COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

Murao
                v. Richmond School District No. 38,

2005 BCCA
            43

Date: 20050126

Docket: CA031077

Between:

Travis
      Murao

Appellant

(
Plaintiff
)

And

The Board
      of School Trustees, School District
No. 38 (Richmond), Yumi Yang, Sara Haave,
Charlie Phipps and Graham Harkley

Respondents

(
Defendants
)

Before:

The Honourable
            Madam Justice Southin

The Honourable
            Mr. Justice Oppal

The Honourable
            Mr. Justice Lowry

P. T. McGivern

Counsel for the Appellant

C. L. Forth

Counsel for the Respondents

Place and
            Date of Hearing:

Vancouver, British Columbia

December 13, 2004

Place and
            Date of Judgment:

Vancouver, British Columbia

January 26, 2005

Written
              Reasons by
:

The Honourable
            Mr. Justice Lowry

Concurred
              in by:

The Honourable
            Madam Justice Southin

The Honourable
            Mr. Justice Oppal

Reasons for Judgment
        of the Honourable Mr. Justice Lowry:

[1]

This
      is a negligence action that was tried before Madam Justice Sinclair Prowse
      sitting with a jury.  The questions on this appeal are whether the learned
      judge erred in refusing to admit certain evidence, in permitting unwarranted
      cross-examination, or in the instructions she gave to the jury on the elements
      of the tort and, if so, whether a new trial should be ordered.  The judge
      provided written reasons for some of her rulings that are raised as the
      grounds of the appeal: (2003), 22 B.C.L.R. (4th) 392, 2003 BCSC 1961.

[2]

In
      January 2000, when he was 17 years of age, Travis Murao (now 22) fell while
      snowboarding at Blackcomb Mountain and suffered a spinal injury that, tragically,
      left him a quadriplegic.  He was one of a group of students in a high school
      ski club who participated in a day on the mountain that was organized by
      one of their teachers and supervised by three others who attended.  In
      the action, damages were sought against Blackcomb Skiing Enterprises Limited
      Partnership ("Blackcomb"), the Board of School Trustees of the
      Richmond School District No. 38 (the "Board"), the teacher who
      organized the outing, Charlie Phipps, and the three other teachers who
      attended, Yumi Yang, Sara Haave, and Graham Harkley (all four collectively
      the "Teachers").

[3]

Mr.
      Murao was not an experienced snowboarder.  He fell backwards while attempting
      a jump in an area known as the Terrain Park which Blackcomb had developed
      for snowboarding.  It contained a series of jumps or steep elevated parts
      of a downhill slope that, when approached at speed, would enable a boarder
      to "take air" over some or all of a table top surface.  Broadly,
      the case pleaded against Blackcomb was that it had knowingly created conditions
      that were particularly dangerous for the inexperienced and had failed to
      warn of the dangers.  The case pleaded against the Board and the teachers
      was that they had failed to properly supervise Mr. Murao.

[4]

Blackcomb
      settled the claim against it such that the action proceeded to trial against
      only the Board and the Teachers.  The jury returned a verdict apportioning
      liability based on attributing fault 70% against Blackcomb, 15% against
      the Board, and 15% against Mr. Murao.  The Board appears to have been found
      vicariously liable for the negligence of one or more of the Teachers.  The
      action against each of the Teachers was dismissed on the basis of a statutory
      provision relieving them of personal liability for negligence.  Damages
      were awarded that resulted in a judgment against the Board of $533,533.33.

The Grounds of Appeal

[5]

Mr.
      Murao seeks a new trial.  He raises four grounds of appeal which I address
      in turn.

1.  The evidence of Robert Jackson

[6]

Mr.
      Murao's counsel sought to adduce evidence from Robert Jackson, a retired
      high school teacher who taught for 31 years in the Richmond School District.  Objection
      was taken and the judge refused to permit Mr. Jackson to testify.  Unfortunately,
      we now have no more than a transcript of what counsel said the testimony
      would be.  It would have been preferable if a written statement had been
      taken from Mr. Jackson of what he would say and had been made available
      for the judge's (and hence for our) consideration.

[7]

Mr.
      Jackson was said to have organized ski trips for students at Manning Park
      on several occasions during the 1980s as part of the physical education
      programs he was teaching.  He chose hills where the students could be monitored
      and he insisted that they take lessons to permit an assessment of their
      abilities before they were permitted on the more dangerous parts of the
      mountain.  He took advice from the ski instructors in this regard.  He
      took these steps to ensure that the students were adequately trained for
      the activities in which the teachers invited them to participate and to
      minimize the effect of peer pressure to enter upon areas of the mountain
      where they did not belong.

[8]

Mr.
      Jackson was not on the plaintiff's list of witnesses that, in this case,
      counsel was required to deliver prior to the trial.  His evidence formed
      no part of the plaintiff's opening because it was not until perhaps the
      third day of the trial that, having heard about the case, he approached
      the plaintiff's counsel.  Counsel sought to tender the evidence, not to
      prove the existence of any general practice concerning student ski trips,
      but to prove there were measures that could have been taken in respect
      of the ski club's outing to Blackcomb that had been taken some years before
      when students were taken to ski at Manning Park.  Mr. Jackson's testimony
      would, it is now said, have rebutted the Teachers' assertion that there
      were no steps they could reasonably have been expected to take that would
      have prevented the injury suffered by Mr. Murao.

[9]

The
      judge ruled Mr. Jackson's testimony inadmissible because it was not evidence
      of a general practice.  She approached the issue as a consideration of
      whether the testimony was relevant to establishing the standard of care
      from which the Teachers had to be found to have departed to a marked degree
      to give rise to liability.  She took the view that the authority to which
      she had been referred did not support the admission of an individual practice
      or recommendation as evidence that would establish a standard of care,
      citing, in particular,
Myers v. Peel (County) Board of Education
,
      [1981] 2 S.C.R. 21, 123 D.L.R. (3d) 1.

[10]

I
      consider the judge took too narrow a view of the nature of evidence that
      can be adduced to establish a standard of care.  Mr. Jackson's testimony
      should have been admitted.

[11]

The
      standard of care is the measure by which the discharge of the duty owed
      by one person to another is determined in the law of negligence.  Where
      the conduct in question conformed to a recognized or general practice in
      any given circumstance, the standard of care required is normally met.  In
      cases where the nature of the conduct in question is beyond the common
      understanding of judge and jury, as in medical malpractice cases, expert
      evidence is routinely introduced to prove an established practice and hence
      the requisite standard of care:
ter Neuzen v. Korn
, [1995]
      3 S.C.R. 674, 127 D.L.R. (4th) 577.  By contrast, in motor vehicle negligence
      cases, evidence of an accepted practice often need not be adduced to establish
      the standard of care either because the practice to be followed in any
      given instance has been prescribed by legislation or because what is required
      is so broadly understood as a matter of common sense by everyone regularly
      travelling on city streets and provincial highways:
Tucker (Guardian
      Ad Litem of) v. Asleson
(1993), 102 D.L.R. (4th) 518, 78 B.C.L.R.
      (2d) 173 (B.C.C.A.) at 553.

[12]

Where,
      however, there may be no recognized or general practice, or where any practice
      that does exist is contended to be woefully inadequate, a plaintiff is
      entitled to adduce evidence to establish the standard of care required
      in any given instance.  It is for the trier of fact to determine the standard
      of care having regard for the nature and foreseeability of the risk and
      the utility of measures by which it could be minimized.  The standard may
      be derived from evidence of a general practice that prevailed, or from
      evidence of what might reasonably have been done to prevent the injury
      that gives rise to the cause of action, or from the simple application
      of common sense where the circumstances permit it.

[13]

In
Ware's
          Taxi Ltd. v. Gilliham
, [1949] S.C.R. 637, [1949] 3 D.L.R. 721,
          a taxi company was found negligent for injuries suffered by a young
          child who fell out of a moving vehicle after meddling with the door
          lock and opening the back door.  There was, at the time, no generally
          approved practice followed in the transport of children in similar
          circumstances.  Evidence was adduced of the availability of inexpensive
          childproof locks and the fact that at least one other taxi owner made
          it a practice to position older children next to the doors or place
          young children in the front seat where they could be supervised.  That
          evidence was seen as proving that there was a general awareness of
          the danger to which the injured child had been exposed and it effectively
          established the requisite standard of care.

[14]

A
      recent decision of the Supreme Court of British Columbia appears to be
      particularly germane.  In
Madsen v. Mission School District No. 75
,
      [1999] B.C.J. No. 1716 (QL), a school district was found liable for the
      negligence of a teacher in supervising a game of "Capture the Flag" being
      played during a physical education class.  One student was injured when
      he was tackled by another at a time when they were hidden from the teacher's
      view by trees in the area where the game was being played.  Another teacher
      testified as to how he supervised the game.  His practice was to choose
      an open field to ensure that he always had an unrestricted view.  That
      was effectively accepted as the standard of care required given the number
      involved in the game and the potential for injury.

[15]

These
      two cases illustrate the admissibility of the kind of evidence it was said
      Mr. Jackson would give.  It was not necessary that his testimony be evidence
      of a general practice to be admitted.  It was relevant to establishing
      the required standard of care because it was evidence of measures taken
      in what could be said to be somewhat similar circumstances for the purpose
      of minimizing the risk of injury.  The weight that Mr. Jackson's evidence
      might have been afforded had it been admitted is of course another matter.

2.  The OSBIE Ski Package

[16]

Mr.
      Murao's counsel sought to enter as evidence a seven-page document containing
      a Safety Guideline Manual of minimum safety information for ski and snowboarding
      education programs prepared in 1998 by the Ontario School Boards' Insurance
      Exchange and the Ontario Ski Resorts Association (the "OSBIE Package").  Counsel
      wished to cross-examine one of the Teachers, who he called as a witness,
      on the document and to put it before the jury.  Objection was taken, although
      I understand it to have been accepted that the document was what it purported
      to be.  The judge permitted some cross-examination on the guidelines, but
      she ruled the document inadmissible for the same reason that she ruled
      Mr. Jackson's evidence inadmissible: it was not relevant because it was
      not evidence of any general practice of teachers on school snowboarding
      outings.  The judge observed that she understood counsel to have made it
      clear that he had no intention of calling any witness to prove that the
      guidelines had been accepted or implemented.

[17]

It
      is now said that counsel "indicated his intention to call witnesses
      from Ontario to prove the guidelines and the manner in which they were
      used in that Province".  We have not, however, been taken to any statement
      to that effect in the transcript.  The most that we have been shown is
      that at one point counsel said that he "
may
be calling a teacher
      from Ontario" who ran a series of school ski trips in a manner similar
      to that of Mr. Jackson.  We have not been shown the plaintiff's list of
      witnesses, but it is not said that any witnesses listed were to be called
      to testify about the OSBIE Package.  No witness from Ontario was called.

[18]

In
      the absence of a witness being called who could testify to the preparation
      of the guidelines by the Insurance Exchange and the Ski Resorts Association
      in Ontario, or the extent, if any, to which they have been used, I do not
      see that the package had any evidentiary value.  The statements that form
      the guidelines could not have been subjected to cross-examination by counsel
      for the Board.  It would have gone before the jury as evidence of a standard
      of care that could not have been challenged.  I do not consider it should
      have been admitted.

3.  Defence counsel's cross-examination of Mr. Phipps

[19]

Although
      the Board undertook to call Mr. Phipps, the teacher who organized the Blackcomb
      outing for the Ski Club, counsel for Mr. Murao called him as a witness
      in the plaintiff's case.  He proceeded to cross-examine Mr. Phipps broadly
      and at length as is permitted by Rule 40(20) of the
Rules of Court:

(20)  A
      party calling a witness in accordance with subrule (17.1) or (17.2) is
      entitled to cross-examine the witness generally on one or more issues.  Cross-examination
      of the witness by counsel for the adverse party shall be confined to explanation
      of matters brought out in the examination-in-chief.  Cross-examination
      of the witness by other parties may be general or limited, as the court
      may direct.  Re-examination shall be confined to new matters brought out
      in cross-examination.

[20]

Counsel
      then took objection to Mr. Phipps being asked leading questions by counsel
      for the Board in the course of her cross-examination.  He took the position
      that while the Rule permitted him to ask leading questions while cross-examining
      Mr. Phipps, it did not permit counsel for the Board to do so while she
      was cross-examining him.  The judge considered it was open to counsel for
      the Board to ask leading questions and permitted her to do so.

[21]

It
      is now said that permitting the Board's counsel to ask leading questions
      of the teacher who was the Board's principal witness gave the Board an
      unfair advantage, one for which the Rule does not provide.  I disagree.  The
      greater unfairness lay in the Board being deprived of the opportunity to
      have Mr. Phipps testify before the jury, and to give his account of
      the events, before he was subjected to cross-examination.

[22]

The
      Rule exists to permit a party to adduce evidence from an adverse witness
      as part of its case that cannot be satisfactorily tendered in any other
      way.  It is a rule that I have had occasion to consider susceptible to
      abuse:
3464920 Canada Inc. v. Strother
(2002), 26 B.L.R.
      (3d) 235, 2002 BCSC 1179 ¶ 41-43.  Apart from a perceived tactical advantage
      it may be thought to give a plaintiff, I see little place for calling an
      adverse witness when, as here, there has been full discovery of the witness
      which can be read in and an undertaking has been given that the witness
      will be called.

[23]

That
      said, the Rule can only be read as affording counsel for the adverse party
      the right to ask leading questions during the cross-examination of the
      witness for which the Rule provides.  If it were otherwise, the terms "cross-examine" and "cross-examination" as
      used in the Rule would have to be given different meanings.  A cross-examination
      is generally understood to include asking leading questions that cannot
      be asked in a direct examination.  That, as a matter of practice, is certainly
      what Rule 27(21) governing discovery has been understood to mean where
      it provides for an examination being in the nature of a cross-examination.  I
      can see no reason why that term should be given a different meaning when
      used to describe the examination to be conducted by counsel for an adverse
      party under Rule 40(20).

4.  The judge's instructions to the jury

[24]

It
      is contended that the judge made two errors in the instructions she gave
      the jury about the tort of negligence.  It is first said that she failed
      to instruct the jury on the foreseeability of the risk.  But no objection
      was taken to this aspect of the charge at trial.  That would appear to
      be because the foreseeability of serious injury in the Terrain Park was
      never in issue.  Mr. Phipps made that concession and in her charge the
      judge told the jury that he was aware that a snowboarder could be seriously
      injured attempting jumps in the Terrain Park.  Given that his counsel took
      no exception to the charge in this regard at trial, I do not consider it
      now open to Mr. Murao to seek a new trial on the basis of a point that
      was never in issue.

[25]

The
      second error attributed to the judge has to do with her having instructed
      the jury that they were to consider what, if anything, the Teachers ought
      to have done given what they knew about the risk of injury to a student
      who participated in the outing.  She is said to have erred in not instructing
      the jury to consider not only what the Teachers knew but what, in the circumstances,
      they ought to have known.

[26]

It
      is of course well established that, in the law of negligence, a person's
      conduct is to be assessed not only by what was known, but also by what
      ought to have been known.  Counsel for Mr. Murao did ask that the jury
      be given further instructions in this regard, but his request was quite
      limited.  The judge had told the jury that Mr. Phipps had said that he
      did not know that the Terrain Park was for advanced or expert snowboarders.  Counsel
      suggested that the jury should also be told that it was open to them to
      find that Mr. Phipps ought to have known that fact.  The judge said "all
      right", but she did not address the point in recharging the jury in
      respect of other matters and counsel said no more about it.

[27]

In
      my view, this ground of appeal might have had merit if the evidence to
      which we have been referred did not show, as it does, that the Teachers
      could not have been expected to know that the Terrain Park was for advanced
      or expert snowboarders.  That was something that may have been known to
      Blackcomb, but it was not communicated to the Teachers.  Indeed, the Blackcomb
      website, at the time, advertised the Terrain Park as catering to "beginners,
      intermediate and expert riders".  Blackcomb's trail map marked the
      Terrain Park as "recommended snowboard terrain" with no mention
      of such being for the advanced or expert.  The signs Blackcomb posted at
      the Terrain Park indicated that it could be used by intermediate boarders.

[28]

The
      judge focused her charge on what was at issue in the trial in terms of
      liability in negligence: the standard of care.  She instructed the jury
      that, as a matter of law, teachers supervising students are held to the
      standard of prudent parents.  She emphasized the importance of assessing
      the conduct of the Teachers as one would assess the conduct of parents
      who knew what the Teachers knew about the risks of snowboarding at this
      particular mountain.  What the judge said about assessing the Teachers'
      conduct in light of their knowledge must be viewed in the context of her
      charge as a whole.  I do not consider that the real issue on which the
      case was tried required the judge to say more than she did.  Indeed, her
      having done so may have done more to confuse  rather than clarify the task
      the jury was asked to undertake.

A New Trial

[29]

It
      remains to consider whether a new trial should be ordered because Mr. Jackson
      was not permitted to testify in support of Mr. Murao's case.  The Chief
      Justice of this Court has stated the consideration as follows in
Tsoukas
      v. Segura
(2001), 96 B.C.L.R. (3d) 344, 2001 BCCA 664 ¶ 75:

In my view, there is no principled reason for distinguishing between
      a case where relevant evidence was excluded, and the case where inadmissible
      evidence has been admitted.  In either case, the appropriate test is whether
      a properly instructed jury acting reasonably would necessarily have reached
      the same conclusion if the evidentiary error had not occurred.  In other
      words, the question is whether there has been a miscarriage of justice.

[30]

There
      was no miscarriage of justice in this case.  I do not consider that Mr.
      Jackson's evidence would have resulted in a properly instructed jury rendering
      a different verdict, one holding the Board liable for more than 15% of
      Mr. Murao's damages.

[31]

It
      is important to keep Mr. Jackson's evidence in perspective.  His testimony
      was completely unknown to Mr. Murao's counsel until well into the trial.  Moreover,
      the weight a jury might give to the way Mr. Jackson organized skiing trips
      for students more than 10 years earlier, in the absence of more contemporary
      evidence adduced to establish the standard of care to be met by the Teachers,
      is an open question.

[32]

The
      case argued against the Board was essentially that the Teachers had fallen
      below the standard of care to be expected of the prudent parents of a 17
      year old boy in principally two respects.  First, they failed to insist
      that the students take a snowboarding lesson and have their skill level
      assessed to determine what areas of the mountain they should avoid.  Second,
      they failed to adequately monitor the students during the course of the
      day to ensure that by reason of peer pressure or for other reasons they
      were not attempting to do anything that was particularly dangerous.

[33]

While
      the case against the Board may have been supportable, when the evidence
      against Blackcomb is considered, it is difficult to see how, even with
      the benefit of Mr. Jackson's evidence, a jury could attribute any more
      than 15% of the liability to the Board if it meant attributing less than
      70% to Blackcomb.

[34]

The
      evidence tendered against Blackcomb (undefended at trial) was overwhelming.  Blackcomb
      created the Terrain Park containing the hazardous jumps which it advertised
      as available to all snowboarders regardless of ability and from which it
      profited.  Blackcomb's signage regarding the skill level required for the
      jumps in the park was misleading and that was evident to its supervisory
      staff.  In the weeks preceding Mr. Murao's accident, members of Blackcomb's
      staff sustained injuries in the park to the extent that the staff's testing
      of the jumps was actually suspended.  Blackcomb's supervisory staff was
      aware of injuries sustained by paying snowboarders on the very jump where
      Mr. Murao was injured, but no change to that jump was made either before
      or after his tragic fall.  On the day of Mr. Murao's accident, Blackcomb's
      supervision of snowboarding in the park was below its own standards because
      some members of its regular and volunteer staff were not at work.  A Blackcomb
      representative spoke to the students before they disembarked from the bus
      that transported them to the mountain, but he said nothing to warn them
      or the Teachers who were with them about the level of skill required to
      attempt the jumps in the Terrain Park.

[35]

By
      contrast, even with Mr. Jackson's evidence, the case against the Board
      would not support more than the proportion of liability the jury saw fit
      to impose.  It is particularly important that, at the time of his accident,
      Mr. Murao was 17 years old.  He was not a child.  He was old enough to
      be licensed to drive an automobile on public roads and highways  old enough
      to make decisions about his own safety and the safety of others.  The nature
      of snowboarding is such that it challenges participants and requires that
      they make decisions as to what they should attempt.  It appears that the
      students could have been required to take a lesson, but whether there is
      a sound evidentiary basis for concluding that the Blackcomb staff would
      then have made assessments about their abilities and given direction that
      Mr. Murao should not go into the Terrain Park is by no means clear.  Further,
      a failing in the extent of the supervision required by the Teachers, who
      were not themselves accomplished snowboarders, to have prevented the injury
      Mr. Murao suffered could not raise the proportion of the Board's liability
      beyond a modest percentage particularly when compared to Blackcomb's contributing
      conduct and the fact that Mr. Murao must accept a measure of responsibility
      for the decision he made to attempt the jump on which he fell.

[36]

A
      new trial is not warranted.

Disposition

[37]

I
      would dismiss the appeal.

The Honourable Mr. Justice Lowry

I agree:

The Honourable Madam Justice Southin

I agree:

The Honourable
      Mr. Justice Oppal


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

Thornber
                v. Insurance Corp. of British Columbia,

2005 BCCA
            45

Date: 20050126

Docket: CA030675

Between:

James Leigh
      Thornber

Respondent

(
Plaintiff
)

And

Insurance
      Corporation of British Columbia

Appellant

(
Defendant
)

Before:

The Honourable
            Chief Justice Finch

The Honourable
            Madam Justice Prowse

The Honourable
            Madam Justice Levine

D.A. Brindle,
            Q.C.

Counsel for the Appellant

J.L. Straith

Counsel for the Respondent

Place and
            Date of Hearing:

Vancouver, British Columbia

January 10, 2005

Place and
            Date of Judgment:

Vancouver, British Columbia

January 26, 2005

Written
              Reasons by
:

The Honourable
            Madam Justice Prowse

Concurred
              in by:

The Honourable
            Chief Justice Finch

The Honourable
            Madam Justice Levine

Reasons for Judgment of the Honourable Madam Justice
        Prowse:

OVERVIEW

[1]

The
      Insurance Corporation of British Columbia ("ICBC") is appealing
      from the decision of a trial judge, made March 4, 2003, finding that Mr.
      Thornber was entitled to be indemnified by ICBC under his policy of motor
      vehicle insurance for loss he incurred as a result of a single vehicle
      accident in which he was involved on March 29, 2002.  The trial judge awarded
      him damages of $34,560.59, plus costs of substitute transportation up to
      a maximum of $500, and costs of the action at Scale 3.  The trial judgment
      is reported at (2003), 14 B.C.L.R. (4th) 297.

[2]

The
      trial judge concluded that ICBC had acted in bad faith in relation to Mr.
      Thornber's claim and that its conduct in that regard precluded it from
      relying on s. 136(b) of the
Revised Regulation (1984) Under the Insurance
      (Motor Vehicle) Act
, B.C. Reg. 447/83 (the "Regulations"),
      to deny coverage for his loss.

[3]

At
      the hearing of the appeal, counsel for Mr. Thornber did not seek to uphold
      the trial judge's finding of bad faith (which had neither been pleaded,
      nor argued at trial), but submitted that the appeal should be dismissed
      on the basis that ICBC had not established that Mr. Thornber had acted
      to its prejudice in leaving the scene of the accident.

[4]

The
      only issue on appeal, therefore, is whether the evidence supports the conclusion,
      advocated by ICBC, that Mr. Thornber's actions in leaving the scene of
      the accident, contrary to s. 68 of the
Motor Vehicle Act
,
      R.S.B.C. 1996, c. 318 (the "MVA"), prejudiced ICBC within
      the meaning of s. 136(b) of the Regulations.

[5]

Although
      the trial judge did not make a finding with respect to the issue of prejudice,
      counsel for the parties agree that the necessary evidence is before this
      Court to determine that issue and to resolve the appeal without the necessity
      of referring the matter back to the trial court.

BACKGROUND

[6]

The
      accident giving rise to this action occurred near Mr. Thornber's home in
      Sechelt, B.C.  Mr. Thornber was driving home alone from a pub along a stretch
      of road he travelled frequently, when the tires of his truck caught in
      the gravel on a curve in the road, causing his truck to flip over and land
      upside down in a ditch.  Mr. Thornber was able to extricate himself from
      the vehicle and walk to his home, approximately 100 yards away.  He left
      the vehicle with the keys in the ignition and the engine running.  He entered
      his home through a back window, drank a few beers and then fell asleep.

[7]

A
      motorist who came upon the scene called the police.  Police and numerous
      fire personnel attended the scene, removed the truck and searched for bodies.  Eventually,
      Cst. Hill determined Mr. Thornber's address from the vehicle registration
      and he went to Mr. Thornber's home.  After speaking to Mr. Thornber, Cst.
      Hill concluded that Mr. Thornber's ability to drive was impaired and he
      detained him for an impaired driving investigation.  Mr. Thornber agreed
      to comply with a breathalyser demand and advised Cst. Hill that he had
      been drinking both before and after the accident.

[8]

Shortly
      thereafter, Cst. Hill consulted a senior officer who advised not to pursue
      the impaired driving investigation.  The evidence indicates that this advice
      related to the fact that Mr. Thornber had been drinking following the accident,
      and to a "manpower" shortage.  Cst. Hill issued Mr. Thornber
      a 24-hour driving suspension and a ticket for driving "without due
      care and attention" under s. 144(1)(a) of the MVA.

[9]

On
      April 19, 2002, Mr. Thornber gave a statement to an ICBC claims adjuster,
      Ms. Singbeil.  Ms. Singbeil gave Mr. Thornber a letter indicating that
      ICBC was conducting an investigation of the accident and that it would
      refuse to indemnify him if he were in breach of his policy.

[10]

On
      April 19, Ms. Singbeil also telephoned the RCMP to inquire whether Mr.
      Thorner had been given a ticket for failure to remain at the scene of an
      accident.  In speaking with Cst. Hill, she advised that ICBC would not
      provide coverage if Mr. Thornber were charged with impaired driving, failing
      to provide a breath sample, or failing to remain at the scene.  She testified
      that she discussed this issue with Cst. Hill to ascertain whether Mr. Thornber
      would be charged with any of those offences before paying out the claim,
      as she had run into problems in the past in paying out claims before the
      investigations were completed.

[11]

Cst.
      Hill testified that when Ms. Singbeil asked if he had charged Mr. Thornber
      with leaving the scene of an accident "a light bulb went on" in
      his head and he decided to issue a ticket for failure to remain at the
      scene contrary to s. 68(1)(a) of the MVA.  He issued the ticket on April
      28 and advised Mr. Singbeil of this fact on May 2.

[12]

Ms.
      Singbeil subsequently told Mr. Thornber's lawyer that ICBC would pay Mr.
      Thornber's claim only if he successfully disputed the s. 68 charge.  This
      Court was advised that the charge has never proceeded to trial.

RELEVANT LEGISLATION

[13]

The
      provision which ICBC relies on to deny coverage to Mr. Thornber is s. 136(b)
      of the Regulations, which provides:

136   The corporation
      is not liable under this Division

. . .

(b)   to an insured
      who, without reasonable cause and to the prejudice of the corporation,
      fails to comply with section 67 or 68 of the
Motor Vehicle Act
.
      . . .

[14]

Section
      68 of the MVA, in turn, provides, in part:

68   (1)    The driver or operator or any
      other person in charge of a vehicle that is, directly or indirectly, involved
      in an accident on a highway must do all of the following:

(a)   remain at
      or immediately return to the scene of the accident;

THE TRIAL DECISION

[15]

The
      trial judge found that Mr. Thornber failed to remain at or immediately
      return to the scene of the accident and that his actions in leaving the
      scene were unreasonable.  These findings are not challenged on appeal.

[16]

The
      trial judge then embarked on an analysis of whether Mr. Thornber's actions
      in leaving the scene without reasonable cause resulted in prejudice to
      the corporation.  In that regard, she relied on the decision of this Court
      in
Fuson v. Insurance Corp. of British Columbia
(1995), 5
      B.C.L.R. (3d) 128, aff'g (1993), 20 C.C.L.I. (2d) 71, [1993] B.C.J. No.
      2084 (QL) (B.C.S.C.), for the proposition that there was no presumption
      of prejudice, but that the onus was on ICBC to prove prejudice.

[17]

Unfortunately,
      the trial judge never completed the prejudice analysis, but became side-tracked
      by a discussion of bad faith arising, in her view, from the conduct of
      Ms. Singbeil in discussing with Cst. Hill the circumstances in which ICBC
      would deny coverage to Mr. Thornber.  The trial judge reasoned that because
      ICBC had acted in bad faith, it could not deny coverage.

[18]

As
      earlier stated, counsel for Mr. Thornber does not seek to uphold the trial
      judge's finding of bad faith; nor, in my view, is a finding of bad faith
      justified on the evidence.

THE ISSUE OF PREJUDICE

[19]

It
      is common ground that the onus is on ICBC to establish that it suffered
      prejudice arising from Mr. Thornber's failure, without reasonable cause,
      to remain at the scene of the accident.  It is also common ground that
      the words, "to the prejudice of the corporation" in s. 136(b)
      of the Regulations, means "to the detriment of the legal interests
      of the corporation".

[20]

The
      formulation of the test for prejudice under s. 136(b) to which this Court
      was referred is that set out by Mr. Justice Lowry (as he then was) at para.
      13 of the trial judgment in
Fuson
,
supra
, as follows:

It [ICBC] must establish on some evidentiary basis  not on the basis
      of mere speculation  that, because of the insured's failure to comply
      with section 61 or 62 [now ss. 67 and 68] of the
Motor Vehicle Act
,
      it has been denied an opportunity to obtain factual information that may
      (not that would) have been available and that, to some extent, would have
      constituted a defence to the claim for indemnity that is made.  Whether
      information may or may not have been available to the insurer must be determined
      on the strength of the evidence adduced in any given case.  Where the evidence
      does not establish that the insurer may have had a defence, no prejudice
      is proven.

[21]

Although
      this Court did not expressly adopt the test of prejudice set forth in the
      immediately preceding paragraph when it upheld Mr. Justice Lowry's decision
      in
Fuson
, I conclude that it is a useful statement of the
      onus which ICBC has to meet under s. 136(b).

[22]

Counsel
      for ICBC submits that it is apparent from Mr. Thornber's statements to
      the police and his evidence at trial that he had consumed between two and
      four beers over the course of approximately an hour prior to the accident.  He
      submits that Mr. Thornber's actions in leaving the scene precluded the
      police officers and others who attended at the scene following the accident
      from observing him and asking him questions to determine the extent to
      which his drinking may have been causative of the accident.  The police
      were also deprived of the opportunity to make a breathalyser demand at
      the scene before Mr. Thornber had a chance to return home and consume more
      alcohol, thereby compromising the results of any subsequent breath tests.

[23]

Counsel
      for Mr. Thornber submits that it was not the conduct of Mr. Thornber in
      leaving the scene which prejudiced ICBC, but the conduct of the police
      in deciding not to pursue the impaired driving investigation due, in part,
      to a "manpower" shortage.  In the alternative, counsel for Mr.
      Thornber submits that it was open to ICBC to deny coverage to Mr. Thornber
      on the basis that he was driving while impaired whether or not the police
      proceeded with their criminal investigation.  In that regard, counsel stated
      that ICBC could have called expert evidence to prove Mr. Thornber's level
      of impairment at the time of the accident.

[24]

The
      trial judge alluded to the problem presented by Mr. Thornber's failure
      to remain at the scene of the accident and his subsequent consumption of
      beer at para. 19 of her reasons:

As there is no explanation for the accident, it is certainly possible
      that it was caused or contributed to by the effect of alcohol on Mr. Thornber's
      driving at the material time.  [Counsel for ICBC's] submission that the
      insured knew that drinking after the accident would be a potential defence
      to an impaired driving charge has an air of reality although that proposition
      was not put to him.

[25]

Unfortunately,
      the trial judge did pursue her analysis of the evidence in relation to
      prejudice because of her view that the case should be resolved on the basis
      of bad faith.

[26]

The
      question of whether the corporation has been prejudiced within the meaning
      of s. 136(b) of the Regulations will depend on the evidence of each case.  In
Fuson
,
      for example, the plaintiff driver of a vehicle which had been involved
      in a two-car collision walked away from the accident without checking to
      see whether the other driver was injured, or otherwise complying with the
      requirements of s. 136 of the Regulations.  The driver reported the accident
      to the police five hours later and subsequently reported it to ICBC.  ICBC
      denied coverage on two bases, one of which was that the driver had failed
      to remain at the scene of the accident to the prejudice of the corporation.  ICBC
      submitted that it was prejudiced because, if the driver had remained at
      the scene of the accident, the police may have determined that his ability
      to drive was impaired by consumption of alcohol, thereby affording ICBC
      an absolute defence to his claim for coverage.  In rejecting that claim,
      Mr. Justice Lowry stated (at para. 6):

But, apart from any inference that might be drawn from Mr. Fuson having
      fled the scene, there has never been any evidentiary basis for the insurer's
      speculation.  Mr. Fuson says that he consumed only two beers during the
      Friday evening, some hours before the accident.  There is absolutely no
      positive evidence that even suggests his ability may have been impaired.  The
      unchallenged testimony of his passenger is that it was not and the insurer
      led no evidence from others who are known to have been with Mr. Fuson before
      and very shortly after the accident.

[27]

In
      this case, however, there is evidence that Mr. Thornber had been drinking
      alcohol between 8:00 and 9:15 p.m., a short time before the accident occurred.  The
      evidence did not disclose any apparent reason for the accident, which occurred
      in good driving conditions on a road familiar to Mr. Thornber, who was
      a professional truck driver.  There was a reasonable basis on that evidence
      from which an inference could be drawn that Mr. Thornber's alcohol consumption
      may have been related to the accident.  But that evidence, standing alone,
      may not have been sufficient to permit ICBC to deny coverage.  Had Mr.
      Thornber remained at the scene, the police and others would have had the
      opportunity to observe Mr. Thornber and to speak with him.  Those observations
      could have enabled the police, in particular, to ascertain the extent to
      which the alcohol which Mr. Thornber had admittedly imbibed, had affected
      his ability to drive.

[28]

By
      the time Cst. Hill spoke with Mr. Thornber and formed the opinion that
      he was impaired by alcohol, Mr. Thornber had consumed more alcohol, thereby
      interfering with the probative value of any subsequent breathalyser reading.  Counsel's
      suggestion that the same problem would have arisen if Mr. Thornber had
      consumed more alcohol at the scene before the police arrived is pure speculation
      and does not assist in this analysis.

[29]

Nor
      is it an answer to say that ICBC was not prejudiced because it could have
      attempted to establish Mr. Thornber's level of intoxication at the time
      of the accident by the use of expert evidence.  In that regard, Mr. Thornber's
      departure from the scene made it difficult to accurately determine the
      time of the accident, a fact which is critical to an expert's analysis.  Further,
      the possibility that ICBC may have been able to establish Mr. Thornber's
      impairment through expert evidence does not detract from the fact that
      Mr. Thornber's actions deprived ICBC of potential evidence of impairment
      which could more readily have justified it in denying coverage.

[30]

In
      summary, unlike the situation in
Fuson
, the relationship
      between alcohol consumption and the accident in this case was not based
      on pure conjecture, but on a reasonable inference from the evidence.  The
      result of Mr. Thornber leaving the scene was to deprive the police, and,
      ultimately ICBC, of further factual information "that may (not that
      would) have been available and that, to some extent, would have constituted
      a defence to the claim for indemnity that is made."

[31]

In
      the result, I conclude that the evidence supports the conclusion that ICBC
      was prejudiced by Mr. Thornber failing, without reasonable cause, to remain
      at the scene of the accident.

CONCLUSION

[32]

I
      would allow the appeal, set aside the order under appeal, and dismiss Mr.
      Thornber's action.

[33]

I
      would also award the appellant its costs of the trial and of the appeal.

The Honourable
Madam Justice Prowse

I Agree:

The Honourable
Chief Justice Finch

I Agree:

The Honourable
Madam Justice Levine


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

B.B. v. British Columbia (Director of Child, Family and Community Services),

2005
            BCCA 46

Date: 20050127

Docket: CA031162

Between:

B.B. and T.B.

Appellants

And

Director of Child, Family and Community Services

Respondent

And

In The Matter Of The Children C.R.
        born December 20, 1991 and R.R. born May 25, 1989

And

In The Matter Of The Child K.B. born
        February 14, 1992

Before:

The
            Honourable Chief Justice Finch

The
            Honourable Madam Justice Huddart

The Honourable Mr. Justice Smith

D.
            O'Donnell

Counsel for the Appellants

K.
            Mundstock

Counsel for the Respondent

Place
            and Date of Hearing:

Vancouver, British Columbia

2 November 2004

Place
            and Date of Judgment:

Vancouver, British Columbia

27 January 2005

Written Reasons by
:

The
            Honourable Madam Justice Huddart

Concurred in by:

The
            Honourable Chief Justice Finch
The Honourable Mr. Justice Smith

Reasons for Judgment of the Honourable
        Madam Justice Huddart:

Introduction

[1]

This
      appeal is about the consequences of the use of a temporary custody order
      made by consent under s. 60 of the
Child, Family and Community Service
      Act
, R.S.B.C. 1996, c. 46 to an application for continuing custody
      under s. 49 of the
Act.

[2]

Section
      60 is used commonly to permit the Ministry of Children and Family Development
      and the Provincial Court to provide services children and their parents
      require, without making a finding that a child is in need of protection.  It
      permits parents and the Director of Child, Family and Community Services
      to plan for the future care of a child without court adjudication of factual
      disputes.  Sections 41(1)(d) and 49(4)(5) permit the Provincial Court
      to make an order of continuing custody in favour of the Director.  Following
      a continuing custody order the child's relationship with his or her parents
      may be terminated and the child may be adopted.  The Director becomes the
      guardian of the person of the child, and the Public Guardian and Trustee
      becomes the guardian of the child's estate.  Section 41(1)(d) applies following
      a finding of a need for protection at a protection hearing.  Section 49(5)
      applies following a period of temporary custody.  These two provisions
      mandate different tests for determining whether a continuing custody order
      can be made.  The ultimate question on this appeal is to determine which
      test applies where the temporary custody order was made by consent, without
      a finding or acknowledgment of a need of protection.

[3]

At
      the root of this case is a mothers inability to cope with the very troubled
      behaviour of her two sons, frequently in conflict with each other.  It
      is not in dispute that the mother loves her sons and does the best she
      can with minimal resources.

[4]

On
      13 December 2002, Judge C.J. Rounthwaite made orders following an extended
      hearing regarding the appellants three children.  On 11 June 2003, Grist
      J. dismissed appeals from all three orders.  While all three of his orders
      were appealed, the parties have settled their dispute over the orders relating
      to R.R. and K.B.  This appeal concerns only the order granting continuing
      custody of C.R., the son of the appellant, T.B., to the Director.  C.R.
      is now 13 years old.

[5]

The
      appellants ask that the order regarding C.R. be set aside, and that a new
      hearing be ordered to determine whether a last chance order under s.
      49(7)(b) is appropriate.  They submit that Rounthwaite P.C.J. erred when
      she applied the test set down in s. 49(5) to determine whether a continuing
      custody order was required for C.R.  In their view, she should have applied
      the test set down in s. 41(2), after she found C.R. in need of protection.

[6]

The
      appellants also expressed the view that the hearing with regard to C.R.
      was overwhelmed by the attention necessarily given to the more serious
      problems of his older brother, but did not suggest that complaint gives
      rise to a question of law.  Rather, they consider these problems distracted
      the trial judge into error.

[7]

In
      his reasons granting leave to appeal, Oppal J.A. wrote this:

The appellants have raised an interesting and
      intriguing legal issue as to the appropriate section for making a continuing
      custody order where there has been neither a protection hearing nor a finding
      that a child is in need of protection but there has been only a temporary
      order made under s. 60. Protection hearings are held under s. 37(1) and
      findings under that section are made under s. 40(1). In this case the trial
      judge made her order under s. 49. Under s-s. (5) of that section a court
      may order that a child be placed in the continuing custody of the Director
      if there is no significant likelihood that:

(a) the circumstances that led to the child's
      removal will improve within a reasonable time; or,

(b) the parent will be able to meet the child's
      needs.

On the other hand s. 41(2) states that following
      a protection hearing a court may not order that a child be placed in the
      continuing custody of the Director
unless:

(a) the identity or location of a parent of the
      child has not been found after a diligent search and is not likely to be
      found;

(b) a parent is unable or unwilling to resume
      custody of the child; or,

(c) the nature and extent of the harm the child
      has suffered or the likelihood that the child will suffer harm is such
      that there is little prospect it would be in the child's best interests
      to be returned to the parent.

The appellants have argued that there is no statutory
      or even logical basis for applying to a continuing care application that
      followed a period of temporary consent custody, the test found in s. 49
      rather than the more stringent test found in s. 41 which is applied to
      continuing care applications in the first instance. It is argued that by
      applying a less stringent test in a situation where a temporary consent
      order has been made is to penalize parents who cooperate with the Director
      in order to act in the child's best interests. As well, it is argued that
      because s. 60 is important for the purposes of case management it is a
      matter of some significance whether the test for continuing care applications
      for after a period [of] temporary custody by consent differs from
a continuing care application in the first instance.

[8]

It
      does not appear Grist J. was asked to address this alleged error.

The Statutory Scheme

1.  Guiding
        Principles

[9]

In
      s. 2 of the
Act,
the Legislature set down the principles
      that must guide consideration of this legal issue:

2
.
This Act
      must be interpreted and administered so that the safety and well-being
      of children are the paramount considerations and in accordance with the
      following principles
:

(a)
      children are entitled to be protected from abuse, neglect and harm or threat
      of harm;

(b)
      a family is the preferred environment for the care and upbringing of children
      and the responsibility for the protection of children rests primarily with
      the parents;

(c)
      if, with available support services, a family can provide a safe and nurturing
      environment for a child, support services should be provided;

(d)
      the child's views should be taken into account when decisions relating
      to a child are made;

(e)
      kinship ties and a child's attachment to the extended family should be
      preserved  if possible;

(f)
      the cultural identity of aboriginal children should be preserved;

(g)
      decisions relating to children should be made and implemented in a timely
      manner.

[10]

Under
      s. 30(1), the Director may remove a child (i.e. take a child into his
      care) if he has reasonable grounds to believe the child needs protection
and
the
      childs health or safety is in immediate danger, or no other less disruptive
      measure that is available is adequate to protect the child.  One such alternative
      measure is a supervision order under s. 29.1.

[11]

Section
      13 lists the non-exhaustive circumstances when a child is deemed to be
      in need of protection.  In
S. (B.) v. British Columbia (Director
      of Child, Family and Community Service)
(1998), 48 B.C.L.R. (3d)
      106 (C.A.), this Court held the provisions of s. 2 can be invoked to ensure
      protection of a child when the precise requirements of s. 13(1) cannot
      be met with sufficient certainty.

2.  Presentation Hearings

[12]

There
      are two stages to a protection proceeding: the presentation hearing (s.
      35) and the protection hearing (ss. 37-40).

[13]

The
      presentation hearing, designed to ensure that a child is not arbitrarily
      taken into care, is to be begun no later than 7 days after the day a child
      is removed (s. 34(1)), to be summary and concluded as soon as possible
      (s. 33.3).  For that hearing, the Director is required to provide a written
      report that includes the circumstances causing the removal of the child,
      an interim plan of care for the child, and information about any less disruptive
      measures he considered before removing the child.  The focus of the hearing
      is on providing appropriate care arrangements for the child until a protection
      hearing can take place.  Both the Director and the parents may call
viva
      voce
evidence, but it must be brief:
British Columbia (Director
      of Child, Family and Community Service) v. R.F
., [1996] B.C.J.
      No. 1979 (S.C.).

[14]

At
      a presentation hearing the practice of the Provincial Court is to resolve
      any conflict in the evidence in favour of the Director and not to make
      any findings of credibility, leaving the resolution of such conflicts to
      the protection hearing, unless the facts the Director seeks to establish
      are manifestly wrong or untrue or unlikely to have occurred:
Re J.(A.)
,
      [1996] B.C.J. No. 2786 (Prov. Ct.),
Re S.(R.A.),
[1996] B.C.J.
      No. 2227 (Prov. Ct.),
Re B.S.(J.)
(19 August 1997), Vancouver
      97-9790 (Prov. Ct.), and
Re M.(S.)
, [1998] B.C.J. No. 2204
      (Prov. Ct.).

3.  Protection Hearings

[15]

Following
      a presentation hearing the court may return the child to a parent apparently
      entitled to custody with or without supervision by the Director or to a
      third person with supervision by the Director, or order the child remain
      in the custody of the Director.  When an interim custody order is made,
      the court must set the earliest possible date for the protection hearing
      (s. 37(1)) unless the interim order was made by consent under s. 60.  In
      either event, the protection hearing must commence no more than 45 days
      after the conclusion of the presentation hearing.  In practice, a protection
      hearing is commenced within 45 days, but the commencement is a mere formality.  The
      substantive hearing may be held months to years later, in part because
      of the minimal court time available for contested protection hearings.  Under
      s. 38(1) of the
Act,
a copy of any plan of care the Director
      intends to present to the court, together with notice of the order he intends
      to request, must be delivered to the parents and the child, if over 12
      years of age, at least 10 days before the protection hearing, unless the
      parent and any other person entitled to notice agree to wait until a later
      date for that information (s. 38(2)).

[16]

The
      first task of the court at a protection hearing is to determine whether
      the child was in need of protection at the date of removal.  If the child
      is not found to be in need of protection, the court will return the child
      to the parent apparently entitled to custody and terminate any interim
      order.  If the child is found in need of protection, the court must consider
      the plan of care presented by the Director and may hear other evidence
      as it considers necessary to determine what order should be made in the
      childs best interests (s. 40).

[17]

The
      disposition options provided by s. 41(1) are that the child be returned
      to or remain with the parents for up to six months or with another willing
      person for from three to 12 months depending on the age of the child, in
      either event under the Directors supervision, or that the child remain
      or be placed in the Directors temporary custody or continuing custody.  Section
      41(2) precludes a continuing custody order being made at a protection hearing
      unless a parent is missing and unlikely to be found or is unable or unwilling
      to resume custody of the child, or

(c) the nature and extent of the harm the child
      has suffered or the likelihood that the child will suffer harm is such
      that there is little prospect it would be in the childs best interests
      to be returned to the parent.

[18]

Upon
      the expiry of an order granting temporary custody to the Director or a
      third person, the child may be returned to the parent under the Directors
      supervision for a period of up to six months (s. 41(1.1)).  Before a temporary
      supervision or custody order expires, the Director may apply for an extension
      to it (s. 44(1)) if he considers the circumstances that caused the child
      to need protection are likely to improve within a reasonable time.  Extension
      orders are also permitted if an application for an extension or for continuing
      custody is adjourned (s. 61).  However, the total period of time a child
      may remain in the Director or a third persons temporary custody depends
      with the childs age (s. 45).  Once it expires, the child must be returned
      to his parents, unless a continuing custody order is made earlier, or a
      court exercises its power under s. 45(1.1) to extend that time limit in
      the childs best interests.

4.  Continuing Custody
        Orders

[19]

The
      Director may apply for a continuing custody order under s. 49(1) not sooner
      than 60 days before a temporary custody order expires.  If a childs parent
      is missing and not likely to be found or is unable or unwilling to resume
      custody the court must make a continuing custody order (s. 49(4)).  Otherwise,
      the court must consider (s. 49(6))

(a) the past conduct of
      the parent towards any child who is or was in the parents care,

(b) the plan of care,
      and

(c) the childs best interests

and conclude
      pursuant to s. 49(5) that

there is no significant likelihood that

(a) the circumstances
      that led to the childs removal will improve within a reasonable time,
      or

(b) the parent will be able to meet the childs
      needs.

[20]

If
      the evidence does not establish one of these criteria, and the court does
      not make a continuing custody order, s. 49(7) provides the mechanism for
      bringing a protection proceeding to an end.  Under that provision, the
      court can order the return of the child to the parent apparently entitled
      to custody or

that the child remain in the temporary
      custody of the director or a person other than the parent for a specified
      period of up to 6 months.

This is the last chance order the
      appellants seek in this case.  At the expiry of that order, s. 49(10) requires
      the court to order the childs return to his or her parents or continuing
      custody in the Director, having regard to the factors in s. 49(6).

Background

[21]

The
      appellants acknowledge that, realistically, they cannot take C.R. home
      now, that he was and continues to be in need of protection, but they say
      the evidence permitted a finding that there was some prospect it would
      be in C.R.s best interests to return to their care after a further six
      months in the Directors custody.  Such a finding at a protection hearing
      would preclude a continuing custody order under s. 41(2).

[22]

Judge
      Rounthwaite applied the less stringent test for continuing custody under
      s. 49(5) by asking herself whether there is a significant likelihood that
      the circumstances which led to the removal will improve within a reasonable
      time, or that the parents will be able to meet the boys needs.  But first,
      because there has been no protection hearing, she determined C.R. had been
      in need of protection on the date the Director removed him from his parents
      care.

[23]

There
      is no provision in the
Act
expressly requiring a court to
      find a child in need of protection before considering a continuing custody
      order under s. 49.  That requirement derives from the construction of the
Act
by
      the Provincial Court.  In
Re S.(J.)
,
1998 WL 1727473
      (B.C. Prov. Ct.), Rae P.C.J. explained how consent orders are used in protection
      matters (at para. 3):

A section 60 consent to an order is
      a new procedure introduced when the new legislation was proclaimed in 1996.
      It provides a means for parents and the Director to agree to a disposition
      with respect to children without the necessity of a court hearing. It is
      a private arrangement between the parents and the Director and can be accomplished
      entirely outside the court process,
although
      it is probably necessary to file the consents required by the section and
      an order saying that the parents have consented to a section 60 order and
      setting out the terms. I say that because it seems to make sense from a
      procedural point of view, but there is no specific direction in the legislation
      to that effect. In the Lower Mainland at least, the practice has developed
      to speak to these matters in court, although I suspect that practice varies
      in other parts of the province where the public does not have daily access
      to a court sitting. Usually the order specifies that the parties agree
      to a s. 41 or a section 49 order by way of section 60. The parties can
      agree to any order in this manner except for a s. 35 order for interim
      custody of the children. Section 60 provides that for example if the parties
      agree to a section 60 order for temporary custody for three months and
      disagree with the Director when they seek an extension order, the parents
      then have the option of going to court to have a judge decide whether an
      extension order is appropriate. The parents have the option of choosing
      to agree to a section 60 consent or to opt back into the court process
      for a hearing at any stage of the process.
What is not at all clear
      in the legislation is whether or not the Director has to justify the original
      removal once the parents have opted back into the court process after initially
      agreeing to a section 60 consent. That justification for the original removal
      is referred to as a section 40 "finding" that the child needs
      protection. The time frame for that "finding" is the date of
      removal.

[Emphasis added.]

[24]

At
      para. 7, Rae P.C.J. held that the parents consent to a temporary order
      does not preclude the need for a finding of protection under s. 40, writing:

As I read section 41 it contemplates
      a hearing and the making of a finding under section 40. The only way to
      avoid this is for the parents to enter into a section 60 consent with respect
      to any subsequent stages of the proceedings. If the parents have agreed
      that the Director have temporary custody of the children pursuant to s.
      60, but disagree with the Directors request for a continuing custody order
      under s. 49, they are entitled to an adjudication as to the reasons for
      the removal. There has in fact never been a protection hearing pursuant
      to s. 41. Had the legislature intended to deny the parents who consent
      pursuant to s. 60 the right to this adjudication they would have done so
      in clear and unmistakable language.
I am satisfied that it is necessary
      to make a section 40 finding before proceeding to a hearing under s. 49.

[
Emphasis added.]

[25]

Counsel
      for the Director does not take issue with the highlighted rule.  Moreover,
      she agrees that the finding under s. 40 must be made from the date the
      children were removed from their parents care.  I agree with both propositions
      and thus, with the approach Rounthwaite P.C.J. took to the Directors application
      for continuing custody of C.R.  This approach has the important advantage
      of providing a baseline for the assessment of a childs needs and parents
      capacities under s. 49, just as it does for one under s. 41.  On applications
      under both sections, the circumstances that led to the childs removal
      are fundamental to the choice of the appropriate order.  It also permits
      the Court to make findings of fact about the parents reasons for consenting
      to a temporary custody order.  Those reasons are likely to be an important
      circumstance to be considered on a continuing custody application.

[26]

Rounthwaite
      P.C.J. first determined whether C.R. was in need of protection on 27 October
      2000, and if he was, why that was so.  On page three of her decision, Rounthwaite
      P.C.J. said this:

The boys were in need of protection at the time of their removal
      in October, 2000, having been emotionally harmed by the parents conduct.  Witnesses
      describe the boys fighting, screaming, being out of control, while the
      parents intervention was inappropriate and harmful, or ineffective.  [R.R.]
      was suspended from school, while [C.R.s] behaviour in running away put
      him at risk.  Both parents were unable to cope, as evidenced by the numerous
      Ministry intakes, the repeated calls to family support worker, and the
      eggnog incident.  Indeed, the parents recognized they were unable to provide
      the children with the help they needed, and subsequently requested a return
      to care.

[27]

No
      dispute is taken with these findings.  The appeal arises from the following
      conclusions that Rounthwaite P.C.J. made on page four:

The evidence equally is clear that
      there is no significant likelihood that the circumstances which led to
      the removal will improve within a reasonable time, or that the parents
      will be able to meet either of the boys needs. To the parents credit,
      they actively sought help for their children, by consenting to the temporary
      custody orders. They have continued to take courses in an effort to improve
      their parenting skills, such as Nurturing Fathers and Families First. Nevertheless,
      the boys special needs require a degree of specialized parenting, intensive
      supervision and consistent structure which is beyond the capacity of the
      parents.  This is clearly evident through the whole of the evidence and
      the expert reports filed.

In making the order for continuing custody, I have considered
      the parents past conduct, the plan of care, and the childrens best interests.
      The parents uncertain plans to move to Alberta with [C.R.] have been made
      without thought for him, his continued need for services and the significant
      relationships he has developed. It was noticeable that while [the mother]
      had checked to ensure the continuation of her own schooling, she had done
      nothing to ensure necessary services for [C.R.].

[28]

The
      appellants submit that the distinction between the test the trial judge
      applied in this case and the test the appellants argue she should have
      applied has assumed greater importance.  In their view, this is so because
      the Provincial Court has interpreted s. 49(5) as placing the onus on parents
      to establish a significant likelihood that the child protection concerns
      will improve within a reasonable time, or that they have made sufficient
      changes to now make it in the childs best interests to return home:
D.P.R.
      (Re)
, [1996] B.C.J. No. 2298 (Prov. Ct.),
British Columbia
      (Director of Child, Family and Community Services) v. K.W.
, [2003]
      B.C.J. No. 767 (Prov. Ct.).

[29]

In
      the appellants view, this understanding of s. 49(5) places an unfair burden
      on parents because the guiding principle of the protection regime is that
      a family is the preferred environment for the care and upbringing of children
      and the responsibility for the protection of children rests primarily with
      the parents.  Thus, they argue that parents may be discouraged from consenting
      to orders that permit the Director to provide help they know their children
      need that they cannot provide.

[30]

Moreover,
      they submit, s. 41 applies whenever a court finds a child needs protection
      under s. 40.  Thus, the Director must meet the little prospect test under
      s. 41(2), whenever a court makes a finding a child is in need of protection,
      whether that finding is made on an application for temporary custody, extension
      of temporary custody, or continuing custody.

[31]

Alternatively,
      the appellants maintain that the trial judge did not fulfil her obligations
      under s. 49(5), even if she was entitled to apply the "no significant
      likelihood" test in preference to the "little prospect" test
      in s. 41(2).  They see nothing in her reasons to suggest she gave serious
      consideration to a last chance order after making her findings as to the
      reasons for the original removal of C.R.

[32]

The
      appellants find error in the reasons of Grist J. because he considered
      the trial judge had only three options: return of C.R. to his parents,
      a further temporary order not to exceed two months, or a continuing care
      order.  In their view, a last chance order could have been made for another
      six months and the decision to order continuing custody could be made only
      if a six months last chance order had no significant likelihood of success.  Had
      Grist J. concluded that a last chance order for six months was an option,
      they submit he would have remitted the matter to the trial judge for a
      new hearing, because she missed or undervalued the evidence that supported
      potential for improvement and the return of C.R. to their care in a reasonable
      period of time.  They acknowledge as understandable his conclusion that
      C.R. could not return to them within two months.

Discussion

[33]

The
      issue we need to decide is whether it was error in principle to apply the "no
      significant likelihood" test to an application under s. 49 that first
      required a finding that C.R. was in need of protection.  I am persuaded
      that Rounthwaite P.C.J. did not err in her interpretation or application
      of s. 49.  I am satisfied that the Provincial Courts established practice
      is that which was intended by the Legislature when it enacted ss. 60 and
      49.  Moreover, I am not persuaded that practice is unfair to parents who
      consent to temporary custody orders because they acknowledge they need
      help in caring for their children.

[34]

This
      Court noted in
J.(L.) v. British Columbia (Director of Child, Family & Community
      Services)
(2000), 78 B.C.L.R. (3d) 233, 2000 BCCA 446 at paras.
      26, 28 and 34 that, despite the unavoidable adversarial quality to protection
      proceedings, the thrust of the
Act
is to provide solutions
      for unsatisfactory home situations including supervisory orders and the
      provision of support services to assist the parents (para. 28).  To that
      end, proceedings must be as flexible and informal as is consistent with
      fairness.  The primary goal is to reach a consensual resolution.  Absent
      such a resolution, a court will be obliged to make the order or orders
      it thinks fit based on the state of the current evidence before it (para.
      26).  The scheme of the
Act
envisages an evolving process
      whereby a court is enabled, on the best evidence currently available, to
      decide what should be done concerning the custody and care of children
      (para. 34).  To like effect is the discussion of Ontarios comparable legislation
      in
Catholic Childrens Aid Society of Metropolitan Toronto v. C.M.
,
      [1994] 2 S.C.R. 165; 113 D.L.R. (4th) 321 at 395
per
LHeureux-Dubé J.

[35]

With
      that understanding of the disposition aspect of a protection proceeding,
      any discussion of onus or burden of proof is misplaced.  This aspect of
      the proceeding should not begin with a general rule that a party will be
      unsuccessful unless he or she satisfies a specific burden of proof.  The
      parties, whether the Director, the parents, or an interested third person,
      all bear the evidentiary burden of demonstrating the most appropriate care
      plan for a child.  Once the Director has established on the balance of
      probabilities that a child is in need of protection and the court has made
      that determination, whether on an application under s. 41 or s. 49, the
      court must assess the evidence before it to determine the appropriate care
      arrangement within the strictures imposed by the
Act
.  Until
      a continuing custody order is made, the duty to determine what care arrangement
      is most appropriate for a child lies with the court, not with the Director
      or the parents, unless they agree.  No general rule should deflect the
      courts attention from the necessary inquiry into the childs needs and
      the parents ability to meet them, with such support as the community is
      able to provide.  As McLachlin J. (as she then was) wrote of an inquiry
      into the best interests of a child directed by the
Divorce Act
,
      so here, the inquiry into the appropriate disposition after a finding a
      child is in need of protection, "should not be undertaken with a mindset
      that defaults in favour of a preordained outcome absent persuasion to the
      contrary:
Gordon v. Goertz
, [1996] 2 S.C.R. 27 at para.
      44.

[36]

As
      for the appellants alternative submission, that Rounthwaite P.C.J. erred
      in her application of the s. 49(5) no significant likelihood test, I
      cannot think of any circumstance where a judge hearing an application for
      a continuing custody order could make a last chance order without also
      finding there was a significant likelihood that the circumstances leading
      to the removal would improve or that the parents would be able to meet
      the childs needs within a reasonable period of time.  The wording of s.
      49(7) reflects that reality.  To delay the inevitable is unlikely ever
      to be in a childs best interests.  If the evidence justified a last chance
      order, it would inevitably preclude a continuing custody order.

[37]

With
      this understanding of protection proceedings, a less stringent test for
      a continuing custody order following a period of temporary custody makes
      good sense and fits well within the child protection regime structured
      by the
Act
.  A s. 41(1) order is made early in protection
      proceedings before parents have been given the opportunity to obtain services
      designed to address the concerns that led to their childs removal.  By
      the time an application for continuing custody under s. 49(5) can be made,
      the parents will have had at least two months in which to address the protection
      concerns, and often a year or more.  It necessarily follows that the court
      will have considerably more evidence from which to determine the childs
      needs and the parents capacity to meet them at the time of removal, any
      changes in those needs and capacity, and the potential for future change.

[38]

Although
      a lack of resources seems to seriously hamper the Provincial Court and
      the Director in their efforts to fulfil the promise of the
Act
,
      the Director asks this Court not to forget that one of the
Act
's
      fundamental premises is that a child is entitled to a decision made and
      implemented in a timely manner.  In the Directors view, a requirement
      that all continuing custody applications following temporary consent custody
      orders be heard under s. 41, would preclude any protection proceeding being
      completed within a reasonable period of time, or within the time frame
      set down by the Legislature, albeit rarely accomplished in practice.

[39]

I
      do not see this as a problem.  First, the requirement for a s. 40 finding
      as a first step in a s. 49 continuing custody application is not a requirement
      for a s. 41 hearing. The need for that disposition hearing is what is obviated
      by the consent order under s. 60.  Second, the overall time limit for temporary
      custody applies whether or not a s. 40 finding has been made.  A court
      can extend the maximum period of temporary custody only in the childs
      best interests (s. 45(1.1)).  No one suggested s. 45 does not apply when
      an initial temporary custody order is made by consent under s. 41(1)(c).

[40]

Such
      a suggestion may be implicit in the reasons of Collings P.C.J. in
Re
      L
(16 June 1999), Vancouver 96-09119 (Prov. Ct.).  When he was
      confronted with the practical difficulty of making a protection finding
      in June 1999 after a consent temporary custody order was made in October
      1997 and extended in 1998, he had no hesitation in treating his protection
      order as though it had been made at the date of the first temporary custody
      order.  He made the protection finding
nunc pro tunc
, and back-dated
      it to 20 October 1997.  He saw that solution as reflecting reality, precluding
      a new 18-month temporary custody ceiling, and encouraging timely decisions.  I
      am of the view that Collings P.C.J. was wrong to imply that the time limitation
      on temporary custody orders does not run from an initial order made by
      consent.  In my view it does, subject to any extension required by the
      childs best interests.

[41]

The
      Director also suggests such a requirement would be a disincentive to the
      use of consents under s. 60.  I cannot accept that the Director would consent
      less often to temporary custody orders for this reason.  Parents would
      be more likely to find the more stringent test for continuing custody an
      attractive inducement to consent.

[42]

I
      do not accept that serious negative consequences would flow from adopting
      the interpretation of the
Act
put forward by the appellants.  Although
      I can understand the benefit to parents of that interpretation, I cannot
      accept it as the right one.  This is because a court may not choose whatever
      meaning it considers would be fairest to parents, but rather, must read
      the words of a statute in their entire context and in their grammatical
      and ordinary sense harmoniously with the scheme of the
Act
,
      the object of the
Act
, and the intention of Parliament:
      E.A. Driedger,
Construction of Statutes
(2nd ed. 1983), at
      87.
In my view, the established practice of the Provincial Court
      exemplified in the reasons of the trial judge in this case reflects the
      correct interpretation of the
Act
.

[43]

I
      would summarize the effect of that interpretation this way. Consent under
      s. 60 to an order of temporary custody under s. 41(1)(c) does not preclude
      the need for a s. 40 finding of need of protection.  It does preclude the
      need for a disposition hearing other than whatever may be required to ensure
      full compliance with s. 60.  The temporary custody order triggers the running
      of time under s. 45 and the right of the Director to seek a continuing
      custody order under s. 49.  On that application, the Director must establish
      on a balance of probabilities the childs need for protection at the date
      of removal, unless that finding has been made on an earlier application
      to extend a temporary custody order (s. 44).  Once the court has made that
      finding under s. 40, it may consider whether to make a continuing custody
      order, and if not, whether to return the child to the parents or to make
      a last chance order.

[44]

I
      accept that Grist J. erred when he said that a last chance order could
      be made for only two months, but there is no suggestion the trial judge
      made that mistake.  Rather, the appellants submit she erred in her application
      of the no significant likelihood test.  In their view, the evidence suggested
      the potential for sufficient improvement for C.R. to return to their care
      within six months, given appropriate support.  The trial judge either ignored
      that evidence, or effectively placed the onus on them to establish a significant
      likelihood, rather than on the Director to establish no significant likelihood
      of improvement in the circumstances that led to C.R.s removal during the
      period of a six-month last chance order.

[45]

As
      I noted earlier, the question of onus or burden of proof in disposition
      proceedings is misplaced.  The question is what the evidence reveals.  No
      significant likelihood of a change in C.R.s needs or the appellants capacity
      within six months or any period of time emerges from the record.  The evidence
      was persuasive that control of C.R.s behaviour was simply beyond the appellants
      emotional and intellectual resources.  The improbability of future improvement
      in their capacity is evident from the history of this proceeding.

[46]

On
      27 October 2000, the Director removed C.R., then eight years of age, and
      R.R., then 11, from the care of the appellants, their mother and step-father.  A
      contested presentation hearing was held on 17 December 2000.  The record
      does not provide any reason for the delay following C.R.s removal two
      months earlier.  Nor does it explain why the presentation hearing was not
      held within the seven days during which the Director "must attend
      the court for a presentation hearing as required by s. 34(1).  The parents
      co-operative attitude throughout this proceeding suggests they did not
      object to the delay because C.R. was receiving the help he needed.

[47]

Following
      the presentation hearing, Rounthwaite P.C.J. returned the children to the
      appellants under the Directors supervision pending the commencement of
      a protection hearing set for 1 February 2001.  At the formal commencement
      of the protection hearing that day, the parents and the Director consented
      to an order under ss. 60 and 41 of the
Act
, that C.R. remain
      in the care of the Director until 28 June 2001.  On 21 June 2001, they
      consented to an extension of temporary custody until 21 October 2001.  Throughout
      this time, the plan (of both the parents and the Director) was that C.R.
      would return to his parents care.  The parents saw the consent orders
      as being in C.R.s best interest, because temporary custody permitted him
      to receive specialized care he would otherwise have been unable to access.

[48]

Clearly,
      no one anticipated the issues regarding C.R.s care were going to be resolved
      quickly.  That proved to be true.  Three days after he applied for a continuing
      custody order under s. 49, the Director filed a Court Plan of Care, to
      be reviewed in May 2002.  From the record, it appears the next step in
      the protection proceeding took place on 11 October 2001, when Hay P.C.J.
      ordered that a case conference be held on 19 October 2001.  On 28 November
      2001, Rounthwaite P.C.J. ordered the parties to attend a pre-trial conference
      on 10 April 2002 and that the protection hearing continue on 29 May 2002.

[49]

By
      the time the first witness was called on 11 July 2002, C.R. had been in
      the Directors care for almost 18 months, the maximum period of temporary
      custody allowed in his case by s. 45.  During the ongoing proceeding, Rounthwaite
      P.C.J. made orders under s. 45(1.1) on 21 August 2002 and 4 November 2002
      extending that period.

[50]

We
      are advised such delays are not uncommon in protection cases, and are one
      consequence of family cases being heard at Chilliwack only two days each
      month, during which time the Provincial Court is asked to deal with all
      matters under the
Family Relations Act
, R.S.B.C. 1996 c.
      128 as well as protection cases.  Fortunately, for all that time C.R. was
      placed with the same specialized foster care giver.  That delay might have
      benefited the appellants, had they been able to martial their resources
      and develop the capacity to help their son, or had C.R. made sufficient
      improvement with that care to return to the care of the appellants.  Neither
      happened.

[51]

The
      hearing of the Directors application took place over six days between
      11 July and 4 November 2002.  The appellants told Rounthwaite P.C.J. that
      they were moving to Alberta where Mr. B. had a prospect of employment.  They
      wanted C.R. returned to their custody at the end of the school year or,
      alternatively, a "last chance order" under s. 49(7) with a transfer
      of C.R. to the Ministry of Childrens Services in Alberta.  They understood
      that R.R. needed to stay in care and that it was in the best interests
      of Mr. B.s daughter (the subject of the third order of Rounthwaite P.C.J.)
      to be adopted, but disagreed with the Director about the nature and extent
      of their continuing role in the lives of these two children.  As I noted
      earlier, they have been able to reach an agreement with the Director about
      the continuing care of R.R. and K.B.  They have also decided to remain
      in British Columbia permanently.

[52]

Rounthwaite
      P.C.J. granted the Directors application for continuing custody of C.R.
      on 13 December 2002.  By then, C.R. had been in his temporary custody for
      almost two years.  The appellants acknowledge they were not then in a position
      to take C.R. home, and that to do so would not have been in his best interest
      at that time.  They understand that he needed care they could not then
      provide.  Two more years have passed.  There is no evidence anything has
      changed beyond a passing mention during submissions that C.R. is no longer
      in the same foster home.

[53]

It
      is not in dispute that C.R. has special needs and requires expert care.  He
      has a chronic traumatic stress disorder, exhibits aggressive behaviour
      to both children and animals, and has been described by a teacher as "very
      troubled".  Like his older brother, he has been damaged and is said
      to be "out of control".  Rounthwaite P.C.J. found that both boys
      were emotionally harmed by their parents.

[54]

Grist J. upheld the order on appeal to the Supreme Court under s.
      81(1) of the
Act
.  In doing so, he was guided by the principles
      discussed by LHeureux-Dubé J. in
C. (G.C.) v. New Brunswick (Minister
      of Social Services),
[1988] 1 S.C.R. 1073 at para. 5 (affirmed
      in
New Brunswick (Minister of Health and Community Services) v. M.L.
,
      [1998] 2 S.C.R. 534 at para. 35):

trial judges decisions,
      particularly in matters of family law, should not be interfered with lightly
      by appellate courts absent an error in principle, a failure to consider
      all relevant factors, a consideration of an irrelevant factor or a lack
      of factual support for the judgment

[55]

So
      must we be.  Having found no error in principle in Rounthwaite P.C.J.s
      reasons, like Grist J., I can find nothing in the record to persuade me
      to interfere with her decision.  The evidence fully supports her order
      granting continuing custody of C.R. to the Director.

It follows I would dismiss
      the appeal.

The Honourable
      Madam Justice Huddart

I agree:

The Honourable Chief Justice Finch

I agree:

The Honourable
      Mr. Justice Smith


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Insurance
          Corporation of British Columbia v. Lo,

2006
          BCCA 7

Date: 20060103

Docket: CA033177

Between:

Insurance
    Corporation of British Columbia

Appellant

(
Plaintiff
)

And

Fung
    Kwan (Tammy) Lo

Respondent

(
Defendant
)

Before:

The
          Honourable Madam Justice Rowles

The
          Honourable Madam Justice Ryan

The
          Honourable Mr. Justice Low

Oral Reasons for Judgment

F.G.
          Potts

B. Martyniuk

Counsel for the Appellant

W. Ryan

Counsel for the Respondent

Foon-Wai (David) Chiu, appearing on his own behalf

Place
          and Date:

Vancouver, British Columbia

3 January 2006

[1]

ROWLES, J.A.
:  On 2 December 2005, the Insurance
    Corporation of British Columbia (ICBC) brought an application for an order
    that Mr. Chiu and Dragon Driving School Canada Ltd. (Dragon) be added
    as respondents on the appeal and that the style of proceedings be amended
    to include Mr. Chiu and Dragon as respondents.  Mr. Chiu appeared
    in person on the application for himself and for Dragon.

[2]

The order was granted by Madam Justice Huddart in brief reasons.  In
    those reasons, she said:

[1]        This is an application by the appellant to add Foon-Wai Chiu,
    also known as David Chiu, and Dragon Driving School Canada Ltd. as parties
    to this appeal.  In effect, this is an application to extend the time to appeal
    what was a ruling of Groberman J. in the course of a jury trial.  Mr. Chiu
    and the driving school were parties to the action and whether I look at it
    as an application to extend the time for appeal or as an application to add
    him as a party, in my view, the application must succeed.

. . .

[4]        In these circumstances Mr. Chiu is a necessary party to
    the appeal.  Mr. Chiu has known of the grounds of appeal since 18 July
    or, at the very latest, 25 July when he appeared to make submissions
    for Ms. Lo.  He has had the factum since 24 October, so he has known
    one of the errors alleged by the trial judge was the one that I have identified.
    There is no prejudice to Mr. Chiu.  He could put forward no prejudice
    other than he did not want to be in this Court, that he had suffered enough
    being in the Supreme Court for a three week jury trial.  He did not suggest
    that there is not merit in the appeal.  While counsel for ICBC admits an error,
    counsels errors are not usually visited on their clients.  It is generally
    thought to be in the interests of justice if an arguable appeal is heard and
    all of the necessary parties are here.

[3]

We were informed by counsel that at the time the application was made,
    Mr. Chiu indicated that he did not wish to have the appeal adjourned
    and that he was not going to seek counsel, but it appears from discussions
    this morning, that Mr. Chiu may not have been aware of the extent that
    the appeal, if it were successful, might affect him.  Specifically, if a new
    trial were ordered, it would, of course be costly, and if the restitutionary
    remedy sought was granted, the effect on Mr. Chiu would be both direct
    and indirect.

[4]

In the appellants factum, the relief sought is set out in paras. 74  78.
     What appears in para. 76(c) would directly affect Mr. Chiu.  The
    nature of the order sought is as follows:

74.
    That there be a determination that all monies paid to Chiu by reason of the
    Conspiracy are held in trust for the Plaintiff; and

75.
    That the dismissal of the Appellants claim as against Lo be set aside; and

76.
    That there be a mistrial in respect of Lo and a direction that the trial against
    her continue before the Honourable Mr. Justice Groberman sitting as a
    judge alone, and that His Lordship:

(a)
    determine the amount of funds held by Chiu in trust for the Plaintiff; and

(b)
    determine what funds and/or assets are held by Lo in trust for the Plaintiff,
    or for which she is accountable to the Plaintiff, and;

(c)
    determine, in the event the Plaintiff were to elect a restitutionary remedy
    what amount, if any, of punitive damages ought be awarded as against Chiu.

77.
    Upon resolution of the outstanding issues by the learned trial judge, or at
    such time as the trial judge directs, the Appellant be given an election as
    to what remedy it will pursue;

78.
    In any event, costs of and incidental to this appeal.

[5]

I note as well that Mr. Wayne Ryan, who appears for Ms. Lo
    on the appeal, cannot be expected to advise or represent Mr. Chiu because
    there appears to be a potential conflict of interest between Ms. Lo and
    Mr. Chiu based on the relief sought on the appeal.

[6]

I have asked Mr. Chiu whether he wishes to have an adjournment
    to seek legal advice in view of what has been said this morning and he has
    indicated that he does wish to obtain legal advice.

[7]

I should add that Mr. Potts does not suggest that the matter proceed
    and is content that it be adjourned.

[8]

The appeal is therefore adjourned, my colleagues, I understand, concurring.

[9]

RYAN, J.A.
:  I agree.

[10]

LOW, J.A.
:  I agree.

[11]

ROWLES, J.A.
:  There will be no costs of the proceeding
    this morning.

The Honourable Madam Justice Rowles

Correction:
19 January 2006

The date on the top right hand corner of the judgment should be changed
    to 20060103.


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Purewal
          Blueberry Farm Ltd. v. J.T. Johnson Co., L.L.C.,

2006
          BCCA 3

Date: 20060104

Docket: CA032514

Between:

Purewal
    Blueberry Farm Ltd.

Appellant

(Plaintiff)

And

J.T.
    Johnson Company, L.L.C., Insulpro Industries Inc., 798208 Alberta Ltd. doing
    business as Therm-All Insulation Ltd. and the said 798208 Alberta Ltd.

Respondents

(
Defendants
)

Before:

The
          Honourable Madam Justice Ryan

The
          Honourable Madam Justice Saunders

The
          Honourable Mr. Justice Low

S.B.
          Margolis and A.G. Mackay

Counsel for the Appellant

A.J
          Saunders

Counsel for the Respondent,
J.T. Johnson Co., L.L.C.

K.C.
          Bourchier

Counsel for the Respondent,
Insulpro Industries Inc.

J.Z.
          Murray

Counsel for the Respondent,
798208 Alberta Ltd.

Place
          and Date of Hearing:

Vancouver, British Columbia

8 June 2005

Place
          and Date of Judgment:

Vancouver, British Columbia

8 June 2005

Written submissions received:

20 and 21 October,
4, 9, 14 and 16 November 2005

Date
          of Supplementary Judgment:

4 January 2006

Supplementary Reasons for Judgment of the Court:

[1]

On 8 June 2005, we gave oral reasons allowing this appeal and ordering
    a rehearing of the application of the plaintiff/appellant to add the three
    respondents as defendants in the action.  Counsel have now provided us with
    written submissions on the issues of costs of the appeal and costs of the
    proceedings in chambers that resulted in the order from which the appeal was
    taken.

[2]

The appeal was allowed because the chambers judge who made the order
    dismissing the appellants application did not have the benefit of this courts
    decision in
Strata Plan LMS 1816 v. Acastina Investments Ltd.
(2004), 33 B.C.L.R. (4
th
) 69.  At the hearing of the appeal, the
    parties agreed that the reasoning of the chambers judge was in error but all
    parties submitted that we should determine the issue, which we declined to
    do.

[3]

It is our opinion that costs of the first hearing in chambers and costs
    of the appeal should be determined, with respect to each respondent separately,
    by the outcome of the second hearing of the appellants application to add
    the respondents as defendants in the action.  If the appellant obtains an
    order adding a respondent as a defendant in the action, then the appellant
    will recover its costs of the first application and the costs of the appeal
    from that respondent.  Any respondent that successfully opposes the appellants
    application will recover from the appellant its costs of the first hearing
    and of this appeal.

The Honourable
    Madam Justice Ryan

The Honourable
    Madam Justice Saunders

The
    Honourable Mr. Justice Low