COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Johnson
          v. Global Television Network Inc. (CH Vancouver Island),

2008
          BCCA 33

Date: 20080124

Docket: CA035255

Between:

Stuart
    Johnson

Respondent

(
Plaintiff
)

And

Global
    Television Network Inc.,

a
    wholly owned subsidiary of

CanWest
    Global Communications Corp.,

doing
    business as CH Vancouver Island

Appellant

(
Defendant
)

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Mr. Justice Chiasson

The
          Honourable Mr. Justice Tysoe

N.T.
          Mitha and A. Kundi

Counsel for the Appellant

E.L.
          Montague

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

December 14, 2007

Place
          and Date of Judgment:

Vancouver, British Columbia

January 24, 2008

Written
          Reasons by
:

The
          Honourable Mr. Justice Tysoe

Concurred
          in by:

The
          Honourable Chief Justice Finch

The
          Honourable Mr. Justice Chiasson

Reasons
    for Judgment of the Honourable Mr. Justice Tysoe:

Introduction

[1]

At issue in this appeal is whether the respondent, Stuart Johnson,
    was required to retire from his employment with the appellant, Global Television
    Network Inc. ("Global"), on the first day of the month following
    his 65th birthday.  In the event that Mr. Johnson was not required to retire
    on that day, there is an issue of whether pension benefits received by Mr.
    Johnson after his 65th birthday should have been deducted from the award of
    damages for wrongful dismissal made in his favour.

[2]

In her reasons for judgment, 2007 BCSC 981, 60 C.C.E.L. (3d) 241, the
    trial judge concluded that Mr. Johnson had been constructively dismissed by
    Global.  In determining the reasonable period of notice that Global should
    have given Mr. Johnson in terminating his employment, the trial judge
    concluded that mandatory retirement was not a term of the employment contract
    between Mr. Johnson and Global.  She awarded damages based on a period
    of notice that extended beyond the first day of the month following Mr. Johnson's
    65th birthday.  In assessing the damages, the judge did not deduct the
    pension benefits paid to Mr. Johnson during the notice period after his
    65th birthday.

Background

[3]

Mr. Johnson worked for television stations operated by Global and its
    predecessor for 39 years, commencing in 1965.  He began in a unionized position
    and worked his way up to the position of manager of on-air operations for
    BCTV and CHEK TV.  He was working as the manager of on-air operations out
    of the Victoria station (then known as CH Vancouver Island) when his employment
    with Global came to an end.  The trial judge found him to be a skilled, conscientious
    and dedicated employee.

[4]

When Mr. Johnson commenced his employment, Global's predecessor offered
    a voluntary pension plan to its employees with a minimum of two years' service.
    Mr. Johnson did not join the pension plan when he first became eligible in
    1967.

[5]

In 1969, Global's predecessor obtained a new staff retirement plan,
    being Schedule A to a Deed of Trust entered into with National Trust Company,
    Limited (the "Staff Retirement Plan" or the "Plan").
    Membership in the Plan was voluntary, and contributions to the Plan were made
    by both the employee and the employer.  Mr. Johnson decided to join the Plan
    in 1974 and signed a "required deduction card" by which he agreed
    to participate in the Plan and authorized deduction of his contributions from
    his earnings.  Mr. Johnson was never given a copy of the Plan, nor did he
    ever request a copy of it.

[6]

Section 6 of the Staff Retirement Plan deals with the topic of retirement.
    It read, at the time Mr. Johnson joined the Plan, as follows:

6.
    (a)        The normal retirement date for each member shall be the first day
    of the month coincident with or immediately following his sixty-fifth birthday,
    if male, and her sixtieth birthday, if female.

(b)
    A member may, with the consent of the Company, retire before his normal retirement
    date.  The early retirement date of the member shall be the first day of any
    month agreed to by the Company.

(c)
    A member may, with the consent of the Company granted on a year to year basis,
    remain in the service of the Company beyond his normal retirement date.  The
    deferred retirement date of the member shall be the first day of the month
    immediately following the month he ceases to be an employee provided that
    such date shall not be later than the member's 71st birthday.

During
    the course of Mr. Johnson's membership in the Plan, there were some non-material
    revisions to section 6 (e.g., to remove the distinction between males and
    females in paragraph 6(a)).

[7]

Although Mr. Johnson was never provided with a copy of the Staff Retirement
    Plan, he did receive a brochure entitled "BCTV and You".  As to
    the timing of his receipt of the brochure, Mr. Johnson testified that "it
    could have been late 1970s, early 1980s", but it is apparent on the face
    of the brochure that it was created no earlier than November 1987 and perhaps
    as late as 1992.  It is possible that Mr. Johnson had also received an
    earlier version of the brochure.

[8]

After summarizing the history of BCTV, the brochure set out information
    relevant to employees.  It contained a summary of employee benefits, including
    life insurance, accident insurance, disability income protection and extended
    health care.  The brochure also contained a section about the Staff Retirement
    Plan (which was referred to in the brochure as the "BCTV Pension Plan").
    It stated that the brochure was intended only to give a brief description
    of the Plan and that if there was any conflict between the official Plan Text
    and the description, the Plan Text would apply.  It contained the following
    excerpts:

When do you retire?

Your
    normal retirement date is the first day of the month coincident with or immediately
    following your sixty-fifth birthday.  However, there is a provision for earlier
    or later retirement under special circumstances with the consent of the Company.

* * *

Can you retire early?

You
    may elect to retire early on the first day of any month provided you have
    then reached age 55 and commence receiving the reduced pension which has vested
    in you.

Can you postpone your retirement?

You
    may, with the consent of the Company, retire later than your normal retirement
    date.  In this case, you will receive at your retirement the amount of pension
    which you have earned to the postponed retirement date.  However, under current
    Revenue Canada rules your pension must commence no later than age 71.

[9]

An employee booklet was also distributed by Global to its employees
    in 2002.  The purpose of the booklet was to explain the Staff Retirement Plan.
    It contained the following sections:

Normal Retirement

The
    normal retirement date is the first day of the month after you reach age 65.

Postponed Retirement

If
    you postpone your retirement beyond age 65 at your retirement you will receive
    the amount of pension that you have earned to the postponed retirement date.
    However, under current Income Tax rules your pension must start no later than
    age 69.

The
    booklet also contained a section describing early retirement.  It stated that
    an employee could retire after reaching age 55 and take a reduced pension,
    which was described in general terms.

[10]

Global also sent annual statements of pensions to its employees who
    belonged to the Staff Retirement Plan.  The statements contained information
    according to the Plan's records, including "your normal retirement date"
    which, in the case of Mr. Johnson, was stated to be "1 August 2005",
    and including the amount of annual pension which would be payable at age 65
    (the form of the statement was changed in 1990 to show the amount of annual
    pension payable at "your normal retirement date").

[11]

In addition to the events leading to the termination of Mr. Johnson's
    employment with Global, some events of relevance occurred during the latter
    part of the 1990s.  In 1997, Global's predecessor decided to make some downsizing
    changes in its organization and advised Mr. Johnson that he was being laid
    off.  A "buyout package" was finalized between the parties in November
    1997, and it was anticipated that Mr. Johnson would be departing in the spring
    of 1998.

[12]

Before Mr. Johnson departed, however, the unionized employees of Global's
    predecessor went on strike in June 1998.  Mr. Johnson continued working, and
    BCTV and CHEK TV were able to stay on air during the five-week strike.  After
    the strike was over, Mr. Johnson received a letter from the President of Global's
    predecessor thanking him for his "unwavering dedication and for being
    at the helm when BCTV really needed you."  In addition, the Vice-President
    of Engineering testified that, on instructions from his superior, he told
    Mr. Johnson that "the lay-off notice had been lifted and it looks like
    you are going to be able to stick with us as long as you want".  Mr.
    Johnson testified that he was told by the Vice-President of Engineering that
    he "had a job as long as [he] wanted."

[13]

Mr. Johnson did continue working until 2004.  At that time, Global
    decided to transfer the master control functions from Victoria to Global Calgary.
    On August 23, 2004, the General Manager of the Victoria station met with Mr.
    Johnson and wrote him a memorandum advising that Global no longer required
    the position of Manager Operations after November 27, 2004, when the transfer
    of the master control functions was expected to occur.  The memorandum stated
    that the records indicated that Mr. Johnson would reach age 65 on July 7,
    2005, with the result that his normal retirement date was August 1, 2005.
    It went on to advise Mr. Johnson that his services would not be required after
    the transfer of the master control functions and that he would remain on the
    payroll until July 31, 2005.

[14]

After discussing the situation with other employees affected by the
    transfer and learning that most of them were receiving close to two years'
    notice or severance, Mr. Johnson wrote to the General Manager on August 31,
    2004.  He stated that "the proposal falls short of what would be reasonable
    in my circumstances" and that "[a]lthough perhaps it was assumed
    that I would want to retire at 65, it has never to my knowledge been a mandatory
    requirement to do so, and unless I'm mistaken, this has never been part of
    my employment contract."

[15]

The General Manager replied with a letter dated September 3, 2004,
    stating that if Mr. Johnson decided to decline the offer in the memorandum
    of August 23, he assumed that Mr. Johnson would wish to continue working until
    August 1, 2005, and  he would be kept busy on a variety of projects for the
    Victoria station and Global BC.  During the fall of 2004, correspondence was
    exchanged between the parties and between their lawyers with respect to the
    issue of whether there was a mandatory retirement age of 65 and the details
    of projects on which Mr. Johnson would be expected to work after the transfer
    of the master control functions to Calgary.

[16]

At the beginning of December 2004, Mr. Johnson's lawyer inquired of
    Global's lawyer whether, if Mr. Johnson opted to accept the proposed reassignment
    of work, it would be for an indefinite term or only until age 65.  Global's
    lawyer replied that it was premature at that time for Global to consider whether
    special circumstances existed and that, if Mr. Johnson still wanted to work
    when he reached the age of 65, Global would consider whether special circumstances
    existed at the time of his normal retirement date.

[17]

On December 8, 2004, Mr. Johnson's lawyer responded with a letter stating
    that the proposed reassignment of Mr. Johnson to a different role constituted
    a fundamental breach of his employment contract and that Mr. Johnson elected
    to treat the unilateral change to his employment as a constructive dismissal.
    Mr. Johnson did not work for Global after the date on which this letter
    was written.

Decision of the Trial Judge

[18]

After setting out the relevant facts, the trial judge reviewed the
    decisions in
Brown v. Coles
(1986), 5 B.C.L.R. (2d) 143 (C.A.);
Starcevich v. Woodward's Limited
(1991), 58 B.C.L.R. (2d) 254,
    37 C.C.E.L. 46 (S.C.);
Ellison v. Burnaby Hospital Society
(1992),
    42 C.C.E.L. 239 (B.C.S.C.); and
McLaren v. Pacific Coast Savings Credit
    Union
, 2000 BCSC 186, 49 C.C.E.L. (2d) 145, aff'd 2001 BCCA 388, 89
    B.C.L.R. (3d) 14.  She also reviewed several decisions relied upon by counsel
    for Global and found them all to be distinguishable from the case at bar.
    She then reasoned as follows:

[83]

In my view, the
McLaren
decisions lead
    to the conclusion that any terms of an employment contract must be clearly
    and unequivocally communicated, understood and accepted by both parties.  This
    requirement is confirmed by both
Starcevich
,
supra
, and
Brown
,
supra
.  Furthermore, an employer must turn its
    mind to any exceptions that may be made with respect to a company retirement
    policy and communicate to an employee its intention to either exercise or
    refuse to exercise any discretion afforded.

[84]
    No documentary evidence exists stating that retirement at the age of 65 is
    mandatory in this case.  It was never an express term of any employment contract
    between the parties.  There was no written employment contract between these
    parties.  And given the evidence with regard to company documents that referred
    to early and/or postponed retirement, it cannot be said that mandatory retirement
    was an implied term in the employment contract between these parties.

[19]

The trial judge went on to hold that (i) Mr. Johnson had been constructively
    dismissed, (ii) the appropriate period of notice of termination of his employment
    was 24 months, (iii) Mr. Johnson did not fail to mitigate his damages and
    (iv) Mr. Johnson was not entitled to aggravated damages.  These holdings
    are not challenged in this appeal.  Finally, the trial judge held that the
    pension benefits received by Mr. Johnson during the 24 month notice period
    were not deductible from the award of damages for wrongful dismissal.

[20]

The trial judge awarded damages to Mr. Johnson in the amount of $202,331.60,
    together with pre-judgment interest in the sum of $9,574.18, for a total of
    $211,905.78.  The damages represented Mr. Johnson's base salary for 24 months
    (as augmented by normal salary increases) and bonuses and a car allowance
    that would have been paid during the 24 month period if he had continued working
    for Global.

[21]

Although the trial judge found Mr. Johnson to have been constructively
    dismissed as of December 8, 2004, it could be argued that his employment was
    terminated when the General Manager of the Victoria station sent the memorandum
    dated August 23, 2004 advising him that his services were no longer required
    after the master control functions were transferred to Global Calgary.  The
    ensuing discussions and correspondence could be viewed as failed negotiations
    after Mr. Johnson indicated that he did not want to stop working, as
    opposed to a withdrawal of Global's notice of termination.  This difference
    has an impact on when a period of reasonable notice would begin to run.  This
    point does not appear to have been raised at trial and was not argued on appeal;
    indeed, Global conceded at the hearing of the appeal that Mr. Johnson was
    constructively dismissed as of December 8, 2004.  I will proceed on the basis
    of Global's concession.

Discussion

[22]

It is well settled that, in the absence of an express agreement between
    an employer and an employee, the law implies a term in their employment contract
    that the employer will not terminate the contract unless either (i) there
    is just cause to terminate the employee's employment or (ii) the employer
    gives reasonable notice of the termination to the employee.  For a discussion
    of implied terms in employment contracts generally, see the reasons of McLachlin
    J. (as she then was) in
Machtinger v. HOJ Industries Ltd.
, [1992]
    1 S.C.R. 986, 91 D.L.R. (4th) 491.

[23]

If the employer terminates the employment contract without just cause
    and without giving reasonable notice of termination, the employee is considered
    to have been wrongfully dismissed and is entitled to damages equal to the
    employee's salary and benefits that would have accrued during the period of
    notice that should have been given by the employer.  In the event that there
    is a term of the employment contract requiring the employee to retire at a
    certain date, the reasonable period of notice will not extend past the date
    for retirement because the employee will not have had the contractual right
    to continue to be employed by the employer beyond that date.

[24]

The principal issue in this appeal is whether there was a term of the
    employment contract between Global and Mr. Johnson requiring him to retire
    on the first day of the month following his 65th birthday.  It was not a term
    of the contract when Mr. Johnson began his employment with Global's predecessor,
    and the question becomes whether it became a term of the contract during the
    course of his employment.

[25]

The decisions relied upon by the trial judge,
Brown v. Coles
,
Starcevich v. Woodward's Limited
,
Ellison v. Burnaby Hospital
    Society
and
McLaren v. Pacific Coast Savings Credit Union
,
    were all cases where it was held that a policy introduced by the employer
    during the course of the employee's employment had not become a term of their
    employment contract.

[26]

In
Brown
, a new retirement policy was imposed by the
    employer shortly before the employee reached the retirement age under the
    policy.  This Court held that the new policy did not take effect because the
    employer had not given reasonable notice of the policy to the employee.  The
    employer was found to have wrongfully dismissed the employee when it required
    her to retire upon reaching the retirement age under the policy.

[27]

In
Starcevich
, the employer had implemented a severance
    policy during the employee's period of employment.  Prowse J. (as she then
    was) held that in order for the severance policy to become a term of the employment
    contract, the employer had the onus of demonstrating that the policy was accepted
    by both parties as a term of the employment contract.  The employer did not
    discharge the onus in that case, and the employer was ordered to pay damages
    based on a reasonable period of notice of termination.

[28]

In
Ellison
, the employer had introduced a benefits policy
    21 years after the employee had commenced employment with the employer.  The
    policy contained provisions relating to termination and severance.  Prowse
    J. referred to her earlier decision in
Starcevich
and found
    that the benefits policy had not become a term of the employment contract.
    She held that while there is no question that such a policy could form part
    of the employment contract if it was clear that the employer and employee
    intended it, there was no indication in that case that the employer had been
    relying on the policy as forming part of the employment contract.

[29]

Like
Brown
and the present case, the
McLaren
case involved a retirement policy which was created by the employer after
    the employee had commenced  employment with the employer.  The policy provided
    that normal retirement age was 65, but exceptions could be made with the approval
    of the chief executive officer.  The employee learned of the policy when he
    read about it in an employee manual.  The employee was the manager of one
    of the employer's branches, and he told his superior approximately seven months
    before turning 65 that he wished to continue as a branch manager for 14 months
    after he reached 65.  Approximately one month later, the employee was told
    that he could not continue as a branch manager beyond his 65th birthday, but
    he could continue as an account manager.  The employee was not interested
    in this position because it represented a significant demotion.  The employee
    sued for wrongful dismissal when he was required to retire at the age of 65.

[30]

Maczko J. held that the retirement policy did not form part of the
    employment contract because it was not effectively communicated to the employee
    and he had never conveyed his acceptance that the policy applied to him.
    Maczko J. also held that the employee was not given clear and unequivocal
    notice of dismissal until he was told six months prior to his 65th birthday
    that he could not continue as a branch manager beyond his 65th birthday.

[31]

In upholding the decision of Maczko J., this Court made the following
    comments which were relied upon by the trial judge in this case:

[8]
      Although I accept that the respondent, in a general way, was aware of company
    policy that most people in the company would retire at age 65, I believe that
    it was open to the trial judge to find on the evidence that there was an element
    of ambiguity in the stated policy.  I say that because the retirement
    policy was not couched in absolute terms - it would be possible according
    to the circular for an individual to continue on with his or her employment
    "with the approval of the Chief Executive Officer".  It was only
    in the latter part of March of 1997 that the respondent was unequivocally
    informed by senior management that he would not be permitted to continue his
    then employment beyond the date of his 65th birthday.

[9]
     It appears to me that the trial judge was entitled to conclude that it had
    not been clearly brought home to the respondent prior to March 1997 that he
    would definitely be required to retire on the occasion of his 65th birthday
    in October 1997.  It has been held that a notice of termination must be clear
    and unambiguous to be effective - see
Reynolds v. First City Trust Co.
(1989), 27 C.C.E.L. 194 (B.C.S.C.).  In this case there had been no clear
    notice given to the respondent prior to March 1997 that he would on turning
    65 be required to retire and thus dismissed from further employment.  Since
    this was only six months prior to his 65th birthday, the trial judge found
    there had been [
sic
] not been sufficient notice of dismissal given
    by the employer in this case.  As a consequence he held that damages in lieu
    of notice would be payable upon the usual contract of employment principles.

[32]

It is important to bear in mind the context in which these comments
    were made.  Maczko J. had found that the retirement policy was not a term
    of the employment contract, and his finding was not disturbed by this Court.
    It also had to be determined when the employee had been given notice of termination
    of his employment.  In accordance with the common law that has developed in
    connection with the implied term of the employment contract requiring reasonable
    notice of termination, the employer was required to give clear and unambiguous
    notice of termination.  Although the employee was aware in a general way that
    most employees would be required to retire at age 65, there was a possibility
    that employees could work beyond the age of 65 with the approval of the chief
    executive officer.  Hence, the employee was not given clear and unambiguous
    notice of his termination on his 65th birthday until he was told six months
    prior to his 65th birthday that he could not continue as branch manager beyond
    his 65th birthday.  Six months notice of termination was not sufficient notice.

[33]

In the present case, the trial judge correctly stated in paragraph
    83 of her reasons for judgment that any terms of an employment contract must
    be accepted by both parties.  However, the trial judge failed to review the
    evidence to determine whether the retirement policy was accepted by both parties.
    Rather, she simply concluded at paragraph 84 that the retirement policy was
    not an express term because there was no written employment contract between
    the parties.  What the trial judge overlooked was that there need not be a
    written employment contact and a term can be an express term of the employment
    contract if it was accepted by both parties.

[34]

In this case, the retirement provision was part of the Staff Retirement
    Plan, and Mr. Johnson voluntarily joined the Plan.  He received consideration
    in the form of contributions made to his pension plan by Global and its predecessor
    for approximately 30 years.  Mr. Johnson was not given a copy of the Plan,
    but, by the early 1990s and perhaps earlier, he did receive a brochure describing
    the retirement provision.  He continued his employment with Global and its
    predecessor for many years with the knowledge that the retirement provision
    applied to him.  It is a reasonable inference from this evidence that Mr.
    Johnson accepted the retirement provision, but it is unnecessary to draw an
    inference in view of his testimony.

[35]

Mr. Johnson gave the following testimony about the Staff Retirement
    Plan during his cross-examination:

Q
    You acknowledge, Mr. Johnson, that the company pension plan was a benefit
    provided to you as an employee of the company?

A
    Yes.

Q
    You acknowledge, Mr. Johnson, that the terms and conditions applicable to
    the pension plan applied to you as part of your contract of employment?

A
    Yes.

* * *

Q
     And I take it by joining the pension plan, you accepted those terms and
    conditions applying to you, did you not?

A
    Yes, whatever was in the plan.

Q
    All right.  And that by applying to you, you accepted that they were part
    of your contract of employment?

A
    Yes.

[36]

Mr. Johnson gave the following testimony when being questioned during
    cross-examination about the brochure entitled "BCTV and You" that
    he acknowledged had been provided to him:

Q
    I take you to "When Do You Retire?"  Do you see that heading?

A
    Yes.

Q
    And it says:

Normal
    retirement date is 1st day of month coincident with or immediately following
    your 65 birthday.

Do
    you see that?

A
    Yes.

Q
    And do you agree that that was part of the terms and conditions of the pension
    plan which applied to you?

A
    Yes.

Q
    And that it was part of your contract of employment?

A
    Yes.

Q
    And that there may be a provision for earlier or later under special circumstances
    with the consent of the company?  That as well?

A
    Yes.

Q
    And you agree that that description under "When You Retire", both
    sentences, applied to you?

A
    Yes.

Q
    And you considered them as part of your contract of employment?

A
    Yes.

Q
    So you knew from this, I put it to you, Mr. Johnson, that you knew your retirement
    would be the 1st day of the month coincident with immediately following your
    65 birthday unless there was a special circumstance and the company gave its
    consent?

A
    Yes.

* * *

Q
    And you accepted that being part of your contract of employment?

A
    Yes.

Q
    So I put it to you, Mr. Johnson, that certainly after reviewing [the brochure],
    you knew that you were to retire at 65 with those - - unless those exceptions
    were there?

A
    Yes.

* * *

Q
    So from these documents, coupled with the pamphlet and you reviewed, I take
    it you knew that your expected date of retirement was age 65?

A
    I knew the normal date was, yes.

Q
    And when you say "normal", you mean exception to the normal being
    special circumstances with the consent of the company?

A
    Yes.

Q
    And if you didn't have the consent of the company, you knew that you would
    be required to retire at age 65?

A
    That's what the plan says, yes.

Q
    But not only does the plan say that, Mr. Johnson, I'm putting to you that
    you knew that that's what would be required of you if there was no consent
    of the company to go beyond age 65?

A
    Right.

[37]

What is clear from this testimony is that Mr. Johnson accepted that
    the retirement provision of the Staff Retirement Plan was a term of his employment
    contract and that he understood what was meant by it.  It is my opinion that,
    in view of this testimony, the trial judge made a palpable and overriding
    error in concluding that the retirement provision was not a term of Mr. Johnson's
    employment contract and that Global was not entitled to require him to retire
    on the first day of the month following his 65th birthday.

[38]

Counsel for Mr. Johnson points to the fact that section 6 of the Staff
    Retirement Plan makes no mention of the requirement for special circumstances
    referred to in the brochure.  In my view, nothing turns on this point.  Global's
    predecessor simply elaborated in the brochure that its consent to an employee
    working past age 65 would only be considered in special circumstances.

[39]

Counsel for Mr. Johnson also points to the fact that the employee booklet
    distributed in 2002 did not mention that the consent of Global was required
    for an employee to postpone their retirement beyond age 65.  But there was
    no misunderstanding on the part of Mr. Johnson.  He knew that the consent
    of Global was required if he was to continue working past age 65.

[40]

Counsel for Global cites three decisions of arbitrators where the use
    of the term "normal retirement date" in collective agreements has
    been interpreted to connote mandatory retirement (namely,
Lehigh Northwest
    Cement Ltd. v. Boilermakers' Lodge D-277 (Soh Grievance)
(2005), 142
    L.A.C. (4th) 108;
Re University of Manitoba and Association of Employees
    Supporting Education Services
(1980), 27 L.A.C. (2d) 129; and
Independent
    Electricity System Operator v. Society of Energy Professionals (Islam Grievance)
,
    [2005] O.L.A.A. No. 152 (QL)).  I find it unnecessary to rely on those decisions.
    Whether or not it is referred to as mandatory retirement, Mr. Johnson clearly
    understood what was meant by the retirement provision of the Plan.

[41]

The law requires an employer to give the employee reasonable notice
    of the termination of their employment contract.  This is a term of the employment
    contract implied by the law in the absence of an express provision in the
    contract dealing with its termination.  The situation is different when the
    employment contract does contain an express term.  One type of such an express
    term is a provision requiring the employee to retire at a specified age unless
    the employer consents to the continuation of the employment beyond that age.
    In the absence of the parties agreeing that the employer will give the employee
    advance notice as to whether or not it will give its consent, there is no
    obligation on the employer to do so.  It is certainly open to the employee
    to make an inquiry before reaching the specified retirement age, and the employer
    may, but is not required to, make its decision in advance of the retirement
    date.

[42]

Although Mr. Johnson accepted that he was required to retire at 65
    unless Global consented to his continuing employment, he testified that he
    felt that he had Global's consent because he had been told in 1998 that he
    had a job as long as he wanted it.  I gather that it was not argued by counsel
    at trial that Global had given its consent under the retirement provision.
    The trial judge reviewed the evidence about the relevant events in 1998, but
    she did not make a finding of fact in this regard.

[43]

There is no real conflict on the evidence in connection with the words
    spoken to Mr. Johnson after the strike ended in the summer of 1998.  Mr. Johnson
    testified that he was told that he had a job as long as he wanted it.  Global's
    Vice-President of Engineering testified that he said that it looked like Mr.
    Johnson was going to be able to stick with the company as long as he wanted.

[44]

In effect, Mr. Johnson alleges that the remark of Global's Vice-President
    of Engineering entitled him to a fixed term of employment for life if he wished.
    However, employment for life requires explicit, unequivocal articulation,
    as explained by Abella J.A. (as she then was) in
Foreman v. 818329 Ontario
    Ltd.
(2003), 229 D.L.R. (4th) 385, 175 O.A.C. 234, leave to appeal
    to S.C.C. refused, [2004] 1 S.C.R. ix.  In
Foreman
, an employment
    contract which provided that the employer "shall not dismiss" the
    employee was found by the majority of the Ontario Court of Appeal to be a
    contract for an indefinite term, not a contract for life.

[45]

Similarly, in
Singh v. British Columbia Hydro and Power Authority
,
    2001 BCCA 695, 95 B.C.L.R. (3d) 238, leave to appeal to S.C.C. refused, [2002]
    2 S.C.R. ix, this Court held that memoranda to employees about job security
    did not create a contract of lifetime employment.  The Court found that a
    reasonable person would not infer that the memoranda constituted an offer
    of lifetime employment.

[46]

The remark in question was made to Mr. Johnson in the context of his
    lay-off notice being rescinded.  Neither the topic of retirement nor the age
    of 65 was mentioned at the time.  In the circumstances, the most a reasonable
    person would infer from the comment was that Mr. Johnson would not be laid
    off in the future.  In my view, a reasonable person would not infer that Global's
    predecessor was giving consent under the Plan's retirement provision for Mr.
    Johnson to continue working past the age of 65.

[47]

Although Mr. Johnson took the position during his testimony that Global
    had given its consent, he did not react that way after he was told in 2004
    that Global no longer required his position.  In his letter dated August 31,
    2004, Mr. Johnson did  refer to the fact that he was told he had a job as
    long as he wanted it in view of his contribution during the 1998 strike, but
    he was making reference to this remark in order to support his argument that
    he should be given the same 24 month severance package as was contained in
    the 1997 buyout option.  After Global's lawyer advised of its position that
    it was a term of Mr. Johnson's employment contract that he was required
    to retire at age 65 and that there had been no consent from Global to postpone
    his retirement beyond August 1, 2005, Mr. Johnson's lawyer did not
    respond by taking the position that Global's predecessor had already given
    the required consent.

[48]

Similarly, Mr. Johnson's lawyer made the inquiry in early December
    2004 whether the proposed reassignment of work would be for an indefinite
    period or only until age 65.  Global's lawyer responded that it was premature
    for Global to consider whether special circumstances existed.  Mr. Johnson's
    lawyer did not reply to the effect that consent had already been given for
    Mr. Johnson to work beyond the age of 65.

[49]

This suggests that not even Mr. Johnson initially regarded the statement
    made to him in 1998 as constituting consent to him working past his normal
    retirement age.  He only began taking that position at some point after he
    elected to treat Global's actions as amounting to his constructive dismissal.

Conclusion

[50]

It is my conclusion that the retirement provision of the Staff Retirement
    Plan was a term of Mr. Johnson's employment contract and that consent was
    not given by Global or its predecessor to allow Mr. Johnson to work past his
    normal retirement date of August 1, 2005.  When Global constructively dismissed
    Mr. Johnson on December 8, 2004, the damages to which Mr. Johnson was
    entitled were limited to his salary and benefits up to August 1, 2005.  As
    Mr. Johnson did not receive any pension payments prior to August 1, 2005,
    it is unnecessary to consider the issue of whether pension payments should
    be deducted in assessing damages.

[51]

I would allow the appeal by setting aside the $211,905.78 judgment
    granted to Mr. Johnson by the trial judge and substituting a judgment in an
    amount equal to the salary and benefits which Mr. Johnson would have been
    entitled to receive had his employment with Global continued until August
    1, 2005, plus pre-judgment interest.  The Court was advised by counsel for
    Global at the hearing of this appeal that after the trial judge issued her
    reasons for judgment, Global paid the judgment for the period from December
    8, 2004 to August 1, 2005.  In the event that counsel are unable to agree
    on the amount of the substituted judgment, I would give liberty to either
    party to apply for a determination of the amount.

The Honourable Mr. Justice Tysoe

I
    agree:

The
    Honourable Chief Justice Finch

I
    agree:

The
    Honourable Mr. Justice Chiasson


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Pieszkor,

2008
          BCCA 36

Date: 20080124

Docket: CA034822

Between:

Regina

Respondent

And

Czeslaw
    Pieszkor

Applicant

Before:

The
          Honourable Chief Justice Finch

(In
          Chambers)

C.
          Pieszkor

Appellant Appearing On His Own Behalf

F.
          Tischler

Counsel for the Respondent

(Crown)

Place
          and Date of Hearing:

Vancouver, British Columbia

16 January 2008

Place
          and Date of Judgment:

Vancouver, British Columbia

24 January 2008

Reasons
    for Judgment of the Honourable Chief Justice Finch:

[1]

Mr. Pieszkor applies for leave to appeal from the order of the British
    Columbia Supreme Court pronounced by Mr. Justice Crawford on 22 January 2007,
    dismissing his summary conviction appeal from the judgment in British Columbia
    Provincial Court, pronounced by Judge Ball on 23 August 2005 holding him guilty
    of criminal harassment contrary to s. 264 of the
Criminal Code
.

[2]

On this application for leave, Mr. Pieszkor was assisted by an interpreter,
    Mr. Jaworski, who is fluent in both English and Polish, the latter being Mr.
    Pieszkors first language.

[3]

The thrust of Mr. Pieszkors oral submissions for leave to appeal was
    that the trial in Provincial Court was unfair.  He says he did not have the
    assistance of an interpreter, that his English was inadequate, and that he
    has no hearing in his left ear.  He says the trial started late in the day,
    not all of his witnesses could be called that day, and that some witnesses
    could not be called at a later date because the judge instructed that subpoenas
    not be issued for them.  He says he was not allowed to complete his cross-examination
    of the complainant, and that the judge would not let him complete his own
    testimony, nor call some of the further defence witnesses.  He also objected
    to the content and admissibility of a pre-sentence report which contained
    a psychological evaluation of him.

[4]

As can be seen from the above, Mr. Pieszkors submission addressed
    only what he says were the inadequacies and unfairness of his trial in Provincial
    Court.  He did not address any submissions to alleged errors in the judgment
    of the summary conviction appeal judge, and more particularly, did not identify
    any errors of law in that judgment which might form the basis of an appeal
    to this Court.

[5]

Despite my efforts to assist, I am not certain that Mr. Pieszkor as
    a lay person understood the burden he faced on this application of showing
    that his proposed appeal raised an issue of law alone, that such an issue
    was one of importance, and that his appeal would have a reasonable possibility
    of success.

[6]

On his appeal to the Supreme Court of British Columbia, Mr. Pieszkor
    appears to have raised most of the arguments against the unfairness of his
    trial that I have summarized above, although not all of them.  The summary
    conviction appeal judge reviewed the trial proceedings and transcripts, and
    concluded that there was a full and fair hearing, that the trial turned on
    issues of credibility, and that there was no basis on which he could interfere
    with the conviction.

[7]

Many of the grounds asserted by Mr. Pieszkor before me were not raised
    on the summary conviction appeal.  Those grounds cannot form the basis of
    an appeal to this Court, because not having been asked to address them, the
    summary conviction appeal judge could not have made any error, whether of
    law or otherwise, in respect of them.

[8]

Crown counsel was able to identify two possible grounds of appeal to
    this Court from the judgment in the court below.  The first was whether Mr.
    Justice Crawford erred in finding that the trial judge had adequately assisted
    the unrepresented applicant at trial.  The second was whether Mr. Justice
    Crawford made an error of law in finding that the trial judge exercised his
    discretion reasonably in terminating the applicants cross-examination of
    the complainant, and in terminating the applicants own evidence in chief.

[9]

Neither of those matters raises an issue of law alone.  Both relate
    to the exercise of the trial judges discretion in supervising and controlling
    what was obviously a difficult trial.  Whether the trial judge erred in the
    exercise of his discretion, in the circumstances of this case, is a question
    of both law and fact.  Nor is either question one of importance, since they
    are specific to the circumstances of this case, and do not raise any unsettled
    question of law requiring further consideration or refinement.

[10]

Finally, if an appeal on either of these issues were permitted to proceed,
    it would in my view be bound to fail.  The summary conviction appeal judge
    concluded that the trial judge exercised his discretion reasonably in controlling
    the trial.  In my view, no division of this Court would disagree with that
    conclusion.

[11]

The application for leave to appeal is refused, and the conviction
    affirmed.

The Honourable Chief Justice Finch


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Sagoo,

2008
          BCCA 41

Date: 20080124

Docket: CA035607

Between:

Regina

Respondent

And

Jasbir
    Sagoo

Appellant

Before:

The
          Honourable Madam Justice Rowles

The
          Honourable Mr. Justice Donald

The
          Honourable Madam Justice Saunders

Oral Reasons for Judgment

V.
          Williams

Counsel for the Appellant

M.
          Brundrett

Counsel for the (Crown) Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

17 January 2008

Place
          and Date of Judgment

Vancouver, British Columbia

24 January 2008

[1]

SAUNDERS, J.A.
: Mr. Sagoo appeals his sentence of eight months imposed
    on November 14, 2007, on a charge of possession of stolen property (a motor
    vehicle) and six months on charges of criminal harassment, assault, and fraud,
    all to run concurrently.

[2]

The charges of assault, criminal harassment and fraud were proceeded
    with summarily and thus the maximum sentence for them is six months.

[3]

At the sentencing hearing the learned provincial court judge indicated
    that the appropriate sentence for all offences was eight months, the sentences
    to run concurrently.  He said:

[10]
    In all the circumstances, the appropriate disposition is one of a further
    eight months in jail on all counts, concurrent with one another. It will be
    followed by 18 months of probation.

[4]

Counsel reminded the sentencing judge that some of the offences were
    summary conviction matters and the judge then reduced the sentence to those
    before us.  In doing so he kept the sentence for the one indictable offence,
    possession of stolen property, at eight months.  These sentences were in addition
    to three months credit for pre-trial custody.

[5]

Mr. Sagoo says that none of the summary conviction offences justified
    the maximum sentence of six months.  He says further that as credit of three
    months was given for pre-trial custody, the effect of the sentences on the
    summary conviction offences is more than six months and therefore the sentences
    of six months are illegal.  As to the fourth offence, possession of the stolen
    motor vehicle, he contends that the judge erred in principle in imposing the
    sentence of eight months by failing to give due regard to the principle of
    rehabilitation, the step-up principle, and the guilty pleas, and says in any
    event that the global sentence imposed was demonstrably unfit.  He says as
    well that when the sentencing judge lowered his intended sentence on the three
    summary conviction matters, he should have reconsidered the global sentence
    and that it was error not to do so.

[6]

Mr. Sagoo was 37 years old at the time of his sentencing and had a
    criminal record which was accurately described by the judge as consisting
    mainly of breaches of probation and being unlawfully at large.  It did include,
    however, convictions for trafficking in narcotics in 1995, possession of stolen
    property in 1999, theft under $5,000 in December 2006, fraud under $5,000
    in January 2007, and theft under $5,000 in January 2007.  On the December
    2006 theft conviction Mr. Sagoo was sentenced to one day, time served and
    one year of probation.  On the January 2007 fraud conviction he was sentenced
    to a $300 fine, time served and one-year of probation.  On the theft conviction
    in January 2007, he was sentenced to 60 days plus time served and placed on
    probation for six months.  In the result, Mr. Sagoo was on probation when
    he committed all of the offences now before the court.   The most onerous
    prior sentence he received is the 60 days imposed in January 2007.

[7]

In chronological order, the first offences before us were harassment
    and assault.  Mr. Sagoo and his ex-wife had been separated for three years.
    Although he had been told many times not to contact her, he continued to do
    so.  The count of harassment alleged harassing conduct between January 1 and
    June 15, 2007.  This conduct took the form of continuously attending at her
    residence and calling her.  He often knocked on her window and would attend
    uninvited and unannounced.  Mr. Sagoo did not dispute that this had occurred
    daily since their separation.

[8]

On June 15, 2007 Mr. Sagoo assaulted his ex-wife.  He did so by driving
    away in his vehicle, after an argument, while she was holding onto the window
    frame.  When the car moved forward she fell to the ground and suffered injury.

[9]

The next offence in time was fraud.  On July 5, 2007, Mr. Sagoo used
    stolen identification in an attempt to obtain a Sears credit card.  He was
    caught by a loss prevention officer, and was found to possess a credit card
    and a drivers licence in another persons name.  Mr. Sagoo was not successful
    in obtaining the Sears credit card.

[10]

The last of the four offences, possession of stolen property over $5000,
    occurred on September 11, 2007.  Mr. Sagoo was found driving a stolen Volkswagen
    vehicle.  He did not acknowledge stealing it, but did acknowledge knowing
    that it was stolen, saying that he had received it two days earlier from a
    drug dealer.  The vehicle was valued at over $5000.

[11]

The sentencing judge rejected the possibility of a conditional sentence
    for these offences, citing Mr. Sagoos previous disregard for orders of the
    court.  As to his personal circumstances the sentencing judge said, in his
    brief reasons:

[9]
    Mr. Sagoo appears at this point in time to realize that he needs to address
    his severe drug addiction. He appears motivated, although his past has certainly
    not shown that he has been that motivated. Hopefully this time he will get
    the message and realize that he needs to deal with his addiction.

[12]

Given the disposition I consider fit, I need not consider in detail
    the issues relating to the summary conviction offences, except to say that
    some consideration should have been given by him to the matter of pre-trial
    custody in the context of the maximum available sentence for those offences.

[13]

The real issue before the Court is the length of the global sentence.
    On behalf of Mr. Sagoo, Ms. Williams canvassed a number of authorities relating
    to each of the offences for which Mr. Sagoo has been convicted in support
    of the proposition that a total sentence in the range of time served, along
    with pre-trial custody, would be sufficient.  She submits that such a sentence
    would recognize the step-up principle, give effect to the totality principle,
    give credit to Mr. Sagoo for his guilty pleas, and be fit.

[14]

On a review of the material before us, I cannot say that the sentencing
    judge offended the concept of step-up by concluding that a global sentence
    significantly greater than 60 days was required, given the constellation of
    offences before the court, their varied nature, the fact he was on probation
    at the time of the offences, and the time period in which the offences were
    committed.  The step-up principle was described by Mr. Justice Lambert in
R. v. Robitaille
(1993), 31 B.C.A.C. 7  as being an application
    of the principle of rehabilitation:

[8]
    In relation to that argument, I say that the theory that sentences should
    go up only in moderate steps is a theory which rests on the sentencing principles
    of rehabilitation.  It should be only in cases where rehabilitation
    is a significant sentencing factor.  So the conclusion, in any particular
    case, that the increase in sentence should not be too large rests on a consideration
    of the circumstance of the particular offender and a desire not to discourage
    any effort he may be making to rehabilitate himself by the imposition of a
    sentence that may be seen by him to be a dead weight on his future life.

[15]

The step-up notion is most useful in considering an individual sentence
    or offences committed in a spree.  While it is still a useful touchstone in
    considering a global sentence for several offences committed over a longer
    time period, it does lose a degree of cogency in such a situation as the global
    sentence must recognize the constellation of cases before the court.  In the
    final analysis the question is always what is a fit sentence for these offences
    and this offender.  In considering this question the classic principles of
    sentencing must be applied.

[16]

Counsel for Mr. Sagoo urges a considerably reduced sentence to recognize
    the potential for Mr. Sagoos rehabilitation and his guilty pleas.  On this
    the sentencing judge said, in addition to the comments I have already referred
    to:

[15]
    You really need to deal with your addiction. You need to go to a residential
    treatment centre, sir.  I know your employer is hopeful to get you back, or
    your partner, but he is going to have to wait.  You need to attend to your
    needs first and make sure that you are fully recovered and use the probation
    order that I put you on to assist you in making sure that you stay off the
    drugs because you know that drugs are going to have you right back into custody.

[17]

In my view, the sentencing judge adequately addressed the potential
    for rehabilitation and, but for the confusion as to the available sentence
    for the summary conviction offences, I would not interfere.

[18]

I am persuaded, however, that the confusion on the sentence for the
    three summary conviction matters which I have described led to a sentence
    that should be reduced somewhat.  After the matter was brought to his attention
    the sentencing judge addressed the individual sentences, but did not turn
    his mind again to the global sentence, in light of this feature of the case.
    Had he done so, it is quite likely that the sentence imposed would have been
    of a lesser duration.

[19]

Turning my mind to that feature of the case, I would reduce the global
    sentence to six months, accomplishing this by allowing the appeal to the extent
    of reducing the sentence for possession of stolen property to six months.
    Further, although it makes no difference to the global sentence required to
    be served by Mr. Sagoo, in consideration of the pre-trial custody that was
    not considered afresh by the sentencing judge after the confusion was sorted
    out, I would also reduce the sentences for the three summary conviction offences
    to three months apiece, with the sentences for the criminal harassment  and
    assault to run concurrent to each other and to the sentence for possession
    of stolen property, and the sentence for fraud to run consecutive to the sentences
    for criminal harassment and assault, but concurrent to the sentence for possession
    of stolen property.

[20]

ROWLES, J.A.
: I agree.

[21]

DONALD, J.A.
: I agree.

[22]

ROWLES, J.A.
: The appeal is allowed to the extent indicated by Madam
    Justice Saunders.

The Honourable
    Madam Justice Saunders


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Stanton
          v. Stanton Estate,

2008
          BCCA 32

Date: 20080124

Docket: CA034604

Between:

Ophelia
    Stanton

Appellant

(
Plaintiff
)

And

Jo
    Ann Bernadette Stanton, Executrix and Trustee

of
    the Estate of Donald Wilfred Stanton, Deceased

and
    the said Jo Ann Bernadette Stanton

Respondent

(
Defendant
)

Before:

The
          Honourable Madam Justice Newbury

The
          Honourable Madam Justice Saunders

The
          Honourable Mr. Justice Frankel

R.S.
          Henderson

Counsel for the Appellant

M.V.
          Barnard

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

January 7, 2008

Place
          and Date of Judgment:

Vancouver, British Columbia

January 24, 2008

Written
          Reasons by
:

The
          Honourable Madam Justice Saunders

Concurred
          in by:

The
          Honourable Madam Justice Newbury

The
          Honourable Mr. Justice Frankel

Reasons
    for Judgment of the Honourable Madam Justice Saunders:

[1]

Ophelia Stanton appeals from the order of Mr. Justice Bernard made
    October 26, 2006, declaring the Last Will and Testament of her husband, Donald
    Stanton, made January 2, 2002, valid.  The reasons for judgment are indexed
    at 2006 BCSC 1574.

[2]

The respondent, Jo Ann Stanton is the executrix and a beneficiary under
    the Will.  She is the only daughter of Mr. Stanton and his first wife, who
    died in January 2001 after 56 years of marriage.

[3]

In December 2001, Mr. Stanton, then 81 years old, married the appellant.
    She had been his housekeeper.  Shortly after their marriage Mr. Stanton executed
    the new will.  In it he left his cars to his new wife and the residue of his
    estate to his daughter.

[4]

The major asset owned by Mr. Stanton was the family house.  On January
    9, 2002, Mr. Stanton transferred the house into joint tenancy between himself
    and his daughter, thus giving to her, in the event of his death, the substantial
    portion of his assets in addition to the bequest in his Will.

[5]

Mr. Stanton told his new wife about the Will and the land transfer
    in January 2002.  Mrs. Stanton expressed concern that she and her children
    would not have a place to live if he should die, and they discussed purchasing
    another house.  Mr. Stanton investigated the possibility of obtaining a reverse
    mortgage from the equity held in the residence in which they then lived.
    Mr. Stanton fell ill in May 2002 and died in October 2002 without making arrangements
    for the housing of Ophelia Stanton in the event of his death.

[6]

In February 2003, Ophelia Stanton commenced an action under the
Wills
    Variation Act
, R.S.B.C. 1996, c. 490.  In November 2005, she commenced
    this probate action alleging suspicious circumstances and calling into question
    Mr. Stantons testamentary capacity.  This action required Jo Ann Stanton
    as the executrix to prove the Will in solemn form.

[7]

Mr. Justice Bernard described the issues this way:

[5]
    The primary issues for determination are whether the defendant has proved:

(1)
    that Mr. Stanton had the requisite testamentary capacity; and

(2)
    that Mr. Stanton knew and approved of the contents of his Will.

[6]
    A secondary issue is whether presumptive proof of (2) above, arising from
    a duly executed will, has been displaced by circumstances which excite the
    suspicion of the court.

[8]

Mr. Justice Bernard canvassed the position of the parties and the evidence
    before him.  The evidence included the testimony of Ophelia Stanton to the
    effect that she considered Donald Stanton mentally competent at the time the
    Will was made, the testimony of Jo Ann Stanton generally to the same effect,
    and evidence taken by deposition from the solicitor who drew the Will for
    Mr. Stanton and attended at its execution.

[9]

Mr. Justice Bernard concluded that Mr. Stanton was mentally sound at
    the time the Will was made, expressing his reasons fully in these passages:

[32]
    I am satisfied that the evidence proves that in December 2001 and January
    2002 Mr. Stanton was mentally sound, though failing physical health.
    At the time in question Mr. Stanton was 82 years old, living independently,
    reading books, handling his own mail, paying his own bills, and managing his
    own affairs (financial and otherwise) without assistance or the need of it
    from others.  He made his own arrangements to execute a new Will in contemplation
    of his impending marriage.  He, alone, gave instructions to his solicitor
    and executed his Will.  There is no evidence from which one could reasonably
    conclude that he was suffering from any form of dementia or that he was failing
    mentally.

[33]
    The evidence shows that Mr. Stanton clearly understood the extent of his estate
    and the circumstances of all those who might reasonably stand to benefit from
    it upon his death.  Mr. Stanton had a relatively modest and contained
    estate built up over a life-time with his recently deceased wife.  Mr.
    Stanton knew that his estate included ownership of the family home, and he
    was alive to its potential value in the real estate market.

[34]
    Mr. Stanton had only one child, a daughter with whom he was close and in frequent
    contact.  He also had a new wife, with whom he had been in a relationship
    for about six months prior to the execution of his Will.  Mr. Stanton
    knew that his second wife had young children for whom she was responsible.

[35]
    The evidence establishes that Mr. Stanton intended that, upon his death, the
    bulk of his estate would go to his daughter as a beneficiary under his Will
    and as a surviving joint tenant.  There is no evidence of any other expressed
    intention.  In keeping with this intention, when Mr. Stanton decided
    to remarry he prepared a Land Transfer and a consulted a solicitor about a
    new Will.  These were rational and sensible steps to further his intentions.

[36]
    I reject the suggestion that execution of the Land Transfer was inconsistent
    with either Mr. Stantons Will or with the evidence of his alleged desire
    to provide for his new wife and, therefore, indicative of a lack of testamentary
    capacity and/or a lack of knowledge and approval of the contents of the Will
    .  As to the former, I am satisfied that these steps are complementary
    and consistent with his intentions.  As to the latter, there is no evidence
    from which I might reasonably conclude that Mr. Stanton was precluded from
    providing for the plaintiff, if he so desired, merely because he put his daughter
    on title as a joint tenant.

[37]
    The Will in question is short and simple.  In essence it leaves Mr. Stantons
    cars to the plaintiff and the residue of his estate to his daughter.
    It accords with the defendants testimony that there existed a long-time family
    understanding that Jo-Ann Stanton would inherit the family home.  This
    testimony is corroborated by a hand-written Land Transfer prepared by Mr.
    Stanton, which pre-dated the execution of the will.

[38]
    The evidence shows that Mr. Stanton reviewed the Will with his solicitor before
    signing it.  His solicitor had no concerns about Mr. Stantons testamentary
    capacity and I find that there is nothing unusual about the Wills provisions.
    In relation to Mr. Stantons comprehension of the contents of the Will and
    its effect, it is noteworthy that the plaintiff testified that Mr. Stanton
    accurately recounted to her the provisions of the Will shortly after it was
    signed; moreover, the plaintiff agreed that Mr. Stanton was, at the time,
    mentally competent.

[10]

In addition to the express finding of mental competence, Mr. Justice
    Bernard considered and rejected the submission that circumstances existed
    which should excite the suspicion of the court:

[39]
    I have carefully considered the litany of alleged suspicious circumstances;
    however, in light of the foregoing findings I am unable to conclude that any
    of them, individually or in combination, are even remotely suspicious.
    They are neither capable of exciting the suspicions of the court with respect
    to Mr. Stantons knowledge and approval of the Will nor do they call into
    question Mr. Stantons mental capacity.

[11]

On this appeal,  Mr. Henderson on behalf of Ophelia Stanton, submits
    Mr. Justice Bernard erred:  in failing to give due regard to the pleadings
    of Jo Ann Stanton in the Wills Variation action concerning Mr. Stantons lack
    of capacity at or about the time of making the will;  in failing to give effect
    or due regard to Jo Ann Stantons evidence concerning his lack of capacity;
    and in failing to find that circumstances existed with respect to the preparation
    and execution of the Will that excite the suspicion of the court.  He contends
    that had adequate consideration been given to the first two matters or had
    suspicious circumstances been found to exist, the trial judge was required
    to determine whether Mr. Stantons testamentary capacity was sufficient to
    rebut the suspicious circumstances, and that the trial judge erred in failing
    to take this analytical step.

[12]

The first submission concerns portions of the amended statement of
    defence filed by Jo Ann Stanton in the Wills Variation action in which she
    pleads that Ophelia Stanton exerted undue influence upon Mr. Stanton in the
    matter of his decision to marry, in particular this paragraph:

[31]
    The Executrix says the Deceased lacked the appreciation and insight of the
    consequences resulting from this Marriage and did not have the mental capacity
    to enter into the Marriage given the undue influence exercised by the Plaintiff
    and the ill health of the Deceased at the time of the Marriage.

[13]

That pleading, as I read it, relates to an allegation of undue influence
    and some deficiency in Mr. Stantons mental capacity
in regards to entry
    into the marriage
in December 2001.  Pleadings, however, are not evidence.
    On its face this paragraph is clearly a pleading relating to the marriage
    and not a pleading in relation to the Will.  Thus it cannot be seen as an
    admission that Mr. Stanton lacked mental capacity to make the Will in January
    2002.  As it is neither an admission on the issue in this case, nor evidence,
    it follows that it was not an error for the trial judge to fail to advert
    to it.

[14]

The second submission on behalf of Ophelia Stanton concerns the effect
    of a portion of the examination of Jo Ann Stanton in which she testified that
    her position is that Mr. Stanton was mentally incapable of making a decision
    concerning his marriage.  However, in the same portion of her evidence she
    also advanced her view that her father was mentally capable of making a decision
    concerning his estate plan.  I do not read her evidence as ever contrary to
    this latter position, and taken as a whole her evidence amounts to no more
    than her father was vulnerable to influence in the matter of his marriage.
    There was, therefore, in my view, no misapprehension of Jo Ann Stantons evidence
    or failure to consider vital evidence contrary to the position advanced by
    Jo Ann Stanton at the trial, and I see no error in the fashion in which the
    trial judge considered her evidence.

[15]

These two submissions on which I have now expressed my view were in
    aid of the submission that circumstances existed with respect to the preparation
    and execution of the Will that should excite the suspicion of the court.

[16]

Determination of the existence, or not, of such circumstances is a
    matter within the purview of the trial judge.  An appeal, of course, is not
    a fresh trial.  This Court is not at liberty to interfere with the findings
    of fact, inferences of fact, or findings of credibility, absent a palpable
    and overriding error:
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235.

[17]

On my review of the evidence,
    I do not see the error urged upon us by Ophelia Stanton.  The trial judge
    gave full and, in my view, unassailable, reasons for his conclusion that the
    circumstances were not suspicious.  Further, he made a finding of fact that
    Mr. Stanton was mentally capable at the time he made his new will and, again,
    gave reasons for that conclusion.

[18]

It is true that some of the evidence
    the trial judge relied upon to come to his conclusion on mental capacity came
    from Jo Ann Stanton, who stood to gain from a conclusion favourable to her.
    That is not, however, a basis upon which to interfere with the factual conclusions
    of the trier of fact.  In any case, there was ample evidence supporting Jo
    Ann Stantons opinion of her fathers competence in this matter and supporting
    the conclusions that Mr. Stanton was competent and that the circumstances
    were not suspicious.  This evidence included the family relationships formed
    in earlier family life and the expectations of Mr. Stanton and his first wife,
    the sequence of events including Mr. Stantons demonstrated intention to transfer
    the property into joint tenancy at a time that pre-dated his new will, and
    Mr. Stantons conversations with Ophelia Stanton shortly after the making
    of the Will and the transfer of the property.  The latter, in particular,
    demonstrated lucidity on the critical issues.

[19]

In addition to the evidence of
    the parties, there was evidence from the solicitor.  We heard criticism of
    the fashion in which this solicitor performed her professional duties on behalf
    of Mr. Stanton.  I think the thrust of this submission was that because the
    solicitor did not make a comprehensive assessment of Mr. Stantons mental
    capacity, the trial judge should have doubted the sufficiency of the evidence
    adduced by the executrix as to his mental capacity, and his failure to do
    so demonstrated error.  I do not agree.  While it might have been helpful
    to have some notes from the solicitor as to her assessment of Mr. Stantons
    mental capacity, the absence of this evidence simply meant that the trial
    judge was required to consider the evidence that was before him to determine
    whether the executrix had met her burden.  He concluded that she had met her
    burden, and I cannot say this conclusion was an error.

[20]

In my view, there is no basis
    upon which to interfere with the order made.  I would dismiss the appeal.

[21]

Last, Mr. Henderson made submissions
    on the matter of costs, urging this Court to award costs of the trial and
    of the appeal from the Estate.  The trial judge has not yet made an order
    as to costs.  The order disposing of the substance of the action was entered
    without finality on that issue.  That is regrettable as it means that we cannot
    consider the issue of costs of the trial at this time.  Nor, in my view, should
    we at this time consider costs of the appeal as the costs of the appeal should
    not be determined without knowing the disposition of costs at trial.

[22]

In summary, I would dismiss the
    appeal with liberty to the parties to make submissions on costs of the trial
    and the appeal when the order of costs in the Supreme Court of British Columbia
    is resolved and an order as to costs entered.

The Honourable
    Madam Justice Saunders

I AGREE:

The Honourable Madam Justice Newbury

I AGREE:

The
    Honourable Mr. Justice Frankel