COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

M.D. v. R.,

2016 BCCA 56

Date: 20160127

Docket: CA42656

Between:

M.D.

Appellant

And

R.

Respondent

Before:

The Honourable Madam Justice Newbury

The Honourable Madam Justice Neilson

The Honourable Mr. Justice Savage

On appeal from: an
order of the Supreme Court of British Columbia, dated
February 23, 2015 (
M.D. v. R.,
2015 BCCA 399, Duncan Registry No.
S16061)

Oral Reasons for Judgment

Appellant appearing In Person:

Counsel for the Respondent:

W. Bernt

Place and Date of Hearing:

Victoria, British
  Columbia

January 27, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 27, 2016

Summary:

The applicant applied
pursuant to s.9(6) of the Court of Appeal Act

to vary an order denying
leave to appeal. The application was denied as the applicant failed to show
that the chambers judge erred in law, erred in principle or misconceived the
facts.

[1]

SAVAGE J.A.
: On September 24, 2015 Justice Garson dismissed M.D.s
application for leave to appeal to this Court from two related orders made by Mr. Justice
MacKenzie on February 23, 2015:
M.D. v. Regina,
2015 BCCA 399. M.D.
applies pursuant to s. 9(6) of the
Court of Appeal Act
, R.S.B.C. 1996,
c. 77, to have this division vary her order. For the reasons that follow I
would dismiss the application.

[2]

Madam Judge Garson detailed the procedural history of this case at
paras. 3 to 6 of her reasons for judgment. In summary, M.D.s child, G., was
removed from his custody at birth, on July 22, 2013. In 2013 and 2014 various
provincial court orders granted custody of G. to the Director of Child, Family
and Community Service (the Director). By way of multiple applications M.D.
appealed the orders in the Supreme Court pursuant to s. 81 of the
Child,
Family and Community Service Act,
R.S.B.C. 1996, c. 46 [
CFCSA
].

[3]

The Director applied to have M.D.s appeal struck. On January 8, 2015
Master McCallum held that M.D.s appeal was scandalous, frivolous and vexatious;
however, rather than striking the appeal he granted M.D. an extension of time
to file his appeal in the appropriate form and state the grounds for appeal in
a succinct way:
M.D. v. Regina
,

2015 BCSC 18.

[4]

On February 23, 2015 the matter came back before Mr. Justice MacKenzie
who struck M.D.s appeal for not disclosing a valid or meritorious ground:
M.D.
v. British Columbia (Child, Family and Community Services)
, 2015 BCSC 730.

[5]

Section 82 of the
CFCSA
allows an appeal to this Court, with
leave, only on a question of law. Pursuant to s. 82 of the
CFCSA
, M.D.
applied for leave to appeal to this Court from Mr. Justice MacKenzies order.

[6]

The matter was first heard in chambers on June 15, 2015 by Mr. Justice
Frankel. Mr. Justice Frankel was unable to ascertain the basis of M.D.s
appeal. He ordered that M.D. file a proper motion book and granted an
adjournment until September 8, 2015.

[7]

Madam Justice Garson heard the application on September 8, 2015 and
released her reasons for judgment on September 24, 2015. She held that despite
being given the opportunity described M.D. did not provide any material to
enable her to identify any question of law which might form the basis of his
appeal.

[8]

Madam Justice Garson found that M.D. did not meet any of the
well-established criteria necessary for leave to appeal to be granted and
dismissed his application saying:

[10]      M.D. has been given several opportunities to comply
with the rules of court both in this Court and the Supreme Court. I refer to
the hearing before Master McCallum in which rather than striking the appeal, he
permitted M.D. to amend his Notice of Appeal. On June 15, 2015, this Court
adjourned M.D.s application with directions to file an appropriate motion
book. As already noted, those new materials, filed on August 25, 2015, are
voluminous. However, they do not enable me to identify any question of law.

[11]      The test for granting leave to appeal in this Court
is well known. The criteria are set out in
Goldman, Sachs & Co. v.
Sessions
, 2000 BCCA 326 at para. 10, where Saunders J.A. (in Chambers)
stated:

The criteria for leave to appeal
are well known. As stated in
Power Consolidated (China) Pulp Inc. v. B.C.
Resources Investment Corp. (1988)
, 19 C.P.C. (3d) 396 (C.A.) they include:

1)

whether the
point on appeal is of significance to the practice;

2)

whether the
point raised is of significance to the action itself;

3)

whether the
appeal is prima facie meritorious or, on the other hand, whether it is
frivolous; and

4)

whether the
appeal will unduly hinder the progress of the action.

[12]      This same test has been held to apply to
applications for leave under s. 82 of the Child, Family and Community Service
Act:
British Columbia (Director, Child, Family and Community Services) v.
DMG
, 2007 BCCA 415.

[13]      M.D. has not demonstrated that his appeal has
merit. He has not met any of the criteria necessary to be granted leave to
appeal.

[14]      His application for
leave to appeal the orders made by Justice MacKenzie is dismissed.

[9]

An application to vary or discharge an order of a chambers judge is not
a re-hearing of the initial application. This Court may not interfere with an
order of a chambers judge unless it can be demonstrated that the chambers judge
erred in law, erred in principle or misconceived the facts:
Pacifica
Mortgage Investment Corp. v. Laus Holdings Ltd
, 2011 BCCA 459 at para. 23.

[10]

M.D. lists his grounds of appeal as:

1)

Gross &
Hideous Miscarriage of Justice.

2)

Imperial
Colonial Judicial Nepotism Between Victoria BC Justice McKenzie & Victoria
BC MCFD Lawyer Michael Scherr.

3)

There is NO Time
Bar in the Canadian Charter of Rights & Constitution of Canada.

4)

BC Supreme Court
is Crown Blackmailing Me to Sign off on MY fight for G using Trickery &
Triple Speak & MCFD Criminal Legislation.

5)

RCMP A Internal Affairs Division in Ottawa has been Notified & Criminal
Investigations are being investigated!!

[11]

After reviewing M.D.s written materials and hearing his arguments,
Madam Justice Garson was unable to identify any question of law. In his
affidavit dated October 1, 2015 filed in support of this review application, M.D.
describes the basis of his application thus:

*I
asked Judge Garson to recuse herself; she refused

1.

Appealing Judge Garsons Judgment

2.

Asking for 3 Judge Panel Review

3.

No Single Judge has Authority to
Judge on Constitutional and Charter challenge

4.

Review Justice Garson; Wendy Bernt

5.

Conduct for Heckling me

[12]

M.D. has been given several opportunities in this Court to frame his
arguments in a manner which addresses the legal requirements for obtaining
leave to appeal but he has failed to do so. In arguing that Madam Justice Garson
erred in denying leave M.D. referenced in general terms the Metis Constitution,
The Metis National Relationship Accord, the Provincial Courts and the
Charter
of Rights
. At the hearing of this appeal we took an early adjournment to
give M.D. further time to distill his argument.

[13]

Although M.D. says his argument concerns the breach of his
Charter
Rights
, the only provisions of the
Charter
he referenced were the
mobility provisions and unlawful search and seizure. I am unable to appreciate
how the apprehension of a child in need can be a breach of either mobility
rights or rights against unlawful search and seizure. Provincial legislation
providing for the apprehension of children in need in my view cannot be a
violation of any such rights, whatever the background of the children might be.

[14]

I agree with Madam Justice Garson that neither the grounds given nor the
submissions received identify a question of law. M.D. has not identified any
error in law, error in principle or misconception of the facts in the reasons
of the Chambers judge. As M.D. has failed to show that Madam Justice Garson
erred in law, erred in principle or misconceived the facts, I would dismiss the
application to vary the order of Justice Garson.

[15]

NEWBURY J.A.
: I agree.

[16]

NEILSON J.A.
: I agree.

[17]

NEWBURY J.A.
: The application is dismissed.

The Honourable Mr. Justice Savage


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Bird,

2016 BCCA 43

Date: 20160127

Docket: CA43166

Between:

Regina

Respondent

And

Dion Marlon Bird

Appellant

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Dickson

On appeal from:  An
order of the Provincial Court of British Columbia, dated
January 25, 2013 (
R. v. Bird
, Surrey Docket No. 195252-1).

Counsel for the Appellant:

A. Glouberman

Counsel for the Respondent:

E. Campbell

Written Joint Submission filed:

November 24, 2015

Place and Date of Judgment:

Vancouver, British
  Columbia

January 27, 2016

Written Reasons by:

The Honourable Madam Justice Newbury

Concurred in by:

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Dickson

Summary:

The appellant applies for an
adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26.
Held:  Appeal allowed. The appellant was entitled to a credit on a 1:1.5 basis.

Reasons for Judgment of the Honourable
Madam Justice Newbury:

[1]

The appellant pleaded guilty in Provincial Court to one count of robbery
and one of theft of a motor vehicle. He was sentenced on January 25, 2013 to 41
months imprisonment, after credit was given for seven months having been
served pre-custody; and on the theft he was sentenced to 17 months concurrent,
again after having been given credit for seven months served pre-custody. At
the time of sentencing, he had been in custody for 206 days, for which credit
was calculated on a 1:1 basis.

[2]

The record indicates that upon learning of the Supreme Court of Canadas
decision in
R. v. Summers
2014 SCC 26, he pursued his wish to appeal his
sentence.

[3]

The Crown has advised that it does not oppose the granting of credit at
a rate of 1:1.5 and that the appellant is not disqualified from such credit
under s. 719(3.1) of the
Criminal Code
.

[4]

In these circumstances I would grant an extension of time for the filing
of this appeal, grant leave to appeal, and allow the appeal to the extent only
that the sentence on count two (the robbery) be reduced to three years plus 56
days, with credit of 309 days having been granted for time spent in custody
prior to sentencing.

The
Honourable Madam Justice Newbury

I AGREE:

The Honourable Mr. Justice
Groberman

I AGREE:

The Honourable Madam Justice
Dickson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Doucet,

2016 BCCA 44

Date: 20160127

Docket: CA43063

Between:

Regina

Respondent

And

Jeffery Lloyd
Doucet

Appellant

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Dickson

On appeal from:  An
order of the Provincial Court of British Columbia, dated
March 21, 2014 (
R. v. Doucet
, Kelowna Docket Nos. 79783-2-C, 79561-1,
79784-1).

Counsel for the Appellant:

C. Darnay

Counsel for the Respondent:

E. Campbell

Written Joint Submission filed:

October 28, 2015

Place and Date of Judgment:

Vancouver, British
  Columbia

January 27, 2016

Written Reasons by:

The Honourable Madam Justice Newbury

Concurred in by:

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Dickson

Summary:

The appellant applies for an
adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26.
Held:  Appeal allowed. The appellant was entitled to a credit on a 1:1.5 basis.

Reasons for Judgment of the Honourable
Madam Justice Newbury:

[1]

The appellant pleaded guilty to three offences in three separate Informations,
namely the possession of a loaded firearm, a break and enter, and driving while
prohibited. He was sentenced on March 21, 2014 as follows:

Possession of loaded firearm  31
months plus 27 days imprisonment after a credit for four months plus three
days pre-sentence custody;

Break and Enter - a concurrent
sentence of six months imprisonment

Driving while prohibited  a
concurrent sentence of 14 days

[2]

At the time of sentencing, he had been in custody for 124, days for
which he received credit on a 1:1 basis.

[3]

The record indicates that upon learning of the Supreme Court of Canadas
decision in
R. v. Summers
2014 SCC 26, he pursued his wish to appeal his
sentence.

[4]

The Crown has advised that it does not oppose the granting of credit at
a rate of 1:1.5 and that the appellant is not disqualified from such credit
under s. 719(3.1) of the
Criminal Code
.

[5]

In these circumstances I would grant an extension of time for the filing
of this appeal, grant leave to appeal, and allow the appeal to the extent only
that the sentence on possession of a loaded firearm (information 79783-2-C) be
reduced to a sentence of two years plus 179 days, with credit of 186 days having
been granted for time spent in custody prior to sentencing.

The
Honourable Madam Justice Newbury

I AGREE:

The Honourable Mr. Justice
Groberman

I AGREE:

The Honourable Madam Justice
Dickson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Richardson,

2016 BCCA 46

Date: 20160127

Docket: CA43067

Between:

Regina

Respondent

And

James Gordon
Michael Richardson

Appellant

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Dickson

On appeal from:  An
order of the Provincial Court of British Columbia, dated
March 27, 2014 (
R. v. Richardson
, Victoria Docket Nos. 160751-1,
161244-1).

Counsel for the Appellant:

N. Preshaw

Counsel for the Respondent:

E. Campbell

Written Joint Submission filed:

November 4, 2015

Place and Date of Judgment:

Vancouver, British
  Columbia

January 27, 2016

Written Reasons by:

The Honourable Madam Justice Newbury

Concurred in by:

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Dickson

Summary:

The appellant applies for an
adjustment of time in custody in accordance with R. v. Summers, 2014 SCC 26.
Held:  Appeal allowed. The appellant was entitled to a credit on a 1:1.5 basis.

Reasons for Judgment of the Honourable
Madam Justice Newbury:

[1]

The appellant was convicted of a robbery committed with a firearm and
was sentenced on March 27, 2014 to 41 months imprisonment after credit was
granted on a 1:1 basis for seven months spent in custody prior to sentencing. The
appellant had been in custody for 216 days, but served another sentence during
that time. On September 26, 2013, he was sentenced to 60 days for breach of a
probation order. After serving two-thirds of that sentence, he would have
resumed earning credit towards his sentence on the robbery offence.

[2]

The record indicates that upon learning of the Supreme Court of Canadas
decision in
R. v. Summers
2014 SCC 26, he pursued his wish to appeal his
sentence.

[3]

The Crown has advised that it does not oppose the granting of credit at
a rate of 1:1.5 and that the appellant is not disqualified from such credit
under s. 719(3.1) of the
Criminal Code
.

[4]

I will allow the appeal to the extent only that the sentence be reduced
to three years plus 101 days, with credit of 264 days having been granted for
time spent in custody prior to sentencing.

The
Honourable Madam Justice Newbury

I AGREE:

The Honourable Mr. Justice
Groberman

I AGREE:

The Honourable Madam Justice
Dickson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Langley (Township) v. Canadian Union of Public
  Employees, Local 403,

2017 BCCA 1

Date: 20170103

Docket: CA42610

Between:

Township of
Langley

Appellant

And

Canadian Union of
Public Employees, Local 403

Respondent

Before:

The Honourable Madam Justice D. Smith

The Honourable Madam Justice Bennett

The Honourable Mr. Justice Goepel

On appeal from: An
award of an arbitrator sitting as an arbitration board under the

Labour Relations Code
, R.S.B.C. 1996, c. 244 dated February 4,
2015,
Langley (Township) v Canadian Union of Public Employees, Local 403
.

Counsel for the Appellant:

D. Demerse
J.S. Russell

Counsel for the Respondent:

R.L. Edgar
T. Ramusovic

Place and Date of Hearing:

Vancouver, British
  Columbia

September 14 and 15,
  2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 3, 2017

Written Reasons by:

The Honourable Madam Justice D. Smith

Concurred in by:

The Honourable Madam Justice Bennett

The Honourable Mr. Justice Goepel

Summary:

The employer appeals from an
arbitrators decision upholding a grievance alleging that the terminations of
three out of twelve employees were discriminatory, contrary to s.13 of the
Human Rights Code. The employees were on long-term disability for an extended
period of time and none were able to return to work. The employer terminated
the employees for non-culpable absenteeism. The union grieved the terminations.

Held: appeal quashed. The
law with respect to non-culpable absenteeism was settled in Hydro-Qu
é
bec. Arbitrators have
discretion to consider labour relations principles under s. 82 of the
Labour Relations Code. In the application of the settled law, the arbitrator in
this case applied labour relations principles and found arbitrariness, randomness
and differential impact had undermined the BFOR put forward by the employer that
the employment relationship requires that employees work for pay. Although the
HRC is a matter of general law, the arbitrators reliance on labour relations
principles to determine the grievance meant that the real basis of the award
was about labour relations principles implied from the Labour Relations Code. Accordingly,
this Court is without jurisdiction to hear the appeal.

Reasons for Judgment of the Honourable
Madam Justice D. Smith:

Overview

[1]

On June 13, 2013, the appellant Township of Langley (the Employer)
terminated three employees who had been absent from work and on long-term
disability for just under 10, 8 and 7 years respectively. Each was totally
disabled from any occupation. Years earlier it had been determined that none
would be able to return to work. Their positions were posted and filled in June
2005, December 2005 and November 2008, respectively.

[2]

The terminations were the result of a review by the Employer in the
spring of 2013 of those employees who were on long-term disability (LTD) and
receiving employment benefits. At the time, there were 12 employees in that
category. The three employees in this case, along with a fourth employee, were
identified as having been absent from work for the longest period of time. The
first had been off work since 2003 and had three months of LTD remaining; the
second had been absent since 2004 and had 15 months of LTD remaining; and the
third had been away since 2007 and had 38 months left on the LTD plan. At the
Unions request, the Employer agreed not to terminate the fourth employee
because of her personal circumstances. That employee had 50 months of LTD
remaining.

[3]

The effect of the employees terminations was the loss of employment
benefits, including Medical Service Plan (MSP), extended health, dental and
group life insurance (the Employment Benefits). The Employment Benefits are co-paid
75% by the Employer and 25% by the employee. The terminations did not, however,
affect the employees receipt of LTD under a plan that their bargaining agent,
the respondent Canadian Union of Public Employees, Local 403 (the Union), selects
and administers for its members. The LTD plan provides coverage for 60% of a
members wages for up to 10 years or until age 65, whichever comes first. The
employees are members of the Union and will continue to receive LTD after their
terminations in accordance with the Unions plan.

[4]

The Employer and the Union are parties to a collective agreement (the
Collective Agreement). The Collective Agreement does not address when an
employees absence from work for illness or disability will be deemed
unreasonable for the purpose of termination. Consequently, the Union filed
grievances on behalf of the three members who were terminated contending,
inter
alia
, that their terminations were improper because the denial of the
Employment Benefits discriminated against the employees on the basis of
disability. The Employer conceded that the terminations were
prima facie
discriminatory,
but submitted they were justified on the basis of non-culpable absenteeism.

[5]

Non-culpable absenteeism can be a defence under s. 13(4) of the
Human
Rights Code,
R.S.B.C. 1996, c. 210 (the
HRC
) to a finding of
prima
facie
discrimination under s. 13(1) of the
HRC.
Section 13(1)
prohibits a person from refusing to continue to employ a person because of a
prohibited ground, including physical or mental disability; such conduct is
prima
facie
discriminatory. Section 13(4) provides that s. 13(1) does not
apply if the refusal to continue a persons employment is based on a
bona fide
occupational requirement (BFOR).

[6]

In order to maintain the employment relationship an employee must work
for pay. The dismissal of an employee with an illness or disability, while
prima
facie
discriminatory, will be held to be non-discriminatory if an employer
establishes that the employee remains unable to work for the foreseeable
future even though the employer has tried to accommodate him or her:
Hydro-Qu
é
bec v. Syndicat des employ
é-e-s de techniques professionnelles
et de bureau dHydro-Québec, section locale 2000 (
SCFP-FTQ),
2008
SCC 43 at para. 18 [
Hydro-Qu
é
bec
].

[7]

The grievances filed by the Union on behalf the three employees were
heard by Arbitrator McPhillips (the Arbitrator). At the hearing, the Employer
acknowledged that the cost of continuing the Employment Benefits for these
employees was a significant consideration in its decision to terminate them.
However, the Employer maintained that the determining factor for its decision
was the permanent breakdown of the employment relationship with the employees.

[8]

On February 4, 2015, the Arbitrator found the terminations were discriminatory,
contrary to s. 13(1) of the
HRC.
He ordered the employees be
reinstated and made whole. During the course of his analysis, the Arbitrator
applied the well-established test from
British Columbia (Public Service
Employee Relations Commission) v. BCGSEU,
[1999] 3 S.C.R.

3 [
Meiorin
].
Having conceded there was
prima facie
discrimination, the
Meiorin
test
sets out the criteria by which an employer may justify the standard as a BFOR.
Those criteria include (at para. 54):

(i)         that
the employer adopted the standard for a purpose rationally connected to the
performance of the job;

(ii)        that
the employer adopted the particular standard in an honest and good faith belief
that it was necessary to the fulfilment of that legitimate work-related
purpose; and

(iii)       that the standard is
reasonably necessary to the accomplishment of that legitimate work related
purpose. To show that the standard is reasonably necessary, it must be
demonstrated that it is impossible to accommodate individual employees sharing
the characteristics of the claimant without imposing undue hardship upon the
employer.

[9]

The Arbitrator concluded that the Employer did not act in good faith in adopting
the requirement that these three employees attend work  the alleged BFOR. He
found that the manner in which the employees were terminated was (1) arbitrary;
(2) randomly applied; and (3) resulted in the disparate or
differential treatment of the employees.

[10]

On March 3, 2015, the Employer filed a notice of appeal to this Court
from the Arbitrators decision. The Employer submits the Arbitrator erred by:
(1) failing to apply the relevant authorities and the correct legal test to
the facts before him; and (2) failing to apply the well-established
Meiorin
test by adding extra criteria to the test. On the same date, the Employer
also filed an application to the Labour Relations Board (the Labour Board) for
a review of the Arbitrators decision in order to preserve the jurisdiction of
the Labour Board over this matter in the event this Court declined to take
jurisdiction.

[11]

These parallel streams for reviewing the decision of an arbitrator are mutually
exclusive, not concurrent jurisdictions. The vexing issue of which is the
proper forum for an appeal/review of an arbitrators decision is determined by
ss. 99 and 100 of the
Labour Relations Code,
R.S.B.C. 1996,
c. 244, Part 8 [
LRC
]. They provide:

99
(1) On application by a party affected by the
decision or award of an arbitration board, the board may set aside the award,
remit the matters referred to it back to the arbitration board, stay the
proceedings before the arbitration board or substitute the decision or award of
the board for the decision or award of the arbitration board, on the ground
that

(a) a party to the arbitration has
been or is likely to be denied a fair hearing, or

(b) the decision or award of the
arbitration board is inconsistent with the principles expressed or implied in
this code or another Act dealing with labour relations principles.

100
On application by a
party affected by a decision or award of an arbitration board, the Court of
Appeal may review the decision or award if the basis of the decision or award
is a matter or issue of the general law not included in section 99(1).

[12]

The legislative scheme, in effect, directs this Court to determine both
its jurisdiction and that of the Labour Board. The Labour Board will defer to
the Courts decision on jurisdiction in order to avoid concurrent jurisdictions
resolving the dispute:
Pinette & Therrien Mills Ltd. v. I.U.E.C., Local
82, B.C.L.R.B.
124/87. On May 7, 2015, the Labour Board granted the
Employers application that it be permitted to defer the adjudication of its
s. 99 application before the Labour Board pending the outcome of this
appeal:
Corporation of the Township of Langley and the Canadian Union of
Public Employees, Local 403,
[2015] B.C.L.R.D. No. 84.

[13]

The three-prong test for determining the question of jurisdiction under
ss. 99 and 100 of the
LRC
was summarized in
Kemess Mines Ltd. v.
International Union of Operating Engineers, Local 115,
2006 BCCA 58 at para. 17
[
Kemess Mines
], based on the judgment in
Health Employers Assn. of
B.C. v. B.C. Nurses Union,
2005 BCCA 343 [
Health Employers 2005
].
At paras. 49-50 the Court set out the analytical approach to be adopted on
this issue:

1.         Identify the real basis of the award;

2.         Determine whether the basis of the award is a
matter of general law;

3.         If the
basis of the award is a matter of general law, determine whether it raises a
question or questions concerning the principles of labour relations, whether
expressed in the Labour Relations Code or another statute.

If the answer to the third
question is affirmative, then review of the award lies within the jurisdiction
of the Labour Relations Board. If it is negative, review lies within the
jurisdiction of this Court.

[14]

For the reasons that follow, I am of the view that the jurisdiction to review
the Arbitrators decision falls to the Labour Board. The Arbitrators decision includes
a human rights analysis with respect to the nature and scope of an employers duty
under the
HRC
. That issue is clearly a matter of general law. I am persuaded,
however, that the real basis of his award concerns the layering of labour
relations principles (including the concepts of arbitrariness, randomness, and
differential impact) to his application of the well-settled human rights
principles from
Meiorin
and
Hydro-Qu
é
bec
for the purpose of addressing the honest
and good faith belief of the Employers work for pay standard. The basis of
the award involved an analysis of how, in the circumstances of these employees
and the process used by the Employer in this case, the labour relations
principles should interact with well-established general law on human rights. In
the result, the jurisdiction to review this issue must fall to the expertise of
the Labour Board and not the Court. Accordingly I would quash the appeal for
want of jurisdiction.

The Arbitrators Reasons

[15]

The Arbitrator addressed a number of issues that are not the subject
matter of this appeal. He then turned to the issue of whether the Employers
actions contravened s. 13 of the
HRC
,

noting that the
Employer conceded the terminations were
prima facie
discriminatory under
s. 13(1). He correctly articulated the three-step
Meiorin
test for
establishing a BFOR and then considered the Employers motivation for
terminating the employees in order to determine if the Employer had
demonstrated an honest and good faith belief that the BFOR standard in the
circumstances of this dispute was necessary.

[16]

The Arbitrator noted a number of concerns about the standard which
was applied by the Employer, including: (1) the absence of a
pre-determined measure or standard policy as to when the employment
relationship would be considered as ended; (2) the absence of any finding
with respect to the characteristics or circumstances of the individual
employees; (3) the motivation to save money from the payment of the
Employment Benefits, which he also found did not automatically constitute bad
faith or malice in the application of the BFOR; (4) the arbitrariness of
the Townships actions in deciding to terminate all three employees at a random
point in time; (5) the absence of a frustrating event in the Spring of
2013 that had altered the situation that had existed for years; and (6) the
differential or disparate treatment of the employees. Based on these factors,
the Arbitrator concluded that the Employer had not established an honest and
good faith belief that the BFOR was necessary. Therefore he held that the termination
of the three employees in June 2013 for non-culpable absenteeism was discriminatory.

[17]

These findings related to the first two steps of the
Meiorin
test,
which the Arbitrator reasoned were determinative of the matter. However, he went
on to consider the third step of the
Meiorin
test, namely whether further
accommodation would impose an undue burden or undue hardship on the Employer. The
Arbitrator relied on the
Hydro-Qu
é
bec
discussion with respect to non-culpable absenteeism, to conclude that the
point of undue hardship is reached when an employee can no longer provide any
labour, with or without accommodation; at that point the duty to accommodate
has been met (at p. 32). In the circumstances of these employees, he
reasoned, the duty to accommodate would have been fulfilled (at page 34). That
is to say, had he accepted that the Employers occupational requirement that
these employees, in their circumstances, had to show up for work, was a BFOR, their
terminations would have been non-discriminatory under the
Meiorin
test.

[18]

Thus, the substantive issue raised by the Employer in this appeal is
whether the Arbitrators consideration of labour relations principles
including arbitrariness, randomness, differential treatment, the lack of a
frustrating event, and the Employers motivation to save money through these
terminations  in conjunction with his application of the
Meiorin
test,
had the effect of changing or modifying that well-established test.

Jurisdiction

[19]

The cumbersome dual system of mutually exclusive appeal/review processes
under ss. 99 and 100 of the
Code
has attracted a variety of
colourful descriptions. In
Health Employers Assn. of British Columbia v.
British Columbia Nurses Union,
2003 BCCA 608 [
Health Employers 2003
]
Madam Justice Southin characterized it as a brain teaser of the highest order
(at para. 3); in
Health Employers 2005,
Chief Justice Finch
referred to the awkward wording of ss. 99 and 100 (at para. 47); in
Chilliwack School District No. 33 v. Chilliwack Teachers Association,
2005
BCCA 411 [
Chilliwack
], Mr. Justice Esson described the elements
of ss. 99 and 100 as obtuse and notoriously brain-teasing; and in
Okanagan
College Faculty Assn. v. Okanagan College,
2013 BCCA 561 [
Okanagan
College
], Madam Justice MacKenzie described the issue of deciding the
real basis of the award as similar to deciding which leg of a table is the
real leg (at para. 85). Indeed, I think it fair to say that magnums of
ink have been spent on this subject, arguably with limited success in advancing
clarity on the matter. The root tensions would seem to still exist and must be
grappled with in each case.

[20]

While the legislation has not changed, this Courts understanding and
interpretation of its jurisdiction appears to have evolved since the seminal
decision of
Kinsmen Retirement Centre Association v. Hospital Employees
Union, Local 180
(1985), 63 B.C.L.R. 292 [
Kinsmen
]. Much of that
evolution has been animated by the historical concerns about courts adjudicating
on issues from specialized areas of the law where they had limited expertise or
where they were perceived as antagonistic to labour principles:
Chilliwack
at
para. 13; and
Castlegar & District Hospital v. British Columbia
Nurses Union,
2003 BCCA 608 at para. 110 [
Castlegar
]; see also
Castlegar
at paras. 19-26
per
Southin J.A., dissenting.

These
concerns continue to drive a constrained view of this Courts jurisdiction.

[21]

The issue in
Kinsman
was whether the employers requirement that
new employees join a pension plan, when existing employees had the option not
to do so, contravened a provision of the parties collective agreement. The
employees had grieved the issue and an arbitrator held that the collective
agreement did not require the new employees to comply with the employers
direction. The employer appealed, submitting that the arbitrator erred in law
in his interpretation of the collective agreement. The Court allowed the appeal
and set aside the arbitrators decision. Writing for the Court, Mr. Justice
Lambert explained the distinction between what are now ss. 99 and 100 of
the
LRC
:

[16]       the jurisdiction of
this court depends on the basis of the decision or award, and not on bringing
every link in the chain of reasoning leading to the decision of award within
the description a matter or issue of the general law. As was pointed out by
Chief Justice Farris and Mr. Justice Taggart in the A.I.M. Steel case, the
basis must mean the main constituent and not every constituent. In a
similar way, the jurisdiction of the Labour Relations Board depends on whether
the arbitration decision or award is inconsistent with the principles of the
Code or a labour relations statute. It is the real substance and determinative constituent
of the decision or award on which the Labour Relations Boards review
jurisdiction rests. I think that the wording of ss. 108 and 109 [now
ss. 99 and 100 respectively] was carefully chosen by the Legislature in
order to avoid having some parts of an award subject to review by the Labour
Relations Board and other parts of the award subject to review by this court,
with neither body having jurisdiction to consider the entire chain of reasoning
and to grant a remedy.

[22]

Thereafter, the Court appeared to adopt a more nuanced approach to this
issue as greater deference was accorded to the expertise of the Labour Board in
labour relations matters and as the Court engaged with the legislative intent animating
ss. 99 and 100. In
Health Employers 2003,
the Court declined to
take jurisdiction with respect to an appeal of a decision of a labour arbitrator
that it found principally involved the application of the general law as part
of the larger labour relations dispute between the parties concerning the
grievance of an employees dismissal under their collective agreement. Writing
for the majority, Mr. Justice Mackenzie stated:

[154]    In the result, however,
I do not think that the award at issue on this appeal is based on an issue of
general law outside s. 99(1). One must be careful not to bring every link
in the chain of reasoning leading to the decision or award within the description
a matter or issue of the general law:
Kinsmen,
para. 16. The
basis of an award does not mean every constituent:
A.I.M. Steel Ltd. v.
United Steelworkers of America Local 3495
(1975), 111 L.A.C. (2d) 116
(B.C.C.A.). Once the arbitrator found that the grievors conduct was
exclusively non-culpable, I am satisfied that his articulation of the duty to
accommodate was consistent with authority and did not raise any issue of general
law. The arbitrator then considered whether the employer fulfilled its duty to
accommodate, an inquiry that Huddart J.A. in my respectful view correctly
characterized as a factual issue in
Fording Coal
[
Westmin Resources
Ltd. v. C.A.W.-Canada, Local 3019,
1999 BCCA 534, sub nom.
United
Steelworkers of America v. Fording Coal
].

[23]

In
Health Employers 2005,
the Court decided it had jurisdiction
to review an arbitrators award with respect to the interpretation of s. 21
of the
Employment Standards Act,
R.S.B.C. 1996, c. 113 (the
ESA
)
in circumstances where the employer wanted to recover the overpayment of wages
without filing a grievance under the parties collective agreement. Chief
Justice Finch, writing for a unanimous five-member court, explained that, while
the first two questions posed in
Kinsmen

namely the real basis
of the award and whether the basis of the award is a matter of general law
were relatively straightforward to answer, the third question  that is
whether the award is inconsistent with principles expressed or implied in the
code or another Act dealing with labour relations  was more problematic. He reasoned
that the Court must (1) give effect to all of the words of the specific provisions
(i.e., ss. 99 and 100), which meant asking whether the award is
inconsistent with principles expressed or implied in the LRC or any other Act
dealing with labour relations; and (2) engage in a purposive
interpretation of the sections resulting in the analytical approach to jurisdiction
set out in
Health Employers 2005
(outlined in para. 13 above). He
concluded that the true basis of the arbitrators award was the interpretation
of s. 21 of the
ESA,
which was a matter of general law as it
affected all employees, whether unionized or not and that such an
interpretation was not inconsistent with any labour relations principle either
expressed in any Act or, in this case the
Employment Standards
Act (at para. 52).

[24]

In
Chilliwack,
the issue on appeal was whether an arbitrator, who
was appointed pursuant to the terms of the parties collective agreement, erred
in law by ordering the employer to disclose detailed notes of the reference
checks and interviews it made with respect to the unsuccessful candidate for
the position of school psychologist. The employer submitted the arbitrator
erred in law in failing to give effect to its obligation under the
Freedom
of Information and Protection of Privacy Act,
R.S.B.C. 1996, c. 165,
to ensure that personal information in its custody or under its control was not
disclosed without that individuals consent. The Court declined to take
jurisdiction. Writing for the majority, Mr. Justice Esson underscored the
narrow jurisdiction the Legislature had conferred to the Court under ss. 99
and 100, stating:

[13]      The legislative history
of sections 99 and 100 of the
Code
the original provisions which were
proclaimed effective on January 14, 1974   and the general history of labour
relations in this Province in the preceding 75 years support the view that the
legislative intent in enacting sections 99 and 100 was to confer a narrowly
restricted jurisdiction upon the court.

[25]

Shortly thereafter, in
Kemess Mines Ltd. v. International Union of
Operating Engineers, Local 115,
2006 BCCA 58 [
Kemess Mines
], Chief
Justice Finch, writing for the Court, held that where the issue of substance
(a slightly different turn of phrase from the statutory language of s. 100
which states the basis of the decision or award) goes beyond the application
of the general law and concerns its interpretation, the Courts jurisdiction
under s. 100 will be engaged as human rights principles must apply
equally to unionized and non-unionized workplaces (at para. 24).

[26]

In
Communications, Energy & Paperworkers Union of Canada, (CEP)
Local 789 v. Domtar Inc.
2009 BCCA 52 [
Domtar
], the Court elaborated
on this distinction between the interpretation and the application of the human
rights principles. There, the Court had to determine whether it had the
jurisdiction to hear an appeal from an arbitrators decision to dismiss the
grievance of eight employees on LTD, who were denied severance pay when the employer
Domtar closed its paper mill in a manner that was allegedly discriminatory
under the
HRC.
After referring to the distinction between interpretation
and application of a human rights principle from
Health Employers 2005,
Madam
Justice Levine, for the Court observed:

[34]      Thus,
the recent jurisprudence of this Court on
the jurisdiction question has reflected a broad approach where an arbitrator
has interpreted human rights principles
, including the meaning and legal
elements of prima facie discrimination, and the scope and nature of the duty to
accommodate.
Where, however, the arbitrators decision concerned the application
of human rights principles to the facts as found by the arbitrator, the Court
has found that it does not have jurisdiction to review the arbitrators
decision.

[Emphasis added.]

[27]

The high-water mark for deference and restraint by this Court in this
area is found in
United Steelworkers Local 9346 (Elkview Operations) v. Teck
Coal Limited
, 2013 BCCA 485 [
Teck Coal
]. The issue in
Teck Coal
was whether the Court had jurisdiction to hear an appeal by the union from
an arbitrators dismissal of its application for an order preventing Teck from
implementing random drug-testing of its employees. The parties had agreed that
the real basis of the decision is the application of the test for such an
order under s. 92(1)(c) of the
Code
 (at para. 22). This triggered
the issue of whether the application of this test is a matter of general law,
and if so, whether this raises a question or questions concerning the
principles of labour relations (at para. 23).

[28]

Madam Justice Bennett, writing for the Court, stated that an issue of
general law was one that affects the community at large a law that
embraces a class of subjects or places and does not omit any subject or place
naturally belonging to that class,
Blacks Law Dictionary,
4
th
ed. (at para. 24). While injunctive relief was held to be clearly a
question of general law, that finding on its own did not end the analysis. Instead,
relying on
Nor-Man
, Bennett J.A. reasoned that the arbitrators ability
to adapt and apply common law doctrines flexibly cannot be overlooked when
assessing whether the application of the general law principles  falls within
s. 99(1) (at para. 36). Thus, where the arbitrator is applying the
general law in a manner that is adapted to the labour relations context, review
will lie with the Labour Board. Bennett J.A. noted that the Courts
jurisdiction was narrow in scope (relying on
Chilliwack
), and that the
comments of Mr. Justice Fish in
Nor-Man Regional Health Authority Inc.
v. Manitoba Association of Health Care Professionals
, 2011 SCC 59 [
Nor-Man
]
supported this view:

[35]      Justice Fish specifically addresses an arbitrators
ability to adapt and apply common law principles to the labour law context:

[45]       labour arbitrators are authorized by their broad
statutory and contractual mandates and well equipped by their expertise to
adapt the legal and equitable doctrines they find relevant within the contained
sphere of arbitral creativity. To this end, they may properly develop doctrines
and fashion remedies appropriate in their field, drawing inspiration from
general legal principles, the objectives and purposes of the statutory scheme,
the principles of labour relations, the nature of the collective bargaining
process, and the factual matrix of the grievances of which they are seized.

[46]      This flows from the broad grant of authority
vested in labour arbitrators by collective agreements and by statutes such as
the [Manitoba]
LRA,
which governs here. Pursuant to s. 121 of the
LRA,
for example, arbitrators and arbitration boards must consider not only the
collective agreement but also the real substance of the matter in dispute
between the parties. They are
not bound by a strict legal interpretation
of the matter in dispute.
And their awards provide a final and conclusive
settlement of the matter submitted to arbitration.

[Emphasis in the
original reasons of Fish J.]

[29]

The final decision in this review is
Okanagan College Faculty Assn.
v. Okanagan College,
2013 BCCA 561 [
Okanagan College
]. In
Okanagan
College
the Court declined to take jurisdiction in an appeal by a union
from an arbitrators award dismissing its grievance with respect to the
employers refusal to allow employees on maternity or parental leave to accrue
teaching load units. The union submitted the arbitrators decision was an error
in law as it contravened the collective agreement and/or the
HRC.

[30]

Speaking for the Court, Madam Justice MacKenzie discussed the importance
of the interpretation/application distinction in the jurisprudence. While
characterizing an arbitrators decision as an application or interpretation of
general law remains part of the analysis, MacKenzie J.A. added two further
considerations: (1) an application of the law that required a limited
amount of interpretation with respect to how the general legal principles
should be applied in the context of a given case (at para. 58), would not
convert such an application to an interpretation of the law as contemplated in
Domtar
;
and (2) in any event, the interpretation/application distinction was not
determinative but rather was a useful heuristic, stating:

[57]      It seems to me this application is premised on the
notion that where legal interpretation of the general law has largely been
accomplished in advance of the arbitrators award, it will be the arbitrators
conclusions as to the factual or interpretive context in which the alleged
discrimination took place that will really drive the outcome, and therefore serve
as the basis of the award.

[58]      Of course, any application of the general law, to
some extent, requires an interpretation of what the law requires in that
specific context, and how general principles should be applied in the context
of a given case. It might be said that every case, in the absence of clear and
binding authority on the very point in issue, involve
some
[emphasis in
original] interpretation of what the law requires, if only in finding the case
at hand meets the legal standards established.
I do not take the distinction
between interpretation and application in Domtar as categorical, but rather a
useful heuristic in determining the true nature or basis of an arbitrators
conclusion. The more the assessment undertaken by an arbitrator relies on
settled principles of law, and the more the analysis depended on the particular
context of the case in hand, the more it will be considered an application of
the general law, as opposed to its interpretation.

[Emphasis added.]

[31]

In
Okanagan
, MacKenzie J.A. had to identify which of the multiple
real bases of an award was the true real basis. In doing so, she partially
rested her conclusion on the application/interpretation distinction: paras. 46,
54. Thus, despite expressing caution about the distinction, MacKenzie J.A.
recognized its use as a tool to determine jurisdiction.

Role of the Arbitrator

[32]

Consideration of this Courts jurisdiction on appeal from a labour
arbitrator would not be complete without consideration of the specific goal of
arbitration, and the role of the arbitrator.

[33]

Section 82(1) of the
LRC
sets out the purpose of arbitration. It
provides:

82  (1) It is the purpose of this Part to constitute methods
and procedures for determining grievances and resolving disputes under the
provisions of a collective agreement without resort to stoppages of work.

(2) An arbitration board, to further the purpose
expressed in subsection (1), must have regard to the real substance of the
matters in dispute and the respective merit of the positions of the parties to
it under the terms of the collective agreement, and must apply principles
consistent with the industrial relations policy of this Code, and
is not
bound by a strict legal interpretation of the issue in dispute.

[Emphasis added.]

[34]

A labour arbitrator has a different mission from that of a court. This
difference in roles was explained by Fish J. in
Nor-Man
. In
Nor-Man,
the
arbitrator found the employer had misinterpreted the collective agreement for
many years but concluded the union was estopped from obtaining remedial relief
because of its long-standing acquiescence. On judicial review, the Manitoba
Queens Bench declined to interfere with the arbitrators decision; the Manitoba
Court of Appeal allowed the appeal and reviewed the decision on a standard of
correctness, concluding that the arbitrator had failed to correctly apply the
law of estoppel. The Supreme Court of Canada set aside the Court of Appeals
decision. Fish J. stated that [l]abour arbitrators are not legally bound to
apply equitable and common law principles ― including estoppel ― in
the same manner as courts of law. Theirs is a different mission, informed by
the particular context of labour relations (at para. 5). He explained:

[6]        To assist them in the
pursuit of that mission, arbitrators are given a broad mandate in adapting the
legal principles they find relevant to the grievances of which they are seized.
They must, of course, exercise that mandate reasonably, in a manner that is
consistent with the objectives and purposes of the statutory scheme, the
principles of labour relations, the nature of the collective bargaining
process, and the factual matrix of the grievance.

[35]

The reasons of Fish J. call into consideration the administrative law
principle of reasonableness from
Dunsmuir v. New Brunswick
, 2008 SCC 9. The
arbitrators different mission from the Court, the requirement that
reasonableness be used in reviewing an arbitrators decision, and the need for
deference to be given to the arbitrators expertise, in my respectful view calls
for a cautionary approach from this Court where an arbitrator may have layered
labour relations principles on top of his or her application of the general
law.

Summary

[36]

This Courts jurisdiction pursuant to s. 100 of the
LRC
will
be satisfied when the appellant establishes that: (1) the real basis of
the decision or award to be appealed involves the application or interpretation
of a matter or issue of the general law; and (2) that the matter or issue does
not include a dispute about whether the decision to be appealed is
inconsistent with the principles expressed or implied in this Code or another
Act dealing with labour relations. When the interpretation/application tool is
factored in, an interpretation of the general law that does not involve a
consideration of labour relations principles will fall to be determined by this
Court and not the Labour Board. However, an application of the general law that
also requires a consideration of labour relations principles applicable to the
circumstances of the dispute will be accorded deference by this Court, and will
fall to the Labour Board for determination. That is to say, this Court may demonstrate
the required deference with respect to an arbitrators application of labour
relations principles by acceding to the jurisdiction of the Labour Board for
the review of an arbitrators decision on those matters.

Application

[37]

The Arbitrators decision involved an application of well-established legal
principles with respect to the interpretation of s. 13 of the
HRC
to
the circumstances of these employees. As a matter of general law, an employer
may terminate an employee for non-culpable absenteeism. Work for pay is a BFOR
that is an essential feature of the employment relationship. Human rights
legislation does not alter this fundamental bargain:
Hydro-Québec
at para. 15.
It is not discriminatory to terminate an employee who is unable to comply with
this fundamental bargain, provided the employer has met its obligation to
accommodate that employee. Those who cannot meet the BFOR of attendance for
work by reason of a protected ground (such as illness or disability) under the
HRC
,
can legitimately be terminated where the duty to accommodate has been discharged
.
The employers obligation in these circumstances continues only to the
point that it may do so without experiencing undue hardship and ends where the
employee is no longer able to fulfill the basic obligations associated with the
employment relationship for the foreseeable future:
Hydro-Québec
at paras. 16
and 19.

[38]

Nothing in these reasons should be interpreted as questioning the
validity of non-culpable absenteeism as it has been recognized by the Supreme
Court of Canada in
Hydro-Québec
. Indeed, the Arbitrator found that in
the circumstances of this case, where the employees had been unable to work because
of their disabilities for almost 10, 8 and 7 years respectively, the Employer
had no further duty to accommodate their disabilities.

[39]

However, the Arbitrator extended his analysis beyond the simple
application of non-culpable absenteeism, as he was entitled to do under
s. 82 of the
LRC.
He examined how the
Meiorin
test should be
applied in the context of this labour relations dispute. In applying the
Meiorin
test, he focused on the process by which the Employer determined that these
three employees should be terminated. Applying labour relations principles, he
concluded that the process followed by the Employer was arbitrary, random, and
resulted in disparate or differential treatment of the employees, implying that
the Employer had acted unreasonably and not in good faith in enforcing the attendance
at work as a requirement of their jobs. In these circumstances, because of questions
concerning the process by which the employees were terminated, the Arbitrator found
that their requirement to attend at work was not a BFOR. Accordingly, he held
the terminations were discriminatory as the Employer had not established a BFOR
to rebut the
prima facie
discriminatory terminations.

[40]

In my opinion, it is not for this Court to wade into the issue of
whether the Arbitrators determination with respect to his application of the
Meiorin
test to the circumstances of the employees terminations was correct or
reasonable, as that determination engages a consideration of labour relations
principles. Those principles as they apply to this dispute are properly left to
the expertise of the Labour Board for review. This conclusion does not in any way
change the general law in
Hydro-Québec,
which remains applicable in both
forums. Deference, however, must be accorded to the Labour Board on the
application of labour relations principles.

[41]

I would quash the appeal for want of jurisdiction.

The
Honourable Madam Justice D. Smith

I AGREE:

The Honourable Madam Justice
Bennett

I AGREE:

The Honourable Mr. Justice
Goepel


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Semenoff Estate v. Semenoff,

2017 BCCA 17

Date: 20170109

Docket: CA43539

Between:

Robert Semenoff,
Executor of the Estate of Bill Semenoff, Deceased

Appellant

(Plaintiff)

And

Mike Semenoff and
Marion Demosky

Respondents

(Defendants)

Before:

The Honourable Chief Justice Bauman

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Dickson

On appeal from: An
order of the Supreme Court of British Columbia,
dated February 19, 2016 (
Semenoff Estate v. Semenoff
, 2016 BCSC 267,
Nelson Registry No. 18204).

Oral Reasons for Judgment

Appellant appearing in Person:

R. Semenoff

Counsel for the Respondents:

T. Pearkes

Place and Date of Hearing:

Vancouver, British
  Columbia

January 9, 2017

Place and Date of Judgment:

Vancouver, British
  Columbia

January 9, 2017

Summary:

Mr. Semenoff appeals from an
order dismissing his claim, awarding special costs to the defendants and
declaring him a vexatious litigant following a summary trial. His claim
concerned alleged wrongful conduct by one defendant in performing her duties as
power of attorney for his late father. The summary trial judge found no
evidence to support his claim. On appeal, he advances a broad range of
submissions concerning the duties of a power of attorney, procedural fairness
in the proceedings below, and a number of other errors of law, mixed fact and
law, and fact. Held: appeal dismissed. While the trial judge should have
engaged in a more rigorous examination of provisions of the Power of Attorney
Act, any error in failing to do so was immaterial to the outcome. The
litigation process was not unfair to Mr. Semenoff. The trial judge did not
err in exercising his discretion to issue a vexatious litigant order against
Mr. Semenoff.

[1]

BAUMAN C.J.B.C.
: Robert Semenoff appeals from the order of
Justice A. Saunders, pronounced 19 February 2016 at the conclusion of a summary
trial in Nelson, B.C. I refer to the parties, apart from the appellant, by
their first name for convenience and not out of disrespect. Mr. Semenoff
in his capacity as executor of the estate of his late father, Bill Semenoff
(Bill)  alleged a range of wrongful conduct against the defendants in
connection with their caretaking of Bill. In particular, he alleged misconduct
by the defendants in accessing Bills assets to pay for his expenses. On
application by the defendants, the trial judge dismissed Mr. Semenoffs
claim, and declared him to be a vexatious litigant in both his personal
capacity and in his capacity as executor of Bills estate. The trial judge also
awarded the defendants special costs. On appeal, Mr. Semenoff seeks to
have this Court set aside the trial judges order, award judgment in his favour
and award him special costs.

Facts

[2]

Bill was the brother of the defendants, Mike Semenoff (Mike) and
Marion Demosky (Marion). Mike and Marion began to care for Bill after he was
involved in a motor vehicle accident in 1994. In or about 1995, Bill was
diagnosed with dementia and required home support. On the advice of counsel,
Bill executed a general power of attorney appointing Marion as his attorney on
18 January 1996. Bill died on 15 September 2006. Mr. Semenoff and his
brother, Howard, are executors of Bills estate.

[3]

Mr. Semenoff filed a notice of civil claim on 8 March 2012, which
he amended on 24 December 2012. He alleged that the defendants dishonestly took
advantage of Bill for their own personal benefit, enriched themselves at the
expense of Bills estate, and failed to provide an accounting of benefits they
received and property they took. He alleged that the defendants committed
criminal fraud. Mr. Semenoff sought a declaration that the defendants are
constructive trustees, disgorgement of profits, tracing and general and
punitive damages.

[4]

The defendants applied for dismissal of Mr. Semenoffs
action by way of summary trial, summary judgment or by reason of want of
prosecution. They also sought an order declaring Mr. Semenoff and the
estate vexatious litigants. The trial judge considered these applications by
way of a summary trial on 21 July 2015. At the time of the summary trial, the
defendants had examined Mr. Semenoff for discovery, but Mr. Semenoff
had not examined the defendants nor produced a list of documents.

Related
Litigation

[5]

The following actions have been commenced by Mr. Semenoff and are
relevant to the vexatious litigant application:

(1)        Mr. Semenoff and Howard, as
executors of Bills estate, sued the defendants and their brother, Steve, in
respect of ownership of the family acreage  that action was dismissed with
costs on the defendants application;

(2)
Mr. Semenoff
brought an action against Bills solicitor, Mr. Bridgeman, claiming
professional negligence in respect of registering Bill and his three siblings
as joint tenants of the family acreage (the Bridgeman action) that action
was dismissed after a no-evidence motion following a nine day trial, and Mr. Bridgeman
was awarded double costs; and

(3)
Mr. Semenoff brought a fraudulent conveyance action against Mr. Bridgeman
and his wife, which was dismissed and resulted in Justice McEwan making a
vexatious litigant order against Mr. Semenoff in respect of further
actions arising out of the facts alleged in the professional negligence or
fraudulent c
onveyance actions.

[6]

Mr. Semenoff appealed the dismissal in the Bridgeman action.
After failing to pursue the appeal in the required time, Mr. Semenoff
unsuccessfully sought to have the appeal removed from the inactive list in
chambers. The dismissal of his application was confirmed by a division of this
Court. Mr. Semenoffs application for leave to appeal this dismissal to
the Supreme Court of Canada was dismissed.

Decision under appeal

[7]

The trial judge began his reasons by citing the onus on Mr. Semenoff
to prove his claims in a summary trial from
Gichuru v. Pallai
, 2013 BCCA
60. He then found that Mr. Semenoff failed to adduce any evidence in
support of his grave allegations and that he founded his action on nothing
more than suspicion, conjecture and speculation. The lone argument Mr. Semenoff
advanced was that the truth is out there.

[8]

With respect to the vexatious litigant application, the trial judge
summarized the various actions Mr. Semenoff had commenced against the
defendants and Mr. Bridgeman. He quoted at length from the reasons of
Justice Mackinnon in the Bridgeman action concerning Mr. Semenoffs
unhelpful approach to the litigation and his preoccupation with conspiracy
theories concerning Marions conduct as attorney for Bill. He then agreed with
Justice Mackinnons characterization of Marion as genuinely caring and
someone who stepped up to the plate by sacrificing her own time and money over
many years, to ensure that Bill received the best of care.

[9]

On the merits of Mr. Semenoffs claim, the trial judge noted that Bill
was entirely dependent on his Canada Pension Plan and Old Age Security
benefits, and had no assets other than his joint tenancy in the family acreage.
He found that Marion accessed Bills accounts only for his personal care
expenses, and his residency and associated expenses. He also found that Marion
was exceedingly conservative in claiming expenses that she incurred personally
when acting under the power of attorney. She made some minor expenditures after
Bills death after failing to realize that her power of attorney expired upon
his death. However, the trial judge found that those expenditures were made in
good faith and without the defendants being enriched. The defendants also
provided a full accounting of the payments. Based on these findings, the trial
judge dismissed the action.

[10]

On the issue of special costs, the trial judge found that Mr. Semenoffs
conduct in making allegations of dishonest and criminal conduct without any
justification was reprehensible and deserved an award of special costs. As it
relates to the vexatious litigant application, the trial judge found that Mr. Semenoff
instituted and maintained vexatious legal proceedings habitually, persistently
and without reasonable grounds. Accordingly, he ordered that Mr. Semenoff,
in his personal capacity and in his capacity as executor of Bills estate, not
commence a legal proceeding in any court without leave.

Submissions

[11]

Mr. Semenoff alleges 30 errors in the
judgment in the court below relating to what he phrases as pleading of affirmative
defenses [
sic
], natural justice and the rights and obligations of agents
acting under [a] power of attorney. I have grouped the alleged errors into the
categories of errors of law, errors of mixed fact and law and errors of fact.

[12]

For their part, the defendants submit that appellate intervention
is not justified and none of the errors counter the trial judges finding that Mr. Semenoff
simply failed to discharge his onus to prove his case.

Errors
of Law

[13]

Mr. Semenoff alleges a number of errors of
law concerning: the onus of proof for facts raised in defence, the onus on the
defendants to prove a valid excuse for losing some receipts for expenditures
made on behalf of Bill, the failure to consider any of Mr. Semenoffs
evidence, the failure to decide the issue Mr. Semenoff pleaded, deciding
issues not pleaded by the defendants, the ability of the defendants to later
charge for services they originally rendered gratuitously and the necessity of
those services, interpretation of the exculpatory provisions of the
Power of
Attorney Act
, R.S.B.C. 1996, c. 370 and failure to give effect to s. 2(2)
of that
Act
, conflation of the breach of authority with breach of
fiduciary duties of candour, the failure to take judicial notice of the
equitable duty of candour, the failure to find that an attorney who has
exercised a power owes fiduciary obligations, the failure to find that fraud on
a power is a justiciable cause of action, an error in deciding that a
proprietary claim to estate administration documents is not justiciable, an
error in admitting expert or hearsay evidence and other conclusory evidence,
inappropriately expanding the scope of the vexatious litigant application
beyond that sought by the defendants, and the failure to give Mr. Semenoff
adequate opportunity to respond to allegations of vexatious conduct.

[14]

The defendants submit that Mr. Semenoff
misconstrues how the trial judge invoked the onus of proof. The onus of proof
was on Mr. Semenoff to prove his claims and he failed to discharge that
onus. The trial judge did not decide the case based on the defendants
pleadings or any defence, and nor did he decide issues not pleaded by the
defendants. The defendants note that Mr. Semenoff sought no relief for
loss of receipts such that there was no need for the judge to make findings to
excuse any such loss. Further, there is no foundation for the suggestion that
the trial judge failed to decide a cause of action pleaded by Mr. Semenoff.
Concerning the alleged charges for gratuitous services, the defendants say the
trial judge made a finding of fact that Marion was generous and did not charge
Bills estate when she was entitled to do so; he did not find that she charged
for services that were rendered gratuitously. On Mr. Semenoffs various submissions
concerning the duties of a power of attorney, the defendants rely on s. 3
of the
Power of Attorney

Act
and note that Mr. Semenoff
never pleaded or argued reliance on the
Law and Equity Act
, R.S.B.C.
1996, c. 253, or
Trustee Act
, R.S.B.C. 1996, c. 464. In any event, it is
clear that the judge appreciated that Marion owed fiduciary duties and found
any exercise of powers after Bills death was minor and did not constitute a
breach. Mr. Semenoff has not identified how this conclusion was
unreasonable. With respect to the justiciable cause of action arguments, the
defendants say the judge made no finding that fraud on a power is not
justiciable  he determined that Mr. Semenoff had failed to prove his
allegations. The defendants further say that Mr. Semenoff never advanced a
proprietary claim for estate documents. On the alleged evidentiary errors, the
defendants say they cannot respond because Mr. Semenoff has not
particularized the evidence he now objects to. Further, on the receipt of the expert
evidence point, the defendants say the accountants report was not opinion
evidence, but rather factual evidence. They note that he did not object to any
of the evidence led in the court below. Finally, with respect to the vexatious
litigant application, the defendants say the judge had the jurisdiction to make
the order that he did and provided Mr. Semenoff with the full opportunity
to be heard.

Errors
of Mixed Fact and Law

[15]

Mr. Semenoff alleges a number of errors of
mixed law and fact, including that the trial judge: failed to make the findings
necessary to excuse the defendants from losing the receipts; failed to construe
Justice Mackinnons reasons in their entire context; failed to recognize the
defendants formal admissions including affirmative defences; failed to
corroborate the defendants evidence; failed to take judicial notice of the
requirement for accounting as to the joint tenancy; failed to consider whether Mr. Semenoff
had enough time to assemble the case for summary disposition; failed to consider
whether the list of documents caused the defendants any prejudice; failed to
find the facts necessary for a formal admission; and failed to consider whether
the defendants list of documents, pleadings and lack of a case planning
conference caused unfairness to Mr. Semenoff.

[16]

The defendants again point out that Mr. Semenoff
never sought relief for lost receipts. With respect to the reference to Justice
Mackinnons reasons, they say the judge merely highlighted passages that were
apt in explaining that he had come to similar conclusions. Regarding
corroboration, the defendants argue that the summary trial judge was not
required to find corroboration in the absence of conflicting evidence from Mr. Semenoff
or some reason to make an adverse credibility assessment. On the issue of the
accounting as to the joint tenancy, the defendants say this was not framed by
the pleadings and Mr. Semenoff never made any such submission in the court
below. In light of the factual finding that the defendants accessed Bills
accounts only to pay his assorted expenses, there was no need for an
accounting. With respect to the alleged admissions, the defendants say there is
no basis to conclude that the trial judge failed to consider any judicial or
factual admissions  Mr. Semenoffs argument is pure speculation. On Mr. Semenoffs
procedural fairness arguments, the defendants acknowledge that they filed their
materials within the 28 days following their notice of intention to proceed,
which properly can be taken as a step contrary to the Rules. They note that the
hearing date was more than 28 days from the notice to proceed and that Mr. Semenoff
advised the court that the defendants had complied with the timelines and that
he did not object to their filing the application within the 28 day timeline.
Had the trial judge been asked to rule on this non-compliance with the Rules,
the defendants submit that there was a sound basis on which to exercise his
discretion to abridge the time. With respect to the need for more disclosure or
a case planning conference, the defendants note that Mr. Semenoff did not
bring applications concerning the quality of document disclosure, the adequacy
of pleadings or the lack of a case planning conference having resulted in a
case planning order. The parties held a case conference and the judge told Mr. Semenoff
to get on with his action.

Errors
of Fact

[17]

Mr. Semenoff also broadly submits that the trial judge found
facts not reasonably supported by the evidence.

[18]

The defendants submit that Mr. Semenoff has
failed to identify any palpable and overriding error in the factual findings.
They say there was direct and circumstantial evidence, which was corroborated
by the accounting prepared and submitted to the court, to dismiss Mr. Semenoffs
claim. There was a reasonable basis for the trial judges finding despite the
potential that some original receipts were missing.

[19]

Parenthetically, I note that defendants counsel
referred to the standard of review applicable to findings of fact as both
palpable and overriding error and reasonableness in other places. While it
does not bear on the merits of this case on appeal, counsel should note that
these two standards of review should not be conflated.

Analysis

[20]

I would dismiss the appeal.

[21]

In light of the breadth of Mr. Semenoffs
submissions, I have chosen to deal with only those issues that potentially
present a viable argument on appeal.

Duties
Owed by a Power of Attorney - Expenditures Made After Bills Death and Lost
Receipts

[22]

The key issue under this heading is the
significance of Marion having made certain expenditures after Bills death
after failing to realize that his death terminated her power of attorney. The
relevant provisions of the
Power of Attorney Act
, are as follows:

2

(2) For the purposes of this Act, if a
person has knowledge of the occurrence of an event that has the effect of
terminating the authority of an agent, that person is deemed to have knowledge
of the termination of the authority.

3
If an agent purports to act on behalf of a
principal at a time when the agent's authority to do so has been terminated and

(a) the act is within the scope of the
agent's former authority, and

(b) the agent has no knowledge of the
termination,

then, for the purpose of determining
the liability of the agent for the act, the agent is deemed to have had the
authority to so act.

[T]erminated when used with reference to
the status of an agents authority, means that the authority has been
terminated by revocation, or by operation of law or both (s. 1).

[23]

In my view, s. 2(2) has the effect of
deeming knowledge for purposes of s. 3(b) when the agent has knowledge of
the event triggering termination  it does not require that the agent know
the
effect
of the event. This places liability for the minor expenditures with
Marion.

[24]

The trial judge excused this liability on the
basis that the expenditures were made in good faith and without knowledge of
the effect of the termination (at para. 16). He cited no authority for the
ability to excuse liability created under the
Power of Attorney

Act
based on good faith. Nevertheless, any error made by the judge in this regard is
immaterial in light of his finding that the defendants fully accounted for the
expenditures (at para. 17). Accordingly, I would not give effect to this
ground of appeal.

[25]

Moreover, I agree with the defendants
submissions concerning the significance of any lost receipts. Any prejudice
caused by the failure to provide receipts is addressed by the accounting report
by Yule Anderson. Mr. Semenoff has not shown this report to be in error
he has merely suggested, without evidentiary foundation, that the accountants
were bribed to prepare it and that it represents a fraudulent report. The
defendants provided copies of statements of accounts, receipts, journal
vouchers, deposit slips and other back up materials on which the report was
based in their list of documents.

Procedural
Fairness

[26]

Mr. Semenoff makes a number of submissions
concerning the process followed by the court below and says he lacked a
sufficient opportunity to respond to the defence. However, he neglects to
acknowledge the relevance of his own dilatory conduct in prosecuting the
proceedings. Bill passed away in September 2006. Mr. Semenoff filed his
original notice of civil claim on 8 March 2012 and his amended claim on 24 December
2012. The defendants proceeded promptly by filing their response to civil
claim, producing their list of documents and examining Mr. Semenoff for
discovery all by 14 August 2012. They provided the accounting on 13 March 2013.
The parties held a case planning conference on 26 May 2014 at which the judge
instructed Mr. Semenoff to move forward with his claim. He did not, which
led the defendants to issue the notice of intention to proceed on 15 June 2015.
This led to the summary trial hearing on 2 July 2015. The defendants rightly
concede that this was within the 28 days set out in Rule 22-4(4) of the
Supreme
Court Civil Rules
, B.C. Reg. 168/2009, however, I agree that this would
have been an appropriate case for the trial judge to have exercised his discretion
to abridge that time had the issue been raised before him.

[27]

Mr. Semenoff has not particularized the
nature of any prejudice he suffered by virtue of the litigation process. He
provided no details at the summary trial hearing concerning what documents he
required in addition to what the defendants had already listed on their list of
documents. He did not examine the defendants for discovery. He has also failed
to indicate precisely which orders should have been made in the case planning
conference. Finally, Mr. Semenoff does not indicate the nature of his
objection with the defendants pleadings. Boiled down to its essence, Mr. Semenoffs
claim was fairly simple  he alleged wrongful conduct by the defendants in
their fiduciary capacity. The defendants adequately responded to this claim and
were entitled to force Mr. Semenoff to move forward with his claim after
years of delay.

[28]

In the absence of any other prejudice to Mr. Semenoff,
I would decline to give effect to the procedural grounds of appeal.

Vexatious
Litigant Order

[29]

Contrary to Mr. Semenoffs submission, the
trial judge granted the vexatious litigant order on the exact terms asked for
by the defendants; he did not unduly expand the scope of the order.

[30]

The summary trial judge had the power to make
the vexatious litigant order pursuant to s. 18 of the
Supreme Court Act
,
R.S.B.C. 1996, c. 443, which provides:

If, on application by any person,
the court is satisfied that a person has habitually, persistently and without
reasonable grounds, instituted vexatious legal proceedings in the Supreme Court
or in the Provincial Court against the same or different persons, the court
may, after hearing that person or giving him or her an opportunity to be heard,
order that a legal proceeding must not, without leave of the court, be
instituted by that person in any court.

[31]

Section 18 confers a broad jurisdiction on the
court to control its own process. This Court described the purpose of the
provision as follows in
S.(M.) v. S.(P.I.)
(1998), 60 B.C.L.R. (3d) 232
(B.C.C.A.) at para. 13:

Section 18 of the
Supreme
Court Act
has been in the
Act
for a great many years.
The section gives the court the needed ability to control its own process. It
enables the court to put in place an order to prevent a citizen or citizens from
being subjected to an endless blizzard of litigation. ... It is obviously of
the utmost importance that there be unfettered access to the courts by citizens
but I should think that a corollary of that is that continuing abuse of this
most valuable and deeply enshrined democratic right should be dealt with
decisively to preserve the rights of all. There is a right to invoke the
jurisdiction of the Supreme Court but it is not a right that is without limit.
In my opinion, s. 18 of the
Supreme Court Act
affords to
judges of the Supreme Court the authority to order in proper cases that a
persistent litigant must seek leave before being able to launch court
proceedings. It is a necessary power to ensure the proper administration of
justice.

As illustrated by this quote, the right to
issue a vexatious litigant order is not without limits. This leads to the
question of whether the trial judge properly determined that Mr. Semenoff
has habitually, persistently and without reasonable grounds, instituted
vexatious legal proceedings.

[32]

In his reasons, the trial judge summarized the
two related actions in which Mr. Semenoff involved the defendants and then
outlined his reasons for the order as follows:

Robert Semenoff has demonstrated
a propensity to abuse the civil justice system through making grave allegations
without any foundation in reality. He might have drawn the appropriate lesson
from the judgment given by Mackinnon J., but he did not do so; instead he
persisted in maintaining the claim at bar, without any proof of wrongdoing on
the part of the defendants. He has instituted and maintained vexatious legal
proceedings, in the words of s.18 of the
Supreme Court Act
,
R.S.B.C. 1996 c. 443, habitually, persistently and without reasonable
grounds. I therefore order that Robert Semenoff must not, without leave of the
court, either in his own capacity or in his capacity as executor of the estate
of Bill Semenoff, institute a legal proceeding in any court. (at para 21)

[33]

The trial judge made the vexatious litigant
order based not only on the number of proceedings Mr. Semenoff had
initiated, but also on the litigation strategy he adopted in those proceedings
 in particular, making grave allegations without advancing any proof in
support of those allegations. Importantly, the order was made after the
defendants had explicitly sought such an order and Mr. Semenoff was given
the opportunity to make submissions on the issue. This distinguishes the
present case from that in
Semenoff v. Bridgeman
, 2016 BCCA 175, where
this Court overturned a s. 18 order on the basis that the order was made
without application and in the absence of Mr. Semenoff.

[34]

In his submissions, Mr. Semenoff opposed
the vexatious litigant order on the basis that there were insufficient actions to
satisfy the requirement of habitually bringing vexatious legal proceedings.
He said he had only commenced four legal actions in his adult life  two of
which he says he obtained leave to commence. However, the habitual
requirement does not refer only to the number of different actions a party
commences, but also to the nature of his or her conduct within a particular
action itself. Mr. Semenoff has now commenced a number of proceedings in
connection with the administration of his fathers estate that have taken up
significant judicial resources. In the present case, he made grave allegations
of criminal conduct on the part of the defendants and advanced no evidence
other than the vague assertion that the truth is out there. In light of his
persistence in making these types of allegations against the defendants and
other individuals connected to his father (i.e. Mr. Bridgeman and the
defendants late brother, Steve Semenoff), I can find no basis on which I would
interfere with the exercise of the summary trial judges discretion under
s. 18.

[35]

Mr. Semenoff also makes application before
us for leave to submit fresh or new evidence on the appeal. I would decline
to do so, although we heard it. The proposed evidence is not fresh or new and could
have been led in the exercise of due diligence in the proceedings below. In any
event, the so-called evidence consists of Mr. Semenoffs affidavit and it
largely contains arguments on issues of little relevance to the issues before
us.

Conclusion

[36]

I would dismiss the appeal. While the trial judge should have
engaged in a more rigorous examination of provisions of the
Power of
Attorney Act
, any error in failing to do so was immaterial to the outcome.
I would also decline to hold that the litigation process was unfair to Mr. Semenoff
or that he was prejudiced in presenting his case. In my view, there is no merit
to the numerous other grounds of appeal that he now advances, and I would
decline to intervene in the summary trial judges exercise of discretion to
issue a vexatious litigant order against Mr. Semenoff.

[37]

FRANKEL J.A.
: I agree.

[38]

DICKSON J.A.
: I agree.

[39]

BAUMAN C.J.B.C.
: The appeal is dismissed. The respondents
will have costs on Scale 1.

The Honourable Chief Justice Bauman


COURT OF APPEAL FOR BRITISH
COLUMBIA

Citation:

Benavides v. Insurance Corporation of British Columbia,

2017 BCCA 15

Date: 20170110

Docket: CA43193

Between:

Manuel Benavides

Respondent

(Plaintiff)

And

Insurance
Corporation of British Columbia,
South Coast British Columbia Transportation Authority, doing
business as Translink, and Coast Mountain Bus Company Ltd.

Appellants

(Defendants)

Before:

The Honourable Mr. Justice Frankel

The Honourable Madam Justice MacKenzie

The Honourable Madam Justice Fenlon

On appeal from:  An
order of the Supreme Court of British Columbia, dated October 8, 2015 (
Benavides
v. Doe
, 2015 BCSC 1831, New Westminster Docket M150347).

Counsel for the Appellants:

G. Ritchey

Counsel for the Respondent:

R. Pici
V. Cheung

Place and Date of Hearing:

Vancouver, British
  Columbia

September 26, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 10, 2017

Written Reasons by:

The Honourable Madam Justice Fenlon

Concurred in by:

The Honourable Mr. Justice Frankel

The Honourable Madam Justice MacKenzie

Summary:

Appeal from a finding that a
bus drivers negligence caused the plaintiff to fall. Held: appeal dismissed. The
plaintiff bears the burden of proving on a balance of probabilities that the
defendant breached the high standard of care owed to passengers of public
carriers. Once the plaintiff has established a prima facie case of negligence,
the burden shifts to the defendant to show that he or she was not negligent.
Although the trial judge misarticulated the test, he correctly determined the
ultimate issue of liability based on his finding that the bus driver braked
hard in order to avoid overshooting the bus stop.

Reasons for Judgment of the Honourable
Madam Justice Fenlon:

introduction

[1]

The defendants in a personal injury action appeal a finding that a bus
drivers negligence caused the plaintiff to fall. The appellants contend the
trial judge incorrectly placed the onus on the defendants to prove that the
driver was not negligent.

background

[2]

The respondent, Mr. Benavides, was injured in January 2012 while
riding on a bus operated by the appellant South Coast British Columbia
Transportation Authority, doing business as Translink, and Coast Mountain Bus
Company Ltd. (Translink). Because the bus driver was not identified, Mr. Benavides
named the Insurance Corporation of British Columbia as a nominal defendant
under s. 24 of the
Insurance (Vehicle) Act
, R.S.B.C. 1996, c. 231.

[3]

The incident occurred when Mr. Benavides was travelling home from a
supermarket on Fraser Street, in Vancouver. One stop before he intended to
disembark, Mr. Benavides rang the bell to let the driver know he wanted to
get off at the next stop. He then got up from his seat and moved to the rear
door, holding on to the vertical metal bar with one hand, while holding
shopping bags in the other. The bus braked suddenly and without warning when it
was at or just past Mr. Benavides intended stop. He fell and sustained
soft tissue injuries to his hands, knees, back, neck and right shoulder and contusions
to his chest and rib cage. The bus was crowded with passengers. Mr. Benavides,
who was 76 years old at the time of trial, left the bus without reporting the
incident to the driver. About one month later the event was reported to
Translink by someone on behalf of Mr. Benavides.

[4]

At trial a representative of Translink testified that bus drivers are
trained to slow down as they pull into regular stops rather than drive at a
normal speed and then brake suddenly. He testified further that drivers are
trained to do everything possible to avoid sudden stops, except when they are
necessary to avoid emergency hazards.

[5]

The trial judge found that Mr. Benavides fell as a result of the
driver braking abruptly at the bus stop and that the fall caused Mr. Benavides
injuries. He awarded damages of approximately $41,000.

Analysis

[6]

The appellants do not contest the award of damages or the finding that Mr. Benavides
was not contributorily negligent. The sole issue on appeal is whether the trial
judge erred by assuming that a
prima facie
case of negligence is made
out when a passenger is injured while riding on a public carrier, effectively
reversing the onus of proof and requiring the defendant to establish that the
injuries occurred without negligence.

[7]

The appellants submit that the trial judge misdirected himself on the burden
of proof. At the beginning of his assessment of liability he said at para. 40:

Once a plaintiff passenger
establishes that he or she was injured while riding on a public carrier, a
prima
facie
case of negligence is made out. The onus then shifts to the defendant
carrier to establish that the passengers injuries occurred without negligence
on the part of the carrier.

The judge repeated this formulation
in relation to the particular case before him at para. 43:

The plaintiff
has established that he was injured while a passenger on a bus operated by
Translink, a public carrier. Accordingly, he has made out a
prima facie
case of negligence, and the burden shifts to the defendants to show that Mr. Benavides
injuries occurred without negligence on the part of Translink, or that it
resulted from a cause for which the defendants are not responsible.

[8]

The approach adopted by the trial judge has been followed in a number of
cases in the Supreme Court of British Columbia. As Dardi J. observed in
Prempeh
v. Boisvert
, 2012 BCSC 304, those cases relied on
Day v. Toronto
Transportation Commission
, [1940] S.C.R. 433. She said:

[17]
Day v. Toronto Transportation
Commission
, [1940] S.C.R. 433, is the seminal case dealing with the
liability of public carriers. The plaintiff, a passenger in a street car owned
by the defendant, while standing and picking up a parcel in preparation to
disembark, was thrown to the floor and injured by the sudden application of the
emergency brake. The articulation of the standard of care was stated as follows
by Hudson J. at 441:

Although the
carrier of passengers is not an insurer, yet if an accident occurs and the
passenger is injured, there is a heavy burden on the defendant carrier to
establish that he had used all due, proper and reasonable care and skill to
avoid or prevent injury to the passenger. The care required is of a very high
degree: 4 Hals., p. 60, paras. 92 and 95. In an old case of
Jackson
v. Tollett
(1817) 2 Starkie 37, the rule was stated by Lord Ellenborough,
at p. 38, as follows:

Every person who
contracts for conveyance of others, is bound to use the utmost care and skill,
and if, through any erroneous judgment on his part, any mischief is occasioned,
he must answer for the consequences.

[18]
The
principles articulated in
Day
have been interpreted by the courts in
this province as endorsing the following analytical approach - once a passenger
on a public carrier has been injured in an accident a
prima facie
case
of negligence is raised and it is for the public carrier to establish that the
passengers injuries were occasioned without negligence on the part of the
defendant
or that it resulted from a cause for which the carrier was not
responsible:
Planidin v. Dykes
,

[1984] B.C.J. No. 907
(Q.L.)(S.C.);
Visanji v. Eaton and Coast Mountain Bus Co. Ltd.
,

2006
BCSC 656 at para. 26. [Emphasis added.]

[9]

However, as Dardi, J. further noted in
Prempeh,
that approach
relies on the maxim
res ipsa loquitur
(i.e., the thing speaks for
itself), which was done away with by the Supreme Court of Canada in
Fontaine

v. British Columbia (Official Administrator)
, [1998] 1 S.C.R. 424. Dardi
J. addressed this change in the law at para. 19 of
Prempeh
:

However it must be noted that in
Fontaine
v. British Columbia (Official Administrator)
,

[1998] 1 S.C.R. 424,
46 B.C.L.R. (3d) 1, Major J. in discussing the doctrine of
res ipsa

loquitur
in the context of a single car accident, observed as follows:

27        It would appear that the law
would be better served if the maxim was treated as expired and no longer used
as a separate component in negligence actions. After all, it was nothing more
than an attempt to deal with circumstantial evidence. That evidence is more
sensibly dealt with by the trier of fact, who should weigh the circumstantial
evidence with the direct evidence, if any, to determine whether the plaintiff
has established on a balance of probabilities a
prima facie
case of
negligence against the defendant. Once the plaintiff has done so, the defendant
must present evidence negating that of the plaintiff or necessarily the
plaintiff will succeed.

[10]

It is worth noting that
Day
itself, on a close reading, does not support
an assumption of
prima facie
negligence when a passenger is injured
while riding on a public carrier. In that case the plaintiff was injured when
the driver of the streetcar he was riding on applied the emergency brake to
avoid a vehicle performing a U-turn in front of it. A collision ensued. The
sudden stop caused the passenger to fall.

[11]

The plaintiffs original claim was only against the Toronto
Transportation Commission (the TTC), which operated the streetcar. The TTC,
in turn, defended the claim on the basis that the accident was caused entirely
by the negligence of the driver of the vehicle. The plaintiff subsequently
applied successfully to add the driver of the vehicle as a defendant. There was
no issue of contributory negligence; the liability issue was a contest between
the TTC and the operator of the vehicle.

[12]

The matter proceeded to trial before a judge and jury. The questions
asked of the jury, and its answers on liability, were set out at page 437 of
the judgment as follows:

1. Were the plaintiffs
injuries due to any negligence on the part of the motorman of the
Transportation Commission?

A. Yes.

If your answer is yes in
what did such negligence consist?

A. The motorman was negligent
in not looking or observing the road ahead of him; if he (the motorman) had
been observing properly he would not have found it necessary to apply the
emergency brake at all, thus avoiding the injury to the plaintiff.

2. Has the defendant Clarkson
[the motor vehicle driver] satisfied you that the injuries of the plaintiff did
not arise through any fault or negligence on his part?

A. Yes.

It is apparent from these questions that the liability
of the TTC was determined based on the usual approach in negligence cases: the
plaintiff bore the burden of establishing an act or omission on the part of the
defendant that caused the injury.

[13]

In the Supreme Court of Canada, none of the five judges who provided
reasons suggested, either expressly or implicitly, that the jury was improperly
instructed or asked to follow an incorrect legal process. More significantly, none
of the other judges adopted the oft-cited passage from the judgment of Hudson
J. which is said to support a reverse onus approach when a public carrier is
named as a defendant.

[14]

In any event,
Fontaine
has clearly overtaken
Day
as the
authority on the burden of proof in cases of this kind. The plaintiff in
Fontaine
was the estate of a passenger who died when the vehicle he was travelling in left
the road on Highway 3 between Hope and Princeton. The defendant driver also
died in the accident. There were no witnesses and, therefore, no direct
evidence as to what caused the accident. The plaintiffs estate argued it could
be inferred that the vehicle left the highway as a result of negligence because
vehicles do not normally go off the road; as a result, it was up to the
defendant to prove that the accident happened without negligence on his part. Since
there was no evidence as to how the accident happened, the plaintiffs estate
argued it was bound to succeed.

[15]

The Supreme Court rejected the plaintiffs argument as a matter of
policy. At paras. 17-27 Major J. reviewed the types of case in which the
maxim
res ipsa loquitur
had been applied historically, the practical
difficulties that had arisen in determining the facts to which it applied and
the effect of its application. In addressing the latter point Major J.
confirmed at para. 23:

As in any negligence case, the plaintiff bears
the burden of proving on a balance of probabilities that negligence on the part
of the defendant caused the plaintiffs injuries. The invocation of
res ipsa
loquitur
does not shift the burden of proof to the defendant.
Rather, the effect of the application of
res ipsa loquitur
is
as described in
The Law of Evidence in Canada
(1992), by John Sopinka,
Sidney N. Lederman and Alan W. Bryant, at p. 81:

Res ipsa loquitur
, correctly understood, means that circumstantial evidence constitutes
reasonable evidence of negligence.
Accordingly, the
plaintiff is able to overcome a motion for a non-suit and the trial judge is
required to instruct the jury on the issue of negligence. The jury may, but
need not, find negligence: a permissible fact inference. If, at the conclusion
of the case, it would be equally reasonable to infer negligence or no
negligence, the plaintiff will lose since he or she bears the legal burden on
this issue. Under this construction, the maxim is superfluous. It can be
treated simply as a case of circumstantial evidence. [Emphasis added.]

[16]

It is apparent from this passage that even in cases in which the maxim
res
ipsa loquitur
had been applied historically, the burden of proof remained
with the plaintiff. This led the Court in
Fontaine
to conclude at para. 27
that the law would be better served if the maxim was treated as expired in
negligence actions.

[17]

I draw from this review of the law the following principles:

·

The mere fact that a passenger is injured while riding on a
public carrier does not establish a
prima facie
case of negligence.

·

The plaintiff bears the burden of proving on a balance of
probabilities that the defendant breached the standard of care owed to the
plaintiff.

·

Once the plaintiff establishes a
prima facie
case of
negligence, in practical terms the burden shifts to the defendant to answer the
case against him and to show that he was not negligent.

[18]

In the present case, the appellants argue that the question of liability
should be remitted to the trial judge so that the correct burden of proof can
be applied to the evidence. In my view, the case can be resolved without
further consideration by the trial court. Although the trial judge
misarticulated the test, he made the following finding of fact which is
sufficient to support his ultimate conclusion on liability:

[47]      I find
that the bus driver breached the standard of care expected of a reasonable and
prudent bus driver by braking abruptly without warning his passengers and by
braking suddenly in order to stop the bus at or beyond its regular stop at
Fraser and 22nd Avenue.

[19]

Circumstantial evidence can support an inference of negligence. In my
view, there was evidence to support the judges inference that the bus driver
braked hard in order to avoid overshooting the bus stop. That inference was
not, as in
Lalani v. Wilson
, [1988] B.C.J. No. 2408 (S.C.), a
matter of mere speculation.

[20]

In summary, applying the correct test, the findings made by the trial
judge support his ultimate conclusion on liability. In the circumstances, no
purpose would be served by remitting the case to the trial court for
reconsideration. I would accordingly dismiss the appeal.

The
Honourable Madam Justice Fenlon

I AGREE:

The Honourable
Mr. Justice Frankel

I AGREE:

The Honourable
Madam Justice MacKenzie