COURT OF APPEAL FOR BRITISH
COLUMBIA

Citation:

Szechuan Chongqing Seafood Restaurant (1993) Ltd. v.
  Wang,

2014 BCCA 25

Date: 20140123

Docket:
CA040772

Between:

Szechuan Chongqing
Seafood Restaurant (1993) Ltd.

Respondent

(Plaintiff)

And

Yi Tong Wang

Appellant

(Defendant)

Before:

The Honourable Mr. Justice Chiasson

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Goepel

On appeal from:  An
order of the Supreme Court of British Columbia, dated
March 8, 2013 (
Szechuan Chongqing Seafood Restaurant (1993) Ltd.
v. Wang
, 2013 BCSC 397, Vancouver Docket S117111).

Counsel for the Appellant:

W.J. McMillan

Counsel for the Respondent:

H.H. Van Ommen, Q.C.
and N.R. Hurlburt

Place and Date of Hearing:

Vancouver, British
  Columbia

November 26, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 23, 2014

Written Reasons by:

The Honourable Mr. Justice Chiasson

Concurred in by:

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Goepel

Summary:

The
appellant agreed to purchase the assets of the respondents restaurant business
subject to a number of Buyers Conditions, one of which was that he be
satisfied that consents and approval required to effect the transaction have
been or will be obtained.  He waived the conditions.  The appellant was to
have possession of the assets on closing.  The premises in which the business
was being conducted were leased.  The written consent of the landlord was
required if the premises were to be occupied by an entity other than the
respondent.  The landlord advised the respondent that it would consent to the
appellants occupancy and would do so in writing if necessary.  The appellant
refused to complete contending that the landlords written consent was a
condition precedent to his occupancy of the premises.  The trial judge
dismissed the appellants claim for the return of a deposit and ordered that he
pay damages to be assessed on the basis that, by waiving the condition, the
appellant assumed the risk that consent would not be obtained.

Held:
appeal dismissed for different reasons.  Because the contract was silent on the
appellants right to occupy the premises, it was necessary to imply a term that
he would be given occupancy of the premises on closing.
Obtaining the landlords
consent to the appellants occupancy was the respondents obligation
(Hutchingame v. Johnstone).  The fact that the appellant had an opportunity to
consider and be satisfied with the lease and to be satisfied that the required
consents were or would be obtained did not alter that fact.  The obligation to
obtain consent and the risk it might not be obtained did not shift to the
appellant because he removed the Buyers Conditions.  Consent was obtained.

Reasons
for Judgment of the Honourable Mr. Justice Chiasson:

Introduction

[1]

This appeal considers the effect of the removal by a buyer of conditions
in a contract for the purchase and sale of business assets on the obligation of
the vendor to provide occupancy of the business premises to the buyer.

Background

[2]

On August 22, 2011, the parties entered into a contract whereby the
appellant was to purchase a restaurant business operated by the respondent.
The purchase price was $395,000.  It was to be paid in two tranches on
October 4, 2011 and March 31, 2012.  The parties used a standard form
contract from the Real Estate Board of Greater Vancouver, with handwritten
modifications and three addenda.  The contract was subject to a number of
Buyers Conditions as follows (with handwritten modifications italicized):

4.         BUYERS CONDITIONS:

The Buyers offer set forth above
is subject to the satisfaction or waiver in writing by the Buyer not later than
September 10 , yr.  2011

(the Due
Diligence Period) of the condition that the Buyer, acting reasonably, is
satisfied that the Business and the Business Assets being purchased and assumed
pursuant to this Contract conform in all material respects to the Business and
the Business Assets represented to the Buyer prior to the date hereof,
including, without limitation, the Buyer being satisfied with the following
(whether or not previously provided to the Buyer):

(a)        the
financial statements for and financial condition of the Business; (
May to
August, 2011)
[initials]

(b)        the
terms of all contracts, licenses, leases and permits to be assigned to the
Buyer;

(c)        the
liabilities to be assumed by the Buyer (if any);

(d)        the
ability of the Buyer to obtain an assignment of the lease of the Business
premises (if any); and

the lease agreement
[initials]

(e)        that
all other consents and approvals required to effect this transaction have been
or will be obtained.

The foregoing condition is for the sole benefit of the
Buyer.

[3]

An addendum to the contract provided:

The Buyer and the Seller agree
the payment terms as follows [
sic
]:

(i)         The
Purchase Price [$395,000] will be payable by two instalments: $280,000 will be
payable on October 4, 2011, the rest and balance of [$115,000] will be
payable on MARCH 31, 2012.

(iii)       The lease will remains under
the name of the Seller and will transfer to the Buyer on April 1, 2012 and
the Seller will help the Buyer in his efforts for the transfer of name between
the landlord and the Buyer or the Seller agrees to remain as tenant and the
Buyer will responsible the rental and payable the Seller directly [
sic
].

[4]

The lease of the premises provided:

13.01
Consent Required

Except to an Eligible Corporation the Tenant will
not, and will not permit a subtenant to, assign this Lease in whole or in part,
or sublet all or part of the Premises, or mortgage or encumber this Lease or
the Premises or part thereof, and will not permit the occupation or use of all
or any part thereof by others other than an Eligible Corporation, without the
prior written consent of the Landlord in each case, which consent will not be
withheld unreasonably except that it may be withheld in any event if the
permitted use of the Premises stipulated in Section 7.01 would be
changed.  It will not be unreasonable for the Landlord to consider the
following factors before giving or withholding its consent:

Any covenants made by the Landlord
with another tenant of the Shopping Centre, the financial background and
status, business history, capability in the Tenants line of business and the
quality of merchandise of the proposed assignee, sublessee or occupant.

The consent by the Landlord to
an assignment or subletting will not constitute a waiver of its consent to a
subsequent assignment or subletting.  This prohibition against assignment or
subletting includes a prohibition against an assignment or subletting by
operation of law.  If this Lease is assigned or
if all or part of the
Premises is sublet or occupied by anybody other than the Tenant, in any case
without the consent of the Landlord when required, the landlord may collect
rent from the assignee, subtenant or occupant, and apply the net amount
collected to the rent herein reserved, but no such assignment, sublease,
occupancy or collection will be considered a waiver of this covenant, or the
acceptance of the subtenant or occupant as Tenant
.  Despite an assignment
the Tenant remains fully liable under this Lease.  An assignment of this Lease,
if consented to by the Landlord, will be prepared by the Landlord or its
solicitors, and all legal costs of its preparation will be paid by the Tenant.

[Emphasis added.]

[5]

The Buyers Conditions had to be satisfied or waived by no later than
September 10, 2011.  The appellant removed these conditions on September 9,
2011 and that day paid a required $50,000 deposit.  Completion of the
transaction was to take place on October 4, 2011.

[6]

Subsequent to removing the Buyers Conditions, the appellant asked the
respondent to assist him in obtaining a five-year extension of the lease, which
was set to expire on October 31, 2013.  The respondent approached the landlords
agent, which wrote on September 15, 2011 as follows:

RE:  Assignment of Lease
for premises at Unit 205  1668 W. Broadway, Vancouver, BC.

With reference to the intention to assign the lease agreement
from current tenant, Szechuan Chongqing Restaurant Ltd. & Szechuan Chongqing
Seafood Restaurant (1993) Ltd. to the potential buyer, Yi Tong Wang, please
note the following terms:

1.         The
Lease will stand as it is.

2.         The
current tenant Szechuan Chongqing Restaurant Ltd. & Szechuan Chongqing
Seafood Restaurant (1993) Ltd., will be held liable for the balance of the
current lease term.

3.         1 option
for the term of 5 years will be granted to the prospective tenant.

4.         Prospective
tenant, pays a security deposit of $46,000;

5.         Legal and
administration fee of $840.00 ($750.00 + $90.00 HST) relating to preparation of
the assignment of lease document would be paid by the tenant(s);

6.         We will
hold back $1,000.00 from Szechuan Chongqing Restaurant Ltd. for operating
expenses to be reconciled at year end.

7.         The outstanding
rent arrears $40,591.94 ($63,591.94  deposit $24,000 + $1,000 Holdback) to be
paid to Unicorn Properties Ltd.;

8.         The
effective date of the assignment is October 1, 2011;

9.         If the
prospective tenant is a company, the principal of the company shall be the
covenantor to the Lease.

Should the above mentioned terms
and conditions are agreed, please sign below and return a signed copy to us.
Upon receipt of your agreement we will prepare the legal document for your
signature.

[7]

Neither the appellant nor the respondent signed and returned the
letter.  The respondent advised the appellant that his concurrence was required
before it could sign.  There is no evidence why the appellant did not sign,
although on appeal he states that the terms were onerous and unacceptable to
him.

[8]

Ms. Woo, a representative of the landlords property manager, stated
in her affidavit that sometime after the September 15, 2011 letter she
attended a meeting with the respondents representatives, the appellant and the
appellants advisor, the purpose of which was to discuss the assignment and
extension of the Lease and the purchase by the [appellant] of the
[respondents] business and assets.  The appellant and his advisor asked many
questions.  According to both Ms. Woo and Ms. Wong, the respondents
director and secretary, the appellant stated that he would get back in touch
but never did.

[9]

In her affidavit, Ms. Wong stated that Ms. Woo advised that she
was not concerned about who operated the business provided [the respondent]
remained as a tenant and continued to be responsible for all obligations under
the Lease.  Ms. Woo confirmed this and deposed that [i]f asked we
certainly would have documented our consent to the [appellants] occupation of
the premises in writing.

[10]

On September 27, 2011, counsel for the respondent asked counsel for the
appellant for a response to the landlords terms for an assignment and
extension of the lease as set out in the September 15, 2011 letter.  On the
same day, counsel for the appellant replied, stating that he had pressed his
client for instructions, but had not heard from him.  On September 28,
2011, new counsel for the appellant advised the respondent that his client took
the position there was not a binding contract between the parties.  Among the
grounds advanced for this position was the contention that the landlord had not
consented to the appellant operating the business on the premises.

[11]

On September 30, 2011, counsel for the respondent replied, taking issue
with the assertions in the letter from counsel for the appellant.  Among other
things, she stated:

I have confirmed with [the
landlords agent] that if so requested, the Landlord will issue a letter  confirming
it has no objection to [the appellants] operation of the business at the
Leased Premises.  This is a non-issue in view of [the] Landlords cooperation.

She
added:

As you correctly point out, [the
appellants] latest request is different from the terms of the Contract.  If
[the appellant] now no longer wants the outright assignment and 5 year renewal
option, then everything will simply close according to the original terms of
the Contract.

[12]

The appellant did not respond to the September 30, 2011 letter.  The
transaction did not close on October 4, 2011 as stipulated in the
contract.  On October 7, 2011, new counsel for the respondent wrote to
counsel for the appellant noting the letter of September 28, 2011 in
which you advised that your client was repudiating the Contract and refused to
close the transaction on the closing date.  He stated that the respondent
accepted the appellants repudiation and that it will be seeking damages, not
limited to the deposit, for your clients breach of contract.

[13]

The respondent sued the appellant for damages.  The appellant
counterclaimed for the return of his deposit.  The chambers judge dismissed the
appellants claim, declared that he breached the contract and ordered that he
pay damages to the respondent, to be assessed.

[14]

I would dismiss this appeal for the reasons that follow which differ
from the reasons of the trial judge.

Chambers judgment

[15]

After reviewing the basic facts, the judge stated at para. 28 that
[p]rior to Completion, [the respondent] knew that [the landlord] would consent
to [the appellants] occupancy of the businesss premises until the time of an
assignment of the lease.

[16]

The judges analysis is not lengthy.  I reproduce it in full.

[46]      The issue is whether or not there is any need for
the Court to imply a condition that Szechuan was obligated to obtain Unicorns [the
landlords] consent for Mr. Wangs occupancy of the Businesss premises as
of October 4, 2011. In my view, the answer is found in the Buyers
Conditions.

[47]      The Buyers Conditions provided Mr. Wang with
a due diligence period, which allowed him to satisfy himself with respect to
the Business and Business Assets he wished to purchase. In particular, Mr. Wang
had time to satisfy himself with respect to the lease agreement (Buyers
Condition 4(d)). He also had time to satisfy himself that all other
consents and approvals required to effect this transaction have been or will be
obtained (Buyers Condition 4(e)).

[48]      In my view, the language of Buyers Condition 4(e)
is clear: it refers to
all other
consents and approvals [emphasis of
the chambers judge]. This language captures Unicorns consent to Mr. Wangs
occupancy of the Businesss premises as of October 4, 2011. It also
captures Unicorns consent to the assignment of the lease upon the payment of
the balance on March 31, 2012 (or occupancy beyond this date).

[49]      If Mr. Wang, acting reasonably, could not
satisfy himself as to the ability to obtain the necessary consents and
approvals, he would be under no obligation to complete and his deposit would be
returned.

[50]      Although not relevant to the case at bar, as the
crossed-out language of Buyers Condition 4(d) shows, it may not be
unusual for a buyer to first satisfy himself or herself that the assignment of
the lease of the vendors business premises will be obtained before removing or
waiving Buyers Conditions.

[51]      I also note that Szechuan was generally required to
assist Mr. Wang. Terms and Conditions: 17) Further Assurances provides:

The parties will execute and
deliver all such further documents and instruments and
do all such further
acts and things
as may be required to carry out the full intent and meaning
of this Contract and to effect the transactions contemplated thereby [emphasis
of the chambers judge].

[52]      There was no reason that Mr. Wang could not
have spoken with Unicorn or its property manager in order to obtain the desired
consents prior to waiving the Buyers Conditions. Privity of contract does not
come into play; Szechuan was required to do all such further acts and things.
On our particular facts, Mr. Wang did meet with Unicorns property
manager, albeit after he removed or waived the Buyers Conditions, to discuss
the assignment of Unicorns lease and its extension beyond its scheduled term
ending October 31, 2013.

[53]      If Mr. Wang had obtained Unicorns consent, Mr. Wangs
solicitors could have then prepared and, on the Completion Date, provided
Szechuan with the necessary documents. Szechuan would have been required to
execute these documents (see Terms and Conditions: 1) Assignment and
Assumption of Benefits and Liability).

[54]      In short, Mr. Wang had a due diligence period
in which he could satisfy himself that all consents required to effect the
transaction had been or would be obtained. By removing the Buyers Conditions
on September 9, 2011, Mr. Wang assumed the risk associated with
obtaining the necessary consents, including occupancy as of the Completion Date
and any future assignment of the Unicorn lease to him. He cannot now say that
Szechuan has failed to obtain the necessary consents.

[55]      It is trite law that a
court will look to the language used by the parties to a contract and will be
reluctant to imply conditions. Here the language is clear and there is no need
for the Court to imply terms or otherwise fill a gap.

Positions of the parties

[17]

The appellant asserts that the judge erred in failing to find that the
landlords written consent to his occupancy of the premises was a condition
precedent to performance of the contract; and he also erred in finding that the
appellant had waived the requirement for written consent and in finding that
the respondent was ready, willing and able to perform the contract.

[18]

The respondent states that it was not necessary to imply a condition
precedent because the contract provided for any required conditions.  It
supports the judges conclusion that the appellant waived the condition that
captured the Landlords written consent and that it was ready, willing and
able to perform the contract.

[19]

The respondent also contends that even if the judge was incorrect on the
condition issue, the appellant is not entitled to rely on an unfulfilled
condition because he caused the condition to be impossible to fulfill.

Discussion

[20]

I agree with the chambers judge that an issue is whether there is need
for the court to imply a condition that the respondent was obliged to obtain
the landlords consent for the appellant to occupy the premises, but I do not
agree with his conclusion that it is not necessary to imply such a condition.
I also do not think the answer is found in the Buyers Conditions.  It is found
in the terms of the contract.

[21]

There does not appear to be an express provision that the appellant was
to occupy the premises, but looking at the contract as a whole, it is apparent
that this was the agreement of the parties.  The contract, which is entitled
Contract of Purchase and Sale for Business Assets, was for the purchase and
sale of the property, assets and undertaking of the business including
business assets set out in a schedule.  The respondent was required to deliver
possession of the business assets on the completion date, October 4,
2011.  The scheduled business assets did not include the lease or a right to
conduct the business on the premises.  Pursuant to an addendum, the lease
remained with the respondent until April 1, 2012 when the second tranche
of the purchase price was due.

[22]

There are a number of provisions in the contract that show the parties
intended the appellant to occupy the premises on October 4, 2011.  The Buyers
Conditions state that the contract is for the sale of the business as well as
the business assets, as does the respondents acceptance of the appellants
offer.  Although the proviso addressing goodwill was struck from the contract
form, the contract provides for the use of the Chinese and English names of the
business.  In several addenda, the legal description is referred to as sale of
business only.  In an addendum, the respondent agreed to continue working with
and consulting for the business.

[23]

The parties did not suggest that they did not intend the appellant to
occupy the premises on October 4, 2011.  I am satisfied the appellant was
buying an operating business and that it was an implied term that he would occupy
the premises in which the business had been operating.

[24]

Because the appellant had time to undertake due diligence before
removing the conditions, the judge appears to suggest that the appellant should
have sought the landlords consent for his occupancy.  The judge concluded that
once the appellant removed the Buyers Conditions, he assumed the risk
associated with obtaining the necessary consents.  I do not agree.

[25]

Obtaining the landlords consent to the appellants occupancy was the
respondents obligation (
Hutchingame v. Johnstone
, 2007 BCCA 74 at
paras. 11-12; although the case concerned consent to the assignment of a
lease, in my view, it is equally applicable to consent for occupancy).  The
fact that the appellant had an opportunity to consider and be satisfied with
the lease and to be satisfied that the required consents were or would be
obtained did not alter that fact.  The obligation to obtain consent and the
risk it might not be obtained did not shift to the appellant because he removed
the Buyers Conditions.

[26]

The conditions gave the appellant the right to be satisfied with  the
terms of all  leases  to be assigned to the [appellant], with the lease
agreement and that all other consents and approvals required to effect this
transaction have been or will be obtained.  Explicitly not a condition was that
he be satisfied with his ability to obtain an assignment of the lease of the Business
premises.  That provision in the standard form contract was struck out on the
face of the contract.

[27]

The appellant removed these conditions on September 9, 2011.
He no longer had the right not to complete the transaction if he was not
satisfied with the terms of any lease to be assigned to him, with the lease
agreement itself or that other consents had been or would be obtained.  That
is, the contract then was final and binding on its terms.

[28]

The appellant apparently was satisfied that all required consents were
or would be obtained.  To put it another way, whether he was satisfied or not,
he gave up his right not to complete the transaction for that reason.  I do not
think the appellant thereby assumed the risk associated with obtaining the
necessary consents, including occupancy.  The appellant being satisfied that
the consents were or would be obtained did not obviate the respondents
obligation to obtain them if that was required by the contract.  If it were to
fail to do so, the appellant would have whatever remedies that would be
applicable.

[29]

Occupancy was a condition of the contract because the appellant could
not conduct business there without it.  As between the respondent and the appellant,
the respondent was obliged to give occupancy to the appellant as of
October 4, 2011.

[30]

It may be that the appellant was not entitled to insist on the written
consent of the landlord to his occupancy, but arguably that requirement was
necessary for him legally to occupy the premises.  As between the respondent
and the landlord, technically written consent to the occupation of the
appellant was required.  That must be put into context.

[31]

The consent could not be withheld unreasonably.  The obligation appears
to be somewhat ambiguous because the consent provision envisions occupancy
without consent (see para. 4 herein).  In that event, the occupier is
obliged to pay rent and the tenant remains liable on the lease.  This is
mirrored in the third provision in the contract addendum.  It also is
consistent with the position taken by the landlord.

[32]

It is clear on the evidence that the respondent took steps necessary to
ensure that the appellant could occupy the premises.  The respondent obtained
the concurrence of the landlord to the appellants occupancy.  It so informed
the appellant.  If written consent were required, it would have been
available.  There is no basis on which it can be said that the respondent was
not ready, willing and able to perform the contract on the completion date.  It
so advised the appellant on September 30, 2011.  The respondent was able
to give the appellant occupancy of the premises as of October 4, 2011.

[33]

In the September 30, 2011 letter, the appellant was asked whether he
wanted to pursue an assignment of the lease with an extension to the term or
whether he wanted to complete the transaction as set out in the contract.  The
appellant did not respond.

[34]

The appellant took no steps to perform the contract.  The September 28,
2011 letter by the appellants counsel conflates consideration of a lease
assignment, which was not a condition of the contract, with occupancy.  In the
September 15, 2011 letter from the landlords agent, occupancy was not
addressed.  The letter concerns an assignment of the lease.  It was written
after the respondent, consistent with its obligation to assist the appellant,
approached the landlord on his behalf concerning an assignment of the lease.

[35]

In his October 7, 2011 letter, counsel for the respondent stated that
his clients accepted the appellants repudiation of the contract.  Insofar as
counsel was referring to the appellants counsels letter of September 28,
2011, he was not correct.  The respondent rejected that repudiation and
affirmed the contract on September 30, 2011, but the appellants failure
to take any steps to complete the transaction on October 4, 2011 was a
further repudiation, which the respondent was entitled to and did accept (
Guarantee
Co. of North America v. Gordon Capital Corp.
, [1999] 3 S.C.R. 423;
Hadcock
v. Georgia Pacific Securities Corp.
, 2006 BCCA 536).

Conclusion

[36]

In my view, the appellant was not entitled to refuse to complete the
transaction.  Although I disagree with his reasons for doing so, the judge
correctly dismissed the appellants claim for the return of his deposit and
ordered that the respondent is entitled to damages to be assessed.

[37]

I would dismiss this appeal.

The Honourable Mr. Justice Chiasson

I agree:

The
Honourable Mr. Justice Willcock

I agree:

The
Honourable Mr. Justice Goepel


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Tsai v. Tsai,

2014 BCCA 22

Date: 20140123

Docket:
CA040533

Between:

David Tsai

Appellant

(Plaintiff)

And

Gamaliel Tsai,
also known as John Tsai, Joseph Tsai, and
Christian Tsai by his Litigation Guardian, Marie Rachelle Losier

Respondents

(Defendants)

Before:

The Honourable Madam Justice Saunders

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Harris

On appeal from:  An
order of the Supreme Court of British Columbia, dated
December 11, 2012 (
Tsai v. Tsai
, 2012 BCSC 1863, Victoria Docket S098072).

Counsel for the Appellant:

R.D. Holmes, Q.C.
J.J. Weisman

Counsel for the Respondent:

G.N. Harney

Place and Date of Hearing:

Vancouver, British
  Columbia

November 18, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 23, 2014

Written Reasons by:

The Honourable Mr. Justice Harris

Concurred in by:

The Honourable Madam Justice Saunders

The Honourable Madam Justice Kirkpatrick

Summary:

Appeal from a decision that
found there was no binding agreement between the appellant and his parents to
transfer a property to him.

HELD: Appeal dismissed. The
appellants arguments on appeal amounted to a significant recasting of the case
from how it was argued at trial. The appellant raised new issues on appeal that
required findings of fact that the trial judge was not asked to make. The trial
judge was entitled to decide the case as it was pleaded and argued before him.

Reasons
for Judgment of the Honourable Mr. Justice Harris:

[1]

This appeal concerns the ownership of a commercial property, referred to
as Newport.  Newport was owned within the Tsai family and at various times registered
ownership was transferred among family members.  At the time of the trial,
title was registered in the names of Joseph Tsai and his son Christian.  The
plaintiff is Josephs brother, David Tsai, who claimed that title to Newport properly
belonged to him.  He had at one time held registered title and alleged that the
transfer of title to Joseph and Christian was improper.  He contended that they
could not rely on registered title as proof of ownership.

[2]

Newport had originally been owned by David and Josephs parents,
Gamaliel and Kwei Tsai.  Registered title was at one time transferred to Joseph
and then back to the parents, before title was registered in Davids name.  Subsequently,
the father, using a power of attorney, transferred registered ownership from
David to Joseph and Christian.

[3]

The trial judge identified the issue before him as whether there was an
agreement between David and his parents that he would receive ownership of
Newport in consideration for agreeing to marry a Chinese wife of his parents
choosing.  David argued Newport was transferred to him because he fulfilled his
side of the bargain.  As the trial judge saw it, the issue was whether David
had proven the agreement and, if so, whether the parents (or father, Gamaliel)
had breached the agreement either because they did not have beneficial
ownership to transfer to David in the first place (having previously
transferred it to Joseph, as Joseph alleged) or because they purported
subsequently to transfer legal and beneficial ownership to Joseph, which they
had no right to convey having already transferred it to David.

[4]

The trial judge dismissed Davids action.  Although he did not accept
that at the time David became registered owner Joseph owned the beneficial
interest in Newport, he rejected Davids case that legal and beneficial
ownership of Newport was transferred to fulfil his parents obligations under
the alleged agreement.  He found that David had not proven the agreement on
which he rested his case.  As a result, he found that David had never owned the
beneficial interest in Newport and that the transfer of the registered interest
in Newport to Joseph and Christian did not violate Davids rights.  In the
result, he held that the current state of registered title reflected legal and
beneficial ownership of Newport.

[5]

David contends that the trial judge made a series of errors.  Before
delving into the substance of this appeal, I pause to say this.  The points
David takes on appeal involve a substantial recasting of the case he advanced
at trial.  He raises issues on appeal that were not argued before the trial
judge.  Central to his argument is the contention that the trial judge erred by
focusing on whether there was a contract to transfer Newport to him.  David now
argues, as but one example, that the trial judge took too restrictive an
approach to the nature of the consideration capable of rebutting the
presumption of resulting trust.  Quite apart from any contract, such
consideration passed, and David took beneficial as well as legal ownership.

[6]

In respect of this and other arguments I would dismiss the appeal.  In
my view, the trial judge was entitled to decide the case as it was pleaded and
argued before him.  His conclusions rest on findings of fact that were open to
him on the evidence and relevant to the issues as they were presented to him.
Before us on appeal, David attempted to introduce new arguments not put to the
trial judge and in respect of which a proper factual foundation does not exist.
 I would not accede to those grounds of appeal.

Background

[7]

I do not intend to canvass the evidence or facts in any detail beyond
what is required to set the issues on appeal in context.  The evidence and
facts found by the trial judge are extensively reviewed in his reasons.  It
may, however, be useful to set out a brief chronology and summary of some of
the background to the trial and the appeal.

[8]

The Tsai family immigrated to Canada in 1965.  The family at that time
consisted of the father, Gamaliel, mother, Kwei, and five children.  Four of
the children immigrated with the family and three more children were born in
Canada.  Among the children were sons, David, Joseph and Daniel, each of whom
played a significant part in the events underlying this action.

[9]

The family worked hard and, alongside other endeavours, the parents
accumulated a substantial portfolio of real estate in the Victoria area.  It
was not uncommon for the parents to register title in the names of their
children and to change the registered owner from time to time.  The general
purpose for doing so appears to have been to protect the properties from
creditors but not to actually convey ownership to the child registered on title.

[10]

Among the properties purchased by the parents was Newport, which was a
commercial property housing a photography studio.  It was bought in 1974 and
registered in the parents names.

[11]

In 1987, Joseph became the registered owner of Newport, ostensibly in
consideration for a payment of approximately $105,000.  The trial judge
accepted evidence that the money used to purchase the property was likely
posted by Gamaliel, rather than Joseph.

[12]

On November 23, 1988, Joseph transferred registered title back to his
mother and father.

[13]

On November 3, 1989, Gamaliel transferred his one half registered
interest.  One quarter was transferred to his wife (who then held three
quarters of the title) and one quarter was transferred to David.

[14]

On March 1, 1991, Kwei transferred her registered interest to David, who
at this point held the entire interest in Newport.

[15]

In March 1991, David, as landlord, and Gamaliel, as tenant, entered a
lease agreement for Newport.  The lease was for 15 years with a 5-year right of
renewal.  It enabled Gamaliel to collect the rents and pay the expenses,
essentially controlling the property, for only $1 per year.

[16]

In August 1991, David granted Gamaliel a power of attorney in relation
to a number of properties, including Newport, which was registered in the Land
Title Office in March 1994.

[17]

David married on March 19, 1994.

[18]

In November 1994, David signed a declaration of trust declaring that he held
Newport in trust for his parents.  Shortly afterwards, David met with a
chartered accountant, Fred Wong, to discuss tax issues.  Mr. Wongs notes
from this meeting indicate that the properties in Davids name were held in
trust for his parents.  The trial judge found these notes to contain an
admission that, at that time, David knew he held Newport in trust for his
parents: para. 151.

[19]

On November 21, 2002, Gamaliel transferred registered ownership from
David to Joseph and Christian, using the power of attorney.

[20]

The chronology set out above is the bare bones of some critical events
underlying the action.  Evidence relating to many other events was canvassed by
the trial judge.  For current purposes it is useful to point out that there is
no dispute that the parents wanted David to sponsor and marry a Chinese woman
of their choosing.  It is not in dispute that in or about 1988 they discussed
with David the idea of his marrying a woman from China.  Jia Qi Chen, who was
studying medicine in China, was identified as a suitable bride.  It took
several years to arrange Jia Qi Chens immigration, from roughly 1988 to the
end of 1993.

The trial judgment

[21]

The trial judge defined the issue before him in the following terms:

[67]      The central factual and
legal issue in this case, because it is the foundation of Davids claim, is
whether, as he asserts, there was an oral contract with his parents under which
he would receive Newport.

[22]

The trial judges appreciation of the essence of Davids case was based
in part on Davids argument which opened with these words: David Tsai made a
bargain with his parents  that if he married a Chinese woman he would get the
Newport Property.  David did not resile from that assertion, although he did
argue that the issue before the Court was not the
enforceability
of the
arrangement, but the fact that the bargain was acted on.  In other words,
according to his written submissions, the property was transferred to David
pursuant to the bargain and David received the legal and beneficial interest
in the Newport Property in 1991 because he was committed to marry Jia Qi Chen.

[23]

The judges identification of the issue he had to decide was defined by
Davids pleadings.  The trial judge set out the pleadings in his reasons as
follows:

[68]      In the Third Amended Statement of Claim, which
amendment was proposed during argument, David advances the claim as follows:

11. In or about 1988, Mum and Dad
asked the plaintiff to marry a Chinese woman of their choosing.

...

13. In or about 1990, the plaintiff
told Dad and Mum he was prepared to sponsor Jia Qi Chen to Canada for purposes
of marriage.  The plaintiff said he would marry Ms. Chen on the condition
that he receive the Newport property.

...

22. On or about March 19, 1994 the
plaintiff married Jia Qi Chen further to the agreement he had with his dad and
mum that he would marry Ms. Chen on the condition that he receive the
Newport property.

...

34. The agreement that the Plaintiff would marry Ms. Chen
on the condition he receive the Newport Property advanced the time when the
plaintiff would receive the property to the time when he agreed to the
marriage.

[24]

On several occasions throughout the judgment the trial judge reiterated
that the essential or central factual and legal issue was whether the parents
transferred Newport because of the alleged agreement.  The agreement was the
foundation of Davids claim and the basis for concluding, if proven, that the
parents intended to transfer the beneficial interest to him.  In my view, the
trial judge was entirely correct in reasoning that David advanced no other
basis for his claim to the beneficial interest in Newport.  David did not
allege he received Newport as a gift.  Nor did he allege the grounds advanced
on appeal, that something less than a contractual agreement can be sufficient
to rebut the presumption of resulting trust.  In brief, the judge decided the
case he was asked to decide.

[25]

The trial judge proceeded to analyze and weigh the evidence to decide
whether David had proven the bargain he alleged.  He concluded that David had
failed to prove the existence of the agreement and, accordingly, failed to
prove that he owned the beneficial interest in Newport.  On route to that
conclusion, the trial judge accepted that the parents did have the beneficial
interest in Newport to transfer to David, if in fact they intended to do so.  He
reached that conclusion because he rejected Josephs claim that he owned the
beneficial interest in Newport, even though he had transferred registered title
back to his parents in 1988.

[26]

The trial judges reasons for judgment are lengthy.  They involve a
detailed examination of the evidence that was probative of the issue the trial
judge was asked to decide.  Weighing the evidence to make findings of fact
involved assessing the credibility of the witnesses including, most
importantly, David, Joseph, Daniel and Gamaliel, each of whom he found
seriously wanting on critical points.  The trial judge tested their evidence
against a limited documentary record, as well as the subsequent conduct or
statements that were relevant to the intentions of the parties at the time of
the material transfers.

[27]

I refer the reader to the careful analysis undertaken by the trial judge,
but I would add several comments pertinent to this appeal.  It is clear to me
that in his analysis, the trial judge kept in sharp focus the central issue:
whether the evidence disclosed an agreement that was acted upon and proved that
the parents intended to transfer beneficial ownership of Newport to David.  In
particular, the trial judge made proper use of after the fact conduct,
statements, and documents to help assess the parties intentions
at the time
of the transfer
.  David raised the trial judges use of after the fact
conduct on appeal; however, I find the judge properly applied the principles
governing the use of such evidence as stated in
Pecore v. Pecore
, 2007
SCC 17 at para. 59.

[28]

I set out below some extracts from the reasons for judgment that capture
the heart of the trial judges conclusions:

[225]    Upon a consideration of all of the evidence, I have
concluded that David has failed to prove that he made an agreement with his
parents that they would transfer Newport to him beneficially if he sponsored
and married Jia Qi Chen.

[226]    I did not find Davids evidence in light of all of
the evidence at trial persuasive that such an agreement existed.  As I
mentioned in these reasons, I did not find Davids evidence compelling and I
think that there were strong elements of wishful thinking underlying many aspects
of it.

[227]    The agreement is of great significance in this
case.  It is the foundation of the plaintiffs case However, in the absence of
an agreement, his parents were free to change their minds before they disposed
of Newport, and that is what they have done.

[228]     I find the existence of such an agreement to be
inconsistent with the surrounding circumstances as a whole, particularly the
subsequent declaration and statements by David that he held the property in
trust for his parents.  If David had received Newport beneficially before he
signed that declaration, as he asserts is the case, he would have not signed
that declaration of trust or would at least have specifically objected to it.
The fact that the parents had their children hold properties for them in trust
was not an unusual occurrence.

[229]    If David and his parents had made the agreement that
he alleges, I expect that that there would be some contemporaneous reference to
it in some document but none was shown.

[230]    Given the transfer of title, the sponsorship and the
parents desire that their sons marry Chinese women, there is obviously
circumstantial evidence supporting the oral agreement.  The parents proclivity
to transfer their properties and offer them to their children as inducements
for certain things provides some background that might suggest that the
existence of such an agreement was not unreasonable.  I have considered that
without Newport going to David, the parents may not have provided for David the
way that they have for other children; but does that support the alleged
agreement?

[231]    Other extrinsic evidence points against the
agreement David alleges.  I found Davids explanation that his parents
transferred a ¼ interest and later a ¾ interest to avoid property transfer tax
to be an odd and not very compelling explanation.

[232]    If there was an agreement, I think that it is
reasonable to consider that it would likely be advanced at the forefront of the
litigation: why was it so slow being pleaded?  It should have been obvious that
the agreement, if it existed, would be relied on as the basis upon which David
received beneficial title to Newport, but it was not pleaded until the trial of
this action, and not actually formally advanced until the third amended
pleading which was proposed during argument.

[234]    David and his wife testified about the existence of
an agreement but described it in different ways; none of the other children
(other than Daniel) testified that they were aware of the Newport for sponsoring
and marrying agreement David alleges I reject Daniels evidence that he was
told of the agreement by his mother (and his father) - it is inconsistent with
his apparent belief at the time that David was not the beneficial owner of
Newport but a trustee.

[236]    Of much more significance in this case than the late
pleading of the alleged agreement is the conduct of David that was inconsistent
with a belief in the existence of the agreement he asserts  The following I
find were inconsistent with David believing he entered into the agreement that
he alleges that he became the beneficial owner on the condition of sponsoring
and marrying Jia Qi:

·

in November 1994, after his marriage, David signed a declaration
that he held Newport in trust for his parents;

·

during the meeting in 1994 shortly thereafter with Fred Wong, the
chartered accountant, David acknowledged that he held certain properties
(including Newport) in trust for his parents and that the decision as to what
to do with the properties awaited the parents instructions;

·

During the negotiations with Zebra in 2001, and in emails drafted
with the assistance of Daniel (a lawyer), David referred to himself as a
trustee and his parents as beneficiaries of the Newport property;

·

after David learned of the transfer of Newport to Joseph and
Christian, David, I find, does not appear to have mentioned to his parents or
to his siblings the specific oral agreement that he relies on;

·

David never claimed the income from Newport as his.

[237]    I recognize that the parents have transferred other
properties beneficially to their children and in the past may have indicated a
general intention that David would receive Newport, but the evidence does not
show that they ever acted on that possible intention, and most importantly, it
does not show that they made an agreement that he would receive Newport if he
sponsored and married a particular young female doctor from China.

[239]    The evidence of David about getting the Newport
Property and his control over the various properties by David is, in part,
based on his expectations, and more on his wishful thinking about what he
expected his parents to do in terms of succession planningThere is, in my
assessment, a strong element of wishful thinking in Davids recollection of the
events surrounding Newport.

[240]    I have to take into account the fathers evidence
that he did not intend to transfer ownership to David by his transfer in 1989
and by his wifes transfer in 1991.  Frankly, I do not place great weight on
what the father now says that his intention was at that time, as he has a
long-standing practice of transferring titles to create illusions to protect
himself from creditors.

[242]    Of greater weight to the question of true ownership
is the fact that even after the transfer to David, the parents purported to be
the beneficial owners of Newport in fact and declared the income and paid the
expenses, rather than David.

[249]     The father may have wanted to show David as a man
of means for the purposes of the application to sponsor his wife or may have
wanted to keep the parents properties away from creditors.  Perhaps given
Josephs own difficulties, the parents put Newport, like others, in Davids
name for creditor-proofing.  Perhaps they did it because they expected that
they would ultimately transfer beneficial title to David.

[252]    I think that Davids case is rooted in
disappointment from an expectation that he would get Newport.  Davids
testimony weaves through facts and documents to attempt to present a coherent
case.  Although his marriage to Jia Qi after the transfer of Newport provides
some surface attraction to his contention, the plaintiffs case falls down when
considered in light of the whole of the evidence.  I find it difficult to
accept that he did not appreciate the power of attorney gave his father power
over Newport, that he did not appreciate that the lease was really only a
creditor-avoidance device, or that the declaration of trust actually meant that
he held Newport, among other properties, in trust for his parents.  His
comments to the accountant Henry Wong indicated he understood that he held the
properties, including Newport, in trust.

[254]    Davids case is not supported by a robust reading of
the documents.  He limits the declaration of trust, he ignores the power of
attorney powers, and he never states clearly in contemporary documents that
Newport belongs to him.

[255]    Accordingly, I find that insofar as David is
concerned, there was no breach by his father of the duties under the power of
attorney when Gamaliel, through the power of attorney, conveyed title to Joseph
and Christian in 2002.   I agree with Ms. Fisher, counsel for Gamaliel,
that in order to establish that Gamaliel breached a fiduciary duty by using the
power of attorney, the plaintiff must first establish he had a beneficial
interest in Newport.  Because David has not proven the agreement that he
alleges, and he did not have beneficial ownership in Newport, the claim against
Gamaliel for breach of fiduciary duty and breach of contract must fail.

[256]    Without an enforceable agreement, there is no
consideration for the transfer and the transfer to David was gratuitous.  That
would [give] rise to a presumption of a resulting trust, a trust I find that he
in fact acknowledged at the time.  In the absence of a proven agreement, there
is no allegation of gift and the presumption of resulting trust in favour of
his parents would not have been rebutted.

[258]    I conclude that in 2002
whether prompted by Joseph (which appears likely) or otherwise, the parents,
who then had beneficial title to Newport, conveyed the title to Newport
beneficially to Joseph and his son Christian.

[29]

It is obvious that the trial judges findings of fact are predominantly
the result of his assessment of the credibility of the various witnesses when
tested against the documents and probabilities of the circumstances.  As such,
this Court owes them a high level of deference.  The findings of fact were not
seriously challenged on appeal, although David does argue that the trial judge
misread documents such as the power of attorney and the declaration of trust
and should not have relied on conduct after the transfers in 1989 and 1991 to
the extent he did.  On my review of the evidence and the trial judges reasons,
these assertions have no merit.

On Appeal

[30]

David contends that the trial judge made a series of related errors in
dismissing his action.  He submits, first, that the trial judge erred in
requiring David to prove a legally enforceable contract with his parents in
order to rebut the presumption of resulting trust.  David argues the trial
judge set the bar too high and the presumption can be rebutted by evidence of
consideration for the transfer falling well short of an enforceable
agreement.

[31]

Secondly, the trial judge erred in failing to appreciate that whether
David received Newport as a gift was a live issue on the pleadings, properly
interpreted.

[32]

Thirdly, David contends the defendants were not entitled to defeat his claim
to Newport by arguing that the transfer of registered title occurred to mislead
immigration authorities about his financial means as an immigration sponsor.  David
argues that the trial judge should not have considered this rationale for the
transfer because the defendants did not have clean hands and cannot rely on
their improper conduct as a basis for claiming a continuing interest in the
property.

[33]

Finally, David argues that the trial judge failed to give proper effect
to s. 23(2) of the
Land Title Act
, R.S.B.C. 1996, c. 250 [
LTA
],
which provides in substance that registered title is conclusive evidence that
the registered title holder is indefeasibly entitled to both legal and
beneficial ownership of the property, subject only to the exceptions provided
in the section such as proof of fraud.  David argues that, in the circumstances
of this case, the effect of s. 23(2) is to displace the presumption of
resulting trust.  Accordingly, the trial judge erred in relying on the
presumption in concluding that David did not receive beneficial ownership of
Newport when he received registered title.  Rather, the trial judge should have
given effect to the statute and treated Davids registered interest as
conclusive evidence of ownership and found the subsequent transfer to be of no
legal effect.

Did the trial judge err by requiring proof of an enforceable agreement to
rebut the presumption of resulting trust?

[34]

I have already observed that the issues raised on appeal recast the case
and the issues from how they were presented to the trial judge.  As noted above,
Davids case at trial was that he received Newport from his parents because he
had an agreement with them that he would receive it if he agreed to marry a
Chinese woman of their choosing, which he did.  That was the case he pleaded in
his Third Amended Statement of Claim.  The trial judge was correct to describe
the alleged agreement as the foundation of the plaintiffs case and to
characterize his essential claim as one of contractual entitlement: paras. 27,
20.

[35]

It follows that the trial judges statements of legal principle must be
read in light of the case as it had been framed by David and the issues he
raised in support of his claim.  The trial judge, for example, concluded that
unless David proved the agreement the transfer would be gratuitous because it
occurred without consideration.  Similarly at para. 60 he observed:

[60]       Apart from the
promise to sponsor and marry, the consideration under the alleged agreement,
there is no consideration for the transfers in 1989 and 1991 and, in the
absence of an agreement for good consideration, there would be a presumption of
a resulting trust in favour of the parents at that time:
Pecore v Pecore
2007 SCC 17 (CanLII), [2007] 1 SCR 795.

[36]

I do not take these statements to be asserting a general principle of
law that transfers are gratuitous or engage the presumption of resulting trust
if they occur outside the context of an enforceable contract supported by
consideration.  The judge is not suggesting that other lesser or different
forms of consideration are insufficient to support a non-gratuitous transfer
in other circumstances.  He is simply framing an analysis that is applicable to
the case he was asked to decide.  David said the transfer occurred because of
an agreement that he performed, the consideration for which was marrying a
Chinese wife of his parents choosing.  He did not suggest that there was any
other consideration supporting the transfer or that there was an alternative
basis to consider the transfer non-gratuitous.  In the context of the case, if
he failed to prove the agreement, the foundation of his case, the trial judges
conclusion that the transfer was gratuitous or engages the presumption of
resulting trust is simply an application of principle to the specific
circumstances in issue.

[37]

Moreover, although the trial judge does say that [w]ithout an
enforceable contract, there is no consideration for the transfer and the
transfer to David was gratuitous (at para. 256), I do not think, reading
the reasons as a whole, that the judge in fact placed any weight on the legal
enforceability
of the agreement in analyzing the case.  It is clear throughout his reasons
that he is examining whether there was in substance an agreement, a bargain, or
an arrangement that David would receive Newport if he married a Chinese woman.
The legal enforceability of any such bargain was not the issue for the trial
judge.

[38]

Setting to one side the potential implications of s. 23(2) of the
LTA
for the moment, the trial judges statement in para. 256 that [i]n
the absence of a proven agreement, there is no allegation of gift and the
presumption of resulting trust in favour of his parents would not have been
rebutted, is a correct statement of the law as it applies to the case the
trial judge was asked to decide.

[39]

I would make two additional comments.  First, in my view, the trial
judge was correct in observing that David did not allege that he received
Newport as a gift: para. 20.  His initial pleadings claimed only that he
had received Newport from his parents.  His Statement of Claim was amended to
articulate the foundation of his entitlement to Newport, which was the
agreement.  Nothing in the defendants pleadings can fairly be read as
admitting Newport was gifted to David.  Given the parties pleadings, the judge
was entitled to decide the case on the basis that whether or not Newport was gifted
to David was not in issue.

[40]

Secondly, I do not think the trial judges conclusions ultimately turn
on the application of the presumption of resulting trust.  Certainly, the trial
judge considered the presumption and what would be required to rebut it.  He
used it as an organizing principle for the analysis in the reasons.  However, the
trial judge was alive to the fact that the presumption allocates burdens of
proof, but that its significance only becomes evident after all the relevant
evidence has been weighed and the facts found.  If all of the necessary facts
can be found, it is unnecessary to resort to the presumption to decide the
case.  In such circumstances, the presumption is not applied to determine the
outcome.

[41]

In this case, although certainly the trial judge concluded that David
did not rebut the presumption, he went further and found facts that disposed of
Davids claim to have ever owned the beneficial interest in Newport.  One such
critical finding was that David acknowledged he held Newport on trust for his
parents while he was its registered owner.  The trial judge identified a number
of occasions when David acknowledged that fact.  Not the least of them was in
the Declaration of Trust, which, in my view, the trial judge was entitled to
treat as an admission and acknowledgement.  The acknowledgment that he held
Newport on trust is critical to the intention of the parties, including of
course the parents, when the transfer occurred.  The trial judges conclusion
that David held Newport in trust for his parents is a finding of fact based on
weighing the evidence and not the consequence of applying a presumption to
ground a conclusion.

[42]

The fundamental problem with Davids position on this appeal is the
extent to which he now takes new positions that were not argued before the
trial judge.  As is well known, this Court is loath to entertain new issues
advanced for the first time on appeal.  Generally, leave to introduce a new
issue is denied if raising the issue requires new evidence to be led.

[43]

In
Athey v. Leonati
,

[1996]
3 S.C.R. 458
at para. 51,
140 D.L.R. (4th) 235,
Major J. for the Supreme Court of Canada stated:

51         The
general rule is that an appellant may not raise a point that was not pleaded,
or argued in the trial court, unless all the relevant evidence is in the
record: John Sopinka and Mark A. Gelowitz,
The Conduct of an Appeal
(1993), at p. 51.

[44]

The general principles for entertaining new issues on appeal were recently
reviewed in
Devine

v.

Devine,
2012 BCCA 509 at para. 45:

[45]      An appeal court should
only allow a new issue on appeal where the interests of justice require it and
where the court has a sufficient evidentiary record and findings of fact to
decide the issue (
Quan v. Cusson
, 2009 SCC 62 at para. 37, [2009] 3
S.C.R. 712, citing
Wasauksing First Nation v. Wasausink Lands Inc.
(2004), 184 O.A.C. 84 at para. 102, 129 A.C.W.S. (3d) 2 (Ont. C.A.)).  In
balancing the interests of justice, the court will consider potential prejudice
to the other party.  As Prowse J.A. stated in
OBryan v. OBryan
(1997), 43 B.C.L.R. (3d) 296, 97 B.C.A.C. 62, the prohibition against
permitting one party to raise a new issue on appeal for which the evidentiary
groundwork was not fully laid in the trial court is primarily to prevent
prejudice to the party against whom the issue is raised (at para. 24) as
evidence might have been led at trial if it had been known that the matter
would be an issue on appeal (at para. 23).  Issues of pure law are more
likely to be granted leave than issues that require the leading of evidence (
Emmett
v. Arbutus Bay Estates Ltd.
(1994), 95 B.C.L.R. (2d) 339 at para. 9,
48 B.C.A.C. 26, citing
R. v. Vidulich
(1989), 37 B.C.L.R. (2d)
391 at 398-399, 8 W.C.B. (2d) 52 (C.A.).

[45]

In my view, Davids attempt to recast this case must fail for the
reasons just described.  The issues he raises require evidence and findings of
fact the trial judge was not asked to make.  To permit them to be advanced now
would be prejudicial to the defendants.

[46]

David argues the trial judge should have considered whether, failing
proof of an agreement, the evidence established a sufficient nexus between Davids
marriage to Jia Qi on the one hand, and the transfer of Newport to David on the
other, to constitute sufficient consideration to conclude the parents
intended to transfer the beneficial interest to David.

[47]

With respect, I disagree.  The trial judge was not invited to consider
whether some consideration other than what was involved in the alleged
bargain would support a transfer of the beneficial interest.  The only nexus
advanced by David was the alleged agreement.  Assuming some different or lesser
consideration might have been sufficient to transfer the beneficial interest, that
issue should have been pleaded or properly put in issue.  It was not.  If it
had been, the evidence that was led may well have been different.  The trial
judge would have had to embark on a different analysis of the evidence to find
the relevant facts.  It is too late to raise this issue on appeal.

[48]

I have already accepted that the trial judge made no error in concluding
that David did not allege a gift.  He cannot be faulted for failing to consider
explicitly whether the parents intended a gift.  In any event, the findings of
fact that he did make are inconsistent with finding a gift.  Those findings are
entitled to deference.  Again, I would not entertain this argument on appeal.

[49]

The trial judge examined every aspect of the relationship between the
sponsorship, marriage and transfer to determine whether the parents intended to
transfer beneficial ownership.  He concluded that they did not intend to make
such a transfer.  I do not think that finding can be challenged on the facts in
the absence of a palpable and overriding error.  It is evident to me that the
trial judge made no such error.

Did the trial judge err in entertaining the assertion that the transfer was
intended to mislead the immigration authorities about Davids financial means?

[50]

David argued on appeal that the judge erred in considering the
defendants explanation that the transfer was a sham to mislead the immigration
authorities into believing David was a person of financial means capable of sponsoring
Jia Qi.  David argues if that explanation cannot be considered then under s. 23(2)
of the
LTA
there would be conclusive evidence that he owned Newport
beneficially.

[51]

Again, this argument was not made to the trial judge and it was not an
issue at trial.  If it had been, it might have affected what evidence was
admissible as well as the evidence that was admitted.  If it had been advanced,
the trial judge would have been called on to consider whether the argument was
correct and to make the necessary findings of fact.  As it is, the trial judge
did review various possible explanations for the transfer of registered title
to David, including the possibility that it was a sham.  However, the trial
judge did not find that this was the reason for the transfer.  At best the
trial judge merely found it was one possibility among several, as his findings
of fact were limited to those relevant to whether the parents intended to
transfer beneficial ownership to David.  Moreover, to the extent that the
transfer to David might have been for an improper purpose, the relevance of Davids
involvement and complicity in the transaction would have had to be considered.  This
in turn would have required further findings of fact.

[52]

The trial judge was not asked to embark on this inquiry and, in my view,
we ought not to entertain this entirely new argument on appeal.  This issue
does not raise a pure issue of law in respect of which all the necessary
findings and evidence are in the record.

Section 23(2) of the
Land Title Act

[53]

I have reached the same conclusion with respect to the argument advanced
to us with respect to the effect of s. 23(2) of the
LTA
.  Mr. Holmes
argued that s. 23(2) is, by its terms, a legislative enactment that
declares registered title to be conclusive evidence of legal and beneficial
ownership, subject only to certain limited statutory exceptions.  In this case,
the only applicable exception relates to fraud.  The relevant parts of this
provision are as follows:

(2) An indefeasible title, as long as it remains in force and
uncancelled, is conclusive evidence at law and in equity, as against the Crown
and all other persons, that the person named in the title as registered owner
is indefeasibly entitled to an estate in fee simple to the land described in
the indefeasible title, subject to the following:

(i) the
right of a person deprived of land to show fraud, including forgery, in which
the registered owner has participated in any degree;

[54]

Mr. Holmes argues the effect of this section is to oust the
application of the presumption of resulting trust.  He contends that the line
of cases in which registered title has been found to be subject to the
presumption of resulting trusts goes beyond what is supportable in law.  In his
submission, such cases are (or should be) restricted to relations between joint
purchasers, particularly those who go on title as joint tenants.  He invites
this Court to declare the law to be so.

[55]

Mr. Holmes argument is that the trial judge erred in relying on
the presumption of resulting trust to defeat Davids registered interest because
s. 23(2) required that he accept registration as conclusive evidence of
beneficial as well as legal ownership.  He says David was in substance alleging
that Joseph and Christian acquired their title fraudulently.  Accordingly,
their title should have been set aside and effect given to s. 23(2).  In
short, Mr. Holmes contends that the trial judge ought to have started his
analysis by accepting that Davids registered title in 1991 was conclusive
evidence that he was the beneficial owner of Newport and then concluded that
Joseph had acquired his registered title by fraud.

[56]

I do not think we ought to allow this issue to be raised on appeal for a
number of reasons.  Not the least of which is that this argument is, in any
event, problematic.

[57]

Mr. Holmes accepted in argument that even if the presumption of
resulting trust is ousted by the operation of s. 23(2), it would always be
possible to prove the existence of an unregistered resulting trust between a
transferor and transferee.  Mr. Holmes conceded that his argument was
really about where the burdens lie.  He acknowledged the possibility of a
resulting trust existing that was inconsistent with registered title.  In that
situation, he said, if the transferee denied the trust he would be guilty of
equitable fraud and the statutory exception in s. 23(2)(i) would apply.  In
this case, the trial judge found as a fact that David held title on a resulting
trust because he acknowledged that he did so.  As between David and his
parents, David held Newport in trust for them (or, at the very least, his
mother).  This would mean that on Mr. Holmes analysis Davids assertion
of title would be a fraud.

[58]

Clearly, the trial judge was entitled on any approach to examine the
facts to determine as between David and his parents what interest David took
when he went on title to Newport.  That is what he did when he examined whether
David acquired Newport because of the agreement.  The trial judge was not
invited by David to approach the case on the basis that s. 23(2) was
conclusive evidence of his ownership and the onus was on the defendants to
establish that David was denying the existence of a resulting trust.  In my
view, it is not open, at this stage, for David to recast the case in this way.

[59]

While David did plead that his fathers use of the power of attorney to
transfer registered title from David to Joseph and Christian was a breach of
fiduciary duty, the trial judge dismissed that allegation.  Specifically, he
found Gamaliel did not breach his fiduciary duty in using the power of attorney
to transfer title.  I agree with the reasoning of the trial judge on this
point.

[60]

The trial judge was not invited to consider whether the transfer to
Joseph and Christian fell within the exception set out in s. 23(2)(i).  However,
in order to do so, the trial judge would have had to determine what interest
David had in Newport.  This is a critical finding preliminary to being able to
determine whether Joseph and Christian received that interest through fraud in
which they participated.  The trial judge, of course, concluded that David did
not have a beneficial interest.  The trial judge was not invited to decide
whether the starting point of his analysis should be that title registered in
Davids name was conclusive evidence of beneficial ownership.  Nonetheless, I
am not convinced, given the trial judges findings, it would have made a
difference to his conclusions.

[61]

As I have already observed, the trial judge did refer to the presumption
of resulting trust but the case did not ultimately turn on it.  Davids failure
to prove the agreement he alleged opened the door to the application of the
presumption, but the trial judge found as a fact that there was a resulting
trust that was acknowledged by David.  His ultimate conclusion was not
dependent on the presumption.

[62]

Finally, in this case, registered title to Newport at the time of trial
was in the names of Joseph and Christian.  On Davids argument, they would be
entitled to set up their title as conclusive evidence of beneficial ownership.
The onus would then be on David to prove they had received it fraudulently and
that they had participated in the fraud.  He would, I think, therefore have had
the onus of demonstrating that they had acquired an interest in Newport that
was properly his.  That would require proof of his interest, which, of course,
he had attempted to do by proving the agreement.  This was the very issue the
judge decided.  It is far from clear to me that this argument advanced on
appeal in any substantial way alters what the trial judge did or lays a
foundation to think the result would have been any different if the judge had
approached the case in the way David now suggests he should have done.

[63]

It follows that I am not persuaded that this case calls for a decision
by this Court about the full scope of the application of the presumption of resulting
trust in the face of s. 23(2).  The issue does not arise on the facts.  I
will, however, note that this Court very recently considered the relevance and
applicability of the presumption in the context of a joint tenancy that did not
involve joint purchasers:
Bergen v. Bergen
, 2013 BCCA 492.  While the
case is not directly on point for this appeal, I refer to it in response to the
argument that s. 23(2) and the jurisprudence dictate that the presumption
only properly applies in cases of joint purchasers.

Conclusion

[64]

The trial judge decided the case as he was asked to decide it.  He was
not asked to address the issues in the way Mr. Holmes put them to us on
appeal.  The trial judge found on the facts that David held Newport on a
resulting trust, which he acknowledged, and that he had not proven that he
acquired the beneficial interest by agreement.  In my view, we ought not to
consider the case on the basis suggested by Mr. Holmes.  He raises points
not argued before the trial judge that call for findings of fact the judge was
not asked to make.

[65]

In the result, I would dismiss the appeal.

The Honourable Mr. Justice Harris

I
agree:

The
Honourable Madam Justice Saunders

I
agree:

The
Honourable Madam Justice Kirkpatrick


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Neville v. National Foundation for Christian
  Leadership,

2014 BCCA 38

Date: 20140124

Docket: CA040695

Between:

Ken Neville and
Monica Neville

Appellants

(Plaintiffs)

And

National
Foundation for Christian Leadership and
Her Majesty the Queen in Right of the
Province of British Columbia

Respondents

(Defendants)

Before:

The Honourable Mr. Justice Donald

The Honourable Mr. Justice Frankel

The Honourable Madam Justice D. Smith

On appeal from: Supreme
Court of British Columbia, February 6, 2013
(
Neville v. National Foundation for Christian Leadership
, 2013 BCSC 183,
Vancouver Registry S061523)

Oral Reasons for Judgment

Counsel for the Appellant:

L.A. Goldbach

Counsel for the Respondent, National Foundation of Christian
  Leadership:

J.R. Shewfelt

Place and Date of Hearing:

Vancouver, British
  Columbia

January 24, 2014

Place and Date of Judgment:

Vancouver, British
  Columbia

January 24, 2014

Summary:

The trial judge did not err
in dismissing the claim that a donation was a gift, and if it were not, no
trust obligation arose. Reasons endorsed by this Court.

[1]

DONALD J.A.
: This appeal is from the dismissal of a claim
relating to a failed tax scheme.

[2]

The appellants gave $6,250 to the respondent, National Foundation for
Christian Leadership, and received a receipt for tax deduction purposes as
though the money were a donation. The Foundation warned donors that the receipt
may not be accepted as valid by Canada Revenue Agency (CRA). That caveat may well
have had to do with the nature of the overall scheme which involved the
Foundations grant of a bursary to a donors child or grandchild enrolled at
Trinity Western University in an amount roughly equal to the gift.

[3]

In due course, the appellants daughter received a bursary for slightly
more than the donation. CRA rejected the appellants receipt for a reason
upheld in the tax court and Federal Court of Appeal, (the Supreme Court of
Canada refused leave), namely the absence of an arms length relationship
between the donor and the bursary recipient.

[4]

The trial judge found that the transaction between the appellants and
the foundation was a gift and, alternatively, if it was not, no unjust
enrichment occurred because the appellants got a bursary for their daughter and
a risky tax receipt; everything they had bargained for. Either way, the
appellants have no claim in trust or otherwise.

[5]

I respectfully agree with the trial judges reasons for judgment and,
like him, I am unable to see any law or policy supporting the claim. I would
dismiss the appeal.

[6]

FRANKEL J.A.
: I agree.

[7]

D. SMITH J.A.
: I agree.

[8]

DONALD J.A.
: The appeal is dismissed.

The
Honourable Mr. Justice Donald


COURT OF APPEAL FOR BRITISH
COLUMBIA

Citation:

R. v. McCotter,

2014 BCCA 27

Date: 20140127

Docket: CA035120

Between:

Regina

Respondent

And

William James
McCotter

Appellant

Restriction on Publication: A publication ban has been imposed under
s. 486.5
of the
Criminal Code
restricting the publication, broadcasting or
transmission
in any way of evidence that could identify undercover officers.
This
publication ban applies indefinitely unless otherwise ordered.

Corrected
Judgment: The publication ban was corrected on February 17, 2014
to read that could identify undercover officers.

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Hall

The Honourable Mr. Justice Groberman

On appeal from:  An
order of the Supreme Court of British Columbia, dated
June 22, 2006 (conviction) and May 16, 2007 (sentence)
(
R. v. McCotter
, 2007 BCSC 1646, New Westminster Docket X065536).

The Appellant appeared in person

Counsel for the Respondent:

E. Campbell

Place and Date of Hearing:

Vancouver, British
  Columbia

January 8, 2014

Place and Date of Judgment:

Vancouver, British
  Columbia

January
  8, 2014

Place and Date of Reasons:

Vancouver, British
  Columbia

January 27, 2014

Written Reasons by:

The Honourable Mr. Justice Hall

Concurred in by:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Groberman

Summary:

Sentence appeal to reduce
the parole eligibility period for two counts of second degree murder from 20
years to something nearer 15 years dismissed.  After some premeditation, the appellant
beat his ex-girlfriend and her partner to death.  Appellant had not desisted
from the violent attack even though urged to cease by other persons present at
the scene.  Twenty-year parole ineligibility order is consistent with similar
cases involving multiple homicides and the murder of a former partner.

Reasons
for Judgment of the Honourable Mr. Justice Hall:

[1]

On January 8, 2014, this Court dismissed the sentence appeal of the
appellant with reasons to be delivered later.  These are the reasons.

[2]

A jury convicted the appellant of two counts of second degree murder on
June 22, 2006.  The crimes occurred on December 2, 2001 near Langley,
B.C.  At trial, counsel for the appellant sought to advance a plea of not
criminally responsible by reason of a mental disorder, but the jury did not accept
this.  This Court dismissed an appeal from conviction on February 3,
2012.  The appellant suggested he may seek to appeal to the Supreme Court of
Canada but has not yet taken steps to do so.

[3]

The appellant murdered a former girlfriend and her new partner.  There
was some delay between conviction and that aspect of sentencing concerning
parole eligibility.  The delay was said to be occasioned by a change of counsel
and some injuries suffered by the appellant.  He had been sentenced to the
requisite statutory penalty of life imprisonment immediately after conviction.
On May 16, 2007, an order was made by the sentencing judge,
McKinnon J., that the appropriate period of parole ineligibility ought to
be fixed at 20 years.  His reasons are indexed at 2007 BCSC 1646.

[4]

The crimes occurred within a few weeks after a probation order expired
that required the appellant to not have contact with his former girlfriend.
There was evidence in the record that the thought processes of the appellant
were not entirely normal, but the sentencing judge at para. 10 of his
reasons,
supra
, stated that the evidence, in his view, was a long way
short of establishing a mental incapacity capable of excusing culpability.
The judge also observed at para. 8 that the appellant had not approved of
his trial counsel advancing an incapacity defence but counsel attempted to
walk a very fine line between seeking a manslaughter conviction and having him
declared not criminally responsible.

[5]

Concerning the crimes themselves, I note the comments of the judge:

[14]      Although I have been on this court more than 20 years
and have seen much violence inflicted upon victims, I am hard pressed to
remember a more violent, vicious attack.

[15]      The victims were essentially defenceless from the
start.  Both had relatively high blood alcohol readings which, particularly in
the case of Mr. Heasman, rendered them quite helpless.

[16]      Mr. McCotter
proceeded to inflict a vicious beating upon both victims even after they were
down and out.  When bystanders tried to intervene, he grabbed a two-by-four;
threatened would-be rescuers, and then proceeded to pound the victims
mercilessly with it causing such trauma that both died as a result.

[6]

It would be fair to say that the crimes bore the hallmarks of the too
frequent obsessive conduct of those who cannot accept disengagement from an
intimate relationship.  The appellant had expressed an intention to teach a
lesson to his former partner.  He had also purchased steel-toed boots to
assist in the assault, which included kicking and beatings with a two-by-four.

[7]

At the time of that aspect of sentencing concerning parole eligibility,
it was common ground that, in this class of case, the period of parole
ineligibility would be at a minimum 15 years.  The judge expressed the
view that the case was close to one of first degree murder, conviction for which
results in the fixing of parole ineligibility at 25 years.  The judge also
found the appellant suffered psychological problems which, if not treated,
would result in his continuing to be very dangerous.  He had a history of not
cooperating with medical professionals in the past.  Given his history, the
prognosis for improvement could not be otherwise than bleak.

[8]

The appellant appeared to suggest that parole eligibility ought to have
been fixed at a lower level, referring to cases where an ineligibility period
of 15 to 17 years had been fixed.  He also made reference to the facts of
another case, which must be the case of
R. v. Machell
, 2003
BCCA 688, 190 B.C.A.C. 294.  There an individual had travelled from Alberta to
Summerland, B.C. where he shot to death his estranged wife and her mother.
Although charged with first degree murder, a plea arrangement was worked out
whereby a plea was entered to two counts of second degree murder and a joint
submission of 20 years parole ineligibility.  That appellant sought
unsuccessfully to withdraw the pleas and then proceeded with conviction and sentence
appeals which this Court dismissed.

[9]

The gravamen of the appellants submission about the
Machell
case
seems to be that the facts there were more aggravated because of the allegedly
more premeditated actions of Mr. Machell, who had travelled from Alberta
to effect his nefarious purpose.

[10]

The appellant also made reference to
R. v. Bertrand
(1997),
91 B.C.A.C. 298, 148 W.A.C. 298, where this Court upheld an order fixing parole
ineligibility at 20 years.  The accused had stabbed to death his wife and
her parents while family law proceedings were ongoing.  The appellant seemed to
suggest in his submission about the relevance of this case that killing three
people should be considered more serious than killing two people.  I suppose
that may be an arguable proposition but fixing a period of parole eligibility
is always going to require consideration of the particular circumstances of the
case and the situation of the offender.  Any multiple homicide is a most
serious crime.

[11]

In her submissions, Crown counsel referred to certain principles about
parole ineligibility recently enunciated by this Court in
R. v. Bennight
,
2012 BCCA 461 at para. 18, 560 W.A.C. 250:

-     There are
two broad groupings of cases where parole ineligibility is extended beyond 10 years:
parole ineligibility periods from 12 to 15 years and parole ineligibility
periods from 15 to 20 years. The latter group of cases relates to cases at
the highest order of moral culpability or dangerousness: Cerra, at para. 26
(per Donald J.A.).

-     The
possibility of a parole ineligibility period greater than 20 years remains
in exceptional circumstances: Cerra, at para. 36 (per Ryan J.A.).

-     Orders extending the period of
parole ineligibility are highly discretionary and are part of the sentence
pursuant to s. 673 of the Criminal Code. Such orders are therefore
appealed pursuant to s. 687(1). An [appellate] court should only interfere
with a trial judges sentencing order if the court is convinced it is not fit
or it is clearly unreasonable: Shropshire, at paras. 47-48.

[12]

Crown counsel submitted the period fixed by McKinnon J. was not
unfit based on these considerations:

-     There were two victims;

-     The
offences arose from an intimate relationship;

-     There was
considerable planning and deliberation;

-     The
appellant stated his intention to punish Ms. Anderson over a month before
the murders;

-     The
appellant prepared for an assault by purchasing a jock strap and protector cup
and wearing those as well as steel-toed boots;

-     The
appellant lay in wait while Ms. Anderson and Mr. Heasman consumed
alcohol, making them more vulnerable to attack;

-     The
appellant viciously assaulted both victims, not stopping when they were
motionless on the ground;

-     Despite
being interrupted, the appellant returned to his motionless victims and
continued to assault them with a two-by-four piece of wood; and

-     The appellant stopped his attack
only when two or three bystanders intervened.

[13]

Crown counsel also referred to a passage from the
Bennight
case
at para. 27 where it was said that dangerousness by reason of an abnormal
mental condition of the offender was relevant in fixing a period of parole
ineligibility.

[14]

At the proceedings before McKinnon J., Crown counsel sought a
period of parole ineligibility of 18 to 20 years but closer to the 20
year range.  Counsel for the appellant submitted that a period in the range of
15 years would be appropriate.  The judge found 20 years to be the
appropriate period of parole ineligibility.  His reasons included considerations
of a measure of premeditation, the extreme violence of the offences, and the
circumstance that the appellant, by reason of his persistent psychological
difficulties, constituted a continuing threat to public safety.

[15]

The Supreme Court of Canada has made it clear that reasonable deference
should be afforded to decisions of trial judges about sentence:
R. v. Shropshire
,
[1995] 4 S.C.R. 227, 129 D.L.R. (4th) 657;
R. v. Nasogaluak
, 2010
SCC 6, [2010] 1 S.C.R. 206.

[16]

In the case of
R. v. Hoang
, 2002 BCCA 430, 167 C.C.C.
(3d) 218, a case referred to by Donald J.A. in
R. v. Cerra
,
2004 BCCA 594, 192 C.C.C. (3d) 78, Saunders J.A. noted that cases where
parole ineligibility periods in the order of 20 years were imposed
included multiple death cases.
Cerra
was a case of a single homicide,
inflicted by a protracted beating.  The cases of
Machell
,
Bertrand,
and
R. v. Kianipour
, 2003 BCCA 703, 181 C.C.C. (3d) 391, were
all cases of multiple homicides that resulted in orders of parole ineligibility
of 20 years.  These decisions were sustained by this Court.
Machell
involved the killing of two people, whereas the cases of
Bertrand
and
Kianipour
involved triple homicides.  The latter two cases were near identical fact
patterns in that a partner and parents-in-law were murdered in both instances.

[17]

In the recent case of
R. v. Purdy
, 2012 BCCA 272, 291
C.C.C. (3d) 309, a man who killed his estranged wife by inflicting several stab
wounds was ordered to be ineligible for parole for 19 years.  On appeal,
this decision was sustained.  In the course of her reasons, MacKenzie J.A.
noted it would be a proper consideration in fixing a period of parole
ineligibility to take into account prospects for rehabilitation.  I consider
that in the instant case, this appellant has demonstrated poor prospects for
rehabilitation.

[18]

In the present case, the sentence imposed concerning parole eligibility
is consistent with those imposed for multiple homicides in
Machell
,
Bertrand,
and
Kianipour
.  It is the same as that imposed in
Cerra
, a case
like the present of a vicious beating and exceeds by one year that imposed in
the case of
Purdy
.  The similarity between
Purdy
(as well as
Machell,
Bertrand
, and
Kianipour
) and the present case is the murder of a
former partner.  Having regard to those precedents, there can be no suggestion
that the sentence imposed here is not properly within the range of sentences
imposed in similar cases.  I consider the order of McKinnon J. was a fit
disposition.

[19]

Because of these considerations set forth above, it was appropriate to
dismiss this sentence appeal.

The Honourable Mr. Justice Hall

I agree:

The
Honourable Madam Justice Newbury

I agree:

The
Honourable Mr. Justice Groberman