COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Law Society of British Columbia v. Chiang,

2013 BCCA 8

Date: 20130115

Docket:
CA038749

Between:

Law Society of
British Columbia

Respondent

(Defendant)

And

Vivian Chiang

Appellant

(Plaintiff)

Before:

The Honourable Chief Justice Finch

The Honourable Madam Justice Neilson

The Honourable Mr. Justice Harris

On appeal from:  Law
Societys Review Panel decision of September 30, 2010

The Appellant appeared in person:

V. Chiang

Counsel for the Respondent:

H. Wood

Place and Date of Hearing:

Vancouver, British
  Columbia

December 12, 2012

Place and Date of Judgment:

Vancouver, British
  Columbia

January 15, 2013

Written Reasons by:

The Honourable Mr. Justice Harris

Concurred in by:

The Honourable Chief Justice Finch

The Honourable Madam Justice Neilson

Reasons
for Judgment of the Honourable Mr. Justice Harris:

Introduction

[1]

This is an appeal brought by a part-time lawyer from a bencher review, pursuant
to s. 48 of the
Legal Profession Act
,
S.B.C. 1998, c. 9.
 A seven person Bencher Panel reversed a majority decision of an initial three
person Hearing Panel, which had dismissed a citation against the lawyer for
professional misconduct, amongst other allegations.  The citation for
professional misconduct centred on an allegation that the lawyer had misled the
court about the issues in respect of which short leave had been granted.  The
initial decision included a dissenting minority opinion.  On review, the
Bencher Panel unanimously agreed with the dissent, and substituted a finding of
professional misconduct, but confirmed the Hearing Panels dismissal of all
other allegations.

[2]

The appellant seeks a declaration that the proceedings were
ultra
vires
, that the decision of the Review Panel be quashed and the original
majority Hearing Panels decision be restored, that the restrictions placed
upon her be removed, that her record be restored, and that she be paid
restitution.  Alternatively, she seeks court assisted mediation.  In support of
her appeal, the appellant argues that the Review Panel had no jurisdiction to
rehear the original complaint, and if they did, they misapprehended the facts.  She
suggests also that the underlying complaint regarding professional misconduct was
a collateral attack intended to discredit her before the courts, and further,
that the Law Societys intervention in the dispute was an abuse of process.  She
submits that the Law Society was biased against her, that the proceedings
amounted to misfeasance of public office, malicious prosecution, and the
improper exercise of authority.

[3]

The respondent Law Society submits that the appellant has ignored the true
issue on appeal, namely, whether the Review Panel decision was reasonable, and
instead identifies a number of grounds of appeal which are, for the most part,
new and not properly supported with admissible evidence.  Where the appellant
has asserted that the Review Panel misapprehended the facts, the respondents
submit that the assertion is unsupported.

[4]

In my view, the only issue properly before this Court on this appeal is
whether the decision of the Review Panel was reasonable.  I am satisfied that
it was.  For the reasons that follow, I would dismiss the appeal.

Background

[5]

Ms. Chiang is a part time member of the Law Society.  She does not
actively practise.  In 2004, Ms. Chiang was the president of Freshway Specialty
Foods Ltd. (Freshway), a wholesale marketer of fruits and vegetables.  Freshway
was a member of the Fruit and Vegetable Dispute Resolution Corporation (DRC).
 The DRC is an industry group that provides dispute resolution support to its
members.  Following a dispute with a supplier, DRC ordered Freshway to pay approximately
$13,000 US to the supplier.  Freshway did not comply, resulting in DRC
suspending its membership.  DRC notified its members of the suspension.

[6]

Ms. Chiang, on behalf of Freshway, sought assistance from the Supreme
Court to set aside the suspension and procure other relief.  Ms. Chiangs
conduct during a series of appearances on behalf of Freshway became the source
of two complaints to the Law Society from opposing counsel.  The complaints led
to a citation on 11 May 2007, listing four incidents which may have
amounted to professional misconduct by misleading the court.

[7]

The facts giving rise to the complaints occurred when Ms. Chiang
appeared
ex parte
before Madam Justice Gill in chambers on 11 March
2005, on her application seeking three claims for relief.  Madam Justice Gill
refused the
ex parte
application, but granted short leave with
respect to a claim for injunctive relief only and not the other relief.  The
order, which appears to have been prepared in chambers with the assistance of
the chambers judge, did not expressly identify the relief in respect of which
short leave had been refused or the one ground in respect of which it had been
granted.

[8]

On 15 March 2005, Ms. Chiang appeared before Madam Justice L. Smith
in chambers on a Notice of Motion seeking relief on three grounds.  She did not
inform L. Smith J. that Gill J. had only granted leave on one
ground and refused it on two.  Ms. Chiang attempted to obtain relief on
Freshways behalf on all three grounds, contrary to the terms of the order for
short leave granted by Gill J.

[9]

Freshways application was dismissed by L. Smith J.  Further
litigation ensued, aspects of which also formed the subject matter of the Law
Society disciplinary proceedings.  Eventually, in January 2006, two counsel
involved in the litigation with Freshway made complaints to the Law Society.  The
matter, which involved four allegations, was heard by a Hearing Panel of the
Law Society on 7-8 October 2008.  At the hearing, the Law Society withdrew one allegation.
 The Hearing Panel issued a majority decision on 17 June 2009 dismissing
the other three allegations.

[10]

The allegation which ultimately was upheld by the Review Panel, and
which is the subject of this appeal, is in the following terms, as amended by
the initial Hearing Panel:

[1]        ... Your conduct on
March 15, 2005, when you appeared before Madam Justice Smith in Supreme Court
Chambers in Vancouver Registry Action No. S051013 on behalf of Freshway
Specialty Foods Inc. in respect of its Notice of Motion dated March 11, 2005
and did not inform her that on March 11, 2005 short leave had been granted only
with respect to the claim for injunctive relief, and further made submissions
with respect to all three claims for relief set out in the Notice of Motion,
contrary to the leave granted by Madam Justice Gill on March 11, 2005. This
conduct was contrary to your duty as an officer of the court, in breach of the
terms of the short leave order, or may or did have the effect of misleading the
court, or both.

[11]

The majority of the Hearing Panel were of the view that the allegation
of misconduct was explained by Ms. Chiangs lack of experience and stress,
and did not amount to professional misconduct.  One of the benchers, Mr. Alexander,
agreed with the dismissal of two allegations, but dissented on the allegation set
out immediately above.

[12]

In Mr. Alexanders view, Ms. Chiang intentionally sought an
order from L. Smith J. which she knew she did not have approval to
seek.  He found that Ms. Chiang was motivated by her financial interest in
Freshway, and allowed this to overcome her professional judgment.  He viewed
this as a marked departure from the professional conduct expected of Law
Society members and constituted professional misconduct.

[13]

The Law Society sought a review of the Hearing Panels decision, under s. 47
of the
Legal Profession Act
.  The Review Panel issued its decision on 30 September
2010.  The Review Panel agreed with the dismissal of the two allegations, but
adopted Mr. Alexanders dissent, finding that Ms. Chiangs conduct
did amount to professional misconduct.  The Review Panel referred the matter
back to the Hearing Panel to consider appropriate sanctions.

[14]

Ms. Chiang appeals from this decision.

The Appellants position

[15]

On the issue properly before this Court, Ms. Chiang submits that
the Review Panels decision should be reviewed on a standard of correctness,
not reasonableness, as asserted by the Law Society.  She contends, in any
event, that the Review Panels decision was unreasonable.  Specifically, she
argues that the Review Panel ought to have adopted the reasoning of the
majority of the Hearing Panel, because the Hearing Panel made findings of fact
after listening to the evidence, assessing the witnesses, and assessing her
credibility.  Therefore, she asserts, the Review Panel erred in not deferring
to the findings made by the majority of the Hearing Panel and instead adopting
the findings of the dissenting opinion.  In doing so, it misapprehended the
evidence.  Much of her oral argument, therefore, centred on persuading this
Court that the majority decision of the Hearing Panel was correct, and the dissent
wrong.

The Law Societys position

[16]

The Law Society submits that this is an appeal from the decision of the
Review Panel, not the Hearing Panel, and is to be reviewed against a standard
of reasonableness.  It argues that Ms. Chiang has not identified any basis
to conclude that the Review Panel erred in principle or acted unreasonably in
adopting, after reviewing the evidence, Mr. Alexanders dissent.  Rather, Ms. Chiang
has reargued the merits and not addressed the issue that should engage this
Court on an appeal.

Discussion

[17]

In her factum, Ms. Chiang raised a large number of issues that are
not relevant to the issue which is properly before this Court, therefore it is
unnecessary to address those issues.

[18]

The issue which is properly before this Court is an appeal from the
decision of the Review Panel.  That appeal is brought by way of a statutory
right of appeal under s. 48 of the
Legal Profession Act.

[19]

It is convenient briefly to outline the statutory framework relevant to
this appeal.  Section 47 of the
Legal Profession Act
provides that
either party to a decision of a hearing panel may, within 30 days, apply in
writing to the benchers for a review on the record; s. 47(1).  In this
case the Law Society exercised its right to apply for a review.  Section 47(5)
provides:

After a hearing under this
section, the benchers may

(a) confirm the decision of
the panel, or

(b) substitute a decision the
panel could have made under this Act.

[20]

It is apparent that the Review Panel exercised its authority under s. 47(5)(b)
when it adopted Mr. Alexanders dissent, because his decision is one the
panel could have made under the
Legal Profession Act
.

[21]

Section 48 of the Act provides a person, such as Ms. Chiang, with a
right of appeal of a decision, determination or order of a panel of the
benchers.  The standard of review to be applied by this Court is well settled.
As Mr. Justice Mackenzie reiterated in
Christie v. The Law Society of
British Columbia
,

2010 BCCA 195, 288 B.C.A.C. 53:

[9]        The standard of review
generally applicable to discipline decisions of the Law Society is
reasonableness:
Goldberg v. Law Society of British Columbia
, 2009 BCCA
147, 92 B.C.L.R.(4th) 18, at para 36, quoting
Canada (Citizenship and
Immigration) v.

Khosa
, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 59.
The facts found by the Panel are entitled to deference unless they are based on
a material misapprehension of the evidence or are otherwise clearly wrong.

[22]

In
Goldberg
, Mr. Justice Donald articulated the standard of
reasonableness as follows:

[36]
Dunsmuir v. New Brunswick
, 2008 SCC 9, 291
D.L.R. (4th) 577, merged the concepts of reasonableness
simpliciter
and
patently unreasonable into a single test, reasonableness.  The Supreme Court of
Canada recently described this test in
Canada (Citizenship and Immigration)
v. Khosa
, 2009 SCC 12:

[59]      Reasonableness is a single standard that takes its
colour from the context.  One of the objectives of
Dunsmuir
was to
liberate judicial review courts from what came to be seen as undue complexity
and formalism.  Where the reasonableness standard applies, it requires
deference.  Reviewing courts cannot substitute their own appreciation of the
appropriate solution, but must rather determine if the outcome falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law (
Dunsmuir
, at para. 47).  There might be more than one
reasonable outcome.  However, as long as the process and the outcome fit
comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.

[23]

The question before us is whether the adoption by the Review Panel of Mr. Alexanders
dissent was unreasonable.  To answer that question it is necessary to undertake
some analysis of the proceedings before both panels.

[24]

After reviewing the evidence, the majority of the Hearing Panel reached
the following conclusions:

Second and Fourth
Allegations

[42]  Nor is there any evidence that has sufficient clarity
or cogency with respect to the other allegations upon which professional
misconduct might be successfully advanced. While the Order granted by Madam
Justice Gill was limited to one aspect of the motion requested to be heard, the
Order made by the Court and endorsed on the Short Leave Requisition form
contained no limitation at all except as to service and required the Respondent
to serve all materials with the Requisition essentially forthwith. The evidence
of the Respondent, which was not successfully challenged in cross-examination,
explained that her actions thereafter were taken as a result of her perceived
need for haste, her high anxiety consequent upon her involvement in a process
substantially unfamiliar to her, her lack of experience, the impact of the
emotions arising from circumstances of having a very ill parent in Taiwan and
upon whom she wished to quickly attend, and most importantly, her attempt to
advance in a matter that was misconceived from the outset. All the foregoing
was consistent from the material and the Respondent's concessions.

[43]  As proper practice, the
Respondent should have addressed Madam Justice Smith outlining first the relief
requested of the Court on this occasion, but mistakenly she did not and instead
embarked on the underpinning facts of the case. All of the facts that the
Respondent recited to the Court were relevant as background for injunctive
relief and were therefore properly before the Court. The Respondent went wrong,
however, in not ensuring that the limitation of the Short Leave Order was
clear. This should have been done at the outset of the hearing. This she did
not do, and that is the nub of allegation 2 brought against her. However, we
can find no instance in the transcript that the Respondent did not respond
otherwise than truthfully when asked a question by the Court.

[25]

Mr. Alexander dissented from these conclusions.  His reasons for
doing so are detailed and involve a careful assessment of the evidence.  Mr. Alexander
accepted that a finding of professional misconduct required clear and cogent
evidence to prove the facts on a balance of probabilities.  He defined professional
misconduct as involving a marked departure from the conduct the Law Society
expects of its members.

[26]

Mr. Alexander noted that there was no issue that L. Smith J.
was misled about what relief Freshway was entitled to seek on its application.
Ms. Chiang admitted that she understood that she had only been granted
leave in respect of one ground of relief.  Mr. Alexanders findings are
set out at paragraphs 99103 of his reasons:

[99]      I must reject the explanations offered by the
Respondent for her failure to observe the limitations imposed by Madam Justice
Gill. None of the explanations offered demonstrate an honest attempt to comply
with the Order.

[100]    Her explanation to the Law Society for not complying
was that she was forced to spend the whole night preparing for the application
that she could not adjourn because of the urgency of the matter. She was
concerned with the several hundreds of thousands of dollars of perishable
produce in inventory and each day's delay had severe consequences. It must be
noted, at the same time, that there was no urgency about preventing the DRC
from further negative publications -the DRC had not indicated any inclination
to publish further and in fact, had nothing more to say about F Inc. When Madam
Justice Gill denied the application to have the DRC suspension lifted, the
urgency of all remaining issues disappeared.

[101]    By the morning of March 15, the only Order that
would have provided relief to F Inc. was an order setting aside the suspension
of F Inc. by the DRC. Despite the specific refusal of Madam Justice Gill to
permit that application on short leave, the Respondent proceeded to seek that
relief. In my opinion, all available evidence points overwhelmingly to the fact
that the Respondent proceeded to seek relief on all grounds set out in her
Notice of Motion in an attempt to save her company from the consequences of
losing the warehouse full of deteriorating produce. In doing so, I am of the
view that the Respondent acted wilfully and knowingly and without regard for
her professional responsibilities to the Court and the Law Society.

[102]    I would find that the Respondent intentionally, and
in the face of the specific Order of Madam Justice Gill to the contrary,
proceeded to seek relief in respect of a portion of the Notice of Motion for
which short leave had not been granted. With the exception of her stated desire
to respond to the urgent need to preserve the inventory of produce, all
explanations offered by the Respondent are inadequate to explain the behaviour.

[103]    It is my view that the
Respondent allowed her personal financial interest in F Inc. to overcome her
professional judgment and in the result of that lapse she attempted to obtain
an Order from Madam Justice Smith which she knew she did not have approval to
seek. Misleading the Court in this manner represents a marked departure from
behaviour that the Law Society expects of its members, and so, in that regard,
I would have found that the Respondent has committed professional misconduct.

[27]

In reaching these conclusions, Mr. Alexander supported his analysis
by comprehensive reference to the transcript of the proceedings before Gill J.
in which the chambers judge explained in detail the scope of the order for
short leave and the reasons why the other relief could not be granted on an
interlocutory basis.  He also referred to the reasons for judgment of Mr. Justice
Macaulay in
Freshway Specialty Foods v. Map Produce LLC, et al,
2005
BCSC 1485, 143 A.C.W.S. (3d) 668, criticizing the conduct of Ms. Chiang in
relation to the matters forming the subject of the citation.  Mr. Alexander
then examined correspondence between the Law Society and Ms. Chiang in which
she gave inconsistent explanations of her conduct, but which referred to the
urgency of the financial situation facing the company.  Mr. Alexander
placed weight on the fact that Ms. Chiang was concerned about the urgency
involved in the deteriorating inventory in support of his conclusion that she
deliberately attempted to get relief that would address that problem: relief
she was not entitled to seek before L. Smith J.

[28]

Mr. Alexander also analyzed Ms. Chiangs evidence at the
hearing before the Panel.  In that evidence, she claimed that by the time the
motion came on the hearing before L. Smith J. she had forgotten the
restriction on the relief she was entitled to seek.  Mr. Alexander
rejected that explanation as not credible.  He also rejected the explanation
that she did not abide by the restrictions imposed on the application by Gill J.
because she was preoccupied with the service of documents.

[29]

Finally, based on an examination of the transcript at the hearing of the
motion before L. Smith J., Mr. Alexander concluded that Ms. Chiang
was reciting facts in support of her application to retract the suspension order
which was what was creating the urgency surrounding the deteriorating
inventory.  Indeed, Mr. Alexander quoted portions of the transcript before
L. Smith J. which he concluded demonstrated that Ms. Chiang was
deliberately seeking relief that she knew she was not entitled to.

[30]

The Review Panel, after reconsidering the Hearing Panels decision,
stated its conclusions in the following terms:

[13]  On this aspect of the matter, a majority of the Hearing
Panel concluded that the evidence did not justify a finding of professional
misconduct. Mr. Alexander delivered a vigorous dissent.

[14]  We have examined with some care not only the reasons of
the majority and of Mr. Alexander but also the underlying evidence,
including that reviewed by Mr. Alexander. We have come to the conclusion,
respectfully, that on a proper analysis of all of the evidence the decision of
the majority of the Hearing Panel to reject a finding of professional
misconduct on the evidence was wrong.

[15]  Mr. Alexanders conclusion is set out in
paragraphs [102] and [103] of his dissenting reasons:

[102]    I would find that the
Respondent intentionally, and in the face of the specific Order of Madam
Justice Gill to the contrary, proceeded to seek relief in respect of a portion
of the Notice of Motion for which short leave had not been granted. With the
exception of her stated desire to respond to the urgent need to preserve the
inventory of produce, all explanations offered by the Respondent are inadequate
to explain the behaviour.

[103]    It is my view that the
Respondent allowed her personal financial interest in F Inc. to overcome her
professional judgment and in the result of that lapse she attempted to obtain
an Order from Madam Justice Smith which she knew she did not have approval to
seek. Misleading the Court in this manner represents a marked departure from
behaviour that the Law Society expects of its members, and so, in that regard,
I would have found that the Respondent has committed professional misconduct.

[16]  We agree not only with these conclusions but also with
the analysis that led Mr. Alexander to them. In our view, his analysis is
comprehensive, balanced and careful. We have found it completely persuasive. We
do not think that there is anything that we can usefully add to it.

[17]  Our decision is that the
complaint reflected in allegation 2 of the citation has been made out.
Accordingly, under section 47(5)(b) of the
Legal Profession Act
, we
determine that the Respondent committed professional misconduct, and we refer
the matter back to the Hearing Panel to consider appropriate sanctions.

[31]

To reiterate, the Review Panel is entitled to substitute a decision the
panel could have made under the
Legal Profession Act
.  The decision
reached by Mr. Alexander is one the Hearing Panel could have reached
although it did not.  In my view, there is nothing unreasonable in the Review
Panel adopting as its own both Mr. Alexanders conclusions and his analysis.
As the Review Panel stated, Mr. Alexander's analysis is comprehensive,
balanced and careful.  The Review Panel made that assessment after reviewing
both the majority and minority reasons, as well as the underlying evidence.  It
is clear that the Review Panel assessed the majority and minority reasons
according to a standard of correctness in concluding that on a proper analysis
of all of the evidence the decision of the majority of the Hearing Panel to
reject a finding of professional misconduct on the evidence was wrong.

[32]

In my view, the Review Panel cannot be said to have misapprehended the
evidence in reaching its conclusion.  The Review Panel was entitled to reach
the conclusion that the majority of the Hearing Panel was wrong in accepting Ms. Chiangs
explanations for her behaviour such as her lack of experience, business and
personal distractions, anxiety, lack of sleep and conduct to support the view
that her conduct was an isolated lapse.  The Review Panels conclusion was
based on a review of the evidence on the record.  The conclusions reached by Mr. Alexander
and affirmed by the Review Panel are based on the evidence and involved
inferences that were open to be drawn from the evidence.  None of the facts
found were unsupported by evidence.

[33]

Ms. Chiang was not able, in her written or oral argument before us,
to identify any errors in principle committed by the Review Panel.  Her argument
was reduced to the proposition that the dissent and the Review Panel were wrong
in rejecting her explanations to exculpate her conduct.  But it is clear in my
view that the Review Panel is not bound by the majoritys conclusions that
inexperience or stress, in this case, excuse misconduct, even when issues of
credibility may be involved.  Moreover, the Review Panel did not commit any
error in disagreeing with the conclusions of the majority, even allowing for
the fact that the Hearing Panel had the benefit of hearing some part of the
evidence.

[34]

The Review Panel accepted that the evidence established that Ms. Chiang
had intentionally sought relief that she admitted that she was not entitled to
seek.  It concluded from that evidence that it was wrong for the majority of
the Hearing Panel to treat her explanations for her conduct as an adequate
answer to the allegation of professional misconduct.  Ms. Chiang alleged
that the Review Panel misapprehended the facts, but in my view, they accepted
the facts as found by the Hearing Panel, but determined, as they were entitled
to do, that in Ms. Chiangs circumstance, stress and inexperience did not
excuse deliberate and misleading conduct.  In my view, this is a reasonable
conclusion to reach in the circumstances of this case.

[35]

In brief, Ms. Chiang had admitted that she knew that she had been
granted short leave only with respect to one ground of relief and not the
others.  She admitted that she did not advise Madam Justice Smith of that
fact when the motion came on for hearing.  There is no question that Madam
Justice Smith was, in fact, misled by the nondisclosure.  It was open, on the
evidence, for the Review Panel to conclude that Ms. Chiang intentionally
misled the court, even if there were mitigating circumstances.  It is for the
Law Society to determine whether such conduct is professional misconduct.  Ms. Chiang
did not allege that such conduct would not be professional misconduct.  Rather
she put her appeal on the basis that she had not intentionally misled the court
by failing to advise it of limited grounds properly at issue in the
application.

Conclusion

[36]

Ms. Chiang has not persuaded me that the decision of the Review
Panel was unreasonable.  As a result, I would dismiss the appeal.

The Honourable Mr.
Justice Harris

I agree:

The Honourable Chief Justice
Finch

I agree:

The Honourable Madam Justice
Neilson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Larose,

2013 BCCA 12

Date: 20130115

Docket: CA039487

Between:

Regina

Respondent

And

Anthony Andrew Larose

Appellant

Before:

The Honourable Mr. Justice Chiasson

The Honourable Madam Justice Neilson

The Honourable Madam Justice Garson

On appeal from:
Supreme Court of British Columbia, March 1, 2011
(
R. v. Larose
, 2011 BCSC 693, New Westminster Docket No. 73890)

Counsel for the Appellant:

D.T. Redekopp

Counsel for the Respondent:

M.J. Brundrett

Place and Date of Hearing:

Vancouver, British
  Columbia

November 14, 2012

Place and Date of Judgment:

Vancouver, British
  Columbia

January
  15, 2013

Written Reasons by:

The Honourable Mr. Justice Chiasson

Concurred in by:

The Honourable Madam Justice Neilson
The Honourable Madam Justice Garson

Reasons for Judgment of the Honourable
Mr. Justice Chiasson:

Introduction

[1]

This appeal examines circumstances where a trial judge determines not to
put a defence of self-defence to a jury when an accused is charged with aggravated
assault and possession of a weapon dangerous to the public peace.

Background

[2]

The incident giving rise to this appeal occurred on April 3, 2010. The appellant,
Anthony Larose, and a young woman (his friend) were waiting for a bus.  The
appellant became angry and threw a rock through a glass portion of the bus
shelter.  Mr. Hanna, who was intoxicated, crossed the street and
confronted the appellant about breaking the glass.  During the ensuring verbal
exchange, without warning, Mr. Hanna punched the appellant in the face.  The
appellant dropped to his knees.  Although he was not hurt significantly, the
blow caused considerable discomfort because his nose was sensitive due to a
previous drug addiction.

[3]

The appellant testified that while he was on the ground, the young woman
handed him a 20-centimeter knife.  He rose and saw that Mr. Hanna had been
joined by Mr. Marshall.  He testified they rushed him.  The appellant stabbed
Mr. Hanna twice in the chest and once in the abdomen.  Messrs. Hanna and
Marshall moved away.

[4]

During the altercation, the knife was either knocked away or thrown away
by the appellant.  It was in the middle of the street.  The appellant went to
retrieve it.  As he did so, Messrs. Hanna and Marshall turned and started
towards the appellant.  He testified at trial that he was surprised and thought
they were stupid, saying you dont come back for more.

[5]

The group met again at the bus shelter.  The appellant stated that
Messrs. Hanna and Marshall rushed him again.  He slashed Mr. Hannas face and sliced
Mr. Marshalls neck.  The injuries sustained by Messrs. Hanna and Marshall
were life threatening.

[6]

The appellant fled the scene; police apprehended him shortly thereafter.

[7]

The appellant was charged with two counts of aggravated assault, two
counts of assault with a weapon and one count of possession of a weapon
dangerous to the public peace.  His defence at trial was self-defence.  The
judge refused to put that defence to the jury on the basis it did not have an
air of reality.  The jury convicted the appellant on all counts.

Reasons of the trial judge on air of reality

[8]

In para. 2, the judge outlined the principles applicable to considering
whether a defence has an air of reality from
R. v. Cinous
, 2002 SCC 29,
[2002] 2 S.C.R. 3:

[2]
R. v. Cinous
, 2002 SCC 29 [
Cinous
],
at paras. 50 and 51 states:

50        The principle that a
defence should be put to a jury if and only if there is an evidential
foundation for it has long been recognized by the common law. This venerable
rule reflects the practical concern that allowing a defence to go to the jury
in the absence of an evidential foundation would invite verdicts not supported
by the evidence, serving only to confuse the jury and get in the way of a fair
trial and true verdict. Following
Pappajohn
,
supra
, the inquiry
into whether there is an evidential foundation for a defence is referred to as
the air of reality test. See
Park
,
supra
, at para. 11.

51        ...[A] trial judge has a positive duty to keep
from the jury defences lacking an evidential foundation. A defence that lacks
an air of reality should be kept from the jury. [References removed] This is so
even when the defence lacking an air of reality represents the accused's only
chance for an acquittal, as illustrated by
R. v. Latimer
,
[2001] 1 S.C.R. 3
,
2001 SCC 1
.

[9]

After referring to
R. v. Tran
, 2010 SCC 58, [2010] 3 S.C.R. 350,
which stated the test in a slightly different way, the judge returned to
Cinous
,
noting that he had to look at the evidence as a whole and was required to
assume as true the evidence of the accused.  He continued in paras. 8 and 9:

[8]        Judges and juries have different duties to
discharge when considering a defence raised by the defendant. The Judge says
whether the evidence establishes any facts from which [the matter in issue]
may
be
reasonably inferred; the jurors say whether, from those facts ... [the
matter in issue]
ought
to be inferred:
R. v. Arcuri
, 2001 SCC 54,
para 24 quoting
Metropolitan Railway Co. v. Jackson
(1877), 3 App. Cas.
193 (H.L.).

[9]        In summary, a judge
who fails to place before the jury all defences arising from the evidence errs
in law; but no less errs in law by placing before the jury a defence lacking an
air of reality. A trial judge should be very slow to take a defence away from a
jury, the more so where the defence taken away takes with it an accuseds sole
remaining defence. However, where a defence does not possess an air of reality,
the law requires the judge to instruct the jury to not consider it. No exercise
of judicial discretion is permitted.

[10]

At issue were ss. 34(1) and 34(2) of the
Criminal Code
, R.S.C.
1985, c. C-46, which state:

34(1) Every one who is unlawfully assaulted without having
provoked the assault is justified in repelling force by force if the force he
uses is not intended to cause death or grievous bodily harm and is no more than
is necessary to enable him to defend himself.

34(2) Every one who is unlawfully assaulted and who causes
death or grievous bodily harm in repelling the assault is justified if

(
a
) he causes it under
reasonable apprehension of death or grievous bodily harm from the violence with
which the assault was originally made or with which the assailant pursues his
purposes; and

(
b
) he believes, on reasonable grounds, that he
cannot otherwise preserve himself from death or grievous bodily harm.

[11]

The judge noted that the Crown had the burden to establish the absence
of at least one of the essential elements of the sections.  The judge first
turned to s. 34(2).  He stated in paras. 16, 17 and 19:

[16]      In
R. v. Pétel
, [1994] 1 S.C.R. 3 [
Petel
],
Chief Justice Lamer stated at para. 19, in a case involving the accused killing
of the victim, that the three constituent elements of self-defence under s.
34(2):

... (1) the existence of an
unlawful assault; (2) a reasonable apprehension of a risk of death or grievous
bodily harm; and (3) a reasonable belief that it is not possible to preserve
oneself from harm except by killing the adversary.

[17]      Both
subjective and objective components of each of the elements must be present
before a judge can find the defence has an air of reality. The accused's
perception of the situation is the subjective part of the test. However, the
accused's subjective belief based on the situation he perceives must be
objectively reasonable.

...

[19]      Excessive force is not
an aspect of s. 34(2):
R. v. Hebert
, [1996] 2 S.C.R. 272. Section
34(2) does not require that proportionate force be used before the defence is
in play:
R. v. Brar
, 2009 BCCA 585.

[12]

The Crown conceded that the first element, the existence of an unlawful
assault, was present.  As to the other elements, the judge discussed his
approach in para. 22:

[22]      What follows is a
recounting of Mr. Laroses relevant evidence, including the most favourable
portions of it, taking it as true. When discussing specific elements of s.
34(1) and 34(2), I will again refer to specific portions of the evidence. This
evidence takes into account other favourable evidence and no contrary or
unfavourable evidence from the complainants or other witnesses.

[13]

The judge reviewed the evidence through to para. 42 and then turned to
the second element of s. 34(2): a reasonable apprehension of death or grievous
bodily harm.  The judge again reviewed some of the facts: neither of Messrs.
Hanna nor Marshall were armed; the appellant was larger than Mr. Hanna; the
appellant took the knife intending to confront Mr. Hanna; Messrs. Hanna and
Marshall did not attack the appellant when he was on the ground after the
assault by Mr. Hanna; objectively, the assault could not cause the appellant
serious bodily harm or death; at the time of the second altercation, Mr. Hanna
previously had been stabbed three times and any reasonable person would know he
was weakened; Mr. Marshall engaged the appellant after Mr. Hanna was out of
commission from the slash to his face; Mr. Marshall was unarmed; the appellant
did not state he retrieved the knife from the road because he feared grievous
bodily harm or death, but because he thought it was unwise  to leave it there.

[14]

In para. 59, the judge concluded that on the totality of the evidence
there was ... no air of reality to the second element of the defence of
self-defence under 34(2).  He then addressed whether the appellant could not
otherwise preserve himself from death or grievous bodily harm.

[15]

In para. 61, the judge stated that the appellant was required to rule
out other possible courses of action to preserve himself from grievous bodily
harm to justify stabbing and slashing Messrs. Hanna and Marshall.  The
appellant need not weigh his options with nicety.  The judge stated in para. 62:

[62]      In the circumstances of
this case, use of such a dangerous and lethal weapon as the 20 cm knife Mr.
Larose held could be only a last resort, not the first, as Mr. Larose had made
it. Mr. Laroses evidence, accepted as true, and with all available buttressing
from the totality of the evidence, comes nowhere near to depositing sufficient
evidence he had no alternative in the circumstances.

[16]

The judge observed that the appellant could have left the scene after he
was struck by Mr. Hanna.  The judge continued in paras. 64-66:

[64]      Most importantly, he could have spurned the knife
he said Marissa handed him. There were no emergent circumstances facing Larose.
No reasonable grounds for believing that a 6, 195 pound male could not
otherwise preserve himself from death or grievous harm except by using such
extreme means in the circumstances. When Larose decided to use the knife to
confront Hanna he had many different options. Further, when Hanna and Marshall had
walked away, Larose also could have walked away. Larose agreed he should have,
and nothing prevented him and Marissa from doing so.

[65]      Larose testified he felt uncomfortable turning his
back on Hanna and Marshall, who were creating more space between them. Feeling
uncomfortable is not a reasonable basis for believing he could not otherwise
preserve himself, except by his slicing of a persons neck, face, and torso.

[66]      Considering the
totality of the evidence, I find no air of reality to the third element of the
defence of self-defence under s. 34(2).

[17]

The judge then turned to his analysis of s. 34(1) in para. 67:

[67]      Under s. 34(1) of the
Code
, the same
principles as laid out under s. 34(2) apply. The four constitutive elements of
self-defence under s. 34(1) are that:

1.         The accused was unlawfully assaulted;

2.         The accused did not provoke the assault;

3.         The repelling force used was
not intended to cause death or grievous bodily harm; and

4.         The force used was no more than necessary.

The Crown conceded the first three elements.

[18]

The judge stated in para. 76:

[76]      It is important to keep
in mind, when conducting such an analysis, the focus is not on the consequences
of the stabbing and slashing or the extent of the injuries in terms of
hospitalization and blood loss. Rather, the trial judge must look at the force
used in the circumstance, and its proportionality.

[19]

In paras. 78-87, the judge reviewed the evidence concerning the
appellants use of the knife.  He observed that the appellant testified that he
intended to confront Mr. Hanna and scare him away.  The appellant stabbed Mr.
Hanna three times, twice in the chest and once in the abdomen.  After being so
injured, Mr. Hanna apparently attempted to assault the appellant a second
time.  It was at this point when the appellant inflicted the final injury on
Mr. Hanna. The appellant asserted he did not know what he was swinging at when
he stabbed Mr. Marshall.  The blow sliced Mr. Marshall from his left ear
to the mid-line of his neck. The judge noted that the appellant agreed it was
dangerous swinging at Marshall with a 20 cm knife if he did not know what he
was swinging at.

[20]

In para. 88, the judge stated that [c]onsidering the totality of the
evidence, I find no air of reality to the fourth element of the defence of
self-defence under s. 34(1).  He summarized in paras. 90-91:

[90]      In summary, I find Mr. Laroses evidence, taken for
the purposes of analysis under the air of reality test to be true, is not
objectively reasonable in light of the all the evidence presented to this
court.

[91]      I find a properly
instructed jury acting reasonably could not possibly find the objective
elements the law requires were present in the case at bar. Consequently, I
conclude my placing before the jury the defence of self-defence, either under
s. 31(1) or s. 34(2), in this case would amount to an error of law.

Positions of the
parties

[21]

In his factum, the appellant asserts the following errors by the trial
judge:

16.       In
his March 1, 2011 ruling that there was no air of reality toallow the jury to
consider the defence of self-defence, regarding counts 1, 2,4 and 5, pursuant
to section 34 of the Criminal Code of Canada, the Learned Trial Judge made
specific errors in law by:

a) Making
inappropriate and erroneous findings of fact ;

b) Failing to
apply the proper modified objective test in finding the accuseds subjective
perceptions were not objectively reasonable;

c) Improperly
placing a duty to retreat on the accused; and

d) Failing to give
appropriate weight to the fact that Mr. Larose was facing two attackers.

17.       In his
charge to the jury, the learned trial judge erred in law by failing to advise
the jury on the relevance of self-defence in determining Mr. Laroses purpose
for possessing a weapon with respect to count 3.

[22]

The Crown contends that the judge did not err.  In the alternative, it
states that if the judge did err, the curative provision in s. 686(1)(b)(iii)
of the
Criminal Code
should be applied.

[23]

The organization of these reasons will correspond to the alleged errors
raised by the appellant in his factum.  For the reasons that follow, I would
dismiss this appeal.

Discussion

Air of reality

[24]

In my view, the Crown correctly summarizes in its factum the legal
framework to be followed by a trial judge when considering whether a defence
has an air of reality:

48.       In
R. v. Cinous
,
2002
SCC 29
,
[2002] 2 S.C.R. 3,
the Court
stated that the core elements of the air of reality test had already been
clearly and authoritatively set out in
R. v. Park
, [1995] 2 S.C.R.
836, 99 C.C.C. (3d) 1.  In
R. v. Park
, LHeureux-Dube J. set out the
starting point for an analysis of air of reality:

The common law has long recognized that a trial judge need
not put to the jury defences for which there is no real factual basis or
evidentiary foundation. Courts must filter out irrelevant or specious defences,
since their primary effect would not be to advance the quest for truth in the
trial, but rather to confuse finders of fact and divert their attention from
factual determinations that are pertinent to the issue of innocence or guilt.
[at pp. 9,10]

49.
R. v. Park

also made clear that in
assessing air of reality, the trial judge must not look at isolated bits of
evidence:

This line can sometimes be a fine one, however, for although
we urge trial judges not to descend into the arena of facts, we nonetheless
require that they consider nothing less that the totality of the circumstances
in deciding whether an air of reality exists to found a particular defence.
[at p. 11]

50.       The trial judge had a duty to conduct a limited
weighing of the facts to determine whether an air of reality existed on the
issue of self-defence:
R. v. Cinous
, at ¶¶90-91;
R. v. Arcuri
,
2001 SCC 54, [2001] 2 S.C.R. 828, at ¶23.  In
R. v. C.(S.F.),

2001 BCCA 17, 147 B.C.A.C. 125
, this Court quoted
from
R. v. Pintar
(1996), 110 C.C.C. (3d) 402 (Ont. C.A.), in which the
Ontario Court of Appeal summarized the functional approach of the Supreme
Court of Canada in focusing on the self-defence provision most clearly
applicable to the circumstances of the specific case as follows:

Hebert
([1996] 2 S.C.R. 272, 107 C.C.C. (3d) 42)
admonishes trial judges to separate the wheat from the chaff when assessing the
applicability of the various self-defence provisions. It invites trial judges
to take a hard look at the evidence with a view to determining the essence of
the claim to self-defence and the Code provision(s) realistically available to
that claim. It advocates a careful and considered culling of the self-defence
provisions to avoid unnecessary, inappropriate and irrelevant legal instruction
of a kind that might well divert the jurys attention from the real basis upon
which the claim to self-defence rests.
[p. 344]

[25]

I would add that the air of reality test must be applied to each element
of the defence before it can be put to the jury (
Cinous
at paras.
93-95).

[26]

An application to remove a defence from a jury because the defence lacks
an air of reality is not a no-evidence motion.  It proceeds on the basis that
there is evidence, but, as was stated in
Tran
(at para. 41) and quoted
by the trial judge, the evidence must be reasonably capable of supporting the
inferences necessary to make out the defence....  It is for this reason and in
this context that a trial judge undertakes a limited weighing of the evidence.
 The Supreme Court of Canada recently restated this point and the general
approach to evidence in an air of reality analysis in
R. v. Mayuran
,
2012 SCC 31, 234 C.C.C. (3d) 1 at para. 21:

[21]        In
determining whether a defence has an air of reality, there must be an
examination into the sufficiency of the evidence.  It is not enough for
there to be some evidence supporting the defence (
Cinous
, at para.
83).  The test is whether there is (1) evidence (2) upon which a properly
instructed jury acting reasonably could acquit if it believed the evidence to
be true (
Cinous
, at para. 65).  For defences that rely on indirect
evidence or defences like provocation that include an objective reasonableness
component, the trial judge must examine the field of factual inferences that
can reasonably be drawn from the evidence (
Cinous
,

at para. 91).

[27]

Several times in his factum, the appellant asserts that it is for the
jury to decide what weight, if any, to give to the inferences drawn from the
evidence.  In absolute terms, that is correct, but it does not detract from the
trial judges obligation to perform a limited weighing of the evidence.

[28]

In my view, when undertaking the limited review of the evidence, a trial
judge is entitled to exercise common sense.  That surely is at the core of
determining whether there is an air of reality.

[29]

With these thoughts in mind, I turn to the specific contentions of the
appellant the first of which is advanced under the broad heading: The Learned
Trial Judge made numerous inappropriate determinate factual inferences.

[30]

Under this heading, the appellant lists individual inferences from the
trial judge that he submits were inappropriate. I will address each in turn.

Mr. Hanna was much smaller than the appellant.

[31]

The appellant concedes that the jury would have been entitled to
consider the difference in size between the two men, but asserts that it was up
to the jury to decide what weight to give to that and other factors.

[32]

The judge referred to the relative sizes of the men in paras. 47, 48 and
78:

[47]      Hanna was a much smaller man than Larose, who was
at least 6 feet, 195 pounds and had been working out daily in prison before his
release 18 days prior to the incident. Larose said Hanna had been beaking off
at him for a minute and half with nothing happening except that Larose was
feeling annoyed. Larose said he was talking calmly to Hanna, said by Larose to
be upset about the damage to the bus shelter.

[48]      When Larose received the knife from Marissa (I
should note here she did not testify and this evidence is not supported by
other witnesses, but is accepted as true for the purpose of this analysis), he
said he intended to use it not because he was in fear of grievous bodily harm
or death from Hanna, a much smaller man, but to confront Hanna, one on one, and
scare him.

...

[78]      When Larose received
the knife from Marissa (I should again note that she did not testify and this
evidence is not supported by other witnesses, but is accepted as true for the
purpose of this analysis), he said he intended to use it to confront Hanna one
on one and scare him, not because he was in fear of grievous bodily harm or
death from Hanna, a much smaller man.

[33]

In my view, the judges comments were merely descriptive. In any event, these
were appropriate facts to be taken into account in a limited weighing of the
evidence.  The size of the men was not a controversial fact; it was not a
determinate finding of fact.

Mr. Hanna was weakened due to the wounds he received
during the first stabbing incident

[34]

The appellant refers to the judges comment in para. 52:

[52]      ...Any reasonable
person would know their assailant would be weakened as a result of such a
wounding, reducing their capacity to inflict significant harm of any kind. ...

[35]

He asserts there was no evidence to suggest that effects of the first
stabbing would have reduced Mr. Hannas capability to inflict significant harm
of any kind and notes that the appellant testified that Mr. Hanna was walking
around as if nothing had happened.

[36]

At this point in his reasons, the judge was considering whether the
appellant reasonably apprehended a risk of death or grievous bodily harm.  The
fact that Mr. Hanna likely was not capable of inflicting such harm was fully
consistent with the appellants testimony that he stabbed Mr. Hanna twice and
fully consistent with the agreed statement of facts that the appellant stabbed
Mr. Hanna three times.  It was open to the trial judge to make the common sense
inference that Mr. Hanna had a diminished physical ability to harm the
appellant.  It was but one of a number of factors the judge took into account
when considering whether there was an air of reality to the appellant reasonably
apprehending a risk of death or grievous bodily harm.

The appellant intended to confront Mr. Hanna with the
knife

[37]

The appellant asserts that the judge equated the word confront with
the word attack.  I do not agree.

[38]

In para. 28, the judge stated that the appellant intended to use [the
knife] to scare Hanna and confront him one on one.  In para. 48, he stated
that the appellant intended to use [the knife] not because he was in fear of
grievous bodily harm or death from Hanna, a much smaller man, but to confront Hanna,
one on one, and scare him.  This comment was repeated in para. 78.  The word confront
is used in a few other paragraphs of the reasons.  The judges observation was
based on the appellants testimony.  I do not see it being equated with
attack.  The simple fact is that to scare Mr. Hanna, the appellant had to
confront him.

[39]

The appellant asserts that it was for the jury to decide the degree and
nature of [the appellants] intent to confront Mr. Hanna.  That was not the
objective of the judges examination of the evidence.  He was concerned with
whether there was any air of reality to the proposition that the appellant
reasonably believed he had a risk of death or grievous bodily harm and that he
took the knife for that reason.  The fact is that, according to his testimony,
he took the knife for a different reason: to scare and to intimidate.  The
judge was not considering whether the appellant took the knife for the purpose
of attacking Mr. Hanna.

The appellant could have spurned the knife

[40]

The appellant refers to the first sentence of para. 64 of the trial
judges reasons.  I quote the full paragraph:

[64]      Most importantly, he
could have spurned the knife he said Marissa handed him. There were no emergent
circumstances facing Larose. No reasonable grounds for believing that a 6, 195
pound male could not otherwise preserve himself from death or grievous harm
except by using such extreme means in the circumstances. When Larose decided to
use the knife to confront Hanna he had many different options. Further, when
Hanna and Marshall had walked away, Larose also could have walked away. Larose
agreed he should have, and nothing prevented him and Marissa from doing so.

[41]

He submits that a jury could have come to a different conclusion: the
appellant armed himself to defend against another attack.

[42]

The judge was examining all of the circumstances, one of which is the
reasonable proposition that the appellant did not need a 20 centimeter knife to
deal with the situation he faced.  The judge stated in para. 61 that while the
appellant did not have to weigh his options to a nicety, it was necessary to
rule out other options.  On the evidence, the judge identified not taking the
knife as an available option along with others, like walking away.

The appellants injuries from Mr. Hannas punch played no
significant role

[43]

The appellant refers to the judges comments in paras. 41, 50 and 58:

[41]      Laroses only injuries were a scratch on his neck
and a small bruise on the left check.

...

[50]      ... Hannas original uppercut was objectively
incapable of causing serious bodily harm or death to Larose and indeed caused
no significant injury to him....

...

[58]      Throughout the entirety
of the altercations on the evening in question, Larose sustained the most minor
of injuries.

[44]

The appellant submits that it would be reasonable to conclude the blow
to his head was significant, particularly because it was very painful due to
his sensitive nose.

[45]

The statements in paras. 41 and 58 are merely descriptive; they also are
completely accurate.  The observation in para. 50 is correct and is merely one
of the factors considered by the judge in determining whether there was any air
of reality to the proposition the appellant reasonably believed he faced a risk
of death or grievous bodily harm.

Mr. Hanna did not attack
the appellant while he was disadvantaged by Mr. Hannas punch

[46]

The appellant asserts that the jury might have concluded that Mr. Hanna
was waiting for Mr. Marshall to join him so they jointly could attack the
appellant.  First, that proposition is pure speculation.  Second, the judge
merely noted the fact that Mr. Hanna did not attack the appellant at that time.
That fact was relevant to whether the appellant reasonably feared death or
grievous bodily harm.  Mr. Hannas reason for not attacking was irrelevant.

Messrs. Hanna and Marshall walked away from the first
confrontation with no purpose other than to withdraw

[47]

The appellant asserts that the judge found that Messrs Hanna and
Marshall walked away with no purpose other than to withdraw.  He contends this
may have been reasonable had they continued, but they turned back when the
appellant retrieved the knife.  The appellant refers to para. 56 of the judges
reasons, which I quote:

[56]      Hanna and Marshalls
walking away from the scene after the initial contact, in the direction they
had come from, conveys the opposite message of an intention to pursue any other
purpose but to withdraw; and certainly not to pursue any purpose to inflict
grievous bodily harm or death on Larose.

[48]

The judge did not find that Messrs. Hanna and Marshall had no other
purpose.  He stated their action conveyed that message to the appellant and did
not convey to him the message that they intended to inflict on him death or
grievous bodily harm at that point in time; a point in time when the appellant
could have left the area.

Feeling uncomfortable is not a reasonable basis for the
appellant believing he could not preserve himself from attack

[49]

The appellant refers to paras. 65 and 89, which I quote:

[65]      Larose testified he felt uncomfortable turning his
back on Hanna and Marshall, who were creating more space between them. Feeling
uncomfortable is not a reasonable basis for believing he could not otherwise
preserve himself, except by his slicing of a persons neck, face, and torso.

...

[89]      Crown counsel, in his
submissions, urged me to consider the act of stabbing Chris Hanna in the torso
three times and slashing him in the face, and severely cutting Mr. Marshalls
neck. He submitted this was not force that was no more than necessary to repel
any assault made on Mr. Larose. I agree, especially in the light of Mr.
Laroses ability to have walked away from the conflict at any point. The fact
that he may have felt uncomfortable turning his back to Mr. Hanna and Mr.
Marshall, while accepted, is not sufficient to overcome Mr. Laroses testimony
he could have left at any point, particularly when Mr. Hanna and Mr. Marshall
were walking away.

[50]

The appellant states that the judge used the least significant meaning
of the word uncomfortable and that the word can connote the feeling of
extreme fear.  He contends that it was for the jury to decide the degree and
nature of [the appellants] discomfort.  The appellants proposition accords
neither with the dictionary definition of uncomfortable (not physically
comfortable:
Concise Oxford English Dictionary
, 11
th
ed.
(Oxford: Oxford University Press, 2004)), nor with the common understanding of
the word.  The appellant did not testify that he had extreme fear or that he
could not preserve himself without slashing Messrs. Hanna and Marshall or that
this played any part in him not walking away when Messrs. Hanna and Marshall
did so.

Summary on judges inferences

[51]

Although I have addressed each of the appellants contentions concerning
the judges factual findings, the exercise illustrates the basic error of the
appellants approach.  It is wrong to analyze each of these findings in
isolation.  Most of those identified by the appellant were but one factor in
the judges consideration of the various elements of s. 34(1) and (2) of the
Criminal
Code
.  Cumulatively, together with many other factors, these findings led
the judge to conclude that the defence of self-defence did not have an air of
reality in this case.

[52]

In my view, the judge did not err in his articulation or application of
the principles which guide the air of reality analysis in his limited weighing
of the evidence.

[53]

I turn now to address the appellants other contentions concerning the
air of reality analysis raised in his factum.

Inappropriate weight on the appellants failure to
retreat or call for help

[54]

The appellant again relies on paras. 64 and 89 of the judges reasons.  He
contends that the jury reasonably could infer that the appellants failure to
leave was explainable in that he believed he had to use the knife to protect
himself.  In his factum, the appellant lists a number of propositions to
support his contention:

a)         Mr.
Larose could not reasonably be expected to retreat from the surprise uppercut
from Mr. Hanna.

b)         Mr. Larose
could not reasonably be expected to retreat from the surprise, simultaneous
attack from both Mr. Marshall and Mr. Hanna immediately prior to the first
knifing incident.

c)         Mr.
Larose was acting reasonably in retrieving the knife, from the street, in order
to ensure that his attackers would not arm themselves with it.  Doing so was a
reasonable act in self-preservation.

d)         Mr.
Larose was acting reasonably in remaining at the scene so as not to abandon
Marissa, even if he was in fear for his own safety.

e)         Mr.
Laroses fear subsided when he observed Mr. Hanna and Mr. Marshall walking away
from the area. He believed the conflict was over.  That is why he did not take
the opportunity to leave and instead went to retrieve the knife.

f)          Mr.
Larose did reasonably regain his fear when Mr. Hanna and Mr. Marshall
approached and surrounded him before the second knifing incident.

g)         Mr. Larose could not reasonably
be expected to retreat from Mr. Marshall and Mr. Hanna when they surrounded him
just prior to the second knifing incident.

[55]

Paragraph 64 of the trial judges reasons addresses the third element of
s. 34(2), reasonable apprehension of death or grievous bodily harm; para. 89
deals with the fourth element of s. 34(1), no more force than reasonable.  The
appellant acknowledges that available avenues of retreat and failure to seek
help are relevant to a consideration of these elements.  He acknowledges that
the Supreme Court of Canada in
Cinous
gave considerable weight to these
factors, but distinguishes that case on the basis that the appellant was under
attack, while Mr. Cinous struck pre-emptively.  He states in para. 64 of his
factum:

In the case at bar the jury could
reasonably conclude that Mr. Laroses failure to call for help was reasonable
in that Mr. Larose only felt the requisite fear for his safety at the instants
he was attacked just prior to both stabbing incidents.  The jury may reasonably
conclude that Mr. Laroses concentration was fully on defending himself from
multiple attackers and/or he believed that calling for help would be a futile
endeavor in the heat of the moment.

[56]

The judges task was to determine whether this contention had an air of
reality.  In my view, he did not err concluding it did not.  I examine
propositions (a)-(g) above.

[57]

I accept proposition (a).  Proposition (b) is an open question.  I am
not aware of evidence that the appellant retrieved the knife from the street to
ensure his attackers would not arm themselves with it as stated in proposition
(c).  In fact, Messrs. Hanna and Marshall were heading in the opposite
direction.  The assertion also does not accord with proposition (e), which
states the appellant believed the conflict was over and that is why he
retrieved the knife.  We were not directed to evidence that the appellant
remained at the scene to protect the young woman as contended in proposition (d).
 Similarly, we were not directed to evidence that he regained his fear when
Messrs. Hanna and Marshall approached him as alleged in proposition (f).  In
fact, he testified that he thought they were stupid coming back for more.  I think
proposition (g) makes some sense: the appellant could not be expected to
retreat when surrounded by the others.

[58]

After examining the propositions advanced by the appellant, I am not satisfied
that the judge erred concluding there was no air of reality to the contentions
that the appellant acted out of a reasonable apprehension of death or grievous
harm or that he used no more force than reasonably was necessary.

Failure to apply the appropriate test in finding there
were no objective indicators [the appellant] was, at any time, in fear of
grievous bodily harm or death

[59]

The appellant asserts that in assessing objectively the reasonableness
of his conduct, the judge was obliged to take into account the appellants
particular circumstances.  Again, the appellant sets out a number of factors
supporting his contention the judge erred:

a)
Mr. Laroses experience in
jail conditioned him to fear that any attack             could lead to grievous
bodily harm or death.

b)
Mr.
Larose described the blow from Mr. Hanna to be very painful.  The jury may
conclude that his reasoning was impaired by the pain.

c)
Mr. Larose was hit in the
head with sufficient force to knock him to             one knee for ten
seconds.  The jury may conclude that his reasoning             was impaired due
to the blow to his head.

d)
Mr.
Larose has a sensitive nose that will cause him to be incapacitated for a
significant period of time, if he it is hit.  This makes Mr. Larose
particularly vulnerable to attack.

[60]

It is clear that the judge recognized that the conduct of the appellant
had to be considered subjectively and objectively.  He repeatedly noted this in
his reasons.

[61]

We were not directed to evidence that supported a number of the factors
advanced by the appellant.  Others are pure speculation.  I would not accede to
the appellants contention that the judge erred in his consideration of the
objective indicators that the appellant did not fear grievous bodily harm or
death.

Failure to consider properly the fact that the appellant
faced two attackers

[62]

In his factum, the appellant summarizes his position on this issue:

The appellant submits that the fact that Mr. Larose
was simultaneously       attacked by Mr. Hanna and Mr. Marshall is a factor
that, in and of itself,       provides an air of reality that:

a)

The force Mr. Larose used was no more than necessary to repel Mr.
Marshall and Mr. Hanna;

b)

Mr. Larose had a reasonable apprehension of death or grievous bodily
harm from the attack by Mr. Hanna and Mr. Marshall; and

c)

That it was not possible for Mr. Larose to preserve himself from harm
except by inflicting grievous bodily harm on his adversaries.

[63]

The judge obviously was aware that the appellant faced two attackers.
He considered and rejected each of the propositions advanced by the appellant
based on the evidence overall.  I previously have alluded to much of it.  In my
view, the judge did not fail properly to take into account the fact that the
appellant faced two attackers.

Summary on air of reality

[64]

I would not accede to the appellants ground of appeal that the judge
erred concluding his defence of self-defence lacked an air of reality.

Failure to instruct the jury on self-defence on the
charge of possession of a weapon dangerous to the public peace

[65]

The weapons charge was laid pursuant to s. 88 of the
Criminal Code,
which states:

88
.
(1) Every person commits an offence who
carries or possesses a weapon, an imitation of a weapon, a prohibited device or
any ammunition or prohibited ammunition for a purpose dangerous to the public
peace or for the purpose of committing an offence.

Punishment

(2) Every person who commits an offence under subsection
(1)

(
a
) is guilty of an
indictable offence and liable to imprisonment for a term not exceeding ten
years; or

(
b
) is guilty of an offence punishable on
summary conviction.

[66]

The appellants position is stated in paras. 39 and 40 of his factum:

When a person anticipates being attacked and the attack is
completely inescapable, then possession of a weapon to thwart the attack is not
possession for a purpose dangerous to the public peace.

In the case at bar, the jury
should have been instructed that, if they found that Mr. Larose took the knife
from Marrisa, exclusively for the purpose of thwarting an attack from Mr. Hanna
and that said attack was inescapable at that time, Mr. Larose is not guilty of
an offence under section 88 of the Criminal Code of Canada.

[67]

Counsel for the appellant at trial spoke to the jury about the
appellants state of mind when he took the knife from the young woman.  In his
charge on the weapons offence, the judge reminded the jury that they should
consider what counsel stated about the state of mind of the appellant.

[68]

In my view, the judge did not err by not addressing self-defence in the
context of the weapons charge.  He had concluded there was no air of reality
to self-defence on the basis the appellant did not pick up the knife to defend
himself.  The appellant testified he did so to scare Mr. Hanna.

[69]

The issue under s. 88 is this: why did the accused have the weapon and
what was his purpose.  Self-defence could be a purpose, but an accused may not
need to go that far.  In that context, the judge was not obliged to discuss
self-defence with the jury.  He clearly advised the jury that they had to
decide the appellants purpose in possessing the knife.  He told them they must
do so considering all the circumstances.  In my view, quite apart from the fact
the judge had concluded the defence of self-defence had no air of reality, he
properly directed the jury to what they had to consider.

[70]

I would not accede to the appellants ground of appeal concerning the
judges instruction on the weapons charge.

Conclusion

[71]

I would dismiss this appeal.

The Honourable Mr. Justice Chiasson

I agree:

The
Honourable Madam Justice Neilson

I agree:

The Honourable Madam Justice
Garson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Ahmed v. Vancouver (City),

2013 BCCA 26

Date: 20130116

Docket: CA039795

Between:

Mohamed Ahmed

Appellant

(Plaintiff

And

The City of
Vancouver, Mayor Gregor Robertson,
City Councilors David Cadman, Geroge Chow, Heather Deal,
Kerry Jang, Ramond Louie, Geoff Meggs, Tim Stevenson,
Ellen Woodworth, Blue Sky Properties Inc., Dale Bosa, Robert Bosa

Respondents

(Defendants

Before:

The Honourable Chief Justice Finch

The Honourable Mr. Justice Chiasson

The Honourable Madam Justice A. MacKenzie

On appeal from: Supreme
Court of British Columbia, February 29, 2012
(Ahmed v. Vancouver (City), 2012 BCSC 301, Vancouver Registry S108515)

Oral Reasons for Judgment

Appellant appearing In Person

Counsel for the Respondent, City of Vancouver

B. Jordan

Counsel for the Respondents. Blue Sky Properties, D. Bosa,
  R. Bosa

G.S. McAlister

Place and Date of Hearing:

Vancouver, British
  Columbia

January 16, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 16, 2013

[1]

FINCH C.J.B.C.
: This is an appeal from the order of the Supreme
Court of British Columbia pronounced by Mr. Justice Sewell on 29 February 2012.
In his fully reasoned judgment, the learned judge dismissed the plaintiffs
action against all defendants as an abuse of process. He made an order that the
plaintiff commence no further actions without leave of the court.

[2]

In my view, the order dismissing the action as an abuse of process was
fully justified on the material before the judge and I can see no basis on
which this Court could interfere with it. Similarly, I think his order with
respect to the commencement of no further actions without leave was also justified.

[3]

I would dismiss the appeal.

[4]

CHIASSON J.A.
: I agree.

[5]

A. MACKENZIE J.A.
: I agree.

[discussion with
counsel re. costs]

[6]

FINCH C.J.B.C.
: The respondents Bosa will have an order for
special costs of the appeal. The respondent Vancouver and related respondents
will have an order for ordinary costs.

The
Honourable Chief Justice Finch


COURT OF
APPEAL FOR BRITISH COLUMBIA

Citation:

Aliperti
  v. Dhalla,

2013 BCCA
  16

Date: 20130116

Docket: CA040352

Between:

Arezoo Aliperti

Respondent

(Plaintiff)

And

Fatehali Dhalla

Appellant

(Defendant)

Before:

The
  Honourable Mr. Justice Harris

(In Chambers)

On appeal from:  Supreme Court of British Columbia,
October 5, 2012
(
Aliperti v. Dhalla
, Vancouver Registry C963127)

Counsel for
  the Appellant:

M. Tatchell

The
  Respondent appeared in person:
Acting as respondents agent:

A. Aliperti
I. Taher

Place and
  Date of Hearing:

Vancouver, British Columbia

December 20, 2012
and January 4, 2013

Place and
  Date of Judgment:

Vancouver, British Columbia

January 16, 2013

Reasons for Judgment of the Honourable

Mr. Justice Harris:

[1]      The
central issue in this series of applications is whether leave to appeal an
order denying a successful litigant his costs of an action and also requiring
him to pay special costs of the costs proceeding should be granted.  The matter
is complicated by the procedural route that brings the substantive matter to
court.

[1]

On November 5,
2009, the chambers judge granted an application by a defendant, Mr. Dhalla,
to dismiss an action against him for want of prosecution.  Those reasons are
indexed at 2009 BCSC 1774.  The action had started more than 13 years before
the successful application to dismiss it for want of prosecution.  The judge
ruled that if the parties could not reach an agreement on costs, either party
was at liberty to make further submissions.

[2]

No agreement was
reached on costs.  Mr. Dhalla applied for costs.  His application was
resisted.  During the course of the costs application, the chambers judge
adjourned the application to permit cross-examination on affidavits.  The point
in issue had to do with whether Mr. Dhalla may have misconducted himself
in the litigation by attempting in 2005 to evade, in a dangerous manner, personal
service of a notice of intention to proceed.  The reasons adjourning the
hearing to permit adjudication of this issue are indexed at 2010 BCSC 1909.

[3]

The matter came
back before the chambers judge on nine occasions before judgment was rendered
on October 5, 2012.  The reasons at issue in these applications are
indexed at 2012 BCSC 1466.  The chambers judge concluded that Mr. Dhalla
had indeed misconducted himself not only in attempting to evade service but also
in the evidence he gave about that matter during the course of the costs
application.  In the result, Mr. Dhalla was denied his costs of the action
and was ordered to pay special costs in respect of the costs hearing.

[4]

The findings of
fact relied on by the judge to support his order are set out at paragraph 33
of his reasons:

[33]      From
all of the evidence, I find that Mr. Dhalla is guilty of misconduct of the
type spoken of in the cases I have discussed in the next section of my reasons
for judgment. I find that Mr. Dhalla:

(a)        was aware that Mr. Zainescu
was trying to serve a legal document on him;

(b)        knew or suspected that the
document was connected to this proceeding;

(c)        was aware of Mr. Zainescus
previous attempts to contact and serve him;

(d)        intended to and took steps
to avoid being served by Mr. Zainescu;

(e)        tried to evade service by
rushing out of the rear of the building and then by driving away as quickly as
he could in the circumstances;

(f)         knew that the person he
saw in the driveway of the parking lot area was the process server;

(g)        failed to slow down or take
evasive action to avoid hitting Mr. Zainescu;

(h)        was reckless in continuing
to drive and in failing to stop his vehicle or  take evasive action to
avoid hitting Mr. Zainescu;

(i)         would have struck Mr. Zainescu
with his vehicle if he had not jumped out of the way;

(j)         was careless as to the
truth and, in some instances, was intentionally untruthful when providing his
account of his dealings with Mr. Zainescu and the incident in the parking
lot; and

(k)        was
argumentative and evasive when giving evidence and made up answers that were
convenient for him at the moment, all in an inappropriate attempt to deflect
the cross-examiner and to advance his case for costs.

[5]

The chambers judge
identified the legal principles relevant to the exercise of his discretion and
referred to a number of cases illustrating the application of those principles
in circumstances where a successful litigant was penalized in costs because of
his or her misconduct in the litigation.  The judge summarized the basis of his
conclusions as follows:

[43]      Mr. Dhalla
should be denied his costs because he has engaged in serious misconduct in
these proceedings that should be chastised. He sought to evade service in a
dangerous manner and then showed disdain for the judicial process when he
provided his untruthful account of what had occurred.

...

[50]      I
do not view this to be an appropriate case where each party should bear their
own costs. I found Mr. Dhalla deliberately sought to evade service in
egregious circumstances and then provided a dishonest account of his dealings
with Mr. Zainescu. His evidence was inconsistent and in some instances
deliberately untruthful, all in order to deflect the cross examiner and to
further his pursuit of an award of costs against Ms. Aliperti. His conduct
is worthy of rebuke; it is conduct that courts must seek to disassociate
themselves from. He should pay special costs to Ms. Aliperti in respect of
the costs hearing. To do otherwise, i.e., to order that the parties bear their
own costs, would overlook the highly reprehensible nature of Mr. Dhallas
misconduct that began in March 2005.

[6]

The issue before me has been complicated by the fact that Mr. Dhalla
chose to file a Notice of Appeal, rather than an application for leave to
appeal.  The Notice of Appeal was filed within time, thereby evincing an
intention to appeal.  The respondent took the position that leave was
required.  The matter came before Mr. Justice Low in chambers on
November 28, 2012.  Ms. Alipertis application to strike out the
appeal as a nullity was adjourned in order to allow Mr. Dhalla to bring
the necessary applications to extend time to apply for leave to appeal and to
file the necessary evidence explaining the delay.

[7]

In substance, albeit
marginally late, Mr. Dhalla has complied with the basis upon which the
application to strike the appeal was adjourned.  He has before me an application
for short leave, an application to convert the Notice of Appeal to an
application for leave to appeal
nunc pro tunc
, and an application to
extend time.  Ms. Aliperti opposes these applications, seeks an order that
the Notice of Appeal is a nullity and the appeal be dismissed, and in any event
opposes granting leave to appeal.

[8]

I propose to deal
directly with whether this is a matter in respect of which leave should be
granted.  In my view, the procedural irregularities which have complicated this
matter are simply procedural irregularities.  They do not provide a basis to
treat the appeal as a nullity.  Mr. Dhalla had, there is no doubt, an
intention to appeal.  His Notice of Appeal was filed and served within time.  His
counsel took an incorrect view that leave to appeal was not required.  I find
no merit in the suggestion that the decision to file a Notice of Appeal rather than
an application for leave to appeal was a tactical decision gone awry, as Ms. Aliperti
argued.  I am satisfied, moreover, that there is no prejudice to the respondent
in dealing with the substantive matter at hand.  As Mr. Dhalla pointed out,
had an application for leave to appeal been filed in the first instance, the
hearing of the application would have occurred only a very short time before
this came before the court in any event.  The minor delay occasioned by the
procedural errors has not prejudiced Ms. Aliperti.

[9]

I am satisfied
that, subject only to the issue of the merits of the appeal, the test to extend
time has been met.  There was a
bona fide
intention to appeal.  The
respondent was informed of the intention.   There is no prejudice to extend
time.  It is in the interests of justice to consider the leave application on
its merits.

[10]

I acknowledge that
whether an appeal has merit is a factor to be considered in considering whether
to extend time.  I propose, however, to deal with the merits in the context of
my consideration of whether leave should be granted.

[11]

The test for leave
to appeal is well settled.  It is conveniently summarized, as that test relates
to costs issues, by Mr. Justice Hinkson (in Chambers) in
Bradshaw
v. Stenner
, 2012 BCCA 481:

[27]      The
factors to be considered on an application for leave to appeal were
conveniently summarized by Madam Justice Saunders, in chambers, in
Goldman
Sachs & Co. v. Sessions
, 2000 BCCA 326 at para. 10:

(1)        whether the point on appeal
is of significance to the practice;

(2)        whether the point raised is
of significance to the action itself;

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

(4)        whether the appeal will
unduly hinder the progress of the action.

[31]      Insofar
as the third factor is concerned, an appeal from an award of costs is often a
challenge for an appellant, given the discretionary nature of such an award.
The threshold for the third factor of merit for leave to appeal from an order
for costs is more nuanced than that for an appeal in general. It was discussed
by Madam Justice D.M. Smith, in chambers, in
Yung v. Jade Flower Investments
Ltd.
, 2012 BCCA 168, 319 B.C.A.C. 265 at paras. 1820:

[18]      The
test for leave to appeal an order of costs includes an added criteria that is
addressed in
Neufeld v. Foster
, 2000 BCCA 485 (Chambers)
per
Rowles J.A.:

[14]      Under
s. 7(2)(b) of the
Court of Appeal Act
, R.S.B.C. 1996, c. 77, leave is
required to appeal an order of costs only. As an award of costs generally
involves the exercise of discretion, the award is subject to limited appellate
review.
Generally, leave is not granted unless a question of principle is
involved
:
Raffele v. Janzen
, [1989] B.C.J. No. 1733 (B.C.C.A.).

[15]      The
factors that are generally taken into account on an application for leave to
appeal are the importance of the proposed appeal generally and to the parties,
the utility of the proposed appeal in the circumstances of the parties, and the
prospects of success of the proposed appeal.

[Emphasis
added by D.M. Smith J.A.]

[19]      This
test creates a more onerous burden on applicants seeking leave to appeal an
order for costs which flows from the highly discretionary nature of such an
order. Mr. Justice Low summarized the highly deferential standard of
review for costs orders in
Seminoff v. Seminoff
, 2007 BCCA 403
(Chambers):

[2]        ...
This Court should not interfere with the trial judges exercise of
discretion on the issue of costs unless persuaded that the trial judge
misdirected himself or herself on a matter of legal principle, or that the
trial judges decision is so clearly wrong as to amount to an injustice
:
see
Elsom v. Elsom
, [1989] 1 S.C.R. 1367 at 1377.

...

[4]        In
the absence of an identified error in principle it is difficult for a litigant
to obtain leave to appeal a costs order. The awarding of costs is a matter of
discretion and the trial judge is in a much better position than this Court to
appreciate the course of the proceedings and to ascribe responsibility for
duration of the trial. The trial judge is also in a much better position to
assess the length of time each issue occupied at trial. These matters and
others go into the exercise of discretion.

[Emphasis
added by D.M. Smith J.A.]

[20]      The
court will not interfere with the exercise of judicial discretion in awarding
costs if there was a sound basis for its exercise:
Currie v. Thomas Estate
(1985), 19 D.L.R. (4th) 594 (B.C.C.A.), quoted in
Oliviera v. McIntyre
,
[1998] B.C.J. No. 1682 (C.A.)
per
Donald J.A. (in Chambers) at para. 9.
Given this deferential standard of review, the merit requirement in the test
for leave to appeal of a costs order takes on a more prominent role and
generally includes the additional requirement, discussed above, that there be
some issue involving a matter of legal principle before leave will be granted.

[12]

Mr. Dhalla
submits that the chambers judge made a number of errors.  First, that he failed
to observe tenets of procedural fairness and permitted prejudicial and unfair
questioning as well as protracted and badgering questioning, all of which
resulted in a miscarriage of justice.  Secondly, that the chambers judge
committed palpable and overriding errors by making findings of fact that were
based on no evidence, evidence which did not meet the burden of proof, or was based
on discredited and inadmissible evidence.  Thirdly, that the chambers judge
erred in the exercise of his discretion by failing to exercise his discretion
judicially and based on grounds connected to the case.

[13]

Mr. Dhalla
submits that his proposed appeal satisfies the test for leave.  The points
raised are significant to the action itself because they are determinative of
it.  An appeal would not unduly hinder the progress of the action as the appeal
is the last step in it.  He argues that the errors alleged involve errors of
legal principle.  The appeal is sufficiently meritorious to merit review by a
division of this Court.  Beyond the significance of the appeal to the parties,
it does, he argues, raise issues that are significant to the practice generally
because it raises important questions regarding the discretion of judges in
awarding or denying costs generally and the basis on which special costs ought
to be awarded  in particular, the importance of exercising their discretion
judicially, proportionately and on a basis connected to the litigation.

[14]

In my opinion,
whether leave should be granted in this case turns on whether the chambers
judge erred in principle in making his orders or whether his orders are so
clearly wrong as to amount to an injustice.  I will deal with each of the
alleged errors in turn.

[15]

I have not been
provided with a transcript of the cross-examination of Mr. Dhalla.  The
record does include an affidavit from Mr. Dhalla and some extracts of
questions and answers on various topics transcribed by counsel or Mr. Taher
for Ms. Aliperti from the recording of the proceedings.  Mr. Dhalla
says in his affidavit that his cross-examination was protracted, took days and
days (in fact, it appears to have taken just over 5 hours of court time), and
involved extensive liberties on collateral facts, compound questions, splitting
hairs on semantics, asking the same question repeatedly and badgering.  Mr. Dhalla
says that the chambers judge did not control the process and, he believes, had
prejudged the issues adversely to him.

[16]

Mr. Dhalla
has not, in my view, identified any legal error justifying review by a division
of this Court.  Mr. Dhallas perception, standing alone, that the cross-examination
was procedurally unfair or that the chambers judge was not impartial is not a
sufficient basis to warrant leave being granted.  There must be some objective
basis on which to evaluate those claims and none has been provided.  Decisions
about whether to adjourn a hearing in order to permit cross-examination fall
within the discretion of the chambers judge.  The applicant has not been able
to point to any error in principle in the decision to permit cross-examination
on the evidentiary point that concerned the chambers judge.  Moreover, without
the transcript of the cross-examination of Mr. Dhalla, I cannot reach any
conclusions about whether the chambers judge permitted the cross-examination to
be conducted in a manner that was fundamentally unfair, and more particularly,
in a manner that gave rise to an issue of principle.  In the absence of some
demonstrated error in principle, controlling the conduct of cross-examinations
is a matter falling within the discretion of the chambers judge.

[17]

No error
warranting the granting of leave has been demonstrated in respect of this
ground of appeal.

[18]

Mr. Dhalla
argues that there is sufficient evidence in the record to demonstrate that
there is a meritorious appeal on the question whether the chambers judge made
palpable and overriding errors in finding the facts that underlay his exercise
of discretion.  In particular, he says that the errors are illustrated in
paragraph 6 of the reasons, particularly when those findings are viewed in
the context of admissions made by the process server in his cross-examination. Paragraph 6
reads as follows:

[6]        I
found that Mr. Dhalla was evasive when giving his evidence. He gave
inconsistent evidence and was, in some instances, deliberately untruthful when
being cross-examined on his affidavit in order to distract the cross-examiner
and to advance his claim for costs. His attempt to evade service nearly caused
him to contact Mr. Zainescu with his vehicle. As a result, I have
determined that Mr. Dhalla should be chastised for his misconduct. He
should be denied his costs and Ms. Aliperti should be awarded special
costs in respect of the costs hearing.

[19]

Mr. Dhalla
submits that the basis of a meritorious appeal exists because these findings
were made in the face of an affidavit from the process server that contained
false evidence about seeing Mr. Dhalla fleeing to his car to avoid service.
 Further, there was evidence from the process server that was in fact
consistent with Mr. Dhallas, particularly in relation to the
circumstances of Mr. Dhalla driving away and the reasons why the manner in
which the process server approached Mr. Dhallas vehicle would reasonably have
been frightening.  Further there was, he argues, no evidence that connected the
process server to serving documents related to this proceeding.

[20]

Mr. Dhalla
submitted that he was not, for the purposes of the leave application at least,
challenging the chambers judges assessment of his evidence standing alone.
His primary focus was on the findings of fact that were based on that evidence
in the context of the evidence from the process server.  The process server,
for example, admitted that the evidence about Mr. Dhalla fleeing out of
his building to his car was not based on his own observations, but were those
of his wife.  Nonetheless, the chambers judge referred to them in his analysis,
commenting at paragraph 13 of his reasons, that it is noteworthy that Mr. Zainescus
evidence concerning the substance of his wifes observations of Mr. Dhalla
was not challenged.  Mr. Dhalla points out, rightly, that the evidence
was inadmissible hearsay, at best, and, accordingly, there was no need to
challenge it.

[21]

I have concluded,
nevertheless, that Mr. Dhalla has not demonstrated a meritorious argument
that the chambers judge committed errors of principle in reaching his
conclusions of fact.  As I read his reasons, his findings are based directly on
his rejection of Mr. Dhallas evidence (see paras. 16-32).  The
chambers judge explains in detail why he found Mr. Dhalla not to be a
credible witness.  Those reasons are based almost entirely on the deficiencies
the chambers judge identified in that evidence, particularly inconsistencies in
his evidence.

[22]

Most importantly,
the chambers judges findings do not depend on his preferring the evidence of
the process server to Mr. Dhallas evidence where they conflict, although
he does accept the process server endeavoured to be truthful on points other
than the observations made by his wife.  So, for example, although the chambers
judge did point out that the substance of the process servers wifes observations
were not challenged, that appears to have been commentary only.  The critical
point was that Mr. Dhalla admitted to those observations.  The chambers
judge also rejected Mr. Dhallas evidence that he did not take evasive
action as he drove from the parking garage because he was frightened.  That
finding was based on inconsistencies in Mr. Dhallas evidence.  The
chambers judge was entitled to make that finding, even though the process
server admitted that he behaved in a way that could have been frightening to
someone in Mr. Dhallas position.

[23]

In brief, Mr. Dhalla
has not made out a case worthy of review that the chambers judge may have made
legal errors in reaching his findings of fact.  In my opinion, the proposed
appeal goes no further than inviting a division of the court to revisit the findings
of fact of the chambers judge.  That is not a task for this Court.

[24]

Finally, I do not
think Mr. Dhalla has identified any error of principle in how the chambers
judge exercised his discretion given the findings of fact he made.  First, the
chambers judge correctly articulated the legal principles governing both the
circumstances in which a successful party may be denied costs and the
circumstances in which a party may be required to pay special costs.  It cannot
be said that the chambers judge proceeded on the basis of an incorrect
understanding of the legal principles governing the exercise of his discretion.

[25]

The real complaint
here is that the costs orders are disproportionate to the conduct giving rise
to them and that the conduct is not adequately connected to the litigation.

[26]

I will deal with
the second point, that is whether the misconduct was adequately connected to
this litigation, first.  The chambers judge based his orders on two grounds.
The first was the conduct associated with the incident in 2005.    The chambers
judge made a finding of fact that Mr. Dhalla knew that an attempt was
being made to serve him with legal documents that he knew or suspected were
connected to this litigation.  That finding is one for the judge to make.  No
legal error underlying it has been identified.  In my view, moreover, what
matters is that the attempted service was in fact connected to this
litigation.  I do not think the relevant question is one of subjective
knowledge that the service relates to this rather than some other legal
proceeding.  The second was the manner in which Mr. Dhalla gave evidence.
This second ground is obviously connected to this litigation.

[27]

Finally, I do not
think any error of principle has been identified based on the disproportionate
effect of the orders.  How to weigh and balance the significance of misconduct
and to craft appropriate remedies is a discretionary matter, the exercise of
which falls to the trial court.  In the absence of legal error in weighing the
relevant discretionary factors, it does not matter that a division of this Court
might have reached a different result on these particular facts.  After a
comprehensive review of cases dealing with denying successful litigants their
costs and awarding special costs arising from misconduct in respect of specific
parts of a proceeding, the chambers judge summarized the reasons for exercising
his discretion as he did at paragraphs 43 and 50 of his reasons, set out
above.  No error in those reasons has been identified, nor can it be said that
his decision is so clearly wrong as to amount to a miscarriage of justice.

[28]

In
College of
New Caledonia v. Kraft Construction Company Ltd.
, 2011 BCCA 172, 305
B.C.A.C. 48, per Chiasson J.A. (in Chambers), leave to appeal special costs
was not granted because the case did not raise issues of general significance
to the practice and the analytical framework for awarding special costs had
already been established by the court in
Garcia v. Crestbrook Forest
Industries Ltd.
(1994)
,
119 D.L.R. (4th) 740
.
In
New Caledonia,
Chiasson J.A. in said
this:

[30]      I
agree with the submissions of the respondents that this case presents no point
of general significance to the practice because the analytical framework was
established by this Court in
Garcia
. It is left to trial judges to
determine whether conduct is worthy of rebuke. Whether this is so, is case
specific. In part, that is illustrated by the Colleges position in this case.
It contends the judge erred by awarding special costs because the College
pursued a hopeless claim. In deciding whether the judge did so, this Court
would not be providing guidance as to what constitutes conduct worthy of
rebuke. It merely would be considering whether the alleged factual matrix is
based on nothing more than the weakness of the Colleges claim, a question of
fact.

[29]

I find those statements
to be applicable to this case.

[30]

I order short
leave be granted, time be extended for filing an application for leave to
appeal, the Notice of Appeal be converted to an application for leave to appeal
nunc pro tunc
, but leave to appeal is denied.  The application for a
declaration that the appeal be dismissed as a nullity is dismissed.

The Honourable Mr. Justice Harris