenue, assuming the facilities were located on property
    that permitted it.

[82]

The
    trial judge assessed damages based on the cost of construction of the building
    in 1985 and the addition in 1993, adjusted for inflation, less a portion to
    represent that part of the building's useful life already expended.  His out-of-pocket
    approach to the assessment of damages was based on his finding that no other
    facility would be built and on his finding that the appellant could continue
    to operate on the property at its post-1997 level even though to do so would
    be in violation of the zoning bylaw.  For the reasons I have endeavoured to
    explain, that approach was in error.

[83]

Rather
    than the parties being faced with the expense and delay of this matter being
    referred back to the trial court for an assessment of damages on proper principles,
    it appears to me that this Court is able to assess the damages based on the
    evidence in the record.

[84]

I
    appreciate the appellant's argument that regardless of the evidence of the
    downsizing in 1997, there was evidence that it had an ongoing business and
    that if that business is to continue at all, the company must replace its
    existing facilities in order to accommodate the kind of heavy equipment it
    uses in logging and road building.  As well, the appellant points out that
    it had derived income from the rental of part of its facilities in the past
    and there is no reason that it could not do so in the future during periods
    of low business activity, if it has an equivalent building and facilities
    on appropriately zoned property.

[85]

The
    respondent placed some emphasis on Mr. Rahn's evidence that he could comfortably
    retire on the proceeds of the sale of equipment in 1997 to support the trial
    judge's conclusion that the appellant had no need for a similar facility in
    future.  When that evidence is examined in the context in which it was given,
    it provides little support for a conclusion that Mr. Rahn would retire or
    would be disinclined to continue operating the business at anything other
    than its post 1997 level.  Following his testimony that the sale of equipment
    had resulted in net proceeds of between $1.5-$2.0 million, Mr. Rahn was asked
    about the net value of the company.  The judge's interjection and the questions
    and answers which follow put the reference to retirement in perspective:

Q
    All right. Aside from the net from the equipment sales, did the company have
    other assets?

A
    Yes.

Q
    What was the net value approximately of the company at that time?

A
    It was in the --

THE
    COURT:  You're into the opinion of evaluators now.  I'm not interested in
    his opinion with respect to value because he's not an expert on value. He
    can tell me what he paid, what they sold, and what they got and that and the
    other, but the question of value is going to have to come from somebody else.
    Net value particularly because it doesn't mean anything.

MR.
    FLETCHER:  All right, My Lord.

THE
    COURT:  Absent a definition of some kind.

MR.
    FLETCHER: All right, my Lord, I'll approach it a different way.

Q
    Sir, in your opinion at that time did you have enough money that you could
    retire from business at that point and live comfortably?

A
    Yes, I did.

Q
    You were about 35?

A
    No.  We're talking about 1997?

Q
    Yeah.

A
    I'm 43 now.

Q
    So 39?

A
    Yeah.

Q
    All right.  Did you put Zilkie Road up for sale at the time sir?

A
    No, I wasn't looking to sell Zilkie Road.

Q
    Well, you had sold three-quarters of the equipment, why didn't you sell Zilkie
    Road and get rid of it?

A
    As I previously stated, these were just basically damage control measures
    and measures to minimize exposure to endure tough times.  We had no -- we
    weren't prepared to go out of business, that wasn't our plan.  We were thinking
    that as it did in '83/'84 that it would come back and that we would go more
    strongly back into the business and carry on.  It's a typical business tactic.

Q
    Now, did the difficult times for the logging industry that you were aware
    of appear to continue for some time after you made the sale in '97?

...

A
    Yes, they did.

[86]

While
    on the evidence the chances of the company continuing in the logging business
    could not be regarded as certain, it appears to me that the history of the
    company and Mr. Rahn's part in it would support the view that Mr. Rahn, at
    the age of 43, would be likely to continue to operate the company business
    as he had since 1997, but if the economy improved, he would expand the company's
    operations and buy what further equipment was needed.  From the evidence,
    the company apparently has the financial resources to do so.

[87]

If
    the appellant is to carry on its business as a logging contractor and road
    builder even on a reduced scale, however, it would have to do so on other
    lands, for it cannot continue even its present use of the property without
    contravening the existing zoning bylaw.

[88]

If
    the appellant is to be placed in the position it would have been in had the
    misrepresentations as to the use of the property not been made, the appellant
    would have to replace its building and other facilities on other, appropriately
    zoned, property.  The unchallenged evidence of the cost of replacing the existing
    building and other facilities was between $833,220 and $862,155.  The respondent
    offered no competing evidence as to the cost of replacement and did not challenge
    the estimates that were presented.

[89]

The
    decision in
Nan v. Black Pine Manufacturing Ltd.
,
supra
,
    in which full replacement cost of a house was found to be appropriate in a
    fire loss case is not of assistance here.  In
Nan
, there was no reduction made for depreciation, but this case, unlike
Nan
, involves
    a building and facilities that were used for commercial purposes.

[90]

As
    noted earlier, the trial judge made a deduction from the capital cost figures
    he had arrived at to take into account a reduction in the useful life of the
    facilities had they been built on other lands (see paras. 54 to 57 of his
    reasons quoted in paragraph 62 of these reasons).  If a deduction is made
    from the estimated replacement costs to take into account a portion their
    useful life expended, the result would be an award of about $530,000.  In
    my opinion, such a deduction must be made in this case or the result would
    be that the appellant is placed in a better position than it would have been
    in had the misrepresentations not been made at all.  This was a special use
    building designed for the appellant's purposes but there is no reason to assume
    that had it been built on other lands it would not have suffered from deterioration
    and some obsolescence over a span of years.

[91]

I
    am also of the view that some discounting is required to take into account
    the possibility that the economy in the logging industry may not improve for
    some time or at all and for the possibility that, even if the economy does
    improve, the principal of the appellant will decide not to replace the building
    and facilities or will replace them on a smaller scale.

[92]

As
    the trial judge noted, no evidence was adduced by the respondent to show the
    residual value of the facilities on Zilkie Road but that may not be surprising,
    when the building and facilities cannot be used without contravening the bylaw.
    I should add that the appellant makes no claim based on differences between
    the value of property zoned for light industrial use and the property located
    on Zilkie Road, and for that reason it is unnecessary to refer to the appraisal
    evidence.

[93]

After
    making a reduction in the estimated cost of replacement of the building and
    facilities to take into account their useful life expended and applying a
    discount to take into account the contingencies noted, I consider that an
    award of $475,000.00 would be reasonable in the circumstances.

V.  Loss of Rental Revenue

[94]

I
    turn now to the appellant's assertion that the trial judge erred in not awarding
    an amount for loss of revenue from rental income in the period between the
    granting of the interim injunction and the time when a new facility could
    reasonably be expected to be completed.

[95]

There is no reference
    to this claim in the trial judge's reasons and there are no pleadings in relation
    to it.  In the Counterclaim, the appellant did include a claim for "loss
    of profits" but there were no pleadings to support it and that claim
    was not pursued at trial.  We do not have before us the closing submissions
    of counsel so it is unclear on what foundation the claim for loss of rental
    revenue was advanced.  The factums do not assist.  The appellant's factum
    contains no submissions whatsoever concerning the loss of rental revenue but
    under "Nature of Order Sought", the following appears:

(2)
    An order that the assessed damages include an amount for rent lost from the
    date of the interlocutory judgment to the date when the building ought to
    have been replaced;

[96]

The
    only reference to the rental loss claim in the respondent's factum is contained
    in the following paragraph:

13.
    In the same fashion, the trial judge's refusal to award any amount for rental
    loss arising from the possibility of renting the building to a third party
    must, in the absence of an explanation, be consistent with a conclusion that
    the damages awarded to the Appellant would be appropriate in all the circumstances.

[97]

Whether
    this issue is properly before us may be open to question but, in any event,
    I am of the view that it cannot succeed.

[98]

In
    contract, the plaintiff is to be put in the position it would have been in
    had the misrepresentation been true and hence the term "expectation damages"
    is appropriate to describe how the loss is to be measured.  In tort, a plaintiff
    is to be put back in the position it would have been in had the misrepresentation
    not been made, and the term "restoration damages" may be used to
    describe how the loss is measured.

[99]

In
    this case, the respondent's negligent misrepresentations did not result in
    a contract and there was no contractual relationship between the parties.
    It is not a case of concurrent liability.  The claim was brought and could
    only be brought in tort.

[100]

On the facts of this case, the economic loss resulting from the negligent
    misrepresentation relates to the appellant's capital position, i.e. it is
    not able to use the buildings and other facilities it built on the property
    without contravening the zoning bylaw.  If it is to be restored to the position
    it would have been in had the misrepresentations not been made, it is its
    capital loss that must be compensated.

[101]

In this case, I think the only claim the appellant could make in tort
    would be for capital, not income, losses.  Assuming, without deciding, that
    a loss of revenue claim could properly be advanced, I doubt the evidence would
    support it.  I could find nothing in the evidence to suggest that the respondent,
    either directly or by implication, represented that the Zilkie Road property
    could be used by the appellant for industrial rental purposes.  The building
    permit applications, the City's correspondence and its approvals all show
    that the negligent representations as to the use the appellant could make
    of the property were made in the context of the AFO (agricultural and forestry)
    zoning.  The City was negligent in issuing the permit in 1985 when the change
    in the Special Home Occupation provisions were not as Ms. Pateman anticipated
    they would become and negligent in issuing the 1993 permit allowing the addition
    to be built under the "forestry use" provision when it did not apply.
    There is no suggestion in the pleadings that the respondent ever represented
    that the property was zoned for general light industrial use.  Damages must
    be limited to what is foreseeable.  Whether the loss is foreseeable in pure
    economic loss cases is a particularly important determination.  Use of the
    property for light industrial rental purposes under the AFO zoning does not
    appear to me to be a foreseeable consequence of the negligently made representations.

[102]

For the foregoing reasons, I would dismiss this ground of appeal.

VI.  Summary

[103]

I would allow the appeal, set aside the damage award of $125,541.87
    and substitute an award of $475,000.00.  The award for the cost of attempting
    to obtain a favourable rezoning is affirmed.  Prejudgement interest is to
    run from the dates the trial judge stipulated.  I would dismiss the appeal
    as it relates to the loss of rental income.  As to the injunctive relief,
    I would substitute an order that the appellant be permanently enjoined from
    using, or permitting its land or buildings to be used, for any purpose contrary
    to the provisions of the zoning bylaw.

THE HONOURABLE MADAM JUSTICE ROWLES

I
    AGREE:

THE
    HONOURABLE MADAM JUSTICE PROWSE

I
    AGREE:

THE
    HONOURABLE MR. JUSTICE THACKRAY


Citation:

R. v. Demers

Date: 20030117

2002
          BCCA 28

Docket:

CA026297

COURT
          OF APPEAL FOR BRITISH COLUMBIA

BETWEEN:

REGINA

RESPONDENT

AND:

JAMES ROGER DEMERS

APPELLANT

Before:

The
          Honourable Madam Justice Newbury

The
          Honourable Madam Justice Huddart

The
          Honourable Mr. Justice Low

J.C.
          Tuomala

Agent
          for the Appellant

R.
          Cutler, L. Mrozinski

Counsel
          for the Respondent

N.
          Iyer, A. Zwack, K. Bayne

Counsel
          for the Intervenor

Place
          and Dates of Hearing:

Vancouver,
          British Columbia

December
          10 and 11, 2002

Place
          and Date of Judgment:

Vancouver,
          British Columbia

January 17, 2003

Written
    Reasons by:

The
    Honourable Mr. Justice Low

Concurred
    in by:

The
    Honourable Madam Justice Newbury

The
    Honourable Madam Justice Huddart

Reasons for Judgment of the Honourable
    Mr. Justice Low:

[1]

This is an appeal of an order of Hood J. dismissing a summary conviction
    appeal from convictions of the appellant, James Demers, by McGivern P.C.J.
    of the following offences created by s. 2(1) of the
Access to Abortion Services Act
, R.S.B.C. 1996, c. 1:

Count
    1

JAMES
    ROGER DEMERS, between the 5
th
day of December, 1996, and the 12
th
day of December, 1996, at or near the City of Vancouver, in the Province of
    British Columbia, did, while in an access zone, protest, contrary to Section
    2(1)(b) and 14(2) of the Access to Abortion Services Act.

Count
    2

JAMES
    ROGER DEMERS, between the 5
th
day of December, 1996, and the 12
th
day of December, 1996, at or near the City of Vancouver, in the Province of
    British Columbia, did, while in an access zone, beset a building in which
    abortion services are provided, contrary to Section 2(1)(c) and Section 14(2)
    of the Access to Abortion Services Act.

Count
    3

JAMES
    ROGER DEMERS, between the 5
th
day of December, 1996, and the 12
th
day of December, 1996, at or near the City of Vancouver, in the Province of
    British Columbia, did, while in an access zone, engage in sidewalk interference,
    contrary to Section 2(1)(a) and Section 14(2) of the Access to Abortion Services
    Act.

On
    the hearing of this appeal, we granted leave for Professor J. Tuomala to make
    submissions as agent for Mr. Demers.  Professor Tuomala teaches law at the
    Thomas Goode Jones Law School at Faulkner University in Montgomery, Alabama,
    U.S.A. and is licenced to practice law in the State of Ohio.

[2]

Mr. Demers does not dispute that he committed the prohibited acts alleged
    in the charges.  He says that the statute, particularly s. 2(1), infringes
    his right of free expression under s. 2(b) of the
Canadian
    Charter of Rights and Freedoms
.  The Crown agrees that s. 2(1) of the
    statute infringes the right of free expression of Mr. Demers and others, but
    says that the section is saved by s. 1 of the
Charter
.  The case comes down to a s. 1 analysis but, as
    argued on behalf of Mr. Demers, includes consideration of s. 7 of the
Charter
as an essential part of that analysis.

[3]

Section 2(1) of the
Access to Abortion Services
    Act
reads:

2(1)
    While in an access zone, a person must not do any of the following:

(a)
    engage in sidewalk interference;

(b)
    protest;

(c)
    beset;

(d)
    physically interfere with or attempt to interfere with a service provider,
    a doctor who provides abortion services or a patient;

(e)
    intimidate or attempt to intimidate a service provider, a doctor who provides
    abortion services or a patient.

[4]

Sections 2(b), 7 and 1 of the
Charter
read:

2.
    Everyone has the following fundamental freedoms:

...

(b)
freedom of thought, belief, opinion and expression, including the
    freedom of the press and other media of communication;

...

7.
    Everyone has the right to life, liberty and security of the person and the
    right not to be deprived thereof except in accordance with the principles
    of fundamental justice.

...

1.
    The
Canadian Charter of Rights and Freedoms
guarantees
    the rights and freedoms set out in it subject only to such reasonable limits
    prescribed by law as can be demonstrably justified in a free and democratic
    society.

[5]

Mr. Demers contends that a foetus in the womb of a woman is included
    in the word everyone in s. 7 of the
Charter
,
    that his protest conduct was for the purpose of protecting the right to life
    of foetuses, and that this purpose renders the impugned legislation unconstitutional
    on a s. 1 balancing analysis.

[6]

Mr. Demers holds sincere and strong views against abortion.  He wants
    the law of this country changed to reflect those views.  To that end, and
    to attempt to save the lives of unborn children whose mothers attend at abortion
    clinics, he wishes to be able to verbally express his views outside such clinics
    without restrictions.  There is no doubt that the statute imposes restrictions
    that can be justified only under s. 1 of the
Charter
.

[7]

Since the decision of the Supreme Court of Canada in
Morgentaler
    v. The Queen
, [1988] 1 S.C.R. 30 abortion has been legal in Canada.
    Women now have the right to abortion as a medical service.  In British Columbia,
    there has been extensive anti-abortion protest outside abortion clinics, particularly
    outside Everywomans Health Centre in Vancouver.  Tactics employed by abortion
    protesters eventually moved the Provincial Legislature to pass the statute.
    The statute is an attempt to ensure safe access by women to clinics so they
    can obtain therein the medical service to which they are entitled by law,
    should they choose so to do.  Within prescribed boundaries, the statute makes
    it unlawful for the conduct set out in s. 2(1) to take place.  Section 14(2)
    makes it an offence to contravene s. 2(1).

[8]

Other than a transcript of brief oral evidence given by Mr. Demers,
    the trial record in Provincial Court consists entirely of an admission of
    facts.  This was because of an earlier case in which Maurice Lewis had been
    convicted of offences under the statute similar to those faced by Mr. Demers.
    For the purposes of defining and addressing the
Charter
issues, the facts between the Lewis case and the Demers case are indistinguishable.

[9]

Cronin P.C.J. dismissed the charges against Mr. Lewis on the basis
    that the infringement by the statute of Mr. Lewis s. 2(b)
Charter
rights was not justified under s. 1.  On a summary
    conviction appeal brought by the Crown, Saunders J. (as she then was) overturned
    the Provincial Court decision: (1996), 24 B.C.L.R. (3d) 247.  She found that
    the infringement of the s. 2(b) rights of Mr. Lewis was saved by s. 1.  She
    allowed the appeal and recorded convictions against Mr. Lewis.  Following
    this decision, Mr. Lewis died and this court, on the basis that the matter
    was moot, refused to hear an appeal of the order of Saunders J.

[10]

Mr.
    Lewis argued that the statute infringed his rights under
Charter
sections 2(a), 2(b) and 2(d).  He did not seriously
    base his
Charter
challenge on foetal rights under
    s. 7.

[11]

Mr.
    Demers based his defence at trial and on the summary conviction appeal on
    s. 2(b), s. 7 and s. 15(1) of the
Charter
.  He
    does not pursue the s. 15(1) argument in this court.  It seems that it was
    common ground that both McGivern P.C.J. and Hood J. were bound to follow the
    decision in the
Lewis
case on the s. 2(b)
Charter
issue as framed in that case.  Because of that decision, neither party called
    evidence in Provincial Court on the s. 1 analysis.  However, with the consent
    of both parties, Levine J. (as she then was) made an order on the summary
    conviction appeal, before the appeal was argued, appending the record in the
Lewis
case to the record in the Demers case.  If Mr. Lewis had not
    died, this court would have considered that record and would have decided
    the s. 2(b) issue, although on a different basis than now argued on behalf
    of Mr. Demers.

[12]

In
    the present appeal, the Crown relies on the evidence contained in the
Lewis
record to sustain its argument, apart from the s. 7 consideration, that s.
    2(1) of the statute is saved by s. 1 of the
Charter
.
    Mr. Demers made no argument in his factum about the justification evidence
    in the
Lewis
case.  In his factum and in the oral hearing, he argued
    that this court cannot address his s. 2(b)
Charter
rights without first deciding the s. 7 foetal-rights issue.  However, in response
    to a question from the court, Professor Tuomala made a brief submission concerning
    the effect of the
Lewis
evidence on the s. 1 issue should this court
    reject the s. 7 argument.  I will discuss that submission later in these reasons.

[13]

As
    is already apparent, Mr. Demers casts his argument  somewhat differently than
    did Mr. Lewis.  Rather than confining his argument to either s. 7 (the right
    of the foetus to life) or to s. 2(b) (his own right to freedom of expression),
    he makes the s. 2(b) argument dependant on the s. 7 argument.  He says that
    because the foetus has a right to life under s. 7, s. 2(1) of the
Access
    to Abortion Services Act
cannot survive the s. 1 analysis that follows
    the Crown concession that the statute infringes his
Charter
right to freedom of expression.  He says that the court must declare that
    a foetus has the right to life under s 7, rule s. 2(1) of the statute to be
    unconstitutional as a result, and acquit him of the charges.  The ruling he
    wants on s. 7 would have the effect of declaring abortion constitutionally
    unlawful.

[14]

The
    intervenor argues that any discussion of the constitutionality of the
Access
    to Abortion Services Act
does not engage s. 7 of the
Charter

because the statute is concerned
    only with regulating protest and not with any foetal rights that might exist
    in law
.  Both Mr. Demers and the Crown argue to the contrary
    and I agree with them.  There are many cases in which litigants attack the
    constitutional validity of statutory provisions on the basis that the provisions
    affect the
Charter
rights of third parties.  For
    example, in
Morgentaler
, supra, the abortion-clinic doctors
    successfully raised the s. 7 rights of the pregnant mother, not their own
Charter
rights.  Similarly, in
R v. Big M Drug Mart Ltd.
,
[1985] 1 S.C.R. 295
,
    the corporate retailer successfully argued that the
Lords
    Day (
Alberta) Act
was
    unconstitutional because it infringed
Charter
rights to freedom of conscience and religion.  The court held that nobody
    could be convicted under an unconstitutional law.   In my opinion, it is open
    to Mr. Demers to argue that the statute unduly restricts his freedom of expression
    because, as he contends, the purpose of his public speech is to protect the
    rights of those who cannot protect themselves.  This is particularly so when
    it is said that the right to life is involved.  The statute is directly related
    to the abortion issue and that is sufficient to engage s. 7 on the basis argued
    by Mr. Demers.

[15]

On
    behalf of Mr. Demers, Professor Tuomala bases the s. 7 argument on divine
    law.  He says that Gods law dictates that the human foetus is a person with
    a right to life confirmed by s. 7 of the
Charter
.
    It is implicit in this argument that the god referred to is the Christian
    god.  In support of his argument, he refers to the preamble to the
Charter
: Whereas Canada is founded upon principles that
    recognize the supremacy of God and the rule of law.  He says that this means
    that certain inherent or inalienable rights, including foetal rights,
    are a gift of God, not a state creation.  That, he says, cannot be changed
    by secular law, whether common law or statutory law.

[16]

Professor
    Tuomala drew our attention to specific foreign and international law that
    he says supports his basic argument.  It is apparent to me, however, that
    the foreign laws referred to do not give the human foetus the constitutional
    or juridical status of a person.  Also, none of the international conventions
    and declarations referred to go nearly that far.  Indeed, the laws and conventions
    cited avoid stating the basic premise asserted on this appeal.  I see no need
    to discuss this aspect of the argument further.

[17]

The
    current law of this country supports the position of the Crown (and the conclusion
    reached by McGivern P.C.J. and Hood J.) that a foetus is not included in the
    word everyone in s. 7 of the
Charter
.  The appellants argument
    ignores the decisions in
Borowski v. Attorney General for Canada

(1987), 39 D.L.R. (4th) 731 (Sask. C.A.);

Winnipeg Child and Family
    Services v. D.F.G.
, [1997] 3 S.C.R. 925 and

Tremblay v. Daigle
,
    [1989] 2 S.C.R. 530.

[18]

The
    Saskatchewan Court of Appeal addressed the issue directly in
Borowski
,
supra
.  Mr. Borowski challenged the abortion law then in the
Criminal Code of Canada
on the basis that it permitted limited
    abortions thereby infringing on the
Charter
s.
    7 right of a foetus to life.  The court discussed the common law and foreign
    jurisprudence.  It concluded that a foetus is not a person in law and is not
    included in the
Charter
terms everyone in s.
    7 or every individual in s. 15.  Against the common law background in which
    abortion has been lawful to some extent, according the foetus status as a
    person would be a major departure from legal tradition.  To interpret the
Charter
in that manner would require clear and unambiguous
    language within the
Charter
itself and no such
    language is to be found in the
Charter
.  Further,
    the use of the term everyone in other sections of the
Charter
(such as sections 8, 9 and 10) that clearly could
    not apply to the foetus, illustrates that the use of the term in s. 7 does
    not include the foetus.

[19]

Because
    the decision in
Morgentaler
,
supra
, for reasons diametrically
    opposed to Mr. Borowskis contention, struck down the law Mr. Borowski challenged,
    the Supreme Court of Canada decided that the
Borowski
appeal was moot and that he no longer had status
    to argue the point:
Borowski v. Canada (Attorney General)
,
[1989]
    1 S.C.R. 342.  The Supreme Court of Canada has not directly addressed the
    s. 7 issue argued by Mr. Borowski or by Mr. Demers in the present case.

[20]

However,
    the Supreme Court has dealt with issues of foetal rights and status in other
    areas of the law.  In
Tremblay v. Daigle
,
supra
, the
    court considered the legal status of the foetus in the context of the
Quebec Charter of Human Rights and Freedoms
.  The father
    of an unborn child obtained an interlocutory injunction preventing the mother
    from having an abortion.  The Quebec Court of Appeal upheld the order.  The
    Supreme Court held that the term human being in the
Quebec

Charter
did not include a foetus.  Similar to
    the statement of the law in
Borowski
, under Anglo-Canadian law
    a foetus must be born alive to have rights.  Under the
Quebec
    Civil Code
, the foetus is treated as a person only as a legal fiction
    where it is necessary to do so to protect its interests after birth.  The
Canadian Charter
did not have to be considered because the
    case was a civil dispute between private parties and neither party was challenging
    a statute on constitutional grounds.

[21]

In
    the more recent case of
Winnipeg Child & Family Services
,
supra
, a child-welfare agency obtained an order placing in hospital
    custody a pregnant mother with a history of glue-sniffing that had caused
    permanent injury to three other children to whom she had given birth.  The
    Manitoba Court of Appeal set aside the order.  The Supreme Court dismissed
    a further appeal.  The case turned on the juridical status of the foetus.
    In that regard, McLachlin J. (as she then was) said the following:

11
    Before dealing with the cases treating the issue in tort law, I turn to the
    general proposition that the law of Canada does not recognize the unborn child
    as a legal or juridical person. Once a child is born, alive and viable, the
    law may recognize that its existence began before birth for certain limited
    purposes. But the only right recognized is that of the born person.
This
    is a general proposition, applicable to all aspects of the law,
including
    the law of torts.

...

15
    The position is clear. Neither the common law nor the civil law of Quebec
    recognizes the unborn child as a legal person possessing rights. This principle
    applies generally, whether the case falls under the rubric of family law,
    succession law or tort. Any right or interest the fetus may have remains inchoate
    and incomplete until the birth of the child.

16
    It follows that under the law as it presently stands, the fetus on whose behalf
    the agency purported to act in seeking the order for the respondents detention
    was not a legal person and possessed no legal rights. If it was not a legal
    person and possessed no legal rights at the time of the application, then
    there was no legal person in whose interests the agency could act or in whose
    interests a court order could be made.

[my
    emphasis]

[22]

The
    phrase all aspects of the law in para. 11 must include
Charter
law.

[23]

These
    cases leave no room for this court to entertain the constitutional argument
    advanced on behalf of Mr. Demers.  The courts have made it clear that any
    preference of foetal rights over the rights of pregnant women as addressed
    in
Morgentaler
,
supra, is a matter best left to the careful
    consideration of the legislators.  In this regard, McLachlin J. in
Winnipeg
    Child & Family Services,
supra,
made the following comments:

20
    The proposed changes to the law of tort are major, affecting the rights and
    remedies available in many other areas of tort law. They involve moral choices
    and would create conflicts between fundamental interests and rights. They
    would have an immediate and drastic impact on the lives of women as well as
    men who might find themselves incarcerated and treated against their will
    for conduct alleged to harm others. And, they posses complex ramifications
    impossible for this Court to fully assess, giving rise to the danger that
    the proposed order might impede the goal of healthy infants more than it would
    promote it. In short, these are not the sort of changes which common law courts
    can or should make. These are the sort of changes which should be left to
    the legislature.

[24]

These
    comments echo what the court said in
Tremblay v. Daigle
,
supra
at p. 553:

The
    task of properly classifying a foetus in law and in science are different
    pursuits. Ascribing personhood to a foetus in law is a fundamentally normative
    task. It results in the recognition of rights and duties -a matter which
    falls outside the concerns of scientific classification. In short, this Courts
    task is a legal one. Decisions based upon broad social, political, moral and
    economic choices are more appropriately left to the legislature.

[25]

As
    noted above, we asked Professor Tuomala to state the appellants position
    on the s. 1 analysis in the
Lewis
case should we not accept his submission
    concerning foetal rights under s. 7.  After consideration, the only argument
    he advanced was that Saunders J. in
Lewis
should have deferred to the
    findings of fact made at trial by Cronin P.C.J. and upheld his decision.

[26]

I
    find no merit in this submission.  The trial judge in
Lewis
did not
    make any findings of fact with respect to the evidence presented by the Crown
    to support its position under s. 1.  After reviewing some of the evidence
    presented as to the history of abortion protest locally, he merely stated
    that (t)he Crown has not proven on the balance of probability that the impugned
    Section of the Act meets the proportionality test.  Saunders J. did a thorough
    analysis of the evidence and the balancing arguments presented by both parties.
    An appeal court is in just as good a position as the trial court to do this
    analysis.  This is not an area in which ordinary deference with respect to
    findings of fact is required: see
RJR-MacDonald Inc.
    v. Attorney General of Canada
, [1995] 3 S.C.R. 199, at p. 285 to 287
    and at p. 333 to 335.

[27]

Because
    the appellant made no further submission with respect to the correctness of
    the s. 1 analysis in
Lewis
, I do not propose to comment further
    on the reasoning in that case.  We are not asked to overturn that case except
    on the narrow basis I have discussed and rejected above.  The appellant has
    otherwise framed his argument in such a way that does not permit us to interfere
    with the order appealed from.

[28]

I
    would dismiss the appeal.

The
    Honourable Mr. Justice Low

I AGREE:

The Honourable Madam
    Justice Newbury

I AGREE:

The Honourable Madam
    Justice Huddart


Citation:

R. v. Ertmoed

Date:
20030117

2003 BCCA 83

Docket:

CA030085

Registry:  Vancouver

COURT OF APPEAL
  FOR BRITISH COLUMBIA

ORAL REASONS FOR JUDGMENT

BEFORE THE HONOURABLE

Madam Justice Prowse

January 17, 2003

Vancouver,
        B.C.

BETWEEN:

REGINA

RESPONDENT

AND:

SHANE ROBERT ERTMOED

APPELLANT

S. Goldberg

appearing
  for the Appellant

J. Gordon

appearing
  for the (Crown) Respondent

R. Holloway

appearing
  for the Legal Services Society

[1]

PROWSE, J.A.
: This
  is an application pursuant to s. 684 of the
Criminal Code
for the
  appointment of counsel to represent Mr. Ertmoed.

[2]

The circumstances in which this application are
  made are most unusual.  In most cases where an application is made under s.
  684 of the
Criminal Code
, it is a condition precedent to bringing
  such an application that the Legal Services Society has determined that it
  will not fund counsel.  In this case, the Legal Services Society has determined that
  this is an appropriate case in which to fund counsel.  The difficulty arises
  because the Legal Services Society, as a result of extensive cutbacks, now has
  a cap on the funding that it is able to make available.  In this case, and
  perhaps in all cases, the cap is $50,000.  That cap is for all fees and disbursements.
  In this case, there is a letter, or information from the court reporters,
  indicating that the cost of funding the transcripts alone may well exceed
  $100,000.  In other words, the cost of funding the transcripts without more
  and, in particular, without funding counsel, is at least twice as high as the
  cap under which the Legal Services Society operates.

[3]

Counsel for the Crown submits that this
  application is premature.  He submits that there may be a possibility, after
  discussions between counsel, of finding a way to limit the transcripts
  necessary for the appeal.  He says he is not in a position to make that
  determination at this point because he is not fully aware of all of the grounds
  of appeal which Mr. Goldberg will be arguing.

[4]

It is crystal clear, however, that Mr. Goldberg
  and the Crown are unable to agree with respect to the consequences if the
  appellant is successful on appeal in excluding various statements made by Mr.
  Ertmoed.
  Mr. Goldbergs view is that this would result in a successful appeal and an
  acquittal being entered.  The Crown takes the view that it has a circumstantial
  case which could withstand the absence of these statements and that at best,
  Mr. Goldberg would be looking at a new trial for Mr. Ertmoed.

[5]

I have heard various other discussions between counsel
  in terms of the likelihood of, for example, an agreed statement of facts.  I
  should make it clear that Mr. Holloway kindly appeared as a courtesy to the
  court with respect to this application.  He has advised me of the constraints
  under which the Legal Services Society is operating.  He has said that the
  $50,000 cap is non-negotiable; it is absolute.  He has indicated that the Legal
  Services Society funds an appeal; it does not fund grounds of appeal.  In this
  case, it has funded this appeal in general terms.  He has indicated that the
  Legal Services Society is prepared to do whatever it can do in order to assist
  counsel to reach an agreement that might in some way limit the need for all
  of the transcripts to be ordered and to limit other costs.

[6]

In my view, however, it seems unlikely that
  counsel will reach an agreement which would significantly reduce the costs
  of the transcripts in this matter.  I am, obviously, operating under some
  limitations myself since I have limited knowledge of what this appeal
  involves.  But, given the fact that the costs of the transcripts alone, without
  regard to the costs of counsel (which I would think would be significant) are
  so far over the cap, it seems to me that funding would be required by an
  appointment under s. 684 in any event.

[7]

In the result, I am prepared to make an
  appointment of counsel under s. 684 of the
Criminal Code
on the
  basis that it is essential to secure a fair hearing on appeal.  In my view, a
  justice of this Court should not be placed in the position of saying that only
  certain grounds should be funded, or that only certain numbers of transcripts
  should be ordered.  We simply are not in a position to make that kind of
  assessment.  I am, therefore, going to make the order for the appointment of
  counsel under s. 684.  I should add that I regard this as an extremely
  exceptional case and that it should not be regarded as a precedent for future
  cases.  Each case will have to be dealt with on its merits.

(discussion)

[8]

PROWSE, J.A.
:
  I should add to my reasons that nothing I have said here should preclude counsel
  from attempting to make any agreement possible in order to limit the necessity
  for the full transcripts.  I am simply saying that I am not prepared to make
  that determination here.  I do not think it is appropriate to compel counsel to
  engage in what I believe will be lengthy discussions in that regard.  I would
  also suggest that counsel avail themselves of any assistance which can be
  provided by the Legal Services Society.  I think it is in everyones best
  interests that the appeal proceed on only those materials necessary to permit
  counsel to fairly raise all relevant issues before this Court.

The Honourable Madam Justice Prowse

CORRECTION:  February 12, 2003

The docket number should be CA030085