COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Shen v. Chan,

2018 BCCA 4

Date: 20180105

Docket: CA43862

Between:

Shang Chen Shen

Appellant

(Plaintiff)

And

Edith Chan

Respondent

(Defendant)

And

Youti
Wan

(Defendant)

And

J
ohn A. Gunson
also known as
John Gunson Euro Canadian Construction Corp.

(Third
Party)

Before:

The Honourable Mr. Justice Tysoe

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Hunter

On appeal from:  An
order of the Supreme Court of British Columbia
dated July 22, 2016 (
Shen v. Chan
, 2016 BCSC 1370,
Vancouver Docket S117400)

Appellant appearing on her own behalf:

S.C. Shen

Counsel for the Respondent Edith Chan:

K.A. Murray

Place and Date of Hearing:

Vancouver, British
  Columbia

November 29, 2017

Place and Date of Judgment:

Vancouver, British
  Columbia

January 5, 2018

Written Reasons by:

The Honourable Mr. Justice Tysoe

Concurred in by:

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Hunter

Summary:

Appeal from an order of a
summary trial judge allowing Ms. Chans application to dismiss Ms. Shens
claim against her pursuant to Rule 9-7 of the Supreme Court Civil Rules. Ms. Shens
claim related to water leakage into her strata unit which she alleged was
caused by Ms. Chans negligence. Held: Appeal dismissed. Ms. Shen
failed to demonstrate that the summary trial judge made any error of fact or
law when he held Ms. Shen failed to prove the causes of the alleged leaks
or that the damage was caused by a breach of a duty on the part of Ms. Chan.

Reasons for Judgment of the Honourable
Mr. Justice Tysoe:

[1]

Ms. Shen appeals the order dated July 22, 2016 of a summary trial
judge allowing Ms. Chans application to dismiss Ms. Shens claim against
her.

[2]

Ms. Shens claim relates to water leakage into her strata unit
located at 700  1919 Beach Avenue in Vancouver.  She sued Youti Wan, the owner
of Unit 800 above her, and Ms. Chan, a real estate agent who deposed that
she was a friend of Ms. Wan and assisted her with matters relating to Unit
800.  The amended notice of civil claim detailed eight leaks alleged to have occurred
between May 2009 and December 2011, and claimed against both Ms. Wan and Ms. Chan
in negligence.

[3]

Ms. Wan passed away on April 6, 2014.  On the following day, Unit
800 was transferred to Allister David Chan, presumably by way of a transfer
signed by Ms. Wan before she died.  Ms. Shen alleges that Allister
David Chan is the son of Ms. Chan, and this is not denied by Ms. Chan.

[4]

In June 2016, Ms. Chan filed an application seeking the dismissal
of the claim against her on three bases.  The first basis was Rule 9-7 of the
Supreme
Court Civil Rules
, the summary trial rule.  The second basis was want of
prosecution.  The third basis was failure of Ms. Shen to comply with
orders made at two case planning conferences.

[5]

In her affidavit in support of the application, Ms. Chan deposed as
follows with respect to the alleged leaks:

(a)   she was not aware of the
precise cause or extent of each leak;

(b)   she believed the first leak
came from Unit 900 but Ms. Wan paid for the repair at the request of the
strata corporation;

(c)    she was unaware of the
second leak;

(d)   she was told by the tenants
in Unit 800 that they had flushed cat litter down the toilet causing it to
overflow, and the insurer of the strata corporation paid for the remediation,
with Ms. Wan paying the deductible;

(e)   she learned the fourth leak
had occurred while the tenants in Unit 800 were cleaning a bathtub, and Ms. Wans
insurer paid for the repair work;

(f)    she was told by a
representative of the strata corporation the fifth leak occurred when the
strata corporation retained a plumber to investigate the fourth leak;

(g)   the tenants moved out of
Unit 800 shortly after the fifth leak, and she arranged for the water supply to
Unit 800 to be turned off; and

(h)   she
was advised by a representative of the strata corporation that the seventh or
eighth alleged leak occurred at a time a contractor was renovating Unit 800 and
testing a new shower.

[6]

In her affidavit in response to the application, Ms. Shen deposed
as follows about the alleged leaks:

(a)    the first leak came from
Unit 800, and the damage was repaired by the strata corporation;

(b)    the second and third
leaks affected parts of Unit 700 (but she did not assert a cause for them);

(c)    the fourth leak (which
had been described in the amended notice of civil claim as the fifth leak) was
caused when an investigation was carried out into the causes of the previous
leaks  Ms. Shen quoted from a plumbers report that he had found water
leaking from [the] tub in 800 when the shower [was] used [and that] water [was]
leaking from [a] crack between [the] titles and [the] tub, but the report was
not appended as an exhibit;

(d)    the fifth and sixth leaks
(which had been described in the amended notice of civil claim as the sixth and
seventh leaks) affected parts of Unit 700 (but she did not assert a cause of
the leaks);

(e)    the eighth leak occurred
after she heard jackhammer noises from Unit 800, and she was told by the
resident manager that a contractor had been hired to replace a bathtub with a
shower; and

(f)    the
strata corporation shut off the water circuit for the bathroom of Unit 800
after the eighth leak, and Ms. Chans statement that the water was turned
off after the fifth leak was false.

[7]

Ms. Chans application was heard on July 11, 2016 and, in written
reasons issued on July 22, 2016 and indexed as 2016 BCSC 1370, the summary
trial judge dismissed the claim against Ms. Chan pursuant to Rule 9-7.
The judge said he would not have dismissed the claim for want of prosecution if
he had not dismissed it under Rule 9-7, and he declined to rule on the third
basis relied upon by Ms. Chan.

[8]

Despite Ms. Chans contention that she was simply acting as a friend
of Ms. Wan, the summary trial judge found that Ms. Chan held herself
out as Ms. Wans property manager and agent and, as such, owed a duty of
care to Ms. Shen to facilitate communications between Ms. Shen and Ms. Wan
and had an obligation to take reasonable care to avoid conduct that entailed an
unreasonable risk of harm to Ms. Shen.  These findings are not disputed by
Ms. Chan on this appeal.

[9]

The judge held there was no evidence that anything Ms. Chan did, or
failed to do, caused any of the leaks alleged by Ms. Shen.  He said the
real evidentiary issue was whether Ms. Chan took reasonably quick steps to
investigate the source of the leaks when they occurred, arrange for repairs and
facilitate communication between Ms. Shen and Ms. Wan.  The judge
found that although Ms. Chans failure to provide Ms. Shen with Ms. Wans
contact information left Ms. Chan as the conduit between Ms. Shen and
Ms. Wan, there was no evidence that Ms. Chan failed to communicate Ms. Shens
concerns to Ms. Wan or that any failure of communication resulted in the
alleged damage to Unit 700.

[10]

The judge then turned to the issue of causation in more detail.  He
discussed each of the eight alleged leaks individually.  He held there was no
evidence of the causes of seven of the leaks.  He ruled that, while there was
some evidence as to the cause of the fifth leak (which Ms. Shen had
referred to as the fourth leak in her affidavit), it was hearsay evidence which
was not admissible because it was not shown to have been necessary for her to
have relied upon it.

[11]

Although it was not necessary to do so in light of his conclusion on the
issue of causation, the judge also addressed the issue of whether the alleged
damage was caused by a breach of the standard of care owed by Ms. Chan. He
held that, while there was some evidence of property damage to Unit 700, Ms. Shen
had failed to prove any breach of duty on the part of Ms. Chan or that any
breach of duty caused the damage.

[12]

In her factum, Ms. Shen says the summary trial judge erred in nine
respects.  In my opinion, Ms. Shen has not established the judge erred, in
fact or in law, when he held she had not proved the causes of the alleged leaks
or when he held she failed to prove the damage was caused by a breach of duty
on the part of Ms. Chan.  Several of the grounds of appeal relate to
issues which are not relevant to the bases upon which the judge dismissed the
claim against Ms. Chan.  I will deal with each of the grounds briefly.

[13]

Firstly, Ms. Shen says the judge erred by completely agreeing with Ms. Chans
affidavit.  At the hearing of the appeal, Ms. Shen spent considerable time
endeavouring to persuade us that all the documents provided by Ms. Chan
were fraudulent or otherwise questionable, and that none of her affidavit
evidence should have been accepted by the judge.  However, it was not what Ms. Chan
said in her affidavit that led the judge to dismiss Ms. Shens claim
against her.  Rather, the claim was dismissed because there was a lack of admissible
evidence regarding the causation of the leaks and a breach of duty by Ms. Chan.

[14]

Secondly, she says the judge erred by failing to accept correspondence
from the strata council that supported her submission that Ms. Chan
breached her duty of care by failing to repair the leakage.  This evidence is similar
to the hearsay evidence properly excluded by the judge when considering the
plumbers report.  Although this correspondence was admissible as part of the
narrative of the events which occurred during the relevant period of time, it
was inadmissible hearsay evidence on the issue of whether Ms. Chan
breached her duty of care.  In addition, the evidence does not overcome the
obstacle Ms. Shen faced of having to prove the causes of the leaks.

[15]

Thirdly, Ms. Shen asserts the judge erred in finding Ms. Chan
to be the only conduit between Wan, the Appellant and the strata council. In
the absence of any evidence that Chan communicated to Wan the Appellants
concerns respecting the water leakage. [
sic
]  All the judge found was
that Ms. Chans failure to provide Ms. Shen with Ms. Wans
contact information left Ms. Chan as the only conduit between Ms. Shen
and Ms. Wan.  The onus was on Ms. Shen to prove that a failure by Ms. Chan
to communicate with Ms. Wan caused any damage to Unit 700, and the judge
concluded that Ms. Shen did not discharge this onus.  It has not been
shown that he erred in that regard.

[16]

Fourthly, it is said the judge erred by concluding that Ms. Chan
took quick steps to investigate the leakage source and arranged for repairs.  On
my reading of his reasons for judgment, the judge did not make that finding.
He stated it to be an issue arising on the evidence but it was not necessary
for him to decide the issue because he found there was no admissible evidence
as to the cause of any of the leaks.  He also found Ms. Shen failed to
prove any breach of duty on the part of Ms. Chan was the cause of the
damage.

[17]

Fifthly, Ms. Shen says the judge erred in finding no breach of duty
when she provided strata council documents demonstrating the strata council
made efforts to inform, or insist, that Ms. Chan should repair the source
of the water leakage.  This is a duplication of the second ground of appeal
raised by Ms. Shen.  These documents were not admissible on the issue of
whether Ms. Chan breached her duty of care, and the judge also dismissed
the claim on the basis that causation of the leaks had not been proven.

[18]

Sixthly, she maintains the judge erred in permitting the question of the
executor of Ms. Wans estate to remain unresolved.  Ms. Shen is
referring here to the uncertainty as to the identity of the proper executor of
the estate.  This issue relates to the prosecution of Ms. Shens claim
against Ms. Wans estate, and it is not relevant to the claim against Ms. Chan.
The judge did not err in failing to deal with this question.

[19]

Seventhly, Ms. Shen says the judge erred in ignoring the delay in
her prosecution of the claim was caused by the failure to resolve the executor
issue, and in failing to answer the question of whether Ms. Wan left a
will.  The first part of this ground relates to the aspect of Ms. Chans
application to have the claim against her dismissed for want of prosecution,
but the judge did not dismiss the claim on this basis.  The second part of this
ground, like the sixth ground, relates to the prosecution of Ms. Shens
claim against Ms. Wans estate and is not relevant to the claim against Ms. Chan.

[20]

Eighthly, she contends the judge erred in dismissing her claim against Ms. Chan
by judging the Appellant did not comply with the case planning orders.  This
relates to the aspect of Ms. Chans application to have the claim against
her dismissed for failure to comply with the case planning orders, but the
judge declined to rule on that aspect of the application.  The claim was not
dismissed for failure to comply with the case planning orders.

[21]

Ninthly, Ms. Shen submits the judge erred by failing to take into
account that she and her family are still living in a damaged suite, which has
had a negative health impact and has led to financial loss.  The judge did not
fail to take this into account.  He found that there was some evidence
supporting Ms. Shens claim that she sustained damage from water leaks
into Unit 700.  The claim against Ms. Chan was not dismissed for failure
to prove damage.

[22]

Subsequent to the filing of her factum, Ms. Shen filed an
application to introduce fresh evidence, and the application was heard
concurrently with the hearing of the appeal.  The fresh evidence consists of an
affidavit sworn by Ms. Shen detailing failures to comply with the two case
planning orders and water leaks in Unit 700 in 2017.  I would not admit this
evidence because it does not meet the criteria set out in
Palmer v. The
Queen
, [1980] 1 S.C.R 759.  The evidence relating to the case planning
orders could have been adduced at the summary trial, and water leaks in 2017 go
beyond the scope of Ms. Shens claim because her amended notice of civil
claim deals with eight leaks alleged to have occurred between 2009 and 2011.  None
of the matters addressed in the affidavit would have affected the outcome of
the summary trial.

[23]

As Ms. Shen has not demonstrated an error on the part of the
summary trial judge in dismissing her claim against Ms. Chan, I would
dismiss the appeal.

The Honourable Mr. Justice Tysoe

I agree:

The Honourable Mr. Justice
Willcock

I agree:

The Honourable Mr. Justice
Hunter


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Shuswap Lake Estates Ltd. v.
British Columbia (Transportation and Infrastructure),

2018 BCCA 6

Date: 20180105

Docket: CA44008

Between:

Shuswap Lake
Estates Ltd., Shuswap Lake Utilities Ltd. and
Shuswap Sanitation Inc.

Appellants

(Plaintiffs)

And

Her Majesty the
Queen in right of the Province of British Columbia as represented by the
Minister of Transportation and Infrastructure

Respondent

(Defendant)

Before:

The Honourable Chief Justice Bauman

The Honourable Mr. Justice Hunter

The Honourable Madam Justice Fisher

On appeal from:  An
order of the Supreme Court of British Columbia, dated September 28, 2016 (
Shuswap
Lake Estates Ltd. v. British Columbia (Transportation and Infrastructure)
, 2016
BCSC 1779, Kamloops Registry S47374).

Counsel for the Appellants:

R. Burke

Counsel for the Respondent:

P. Phan

T. Quirk

Place and Date of Hearing:

Vancouver, British
  Columbia

October 2, 2017

Place and Date of Judgment:

Vancouver, British
  Columbia

January 5, 2018

Written Reasons by:

The Honourable Chief Justice Bauman

Concurred in by:

The Honourable Mr. Justice Hunter

The Honourable Madam Justice Fisher

Summary:

The appellants challenge an
order dismissing their claims for business losses as a result of a highway
improvement project. The appellants argue that the project affected lot sales
in a nearby housing development, and that they are entitled to costs to relocate
water and sewer utilities located on the highway right-of-way. Held: Appeal
dismissed. The trial judge made no palpable and overriding error in finding
that the appellants had not proven the underlying assumptions of the expert
evidence they relied upon to establish that the project caused the decline in
lot sales. Nor did the trial judge commit an error in holding that the permits
under which the appellants used the right-of-way barred the appellants claim
for utility relocation costs.

Reasons for Judgment of the Honourable
Chief Justice Bauman:

Overview

[1]

This appeal concerns an issue of compensation for certain alleged
business losses arising out of highway improvement works in and about the Shuswap
Lake area in the provinces interior.

[2]

While the appellants complain of the trial judges treatment of the
expert evidence led below, they overlook what essentially derailed their claims
for compensation: their failure to prove causation and the terms of the permits
under which they installed certain utilities within the highway right-of-way.

[3]

I would dismiss the appeal for the reasons that follow.

Facts

[4]

The appellants  Shuswap Lake Estates Ltd. (SLEL), Shuswap Lake
Utilities Ltd. (SLUL), and Shuswap Sanitation Inc. (SSI)  are related
companies (the Shuswap Lake Companies) that own and operate a real estate
development called Shuswap Lake Estates. SLEL is a land development company.
SLUL supplies water to the various lots in the development. SSI operates a
sewer and treatment system for the development.

[5]

In 2006, the real estate market in the Shuswap Lake area was booming and
the Shuswap Lake Companies developed a new residential subdivision called the
Highlands. The first phase of the Highlands sold quickly. However, towards the
end of 2008, a global financial slowdown occurred. Only three sales contracts
were entered into in all of 2008.

[6]

On 29 September 2009, the Shuswap Lake Companies entered into a written
agreement (the Agreement) with the Province of British Columbia (the
Province) that provided for the acquisition of land owned by SLEL, as part of
a project to expand and improve the TransCanada Highway (the Project). The
purchased land included some water and sewer lines and so SLUL and SSI were
parties to the Agreement. The Agreement set out the compensation to be received
by the Shuswap Lake Companies and provided that the three companies would
retain the right to pursue a claim for business losses pursuant to the
Expropriation
Act
, R.S.B.C. 1996, c. 125 [
Act
]. The terms of the Agreement
included:

a)  The
Province acquired certain lands (the Lands) from the Shuswap Lake Companies
for the sum of $999,087 (the Purchase Price).

b)  The Shuswap
Lake Companies agreed to relocate utilities on the Lands (the Land Utilities)
and on the existing highway right-of-way (the Road Utilities). The Shuswap
Lake Companies were paid $84,180 for the cost of relocating the Land Utilities.
The estimated cost of relocating the Road Utilities was $253,432. The Shuswap
Lake Companies retained the right to claim damages in respect of costs to
relocate the Road Utilities pursuant to the
Act
.

c)  The sum of
$317,412 was held back by the Province from the Purchase Price pending
completion of the Land Utilities and Road Utilities work to the Provinces
satisfaction. The full amount of the holdback was released by the Province to
the Shuswap Lake Companies on 17 November 2010.

d)  The Shuswap
Lake Companies were paid $38,000 in respect of the cost of removing and
relocating signage.

e)  The Shuswap Lake Companies retained
the right to pursue a claim of business loss pursuant to the
Act
.

[7]

Construction of the Project commenced April 2010 and was completed August
2011.

[8]

From 1994 to 2012, SLELs real estate sales staff consisted of a sales
manager, Lois Barker, and part-time sales staff. Mrs. Barker was away from
the sales office approximately 30% to 40% of the time in 2009 while dealing
with an illness in her family. Terry Barker, Mrs. Barkers husband and the
Vice President of SLEL who is currently in charge of its operations, admitted
her absence definitely had an influence on sales. From 2012 to early 2016
SLEL hired a number of other sales managers who did not apparently have much
impact in improving SLELs sales. The sales manager SLEL hired in April of 2016
has apparently made some changes that have assisted SLEL in increasing its
sales.

[9]

In June 2012, the Shuswap Lake Companies filed a notice of civil claim.
They sought compensation for (1) business losses, (2) the costs of moving the
Road Utilities and (3) the costs of a water bypass that ensured SLULs
customers water supply was not interrupted during installation of the
utilities. During trial, the Shuswap Lake Companies abandoned their claim for
future business losses and their business loss in respect of the loss of
multi-family lot sales. Accordingly, at the conclusion of trial, the Shuswap
Lake Companies claim for business loss was limited to the loss of sales of
lots in the Highlands prior to 2016.

[10]

On 10 June 2014, the parties agreed that the Shuswap Lake Companies
claims were all settled by the Agreement, other than the claim for business
losses (which was to be decided as though the lands had been expropriated)
(the Partial Settlement Agreement).

Expert Witnesses Who Testified at Trial

[11]

The Shuswap Lake Companies called two expert witnesses in support of
their business loss claim. The first was Danny Grant, a real estate appraiser.
The trial judge admitted Mr. Grants evidence concerning the decline in
value of SLELs lot inventory as a result of the Project, but found that Mr. Grant
was not qualified to opine on the question of how many lots SLEL would have
sold but for the Project. The trial judge further found that Mr. Grants
opinion on this point usurped the function of the court.

[12]

The Shuswap Lake Companies second expert was Don Spence, a chartered
accountant and business valuator who was qualified as an expert in the field of
business valuation to opine on the business losses suffered by the appellants. Mr. Spence
valued the delay in SLELs cash flow by assuming, among other facts, that there
were 38 lot sales that would have occurred but for the Project. Mr. Spence
estimated the resulting loss was $3,960,832.

[13]

The Province called three expert witnesses. Brett Garnett, a real estate
appraiser, was qualified to provide opinion evidence regarding the
reasonableness of models used by the Shuswap Lake Companies experts to value
unsold lots. Mr. Garnett opined that the use of Shuswap-wide statistics by
the Shuswap Lake Companies experts potentially distorted their analyses and
concluded that the available market data did not support the assertion that the
decline in sales of the Highlands lots was caused by the Project. Instead, Mr. Garnett
opined that the reduced sales activity and pricing was more consistent with the
broader market slowdown following the worldwide credit crisis, the stronger
Canadian dollar, the reduction in global oil prices and the weak Alberta
economy than it was with the timing and effect of the Project. Mr. Garnett
also opined that the sale of the Highlands lots was impacted by SLELs
marketing program and pricing. Accordingly, he questioned whether the assumed
number of but for lot sales relied upon by Messrs. Spence and Grant would
have occurred.

[14]

Richard Wozny, a real estate development economist, was qualified as an
expert in pricing and timing of real estate development projects and the
financial impact of transportation and infrastructure projects on adjacent
business. Mr. Wozny assessed whether the change in access to SLELs sales
office during and after construction of the Project had an impact on SLELs
business. Mr. Wozny did not consider changes to signage or the visibility
of the sales office from the highway. Mr. Wozny noted the diminished
importance of sales offices as a result of the rise of information available on
the Internet and explained that direct access to a sales center is not a
significant driver of real estate sales. Ultimately, Mr. Wozny opined that
the Project had no detrimental effect on SLELs market share or lot sales.

[15]

Paul McEwen, an accountant and business valuator, was qualified to give
opinion evidence regarding the methodologies used and business losses
calculated by the Shuswap Lake Companies experts Messrs. Grant and Spence. Mr. McEwen
assumed (as did Mr. Spence) that 38 more lots would have sold from
2010-2015, but for the Project. Using a different discount rate than Mr. Spence,
he calculated the resulting loss was $903,000.

Decision under appeal

[16]

After outlining the background to the claim and the evidence provided by
each of the experts, the trial judge began his analysis by noting that the
Shuswap Lake Companies claims were limited to business losses to be
adjudicated as though the lands purchased by the Province under the Agreement
had been expropriated. The trial judge reproduced s. 40(1) of the
Act
and noted that no Canadian court had previously interpreted the phrase
business losses in the context of expropriation legislation. The trial judge
set out the principles governing compensation for business losses before
setting out the three heads of business loss claims at issue:

a)       loss of sales of the Highlands
lots;

b)       the costs of relocating
the Road Utilities; and

c)       the costs of installing water bypasses.

[17]

The trial judge allowed the water bypass claim, which is not subject to
this appeal.

Loss of sales of the Highlands lots

[18]

On the loss of lot sales head, the trial judge set out that the burden
fell on the Shuswap Lake Companies to prove that any loss of sales was causally
connected to the Project. The trial judge found that the Shuswap Lake Companies
failed to establish the effect of any disruption in signage on SLELs real
estate sales, describing the evidence on this point as ill-prepared, confused,
uncertain and generally incomprehensible: para. 76. While access to the
sales office may have been reconfigured, access was not lost. There was also no
evidence that the publics perception of the Project had any detrimental effect
on SLELs ability to sell lots. The trial judge concluded that the Shuswap Lake
Companies had failed to put forward any direct evidence that the Projects
construction affected SLELs business and highlighted the absence of any
evidence that more visible signage and convenient access to SLELs sales office
were relevant considerations for potential purchasers. The trial judge agreed
with the Province that the timing of lot sales is a good indication of
causation and that the evidence established that the beginning of the decline
in sales began well before the Project commenced.

[19]

The trial judge placed no reliance on the opinions of Messrs. Grant and
Spence, as the opinions were based on factual assumptions that the Shuswap Lake
Companies had failed to prove, including that lot sales would have continued
consistent with SLELs historical market share but for the Project, as well as
certain assumptions related to lot pricing: paras. 93-95. In contrast, the
trial judge found the opinions of each of the Provinces experts to be
objective, sensible andof great assistance: para. 97. In particular, he
accepted Mr. Woznys opinion regarding the lack of importance of a real
estate sales office and the fact that the Project actually improved the
infrastructure in the vicinity of SLELs sales office.

[20]

Ultimately, the trial judge concluded that the evidence fell woefully
short of establishing the requisite causal link between the decline in the Highlands
lot sales and construction of the Project: para. 98. This was a case where
loss had not been proven rather than one where loss was difficult to quantify.
The trial judge found that three factors contributed to the decline in sales:
(1) SLELs slow reaction to the decline in the real estate market caused by the
2008 credit collapse; (2) Lois Barkers departure from the sales team during
2009; and (3) the ineffectiveness of SLELs other sales staff: paras. 99-100.

The costs of relocating the Road Utilities

[21]

Turning to the Road Utilities claim, the trial judge held that there was
no contractual basis on which the Shuswap Lake Companies could recover
relocation costs. The trial judge examined Schedule C of the Agreement, and
found that the plain language of the Schedule as well as the surrounding
circumstances of the Agreement demonstrated that it was the intention of the
parties that the holdback amount of $317,412 was an estimate of the cost of
relocating both the Land Utilities and the Road Utilities. Therefore, the
Agreement did not create a collateral obligation for the Province to pay
relocation costs over and above the holdback amount. The discrepancy between
the holdback amount and the sum of the estimates for relocation costs within
the Agreement was a result of inadvertence after the parties failed to update
the holdback amount when new estimates for relocation costs were handwritten
into the Agreement. The trial judge concluded that, in any event, the Shuswap
Lake Companies bargained away their right to pursue a contractual claim as a
result of signing the Partial Settlement Agreement, which limited the
Provinces liability to claims for business losses to be adjudicated as
though the lands purchased by the defendant had been expropriated.

[22]

However, the trial judge held that Shuswap Lake Companies claim also
failed under the
Act
. The trial judge found that the Road Utilities
costs were not business losses, but disturbance damages within the meaning of
s. 34(1) and therefore barred by the Partial Settlement Agreement.

[23]

The trial judge also held that the
Act
only applies where a
taking occurs without the consent of an owner and the Shuswap Lake Companies
did not fall under the definition of owner in the
Act
, a prerequisite
for compensation. Owner is defined as a person who has an estate, interest,
right or title in or to the land and counsel for the Shuswap Lake Companies
conceded that the permits granted by the Province under which the Road
Utilities were placed did not grant the Shuswap Lake Companies an estate,
interest, right or title in or to the Highway right-of-way.

[24]

Finally, the trial judge held that the permits under which the
plaintiffs were granted the right to construct, use and maintain the Road
Utilities expressly stipulated that any move or alteration of the utilities
would be at their own expense.

Submissions

[25]

The Shuswap Lake Companies seek to have this Court set aside that
portion of the trial judges order dismissing their claim for costs associated
with relocating the Road Utilities and their claim for lost lot sales. They
seek to have this Court award them $244,168.87 for relocating the Road
Utilities and order a new trial to hear the claim for lost lot sales.

[26]

They raise the following issues on appeal:

a)  Did the
trial judge err in dismissing the Shuswap Lake Companies claim to compensation
for the Road Utilities costs?

b)  Did the
trial judge err in refusing to admit Mr. Grants opinion evidence
regarding the number of lots that would have sold but for the Project?

c)  Did the trial judge err in admitting
and relying upon the Provinces expert evidence?

Alleged Errors Regarding Compensation for the
Road Utilities Costs

[27]

The Shuswap Lake Companies do not appeal the trial judges decision that
there was no basis for the Road Utilities costs under the Agreement. Instead,
the Shuswap Lake Companies offer three bases on which they say the judge erred
in determining their claim is not compensable under the
Act
.

[28]

First, the Shuswap Lake Companies

submit that their claim to Road
Utilities costs was a business loss pursuant to s. 40(1)(b)(ii) of the
Act
and that the trial judge erred in characterizing them as disturbance damages
under s. 34(1) in a way that disqualified the losses from also falling
under s. 40(1)(b)(ii).

[29]

Second, the Shuswap Lake Companies submit that they had sufficient
interest in the land to be considered an owner within the meaning of the
statute, relying, as they did in the court below, on
R. v. Imperial Oil Ltd
.,
[1974] S.C.R. 623. They also rely on the recent decision of
Caven v. British
Columbia Hydro and Power Authority
, 2016 BCSC 122.

[30]

Finally, the Shuswap Lake Companies argue that the permits did not
provide a defence to their claim because the need to relocate was directly
attributable to the Project.

[31]

The Province responds, firstly, by saying it does not take issue with
the proposition that business losses are a subset of disturbance damages.
However, not all disturbance damages are business losses. The trial judge
properly relied on the plain nature of these costs  they were not business
relocation costs  and the intent of the parties in determining that they were
not business losses.

[32]

Second, the Province submits that the Shuswap Lake Companies had no
interest in the highway pursuant to which they could claim damages under the
Act
.
The permits expressly said the permissions enjoyed by the Shuswap Lake
Companies could be extinguished unilaterally by the Province.
Imperial Oil
is distinguishable as the appellant there had a sufficient ownership interest
in the land by virtue of its 21-year easement. Further, in
Caven
the
handshake deal allowing Mr. Caven to use his neighbours lands created a
right tantamount to an interest in land. In the alternative, the Province
submits that
Caven
was wrongly decided and failed to make reference to
Re
Frankel Steel

Construction Ltd. and Metropolitan Toronto
(1966), 58
D.L.R. (2d) 578 (Ont. C.A.) at paras. 5-7, affd [1970] S.C.R. 726, on the
nature of ownership and its relationship to entitlement to compensation. The
Shuswap Lake Companies have no tenure so they would receive no indemnity for
relocation costs.

[33]

Finally, the Province argues that the judge correctly relied on clause
ten of the permits to find that the Shuswap Lake Companies are obliged to
remove the Road Utilities at their own expense.

Error in Refusing to Admit Mr. Grants
Opinion on Lot Sales

[34]

The Shuswap Lake Companies do not take issue with the trial judges
findings concerning contributing causes to the decline in sales, but say these
factors related to the decline in 2008 and 2009, not the time period at issue
in their claim. The Shuswap Lake Companies argue that Mr. Grants opinion
should be relied on in this respect and say he was qualified to give the
opinion that he did. They note that Mr. Garnett was also an appraiser who
opined on the number of lots that would likely have sold but for the Project,
yet the trial judge did not exclude his evidence. The Shuswap Lake Companies
argue that probable lot sales must be the subject of an opinion and cannot be a
fact proven by other witnesses. They further submit that Mr. Grants
evidence did not usurp the role of the court and, even if it did, it was not
inadmissible simply because it addressed the ultimate issue.

[35]

The Province submits that, by his own admission, Mr. Grant was not
qualified to opine on the alleged business loss and was uncomfortable with
portions of his assignment. When Mr. Grant nevertheless went on to render
opinions that exceeded the scope of his qualifications it properly caused the
trial judge to question his reliability. By contrast, Mr. Garnetts
professional qualifications were superior to those of Mr. Grant and, in
any event, the trial judge did not rely on Mr. Garnetts evidence to limit
the quantum of the business loss claim. The Province submits that the argument
made by the Shuswap Lake Companies either misunderstands the causation
requirement or the trial judges finding on causation. The trial judge found
that the factual assumption concerning causation on which Mr. Grants
reports were premised was not proven by direct evidence. In any event, it
submits that this ground of appeal is moot because the Shuswap Lake Companies
themselves did not rely on Mr. Grants opinions in advancing their claim
for lost lot sales. They opted to rely on Mr. Spences evidence, but
failed to prove the assumptions underlying his business loss estimate.

Error in Assessing the Provinces Expert
Evidence

[36]

The Shuswap Lake Companies submit that the trial judge failed to apply
the legal principles governing the admissibility of expert evidence to the
Provinces expert opinions. They argue that the evidence of Messrs. Garnett and
Wozny offend these principles by,
inter alia
, expressing opinions they
were not qualified to give and expressing opinions on the legal and general
merits of the appellants claim. Further, they say they were prejudiced by late
delivery of these reports, which went beyond merely responding to their own
expert reports. Finally, they argue that the trial judge erred in concluding that
their opinions were objective, sensible and of great assistance.

[37]

The Province submits that the reports were not late because they were
responsive to the Shuswap Lake Companies expert reports, the second set of
which were themselves served late. In the alternative, if this Court determines
that the reports went beyond responding to the Shuswap Lake Companies reports,
the Province argues that the trial judge properly exercised his discretion to
admit them because the Shuswap Lake Companies were unlikely to suffer any
prejudice. The Province notes the high degree of deference to be accorded to
the trial judges exercise of his gatekeeping function.

[38]

More broadly, the Province submits that all of the above errors are
immaterial to the outcome of the case. The Province takes the view that the
trial judge dismissed the business loss claim because (1) the Shuswap Lake
Companies failed to prove the factual underpinnings of the claim (in
particular, that the Project caused a decline in lot sales); (2) that the
Shuswap Lake Companies did not rely on Mr. Grants evidence in their final
submissions; and (3) that the trial judges decision did not turn on his acceptance
of the Provinces experts. The Province also argues that the Shuswap Lake
Companies have not raised an error of law such that the standard of review is
one of palpable and overriding error.

Analysis

[39]

I will deal in turn with the two heads of business loss still extant.

(i)
Loss of
Sales of the Highlands Lots

[40]

Under this head, the Shuswap Lake Companies advanced two alleged errors
in the judgment below:

1.       The trial judge erred in
refusing to admit Mr. Grants opinion evidence regarding the number of lots
that would have sold but for the Project cap piece; and

2.       He erred in admitting
and relying upon the provinces expert evidence.

[41]

In my view, this search for error is misguided. As the province submits,
the appellants challenge in making out its case under this head is not limited
to successfully arguing the admissibility of all of Mr. Grants reports
and impugning the reliability of the experts called by the Province.

[42]

Fundamentally, the appellants failed to meet their burden in proving
that the Project caused the decline in the Highlands lot sales. Despite his
ruling, the judge did consider Mr. Grants opinion in this regard: para. 33.
And he noted Mr. Spences evidence, based as it was upon assumptions that
were given to him regarding the numbers of lots that would have sold, and at what
price, had the Project not occurred. But the judge made critical findings of
fact that fatally contradicted these assumptions.

[43]

The trial judge found that there was no direct evidence that the Projects
construction affected the business in any way: para. 86. The judge
referred to the lack of anecdotal evidence suggesting an effect of the Project
on lot sales (at para. 87):

Without any of this evidence, it
is pure conjecture and speculation to claim that lots would have been sold but
for the change in eastbound access to the Project. If lot sales were lost as a
result of the Projects construction or its aftermath, even a modicum of
evidence would likely have been available from any one of the number of
prospective purchasers that visited [SLELs] sales office after the Project was
announced.

[44]

The judge concluded that the appellants evidence regarding business
losses was at best speculative; that Messrs. Grant and Spence relied on
assumptions founded on an educated guess by Mr. Barker: para. 91.

[45]

The judge noted the obvious: opinions of experts are only as good as the
facts upon which they are based; those facts must be proven: para. 93.

[46]

The judge concluded (at paras. 94, 95 and 98):

[94]      The following is a list of some of the more
fundamental facts that were relied upon by Messrs. Grant and Spence and which
were not proven in evidence:

a)         lot sales would have
continued at a level consistent with SLEs historical OMREB market share had
the Project not been constructed;

b)         but for the Project, the
average single family lot selling price would have ranged from $160,000 to
$183,000; and

c)         the discount from
listing price to final selling price would have been 25%.

[95]      The opinions of Messrs. Grant and Spence were
undermined by the plaintiffs failure to prove the truth of these assumptions
on the balance of probabilities. Moreover, their opinions were a somewhat
convoluted attempt to deal with assumptions they were directed to make that
were, in my view, both unreasonable and unsupportable. In the circumstances, Mr. Grants
comment that he was uncomfortable with portions of his assignment is not
surprising.

[98]      In my view, the
evidence falls woefully short of establishing on the balance of probabilities
that the decline in Highlands lot sales was attributable to or resulted from
the change in signage and access to the Shuswap Lake Estates development during
or as a result of construction of the Project. This is not a case where a
proven loss is difficult to quantify. Rather, this is a case where a loss has
not been proven.

[47]

The judge found the following factors contributed to the decline in the Highlands
lot sales (at paras. 99 and 100):

·

The company was slow to react to the general decline in the real
estate market commencing in 2008;

·

The company did not match price reductions implemented in the
broader Salmon Arm market; and

·

The absence of Lois Barker during 2009, and the ineffectiveness
of their other sales staff, combined with the economic downturn.

[48]

These are findings of fact. It has not been shown that the judge made
any palpable and overriding error in arriving at these conclusions.

[49]

The appellants argue the trial judge confused the causes of the decline
in lot sales during 2008-2009 with the causes of the decline during the claim
period of 2010-2015. However, the failure of the Shuswap Lake Companies to
react to the market decline, to reduce prices, or to hire effective sales
staff, all continued during the claim period.

[50]

It was open on the record before the trial judge to find that these were
the real causes of the decline in lot sales during the claim period, not the
Project. These findings are the basis for the dismissal of this aspect of the
claim for business losses by the judge. The evidentiary ruling affecting a
portion of Mr. Grants report was the least of the appellants problems at
trial.

[51]

In any event, that ruling was, in my view, inevitable when one
appreciates that Mr. Grant frankly admitted to a complete lack of
qualifications as an expert in estimating general business losses (as distinct
from agricultural business losses) and that he was uncomfortable with the
assignment.

(ii)
Road
Utilities Costs

[52]

In my view, this claim was properly dismissed by the judge on the basis
of the terms of the permits under which the appellants initially constructed,
used and maintained the Road Utilities within the highway right-of-way.

[53]

The permits authorized the works subject to clause 10 thereof:

10.       That after receiving
notice in writing of the intention on the part of the [defendant] to construct,
extend, alter, or improve any public work, the person or persons responsible
for the maintenance of the works for which permission is hereby granted shall
within six weeks move or alter such work at his or their own expense to such
new position or in such manner as may be necessitated by the construction,
extension, alteration, or improvement proposed to be carried out by the [defendant].

The required notice was given.

[54]

The appellants response to this formidable provision is the submission
that it does not provide a defence to their claim because the need to relocate
the works was directly attributable to the Project.

[55]

The need to relocate was directly attributable to the Project and clause
10 expressly contemplates the relocation of the works if the authority has the
intention to construct, extend, alter, or improve any public work. The
appellants rely on the Supreme Court of Canadas decision in
Imperial Oil
to
still ground their claim. But there the permitted works were removed at the
direction of the minister under the
Navigable Waters Protection Act
.
There was no unambiguous language in that legislation or the federal
Expropriation
Act
of the day empowering the minister to do so without the payment of compensation.

[56]

At bar, there is. Clause 10 of the permits under which the very works
were installed expressly contemplates their movement or alteration at the
appellants own expense. The appellants are simply bound by the terms of the
permits they agreed to and under which they accessed the right-of-way in the
first place.

[57]

I do not read the current
Act
as allowing compensation for
business losses despite the clear language limiting liability under the
permits. Nor do I read the Partial Settlement Agreement as a waiver by the
Province of its right to invoke clause 10 of the permits to deny a claim for
compensation.

[58]

In my view, the permits are a complete answer to this particular claim
and it is not therefore necessary to consider the remaining submissions under
this head.

[59]

In the result, I would dismiss the appeal.

The Honourable Chief Justice Bauman

I agree:

The Honourable Mr. Justice
Hunter

I agree:

The Honourable Madam Justice
Fisher


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Brown,

2018 BCCA 17

Date:
20180108

Docket:
CA43822

Between

Regina

Respondent

And

Viola Helen Brown

Appellant

Before:

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Savage

On appeal from: An order
of the Provincial Court of British Columbia, dated
January 19, 2016 (
R. v. Brown
, Vancouver Registry 236359).

Oral Reasons for Judgment

Counsel for the Appellant:

V.L. Hartney

Counsel for the Respondent:

M.A. Street

Place and Date of Hearing:

Vancouver, British
  Columbia

January 8, 2018

Place and Date of Judgment:

Vancouver, British
  Columbia

January 8, 2018

Summary:

The appellant challenges her conviction for
breaking and entering a dwelling house and committing theft therein. She argues
the trial judge misapprehended the evidence and failed to properly assess the
evidence in accordance with R. v. W.(D.). Held: Appeal dismissed. The judge did
not err in apprehending the substance of the evidence; evidence existed which
reasonably supported her findings. Further, the alleged error with respect to
the evidence surrounding the identification of the owner of the stolen items is
immaterial. While the reasons may be brief, the judge clearly considered the
relevant evidence surrounding the appellants mens rea. R. v. W.(D.) does not
mandate a specific form of analysis. Importantly, the trial judge did not
compromise the Crowns burden of proof and the conviction was not based solely
on a rejection of the appellants evidence.

[1]

WILLCOCK J.A.
: Viola Brown was convicted of breaking and entering
a dwelling house and commission of an indictable offence, theft, therein,
contrary to s. 348(1)(d) of the
Criminal Code
, R.S.C. 1985,
c. C‑46, by Judge Bagnall on 11 December 2015. She appeals her
conviction and seeks an acquittal on the grounds that the trial judge erred in
misapprehending the evidence and by failing to properly assess the evidence in
accordance with the principles of
R. v. W.(D.)
, [1991] 1
S.C.R. 742.

[2]

On 16 August 2014, Caitlyn Pantherbone and her friend returned to Ms. Pantherbones
apartment to find the appellant and her two dogs there. They confronted the
appellant, who insisted the apartment was hers. Ms. Pantherbones friend
called the police, at which point the appellant began to leave. As she did so,
a male friend of Ms. Pantherbones arrived. The appellant then asserted the
apartment was his. It was not.

[3]

Two police officers arrived a few minutes later. After locating the
appellant on the street nearby, one police officer questioned, arrested, and
searched her. She was wearing sunglasses on her head and had some make‑up
in her pocket. At the same time, the other officer spoke with Ms. Pantherbone.
He testified that she noted these items were missing from her apartment and
described them accurately. When they were taken from the appellant and
presented to the complainant she identified them as hers. The police also found
many items in Ms. Pantherbones apartment had been moved and put into bags
and small suitcases.

[4]

At trial, the appellant testified in her own defence. She did not recall
being arrested, being in Ms. Pantherbones apartment, or where she had
been before the events described above. She also said she had mental health
issues in the past, following her sons murder.

[5]

On that basis, defence counsel argued that the judge should have
reasonable doubt as to Ms. Browns
mens rea
.

[6]

The trial judge found no basis for an inference that Ms. Brown
didnt know what she was doing as the events unfolded. She found her behaviour
purposeful and responsive to her surroundings. She did not accept the
appellants assertion that the appellant did not recall the events. The
appellants ongoing distress over her sons death, in the view of the trial
judge, did not provide an explanation for her distraction and inability to
recall the night in question.

[7]

In the judges view, the only rational inference that could be drawn
from the evidence was that the appellant committed both offences charged.

[8]

The appellant says the trial judge erred:

a)

In misapprehending the evidence, resulting in a verdict that is
unreasonable, unsupported by the evidence, and a miscarriage of justice; and

b)

In failing to
properly assess the evidence in accordance with the principles of
R. v. W.(D.).

[9]

The misapprehensions alleged and the evidence said to have been
overlooked are set out in paras. 72‑73 of the factum:

72.       It is respectfully submitted that the trial judge
misapprehended the following material evidence;

i.          finding
that the Appellant left the apartment in response to being told that the police
were being called. The evidence was that even after the police were called, the
Appellant refused to leave, and it took some time for Ms. Pantherbone to
get her to leave. It was not until sometime after Ms. Pantherbone was
screaming profanities at her that she left;

ii.          finding
that the sunglasses and make-up belonged to Ms. Pantherbone. The method of
identification was problematic, and the officers may well have influenced
that identification by showing Ms. Pantherbone the items prior to her
determining whether anything was actually missing. Ms. Pantherbone had
other sunglasses and make-up and the evidence was not sufficient to prove
beyond a reasonable doubt that the items actually belonged to her.

iii.         the
trial judge overlooked other problems with Ms. Pantherbones testimony,
including that:

a.   that she
could not recall and indeed denied, screaming obscenities at the Appellant; (TS,
p. 34, ll. 26-32)

b.   she did
not remember a tape recording of the incident; (TS, p. 35, ll. 6-8)

c.   she could
not recall where the sunglasses had been in the apartment; (TS, p. 23,
ll. 46‑47)

d.   she did
not remember the make of the sunglasses (TS, p. 39, ll. 13 and ll. 39)

e.   her very
clear memory of locking the patio door, was contradicted by what was told to
the police officers at the time about being unsure.

vi.        the
trial judge did not address the Admission of Fact regarding the cost and
availability of the Marcelle make-up. This Admission supported the Appellants
evidence, and was contrary to Ms. Pantherbones testimony;

vii.        the
trial judge misapprehended the evidence as to the Appellants behaviour and
confused mental state. There was extensive evidence about the Appellant
behaviour being non-sensical and unrational, which was not considered by the
trial judge.

73.       The trial judge also
overlooked and did not address other evidence including:

i.          that
it would make no sense to commit a break and enter and theft with two little
off-leash barking dogs in tow;

ii.          the
Appellant did not attempt to flee or evade police;

iii.         she
was opening wearing the allegedly stolen sunglasses;

iv.        when being questioned by the
officer, her responses were non-responsive and focused on her dogs.

[10]

T
his Court, in
R. v. Mann
,
2014
BCCA 231, described the
legal standard for determining when a
conviction will be set aside based on a misapprehension of evidence:

[
138
]    The
legal standard for determining when a conviction will be set aside based on a
misapprehension of evidence was articulated by Justice Doherty in
R. v. Morrissey

(1995),
97 C.C.C. (3d)
193 (O.C.A.)
. He described a misapprehension of evidence as a failure
to consider evidence relevant to a material issue, a mistake as to the
substance of the evidence, or a failure to give proper effect to evidence
(at 218), and concluded that an appellate court has statutory authority
under s. 686(1) of the
Code
to quash a conviction where a
misapprehension of evidence results in a miscarriage of justice (at 219).

[11]

The
appellant alleges both:
a failure to consider evidence relevant
to a material issue; and a mistake as to the substance of the evidence
.

[12]

I
will deal first with the alleged mistakes as to the
substance
of the
evidence.

[13]

The
appellant says the trial judge found that the she left the apartment in
response to being told the police were being called but that the evidence was
that even after the police were called, she refused to leave. The Crown,
correctly in my opinion, points to evidence, particularly the evidence of the
complainant, that the appellant started to leave when she was advised the
police were being called. There does not appear to have been a misapprehension.
There was evidence upon which the judge could reasonably have concluded the
appellant was acting purposively in this regard.

[14]

Second,
the appellant alleges the judge erred in finding the appellant was arrested in
possession of the complainants sunglasses and make‑up. She argues the
method of identification was problematic, and the officers may well have
influenced that identification by showing Ms. Pantherbone the items before
she knew what was missing. In my view, it is not clear that there was a
misapprehension in the trial judges appreciation of the evidence as to
identification of these items. There was evidence (the testimony of Cst. Kim)
consistent with the judges description of events. In any event, there was
other reliable evidence as to the identity of the owner of these items. The
alleged error is not, in my view, material.

[15]

The
alleged failures to consider evidence relate to inconsistencies or shortcomings
in the complainants evidence and the appellants irrational and inexplicable
behaviour.

[16]

In
part, these are complaints with respect to the adequacy of the reasons for
judgment. In substance, both complaints are founded upon the assertion that the
trial judge did not adequately come to grips with the defence that the
appellant did not have the requisite
mens rea
.

[17]

In
my opinion, the inconsistencies or shortcomings in the complainants evidence
were not such as to require explicit reference in the reasons because the
essential facts were not in dispute,.

[18]

Despite the brevity of the reasons, it is apparent that the trial judge
considered the defence submissions with respect to mental health issues (para. 10),
the appellants limited recollection of events (paras. 11‑12), and
her emotional state (para. 13). Having considered those, she held:

[20]      Ms. Hartney
submitted on behalf of the accused that I ought to have a reasonable doubt as
to her
mens rea.
There is, on the evidence, no basis for an
inference that Ms. Brown didn't know what she was doing while the events
unfolded. She was found in another persons dwelling, without permission to be
there, and items owned by the resident and her friend had been packed into
bags. Her behaviour at the time, according to the complainant and her friend
and the investigating officers, was purposeful and responsive to her
surroundings. The only rational inferences that arise on the evidence are that Ms. Brown
committed both of the offences with which she was charged.

[19]

The
appellant has not established that the trial judge failed to appreciate the
effect of the evidence or failed to consider relevant evidence.

[20]

Turning to the argument that the judge failed to engage in the
analysis prescribed by
R. v. W.(D.)
: the appellant argues that
the trial judge made an error of the type described in
R. v. T.(S.)
,
2015 MBCA 36. In that case, the Manitoba Court of Appeal dealt with an
appeal from a judgment described by
Mainella J.A. as follows:

[
3
]        While making reference to the decision in
R. v. W.(D.)
,
[1991] 1 S.C.R. 742
, the judge then immediately
stated his task in assessing the credibility of the two witnesses in this way:
The question is, whose evidence does the Court prefer?

[
4
]        The judge then gave a page and
a half of reasons. He did not undertake a meaningful analysis of the evidence
and the contradictions regarding both witnesses. He simply made the conclusory
statement that he found the accuseds evidence to be unreliable,
untrustworthy, and thus not credible. He then described the complainant to be
compelling, reliable and credible. He briefly addressed deficiencies in her
evidence as to the timing of the incidents and found that they were not
material to her credibility.

[21]

The
case at bar, unlike
R. v. T.(S.)
and
R. v. W.(D.)
,
does not involve diametrically competing versions of events. There was, in
fact, little conflicting evidence. The trial judges conclusion, at para. 20,
that the only rational inferences that can arise on the evidence are that Ms. Brown
committed both of the offences with which she was charged is clearly
not
founded solely upon rejection of the appellants evidence but upon acceptance
of the compelling evidence with respect to the
actus reus
and weighing
of the evidence of
mens rea
.

[22]

As
both the appellant and the Crown have observed,
R. v.
W.(D.)
does not mandate a specific form or
sequence of analysis. As the Supreme Court of Canada noted in
R. v. J.H.S.,
2008 SCC 30,
and this Court noted in
R. v. Mann
,
2010 BCCA 569 at para. 31, not proceeding with the analysis in the
sequence followed in
R. v. W.(D.)
may increase the risk of
error, [but] it is not appropriate for [appellate courts] to instruct trial
judges on how to undertake
W.(D.)
analyses. At the end of the day, this
Court must be satisfied that the analysis was done and that there was no
compromise of the burden of proof that remains throughout on the Crown.

[23]

I
cannot say the burden of proof on the Crown was compromised in this case,
accordingly, I would not accede to the second ground of appeal.

[24]

I would dismiss the appeal.

[25]

LOWRY J.A.
: I agree.

[26]

SAVAGE J.A.
: I agree.

[27]

LOWRY
J.A.
: The appeal is dismissed.

The Honourable Mr. Justice Willcock