COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Lam v. University of British Columbia,

2015 BCCA 2

Date: 20150106

Docket: CA041447

Between:

Howard Lam

Respondent

(Plaintiff)

And

University of
British Columbia

Appellant

(Defendant)

And

Arpel
Industries Ltd., carrying on business as Arpel Security Systems,
Arpel Security Systems Ltd., Arpel Security and Monitoring Ltd.,
Enerand Holdings Ltd., carrying on business as Caltech Tech Services,
Peter Moore, carrying on business as Moore Security Systems,
Thermo Forma Inc., Vancouver Coastal Health Authority operating as
Vancouver General Hospital and UBC Hospital,
Mallinckrodt, Inc. and Sanyo Electric Co., Ltd.

(Third
Parties)

Before:

The Honourable Mr. Justice Chiasson

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Bennett

On appeal from:  An
order of the Supreme Court of British Columbia,
dated November 20, 2013 (
Lam v. University of British Columbia
,
2013 BCSC 2094, Vancouver Docket S035269).

Counsel for the Appellant:

J.J. Arvay, Q.C. and
  R.J. Androsoff

Counsel for the Respondent:

A.M. Grant and D.A.
  Goldberg

Place and Date of Hearing:

Vancouver, British
  Columbia

September 30, 2014

Place and Date of Judgment:

Vancouver, British
  Columbia

January 6, 2015

Written Reasons by:

The Honourable Mr. Justice Chiasson

Majority Reasons Concurring in the Result by:

The Honourable Madam Justice Bennett (p. 29, para. 83)

Concurred in by:

The Honourable Mr. Justice Frankel

Summary:

This is a class action
brought by men who deposited their sperm with the appellant.  The respondent is
the representative of the class.  The sperm was kept in a freezer that
malfunctioned, damaging or destroying the sperm.  The appellant raised an
exculpatory clause in the contract of storage against the respondent.  He
contends it offends the Warehouse Receipt Act [WRA].  The parties agreed to
have a sub-issue tried to determine whether the appellant could rely on the
WRA.  The issue at trial and on appeal was whether frozen human sperm is
property for the purposes of the WRA.  The trial judge held that it was and
that the appellant was precluded from relying on the exclusion clause.

Held: Appeal dismissed, majority
reasons of Bennett J.A. agreed to by Frankel J.A concurring in the
result.  Per Chiasson J.A.:  For the purposes of the WRA, human sperm is
property.  The task is to determine the meaning of goods in the WRA.  As of
the date the class members deposited their sperm, medical science had advanced
to the point where sperm could be considered to be property.  The judge
concluded correctly that the plain meaning of goods in the WRA includes human
sperm.  He also undertook a purposive or contextual analysis and correctly
reached the same conclusion.  The decision of the Supreme Court of Canada in
Harvard College does not support reading into the definition of goods in the
WRA a limitation that goods are only property that can be traded in the market
place.  Majority (per Bennett J.A. and Frankel J.A.): The definition of sperm
as property is limited to the WRA in this case.  After applying a framework
weighing the rights of the donors and the legislative restraints imposed on the
donors, each of the donors had ample rights in relation to his own sperm
specimen that invested him with ownership of the specimen sufficient to be
defined as property and meet the definition of goods under the WRA.

Reasons
for Judgment of the Honourable Mr. Justice Chiasson:

Introduction

[1]

The issue on this appeal is whether frozen, human sperm is property
for the purposes of the
Warehouse Receipt Act,
R.S.B.C. 1996,
c. 481 [
WRA
].

Background

[2]

The respondent, Howard Lam, is the representative plaintiff in a class
proceeding against the appellant.  The members of the class had cancer and
before undertaking radiation treatment stored their frozen sperm in an ultra‑cold
freezer located in the appellants Andrology Laboratory.

[3]

In 1997, the respondent provided samples of his sperm for storage in the
freezer.  In May 2002, it was discovered that the freezer had suffered a power
interruption which damaged or destroyed the stored sperm.

[4]

At the time they deposited their sperm for storage, members of the class
signed a Sperm Bank Facility Agreement (Facility Agreement).  It required
depositors to pay a deposit fee, an annual storage fee and a withdrawal fee,
all of which were fairly modest.  The agreement also stated:

4.
WITHDRAWAL OF
THE SPECIMEN

You may at
any time upon:

(a)   payment of
the Withdrawal Fee;

(b)   delivery by
your physician to us of 45 days prior written notice of withdrawal; and

(c)   delivery
to us of such withdrawal forms or releases as we require;

require us to deliver to your
physician within the 45 day notice period any part or all of the Specimen.

.

7.
LIMITATION OF
OUR LIABILITY

By signing this Agreement you agree
that neither we nor our successors or assigns nor any of our governors,
directors, officers, employees or agents will be liable to you or anyone else
for any destruction of, damage or alteration to or misuse of your Specimen for
any reason whatsoever, including:

(a)   the
improper testing of your Specimen;

(b)   improper
freezing of your Specimen;

(c)   improper
maintenance and/or storage of your Specimen in a frozen state; or

(d)   improper
withdrawal and/or delivery of your Specimen.

This exclusion of our liability extends to any damage,
misuse or impropriety caused by or resulting from any malfunction of our
freezing equipment (whether for causes within our control or not) or from any
failure of utilities, strike, cessation of services or other labour
disturbances or any failure or similar occurrence in our or any other
laboratory or from any fire, earthquake or other acts of nature beyond our
control, or caused by or resulting from any act, omission or negligent conduct
on the part of us or our successors or assigns or any of our governors,
directors, officers, employees or agents.

[5]

The appellant relies on the exclusion of liability in clause 7,
against which the respondent raises s. 2(4) of
WRA
:

A warehouser may insert in a receipt issued by the warehouser
any other term or condition that

(a)   is not
contrary to any provision of this Act, and

(b)   does not impair the warehousers obligation to
exercise the care and diligence in regard to the goods as a careful and
vigilant owner of similar goods would exercise in the custody of them in
similar circumstances.

[6]

The parties agreed to have the following sub-issue tried:

Is the [appellant] precluded from
relying upon the exclusion clause in the Agreement as against the Class members
by virtue of the
Warehouse Receipt Act
, R.S.B.C. 1996, c. 481 (the

WRA
)?

[7]

The trial judge answered the question yes.

Trial judgment

[8]

The judge set out issues and sub-issues for decision:

[6]        Based on these agreed facts, consideration of the
question before the court requires examination of the following issues:

1.         Is the
WRA
applicable to the Sperm Banking Facility Agreement (the
Agreement)?

2.         If the
WRA
applies, does it preclude the enforceability of the exclusion clause
in the Agreement?

[7]        The first issue raises a number of sub-issues for
possible consideration including:

·

Are sperm/sperm samples goods as that term is defined in the
WRA
?

·

Do principles of statutory interpretation preclude the
WRA
s
applicability?

·

Is the defendant [appellant], as an operator of the Andrology
Lab, a warehouser as that term is defined in the
WRA
?

·

Were the Agreements issued by the defendant [appellant]
warehouse receipts as that term is defined in the
WRA
?

[9]

He then stated the positions of the parties noting at para. 10 that the
appellant conceded [that] its relationship with the class members was one of
bailment for reward.  The core position of the appellant at trial and on
appeal is that the
WRA
and the
Warehouse Lien Act
, R.S.B.C. 1996,
c. 480 [
WLA
], are one regime, and that [i]t is necessary to
restrict the meaning of goods in the Warehouse Statutes to property that is
the proper object of trade and commerce: para. 13.

[10]

The judge set out relevant provisions of the
WRA
as follows:

1       In this Act:

goods includes all property
other than things in action, money and land;

warehouse receipt" means an
acknowledgment in writing by a warehouser of the receipt for storage of goods
not owned by the warehouser;

warehouser means a person who,
for reward, receives goods for storage.

2(1)   A receipt must contain
all of the following particulars:

(a)     the
location of the warehouse or other place where the goods are stored;

(b)     the
name of the person by whom or on whose behalf the goods are deposited;

(c)     the date of issue of the
receipt;

(d)     a
statement either

(i)      that
the goods received will be delivered to the person by whom or on whose behalf
the goods are deposited, or to another named person, or

(ii)     that
the goods will be delivered to bearer or to the order of a named person;

(e)     the rate of storage
charges;

(f)      a description of the
goods or of the packages containing them;

(g)     the
signature of the warehouser or the authorized agent of the warehouser;

(h)     a
statement of the amount of any advance made and of any liability incurred for
which the warehouser claims a lien.

(2)  If a
warehouser omits from a negotiable receipt any of the particulars set out in
subsection (1), the warehouser is liable for damage caused by the
omission.

(3)  A receipt
must not be considered not to be a warehouse receipt because of the omission of
any of the particulars set out in subsection (1).

(4)  A warehouser
may insert in a receipt issued by the warehouser any other term or condition
that

(a)     is not contrary to any
provision of this Act, and

(b)     does
not impair the warehousers obligation to exercise the care and diligence in
regard to the goods as a careful and vigilant owner of similar goods would
exercise in the custody of them in similar circumstances.

13     A
warehouser is liable for loss of or injury to goods caused by the warehousers
failure to exercise the care and diligence in regard to them as a careful and
vigilant owner of similar goods would exercise in the custody of them in
similar circumstances.

He then considered whether the
WRA
applied to the
Facility Agreement.

[11]

The judge concluded that the parties did not contemplate the application
of the
WRA
at the time the class members signed the Facility Agreement
because the issue was not raised until well into the present litigation.  He
also observed that at the time the
WRA
was enacted it was not intended
to apply to the storage of sperm because technology for the storage of sperm
was not in use and the common law did not recognize that sperm or body parts
could be property: para. 21.

[12]

In the judges view, on a plain reading of the
WRA
it would
appear that sperm is included in the definition of goods, and that the
Agreement meets the definition of warehouse receipt: para. 23.  Turning
to his analysis, the judge began with the applicable legal principles:

[26]      The Driedger principle has been adopted in the
leading cases of
Re: Rizzo & Rizzo Shoes Ltd.
; and
Bell
ExpressVu Limited Partnership v. Rex
and in many other Supreme Court of
Canada decisions.

[27]      In order to determine and give effect to the intent
of the legislature, courts utilize textual, contextual or purposive analyses.
As noted in
Canada Trustco Mortgage Co. v. Canada
at para. 10, in
each case, the relative effects of these three approaches may vary, but the
court must seek to read the provisions in any statute harmoniously:

The interpretation of a statutory
provision must be made according to a textual, contextual and purposive
analysis to find a meaning that is harmonious with the Act as a whole. When the
words of a provision are precise and unequivocal, the ordinary meaning of the
words play[s] a dominant role in the interpretive process. On the other hand,
where the words can support more than one reasonable meaning, the ordinary
meaning of the words plays a lesser role. The relative effects of ordinary
meaning, context and purpose on the interpretive process may vary, but in all
cases the court must seek to read the provisions of an Act as a harmonious
whole.

[28]      Here, the plaintiff
emphasizes a textual approach while [the appellant] contends a contextual or
purposive analysis leads to an interpretation which is harmonious with the
whole of the
WRA
. I will explain why I conclude that the definition of
goods is precise and unequivocal and must play a dominant role in the
interpretive process. Further, I will set out why the purposive or contextual
analysis does not lead to an interpretation which displaces the plain meaning
of the definition.

[Citations omitted.]

[13]

The judge addressed the fact that the storage of human sperm was not
contemplated at the time the
WRA
was enacted, stating:

[32]      In
The Interpretation of Legislation in Canada
,
4th ed. (Toronto, ON: Thomson Reuters, 2011), Pierre-[
André
Côté]
sets out at 277 three principles which guide the application
of the grammatical approach to interpretation:

In the application of the
grammatical method, one may be guided by three principles which specify its
scope: 1) words must be given their ordinary meaning; 2) words must
be given the meaning they had on the day the statute was enacted; 3) adding
to the terms of the statute, or depriving them of effect, should be avoided.

[33]      With regard to the
second of those principles, [Côté] notes at 285 that:

As a general rule, the point of
reference of a statute should be the time of its enactment. As the role of the
interpreter is to recreate the thoughts underlying the text of an enactment, it
seems logical to give the words their ordinary meaning at the time of the
legislations adoption, taking into account the context in which they were
enacted.

[34]      Of course, at the time of enactment of the
WRA
,
the legislature would not have considered that sperm was property. There was no
technology available for the effective storage of sperm and the common law did
not recognize property in body parts or products. However, broad statutory
categories can be held to include things unknown when the legislation was
passed. [Côté] explains the rationale for this at 288:

Not only can a statute apply to situations which did not
exist when it was enacted, it can also govern phenomena which were virtually
unimaginable at the time. If justified by its aim, and compatible with its
wording, a statute can apply to inventions subsequent to its enactment. ... In
each case, the court will ask itself if the provisions purpose will justify
application to the new invention, and whether the enactments terms are
sufficiently general to permit its application to things unknown at the time of
enactment.

[14]

He then referred to several fairly recent cases that concluded sperm is
property:
Yearworth v. North Bristol NHS Trust
, [2009] EWCA Civ 37;
Kate Jane Bazley v. Wesley Monash IVF Pty Ltd
, [2010] QSC 118 (T.D.);
C.C
.
v. A.W.
, 2005 ABQB 290
;
J.C.M.

v. A.N.A.
,
2012 BCSC 584, and concluded:

[41]      These cases did not
consider whether the term property, as used in legislation, could include
sperm. They were concerned with whether the common law now regards stored sperm
or embryos as property. That distinction is of no consequence to the analysis I
must make in this case. Courts in a variety of jurisdictions have come to the
conclusion that stored sperm is property. I agree with the conclusion arrived
at in these cases. The frozen sperm at issue in this case is the property of
the class members. The sperm was ejaculated, frozen and stored for the purpose
of using it for conception. Applying the current state of the law of property
to the definition in the
WRA
leads to a conclusion that frozen sperm is
goods.

[15]

The judge continued his analysis stating:

[42]      The next step in the analysis is to ask if the
purpose of the provisions in the
WRA
justifies the application of those
provisions to the new definition of property. One of the purposes of the
WRA
was to codify the common law of bailment. Under the common law, a bailee is
required to exercise the same care and diligence with respect to the bailed
goods as a careful and vigilant person would exercise over his own similar
goods in like circumstances. Sections 2(4) and 13 of the
WRA
effectively
accomplish that. There is no reason why these provisions should not be applied
to property that can be stored for reward which was not contemplated at the
time the legislation was enacted. The purpose of requiring bailees to exercise
adequate care and diligence applies equally to all kinds of property that can
be stored for reward.

[43]      The other step in the [Côté]
analysis is to ask if the legislative provision in question is sufficiently
general to permit its application to things unknown at the time of enactment.
As I have already noted, the definition of goods is broad and inclusive. In
other words, the provision is sufficiently general to apply to things unknown
at the time of passage. There is no reason not to apply the provisions of the
WRA
to goods which fall within the current understanding of all property other
than things in action, money and land.

[16]

The judge observed that the thrust of the appellants argument was that
it is an offence under the
Assisted Human Reproduction Act,
S.C. 2004,
c. 2, to sell human sperm.  If a warehouser were to issue a negotiable
receipt or a transferrable non-negotiable receipt for frozen human sperm, the
sperm could be sold, creating a conflict between the
WRA
and the
Assisted
Human Reproduction Act.
The judge rejected the appellants submission,
stating:

[46]      The focus by [the appellant] on the ability of a
warehouser of sperm to issue a negotiable receipt is misplaced. It is not an
issue in this case because the Agreement does not purport to be negotiable. It
is a nonnegotiable receipt. More importantly, the possibility of a warehouser
issuing a negotiable receipt for the storage of sperm does not create the kind
of conflict that requires goods to be interpreted not to include sperm. There
is no requirement for a warehouser to issue negotiable receipts - the
WRA
provides for the issuance of nonnegotiable receipts. It also permits the
inclusion of terms in a receipt so long as those terms are not contrary to
provisions in the
WRA
: s. 2(4)(a). Further, if a receipt purports
to be negotiable but another statute makes it an offence to sell the property
in question, this would not create an irreconcilable conflict. It would only
mean that the holder of the receipt would have to comply with other statutory
provisions.

[49]      The fact that sperm
cannot be purchased does not prevent it from falling within the definition of goods
in the
WRA
. It simply reflects the fact that sperm, like other classes
of property, is subject to control or regulation by other statutory provisions.
If sperm is property that can be stored and for which a receipt can be issued,
then it falls within the definition of goods in the
WRA
.

[17]

At the end of his textual analysis, the judge concluded:

[50]      In summary, on a grammatical or textual analysis,
the frozen sperm specimens covered by the Agreement fall within the definition
of goods in the
WRA.
The definition is clear and unequivocal; goods is
meant to include all property with three exceptions. Those exceptions do not
apply to sperm and the inclusion of sperm in the definition is not inconsistent
with other provisions in the
WRA
.

[51]      Nevertheless, I must
be careful not to adopt a strictly literal approach to interpretation. I must
consider the possibility of coming to a contrary conclusion by applying a
purposive or contextual analysis. As noted by [Côté], I must ask if a purposive
or contextual approach to the provisions in the
WRA
can justify the
inclusion of sperm in the definition of property.

He added:

[52]      A strictly literal approach to statutory
interpretation has long been rejected by the Supreme Court of Canada. As the
court stated in
Chieu v. Canada (Minister of Citizenship and
Immigration)
, 2002 SCC 3, [2002] 1 S.C.R. 84 at para. 34, each
provision must be read in its entire context:

The grammatical and ordinary sense of the words employed in
s. 70(1)(b) is not determinative, however, as this Court has long rejected
a literal approach to statutory interpretation. Instead, s. 70(1)(b) must
be read in its entire context. This inquiry involves examining the history of
the provision at issue, its place in the overall scheme of the Act, the object
of the Act itself, and Parliaments intent both in enacting the Act as a whole,
and in enacting the particular provision at issue.

[18]

The judge began his contextual and purposive analysis by observing that
the broad definition suggests that the legislatures intention was to have an
open and inclusive definition of goods rather than to restrict the application
of the statute: para. 53.  In his view, the definition of goods in the
WRA
differed from that in the
WLA
.  He rejected the appellants argument
that the two statutes had to be read together.  In the judges view, the
definition of goods in the
WRA
is broader and  must have been
intended to apply to a broader range of property items than the definition in
the
WLA
: para. 54.

[19]

The appellants submission detailing the history of warehouse
legislation was reviewed by the judge.  He then stated:

[59]      [The appellant] asks the court to draw two
conclusions from this historical analysis. First, it says that the Warehouse
Statutes must be regarded as a cohesive legislative scheme supported by their
common origin. Second, it says that when the Warehouse Statues are considered
as a whole, the coherence of the legislation would be undermined if sperm is
considered to be goods. Rather, goods must be restricted to the proper
objects of trade and commerce.

[60]      With regard to the first of these propositions, I
accept that the Warehouse Statutes had a common historical impetus. Both were
enacted with a view to standardizing laws relating to the warehousing of goods
and the rights of bailors and warehousers. But it does not follow from a common
origin that the definition of goods in the
WRA
needs to be restricted
by the provisions in the
WLA
. There are three reasons for not doing so.
First, the definitions of goods in the two statutes are different. Second, the
statutes were enacted more than 20 years apart in time. Third, while both
enactments dealt with warehousers, the subject matter of the two acts is quite
distinct. Apart from the other obvious distinction (one applies to warehousers
liens, the other to receipts), the
WLA
, unlike the
WRA,
was not
concerned with codification of the common law relating to bailment.

[61]      I cannot conclude from a historical analysis that
the definition of goods in the
WRA
must be restricted to goods which
could be sold by the warehouser to enforce its lien rights. That proposition is
a cornerstone of [the appellant]s argument. It says that goods must be the
proper objects of trade and commerce over which a warehouser has lien rights
including the ability to sell the goods for unpaid storage fees. That cannot be
correct as it would require the court to modify or restrict the clear
definition of goods in the
WRA
.

[62]      In addition, the
qualification to all property suggested by [the appellant] would create
confusion and uncertainty. What is meant by the proper objects of trade and
commerce? As the plaintiff asked, would personal household items such as
photographs, personal mementos and used clothing be excluded from the
definition? Would it apply to the storage of personal medical devices or
medication that cannot be resold? Would it apply to the storage of firearms?
There would be large classes of goods which could be stored but could not be
resold, or could be sold only with restrictions, or for which there is no
market. All of those categories might fall outside of the suggested qualified
definition. This would place a limitation on the provisions of the
WRA
which is not justified. The
WRA
was intended to apply where goods are
stored for reward and a receipt for those goods is issued by the warehouser.
There is no necessity for a further restriction.

[20]

He considered the appellants argument at para. 63 dealing with
the moral and ethical concerns around the commercialization of human
reproductive material and addressed the appellants reliance on
Harvard
College v. Canada (Commissioner of Patents)
, 2002 SCC 76, [2002] 4
S.C.R. 45:

[64]      [The appellant] submits the approach taken to
statutory interpretation by the Supreme Court of Canada in
Harvard College
v. Canada (Commissioner of Patents)
should be followed in the present case.
In
Harvard
, the question for resolution was whether the
Patent Act
allowed for the patentability of higher life forms. The applicant college
applied for a patent on the oncomouse, a mouse that had been subject to a
genetic engineering process that rendered it highly susceptible to cancer. The
case turned on the definition of invention in the
Patent Act
which was
virtually unchanged from the definition contained in the first iteration of the
statute in 1869.

Invention was defined to mean any new and useful art,
process, machine, manufacture or composition of matter.

[65]      The Court concluded the definition did not
encompass higher life forms. The majority was sensitive to the special concerns
intrinsic to the patentability of higher life forms which Parliament would
presumably want to consider but could not have done so when the
Patent Act
was first passed. At para. 167, the Court expressed these concerns:

The patenting of higher life
forms raises special concerns that do not arise in respect of non-living
inventions. Unlike other inventions, biologically based inventions are living
and self-replicating. In addition, the products of biotechnology are incredibly
complex, incapable of full description, and can contain important
characteristics that have nothing to do with the invention In my view, the
fact that the
Patent Act
in its current state is ill-equipped to deal
appropriately with higher life forms as patentable subject matter is an
indication that Parliament never intended the definition of invention to
extend to this type of subject matter.

[66]      I reject [the appellant]s submission that a
similar analysis in the present case should result in a conclusion that the
legislature never intended goods to include frozen sperm. The issue in the
present case is very different from the issue in
Harvard
. A conclusion
that higher life forms could be patentable raises special concerns because of
the nature of the rights granted with a patent.

[67]      There are no special
concerns raised by a conclusion that goods includes frozen sperm. Contrary to
the submissions of [the appellant], if the definition of goods in the
WRA
applies to sperm, a warehouser does not have the right to purchase or sell
sperm. In the case of a nonnegotiable receipt, such as the one in issue, the
WRA
does not authorize the sale of sperm (the goods in storage) contrary to the
Assisted
Human Reproduction Act
or the
HTGA
. The fact that certain property
falls within the definition of goods in the statute does not impact on other
legislative provisions dealing with the property stored in a warehouse. Rather,
it establishes certain rights as between warehouser and bailor. It provides a
limitation on the terms that might be included in a warehouse receipt.

[Citation omitted.]

[21]

The judge concluded that the definition of goods in the
WRA
includes
sperm: para. 68.  In his view, whether approached through a textural,
purposive or contextual analysis there is no ambiguity in the definition.  The
appellant was a warehouser.  It received goods for storage in exchange for
reward.

[22]

The judge then discussed whether the Facility Agreement was a warehouse
receipt.  He began by noting the particulars that a warehouse receipt must
contain and then addressed the contents of the Facility Agreement stating:

[72]      With the exception of
the requirement in subsection (h), the Agreement contains each of the
particulars required by s. 2(1). The location of the Andrology Lab is
noted on page 1 of the Agreement. The name of the person storing the sperm
is set out on the last page of each Agreement as is the date on which it was
issued. The statement as to whom the goods would be delivered to, required by
subsection (d) is dealt with in detail in clause 4 of the Agreement.
The sperm is to be delivered to the class members physician upon payment of
the withdrawal fee and the provision of notice. The requirement of subsection (d)(i)
is met as the Agreement provides that the goods will be delivered to another
named person. As the Agreement is not a negotiable receipt, it does not provide
that the goods can be delivered to the bearer of the Agreement. The storage
charges are set out in the schedule attached to the Agreement as noted at
clause 2 and as required by subsection (e). The goods are described
as your sperm specimen which you provide to us. The final page of the
Agreement contains a signature line for the representative of the Andrology Lab
as required by subsection (g).

[23]

It was the judges view that failure to comply with (h) was of no
consequence and that, in any event, s. 2(3) of the
WRA
states that
the absence of a particular does not mean the document is not a warehouse
receipt.  He concluded that the Facility Agreement is a non‑negotiable
warehouse receipt.

[24]

As to the effect of the
WRA
on the exclusion clause, the judge
stated:

[77]      Read together,
s. 13 and s. 2(4)(a) preclude a warehouser from including in its
receipt a term or condition that would release the warehouser from liability
for failing to meet the requisite standard of care. Section 2(4)(b)
further provides that a receipt cannot contain a term which impairs the warehousers
obligation to meet the requisite standard of care. Taken as a whole, these
sections ensure warehousers cannot by contract, cancel or modify the standard
of care imposed on them by the
WRA
. If clause 7 of the Agreement is
contrary to s. 13 of the
WRA
or clause 7 impairs [the appellant]s
ability to meet the standard of care in s. 2(4)(b), then [the appellant] cannot
rely on that provision.

[25]

After reviewing the submissions of the parties and applicable
authorities, the judge found:

[90]      On a plain reading of
clause 7, it is clear that it is directly contrary to s. 13 of the
WRA
.
As previously noted, s. 13 imposes liability on a warehouser for the loss
of or injury to goods caused by the warehousers failure to exercise the care
and diligence that a careful and vigilant owner of similar goods would exercise
in the custody of them in similar circumstances. Clause 7 attempts to
shield the Andrology Lab from the same liability that s. 13 assigns to it
as a warehouser. Clause 7 excludes the Andrology Lab from liability for
any acts, omissions or negligent conduct, and covers a wide variety of
circumstances including freezer malfunction, labour disturbances, or conduct of
its employees. The clause is patently contrary to s. 13. It does not
merely provide a limitation of damages in a manner similar to the warehouse
receipt in
Evans Products
.

[26]

He concluded at para. 92:

The provisions of the
WRA
apply to the storage of the
sperm specimens of the plaintiff and class members and the Agreement is a
warehouse receipt. I also conclude that clause 7 of the Agreement is
directly contrary to s. 13 of the
WRA
. The answer to the sub-issue
posed for determination is thus:

Yes, the defendant, [appellant], is precluded from relying
upon the exclusion clause in the Agreement as against the Class members by
virtue of the
Warehouse Receipt Act
, R.S.B.C. 1996, c. 481 (the
WRA
).

Positions of
the parties

[27]

In its factum, the appellant asserts that the judge erred:

25.        in law in his application of the Driedger
approach to statutory interpretation of the
WRA
in:

(a)        ascribing
undue weight to the plain meaning of the statutory language and insufficient
weight to contextual, historical, and other indicators of legislative intent;

(b)        declining
to read and interpret the Warehouse Statutes together as legislation
in pari
materia
;

(c)        equating
the presence of a statutory definition with the absence of ambiguity;

(d)        omitting
to distinguish previous cases concluding that sperm constitutes property on
the basis of the dissimilar legal contexts in which that question was
considered; and

(e)        distinguishing
Harvard
College
from the instant case.

That is, the judge erred in concluding that human sperm is
property for the purposes of the
WRA
.

[28]

At the hearing of the appeal, the appellant advanced a number of
additional positions: fairness; retroactive application of the inclusion of
human sperm in the definition of property; the appellant is not a warehouser; and
the Facility Agreement is not a warehouse receipt.

[29]

In his factum, the respondent states that the issue on appeal is simply
whether the learned trial judge correctly interpreted and applied the
provisions of the
WRA
to the facts as set forth in the Agreed Statement
of Facts.

[30]

At the hearing, counsel for the respondent addressed the additional
positions of the appellant, albeit somewhat under protest.

Discussion

General

[31]

The agreed statement of facts states that the Andrology Laboratory was
established in 1982; the factums of the parties state this was in 1981.  The
material does not state when the Facility Agreement was put in place.  The
laboratory purchased its first ultra‑cold electrical freezer in 1987 and
in 1993 purchased the ultra‑cold electrical freezer at issue in this
proceeding and began to use it for sperm-banking purposes.  The respondent
deposited his sperm in August 1997.  The agreed statement of facts states that
class members were charged initial and annual storage fees beginning in 1982.

[32]

There can be much emotion about the question being addressed on this
appeal  the appellant charged little for its services and potentially faces a
significant exposure; the class members potentially lost the opportunity to
procreate and are faced with a provision that may deny them compensation.
Although the result likely will be disquieting for one side or the other, the
task of the courts is to determine the legal rights of the parties.

[33]

Although it is understandable that counsel will discover additional
arguments when finally preparing to present an appeal, it is appropriate to
inform the other side and the Court of these matters in advance of the hearing
of the appeal.  The failure to do so may have unexpected and unfortunate
consequences.

[34]

During the hearing, counsel for the appellant referred to s. 21(1)
of the
WRA
which states:

(1)        A person to whom a nonnegotiable receipt is transferred
acquires, as against the transferor,

(a)        the
title to the goods, and

(b)        the right to deposit with the
warehouser the transfer or a duplicate of it.

[35]

Because the Facility Agreement does not appear to vest title to sperm in
the doctor to whom the sperm would be transferred, counsel contended that the
Facility Agreement is not a warehouse receipt.  The respondent noted that the
effect of s. 21 is not before us on this appeal and that s. 21 is not
a definitional section.  I agree.

[36]

It is not in issue that if the Facility Agreement is a warehouse
receipt, the limitation clause is unenforceable by operation of ss. 2(4)
and 13 of the
WRA
.  As the judge observed, [w]hether the Agreement
is a warehouse receipt and the Andrology Lab is a warehouse turns largely on
the definition of goods: para. 25.

Is human sperm property for the purposes of the
WRA?

[37]

The question addressed and answered by the trial judge was whether the
appellant was precluded from relying on the exclusion clause in the Facility
Agreement by the provisions of the
WRA
.  This engaged s. 13 of the
WRA
which states:

13        A warehouser is liable for loss
of or injury to goods caused by the warehousers failure to exercise the care
and diligence in regard to them as a careful and vigilant owner of similar
goods would exercise in the custody of them in similar circumstances.

[38]

From s. 13 one moves to s. 2(4) which permits the inclusion by
a warehouser of additional terms in a warehouse receipt which are:

(a)         not contrary to any provision of this Act, and

(b)        [do] not impair the
warehousers obligation to exercise the care and diligence in regard to the
goods as a careful and vigilant owner of similar goods would exercise in the
custody of them in similar circumstances.

[39]

These provisions lead to a consideration of the definitions of warehouser
and warehouse receipt.  Sections 13 and 2(4) and the definitions
use the defined term goods.  The definition is:

goods includes all property
other than things in action, money and land.

[40]

In my view, it is not necessary to determine whether the definition of
goods in the
WRA
differs from, or is broader than, that in the
WLA
.
The definition in the
WLA
includes personal property of every
description that may be deposited with a warehouser as bailee  merely tracks
the definition of goods in the
WRA
, which excludes things in action,
money and land.

[41]

The question in this case becomes: is human sperm property?

a.  The judge did not err
in his interpretative approach to statutory language.

[42]

The appellant asserts that the interpretative process must not be driven
by the plain meaning of statutory language, but must reflect the contextual and
historical context of the legislation.  At the time the
WRA
was enacted,
human sperm was not property and in Canada today it is not capable of being
traded in the market place because it would be illegal to do so.

[43]

The appellant states that the judge erred in concluding that the
definition of goods in the
WRA
is precise and unequivocal without
reference to, and before embarking on, a contextual analysis.  It states that
the judges determination coloured his contextual analysis, causing him to
place undue weight on plain meaning and insufficient weight on contextual and
historical facts: para. 31.

[44]

At para. 27, the judge quoted from
Canada

Trustco Mortgage
Co. v. Canada,
2005 SCC 54, [2005] 2 S.C.R. 601 at para. 10: When
the words of a provision are precise and unequivocal, the ordinary meaning of
the words play[s] a dominant role in the interpretive process.  It seems to me
that this is a clear indication that the judge was entitled to consider whether
the definition of goods was precise and unequivocal before embarking on a
contextual analysis.  He was satisfied that the definition of goods was clear
and unequivocal.  He stated at para. 50:

goods is meant to include all
property with three exceptions.  Those exceptions do not apply to sperm and
the inclusion of sperm in the definition is not inconsistent with other
provisions in the
WRA
.

[45]

In reaching this conclusion, the judge undertook a very thorough
analysis of the language of the enactment and the case law relevant to it.  I
agree with his analysis and conclusion.

[46]

The appellant refers to the fact that, at the time the
WRA
was
enacted, human sperm would not have been property.  The judge was alive to
this, but as quoted previously, he referred to Mr.
Côté
s
text which confirmed that legislation may apply to situations which did not
exist when it was enacted and can apply to inventions subsequent to its
enactment: para. 34.

[47]

The Supreme Court of Canada also has endorsed a
flexible approach to terms in legislation to ensure that the law speaks to
contemporary circumstances:
R. v. Perka
, [1984] 2 S.C.R. 232
at para. 80;
Tataryn v. Tataryn Estate
, [1994] 2 S.C.R. 807.

[48]

It often is stated that court decisions merely declare the law, that is,
state what the law always has been.  The following is an interesting
observation on that proposition:

The theoretical position has
been that judges do not make or change law: they discover and declare the law
which is throughout the same. According to this theory, when an earlier
decision is overruled the law is not changed: its true nature is disclosed...
This theoretical position is a fairy tale in which no one any longer
believes... The whole of the common law is judge-made and only by judicial
change in the law is the common law kept relevant in a changing world.
But
whilst the underlying myth has been rejected, its progeny - the retrospective
effect of a change made by judicial decision - remains
:
Kleinwort Benson
Ltd. v. Lincoln City Council (1998)
, [1999] 2 A.C. 349 at 358,
per
Lord Browne-Wilkinson.

[Emphasis added.]

[49]

In my view, the cases to which the judge referred that conclude that
human sperm is property, support its inclusion in the definition of property in
the
WRA
.

[50]

In
J.C.M.,
Madam Justice Russell referred to
Yearworth
and
stated at para. 58:

I agree with the court of
appeals finding that medical science has advanced to a point where the common
law requires rethinking of this point.

To like effect were her comments, at para. 63, where
she described the need for the common law to keep up with medical science as
compelling.

[51]

In
Yearworth,
at para. 45(a), the Court stated:

In this jurisdiction
developments in medical science now require a re-analysis of the common laws
treatment of and approach to the issue of ownership of parts or products of a
living human body, whether for present purposes (viz. an action in
negligence) or otherwise.

I consider this to be a correct approach to the development
of the common law.

[52]

It is obvious that, as of the date the class members deposited their
sperm, medical science had advanced to the point where sperm could be considered
to be property.  In my view, the judge concluded correctly that the plain
meaning of goods in the
WRA
includes human sperm.

[53]

After reaching his conclusion on the plain meaning of the words in the
definition of goods in the
WRA
, the judge stated expressly that he was
obliged to be careful not to adopt a strictly literal approach and that he
must consider the possibility of coming to a contrary conclusion by applying a
purposive or contextual analysis: para. 51.  He also quoted the guidance
for the analysis set out in
Chieu v. Canada (Minister of Citizenship and
Immigration)
, 2002 SCC 3, [2002] 1 S.C.R. 84.  His analysis followed.
I have quoted much of it and agree with the judge.

b.  The definition of goods is not
modified by reading the Warehouse Statutes together.

[54]

The appellant contends that the judge erred in refusing to treat the
WRA
and the
WLA
as a package.  It asserts that the lien rights of a warehouser
under the latter
Act
do not extend fully to the storage of human sperm
because the
Assisted Human Reproduction Act
prohibits the purchase of
human sperm.

[55]

The
Assisted Human Reproduction Act
was enacted by the Federal
Parliament in 2004.  Sperm deposited with the appellant prior to that date,
including the respondents sperm, could have been sold and purchased.  The
appellants position requires the court to conclude that the definition of
property in the Provincial
WRA
was altered by Federal legislation
because it affected the rights of warehousers in the
WLA
.  In my view,
the definition of property in the
WRA
cannot depend on the vagaries of
Federal legislation that may affect rights under another Provincial statute.

[56]

The appellant asserts that warehouse legislation historically was
mercantile legislation and that this should determine the definition of
property in the
WRA
.  It argues that goods include only things that are
capable of being sold in the market-place.

[57]

The appellant does not suggest that the cases to which the judge
referred, that determined human sperm is property, were decided wrongly.  It
contends that those cases should not be applied in the context of the
WRA
because
it is commercial legislation which historically applied only to goods in
commerce: goods capable of being traded in the market place.

[58]

The judge recognized the historical context of the legislation.  He
stated at para. 58:

The
WRA
also brought into
law the mercantile practices relating to negotiable receipts and codified the
common law regarding bailment for reward.

[59]

In the present case, the appellant concedes it was a bailee for reward.
The transaction between it and the members of the class was commercial.  The
appellant argues that its approach does not create confusion or open the
floodgates because all goods, other than those which cannot be sold legally including
human sperm, are included in the definition of property.  In addition to
rejecting the submission that the definition of property in the
WRA
should
be shaped by unrelated legislation, I see nothing in the
WRA
that would make
the definition of property depend on the type of goods bailed for hire.  I am
not convinced that historically it was otherwise.

[60]

I similarly do not accept the appellants contention that the trial
judge erred in equating the presence of a statutory definition for goods with
the absence of ambiguity.  Nothing in the
WRA
suggests the need to
reframe the legislations definition of goods with a mercantile connotation.

c.  The trial judge did not err in his consideration of other case
law.

[61]

The appellant asserts that the trial judge failed to distinguish
previous cases concluding that sperm was property on the basis of different
legislative contexts.

[62]

In support of this contention, the appellant relies on
Saulnier v.
Royal Bank of Canada
, 2008 SCC 58, [2008] 3 S.C.R. 166 [
Saulnier
],
which it submits established a binding analytical framework for determining the
content of legislative definitions of property.

[63]

In
Saulnier,
the Supreme Court considered whether a fishing
licence was property for the purposes of the
Bankruptcy and Insolvency Act
,
R.S.C. 1985, c. B‑3 (
BIA
).  The Court stated at para. 16:

The questions
before the Court essentially raise a dispute about statutory interpretation. We
are not concerned with the concept of property in the abstract. The notion of
property is, in any event, a term of some elasticity that takes its meaning
from the context. The task is to interpret the definitions in the
BIA
and
PPSA

[
Personal Property Security Act
]
in a purposeful way having regard to their entire context, in their
grammatical and ordinary sense harmoniously with the scheme of the Act, the
object of the Act, and the intention of Parliament (R. Sullivan,
Sullivan
and Driedger on the Construction of Statutes
(4th ed. 2002), at p. 1).
Because a fishing licence may not qualify as property for the general
purposes of the common law does not mean that it is also excluded from the
reach of the statutes. For particular purposes Parliament can and does create
its own lexicon.

[64]

The definition of property in s. 2 of the
BIA
included:

every description of estate,
interest and profit, present or future, vested or contingent, in, arising out
of or incident to property.

[65]

In its factum, the appellant quotes part of para. 33 of the
judgment (at para. 78):

If the
question were whether a fishing licence
is
a
profit à prendre
,
the answer would almost certainly be no. But that is not the question. The
question before us is whether the fishing licences thus conceived can satisfy
the statutory definition of the
BIA
and
PPSA
, purposefully
interpreted
.

[Emphasis added by
the appellant.]

It goes
on to state:

76.       [The appellant] submits
that paragraph 41 of the trial judges reasons for judgment reflects an
analytical approach expressly contrary to the
ratio

decidendi
in
Saulnier
.
Accordingly, the trial judge erred in law in omitting to follow
Saulnier
,
a recent authority from Canadas highest court that was binding upon him.

[66]

In my view,
Saulnier
is of no assistance to the appellant.  It is
clear that Parliament can expand or limit the scope of common law concepts, to
facilitate legislative purposes.  In
Saulnier,
the Court determined that
the definition of property in the
BIA
was more extensive than at common
law.  The Court observed at para. 44:

The terms of the definition are very wide. Parliament unambiguously signalled
an intention to sweep up a variety of assets of the bankrupt not normally
considered property at common law. This intention should be respected if the
purposes of the BIA are to be achieved.

[67]

In reaching this conclusion, the Court looked to the rights granted to
the holder of a fishing licence to determine whether it fell within the
statutory definition.  It is instructive to refer to para. 34 of the
decision:

My point is
simply that the subject matter of the licence (i.e. the right to
participate in a fishery that is exclusive to licence holders) coupled with a
proprietary interest in the fish caught pursuant to its terms, bears a
reasonable analogy to rights traditionally considered at common law to be
proprietary in nature. It is thus reasonably within the contemplation of the
definition of property in s. 2 of the
BIA
, where reference is
made to a
profit
, present or future, vested or contingent, in, arising
out of or incident to property. In this connection the property in question is
the fish harvest.

[Emphasis in
original.]

[68]

The Court looked to the rights granted to the holder of a fishing
licence to determine whether it fell within the statutory definition.  There is
nothing in the definition of goods in the
WRA
to suggest that property
for the purposes of the legislation is not property at common law.  The
Legislature has limited the concept only with three specified exceptions.

d.

The
trial judge did not err in distinguishing Harvard College.

[69]

The appellant also places considerable emphasis on
Harvard College v.
Canada (Commissioner of Patents)
, 2002 SCC 76.  According to the appellant,
Harvard College
established that where legislation engages ethical and
social concerns which would not have been apparent when the legislation was
enacted  such as the ownership of human sperm or the patenting of higher life
forms  courts should be hesitant to find legislative applicability because
these are the types of issues which the Legislature would wish to address
directly.

[70]

The case concerned an oncomouse: a mouse bred to be more
susceptible to cancer.  As noted previously, the judge dealt extensively with
the case.  In its factum the appellant states:

71.        The definition of the word invention in that
case was conceivably broad enough to include a genetically modified, living,
breathing oncomouse.  [T]he majority of the Court, per Bastarache J.,
held that to so construe the statute would extend its scope of application
beyond that which the Legislature intended:

[120]     Even accepting that the
words of the definition can support a broad interpretation, they must be
interpreted in light of the scheme of the Act and the relevant context. The Act
in its current form fails to address many of the unique concerns that are
raised by the patenting of higher life forms, a factor which indicates that Parliament
never intended the definition of invention to extend to this type of subject
matter. Given the unique concerns associated with the grant of a monopoly right
over higher life forms, it is my view that Parliament would not likely choose
the Patent Act as it currently exists as the appropriate vehicle to protect the
rights of inventors of this type of subject matter.

-
Harvard College
.

72.       In light of Supreme
Court of Canada authority for restricting the scope of literally broad and
general statutory definitions when fulfilment of the legislative purpose
requires, which authority was cited to him, the trial judge fell into
reversible error in concluding that the meaning of goods in the
WRA
is
not capable of ambiguity from the fact that it is statutorily defined. This
error, coupled with the errors set out above, led the trial judge to
incorrectly reject the mercantile connotation of goods on account of the
broad, general language appearing in the statutory definition of goods in the
WRA
.

In my view, the quoted portion of para. 120 must be
considered in the context of the case overall.

[71]

The appellant further addressed
Harvard College
as follows:

92.        [The appellant] argued that
Harvard College
is
directly on point. The majority of the Court in
Harvard College
concluded
that the broad definition of invention in the
Patent Act
did not
include higher life forms because of the special concerns that would arise, and
which Parliament would presumably desire to address, but with which the
Patent
Act
, originally enacted in 1887, did not grapple:

[155]     As I discuss below, I do
not believe that a higher life form such as the oncomouse is easily understood
as either a manufacture or a composition of matter. For this reason, I am
not satisfied that the definition of invention in the Patent Act is
sufficiently broad to include higher life forms.
This conclusion is
supported by the fact that the patenting of higher life forms raises unique
concerns which do not arise in respect of non-living inventions and which are
not addressed by the scheme of the Act. Even if a higher life form could,
scientifically, be regarded as a composition of matter, the scheme of the Act
indicates that the patentability of higher life forms was not contemplated by
Parliament. Owing to the fact that the patenting of higher life forms is a
highly contentious and complex matter that raises serious practical, ethical
and environmental concerns that the Act does not contemplate, I conclude that
the Commissioner was correct to reject the patent application
. This is a
policy issue that raises questions of great significance and importance and
that would appear to require a dramatic expansion of the traditional patent
regime. [Emphasis added by the appellant.]

-
Harvard College
.

[93]      The trial judge
distinguished
Harvard College
, writing:

[66]       The issue in the
present case is very different from the issue in
Harvard
. A conclusion
that higher life forms could be patentable raises special concerns because of
the nature of the rights granted with a patent.

[The appellant] submits the trial judge erred in so doing.
This error resulted from the trial judges mischaracterization of the basis for
both the
ratio decidendi
in
Harvard College
and [the appellant]s
propounded analogy to the instant case. The majority in
Harvard College
rejected
the patentability of higher life forms not only because of the nature of the
rights granted with a patent, but also because of the nature of the innovation
sought to be patented. This is borne out in the following excerpt from the
majoritys reasons:

[167]     The patenting of higher
life forms raises special concerns that do not arise in respect of non-living
inventions. Unlike other inventions, biologically based inventions are living
and self-replicating. In addition, the products of biotechnology are incredibly
complex, incapable of full description, and can contain important
characteristics that have nothing to do with the invention . In my view,
the
fact that the Patent Act in its current state is ill-equipped to deal
appropriately with higher life forms as patentable subject matter is an
indication that Parliament never intended the definition of
"invention" to extend to this type of subject matter
. [Emphasis
added by the appellant.]

-
Harvard College
; cited in
RFJ at para. 65.

94.       The trial judge ought to have concluded that, like
application of the
Patent Act
to the patenting of higher life forms,
application of the
WRA
to the storage of sperm raises special ethical
and social concerns with which the Legislature would desire to deal, but which
were not addressed because the Legislature could not have contemplated them at
the time the
WRA
was enacted.

95.       This determination
ought to have bolstered the conclusion supported by the balance of the contextual
statutory interpretation analysis that it would be contrary to legislative
intent for the
WRA
to apply to the storage of sperm by an andrology lab.
The trial judges mistake in distinguishing
Harvard College
led him to
incorrectly conclude that a dissimilar result should ensue in the instant case.

[72]

In my view, the judge did not err in his consideration of
Harvard
College
.  In addition, I do not agree with the appellants treatment of the
case.

[73]

While he was mindful of the broad policy issues concerning patenting
life forms, Mr. Justice Bastarache undertook a detailed analysis of the
language of the legislation.  He stated at para. 53:

In my view, none of
these proposed dividing lines arise out of the present text of the
Patent
Act
. All of them are policy driven and, if they are to be introduced at
all, should be introduced by Parliament.

[74]

At para. 155, Bastarache J. wrote:

Having
considered the relevant factors, I conclude that Parliament did not intend to
include higher life forms within the definition of invention found in the
Patent
Act
. In their grammatical and ordinary sense alone, the words manufacture
and composition of matter are somewhat imprecise and ambiguous. However, it
is my view that the best reading of the words of the Act supports the conclusion
that higher life forms are not patentable. As I discuss below, I do not believe
that a higher life form such as the oncomouse is easily understood as either a
manufacture or a composition of matter.
For this reason
, I am not
satisfied that the definition of invention in the
Patent Act
is
sufficiently broad to include higher life forms.

[Emphasis added.]

He
continued:

This conclusion is
supported by the fact that the patenting of higher life forms raises unique
concerns which do not arise in respect of non-living inventions and which are
not addressed by the scheme of the Act. Even if a higher life form could,
scientifically, be regarded as a composition of matter, the scheme of the Act
indicates that the patentability of higher life forms was not contemplated by
Parliament. Owing to the fact that the patenting of higher life forms is a
highly contentious and complex matter that raises serious practical, ethical
and environmental concerns that the Act does not contemplate, I conclude that the
Commissioner was correct to reject the patent application. This is a policy
issue that raises questions of great significance and importance and that would
appear to require a dramatic expansion of the traditional patent regime. Absent
explicit legislative direction, the Court should not order the Commissioner to
grant a patent on a higher life form.

[75]

Mr. Justice Bastarache dealt with the definition of invention at para. 158:

I agree that the
definition of invention in the
Patent Act
is broad. Because the Act

was
designed in part to promote innovation, it is only reasonable to expect the
definition of invention to be broad enough to encompass unforeseen and
unanticipated technology. I cannot however agree with the suggestion that the
definition is unlimited in the sense that it includes anything under the sun
that is made by man. In drafting the
Patent Act
, Parliament chose to
adopt an exhaustive definition that limits invention to any art, process,
machine, manufacture or composition of matter.
Parliament did not define
invention as anything new and useful made by man. By choosing to define
invention in this way, Parliament signalled a clear intention to include
certain subject matter
as patentable and to exclude other subject matter as
being outside the confines of the Act
.
This should be kept in mind when
determining whether the words manufacture and composition of matter include
higher life forms.

[Emphasis added.]

[76]

He addressed manufacturing at para. 159 stating that the word
would commonly be understood to denote a non‑living mechanistic product
or process.

[77]

After reviewing definitions and the technology for producing an
oncomouse, Bastarache J. was not satisfied that the phrase composition
of matter includes a higher form whose genetic code has been altered in this
manner: para. 162.

[78]

At para. 163, he turned to the word matter again beginning with
definitions.  He concluded:

The fact that
animal life forms have numerous unique qualities that transcend the particular
matter of which they are composed makes it difficult to conceptualize higher
life forms as mere composition[s] of matter. It is a phrase that seems
inadequate as a description of a higher life form.

[79]

Mr. Justice Bastarache summarized his analysis at para. 166:

Patenting higher
life forms would involve a radical departure from the traditional patent
regime. Moreover, the patentability of such life forms is a highly contentious
matter that raises a number of extremely complex issues. If higher life forms
are to be patentable, it must be under the clear and unequivocal direction of
Parliament. For the reasons discussed above, I conclude that the current Act

does not clearly indicate that higher life forms are patentable. Far from
it. Rather, I believe that the best reading of the words of the Act

supports
the opposite conclusion  that higher life forms such as the oncomouse are not currently
patentable in Canada.

[80]

I do not think that
Harvard College
supports reading into the
definition of goods in the
WRA
a limitation that goods are only property
that can be traded in the market place.  The Supreme Court of Canada based its
decision on a careful analysis of the words of the legislation and determined
that they did not embrace an oncomouse.  If Parliament wanted to expand the
relevant definitions to include life forms it could do so, but the Court should
not.  In the present case, the language of the definition does embrace human
sperm.  If the Legislature wanted to limit the definition it could do so, but
this Court should not.

Conclusion

[81]

In my view, the judge made no error in principle and reached a correct
conclusion.

[82]

I would dismiss this appeal.

The
Honourable Mr. Justice Chiasson

Reasons
for Judgment of the Honourable Madam Justice Bennett:

[83]

I have had the opportunity to read the draft reasons
for judgment of Mr. Justice Chiasson. I agree that this appeal should be
dismissed. In my respectful opinion, the semen specimen is property and
therefore the
Warehouse Receipt Act
(
WRA
) applies. I wish to
amplify the basis for this conclusion.

[84]

Mr. Justice Chiasson has carefully set out the
facts and the legislation. I agree that the case turns on whether human sperm
is property and therefore included as goods as defined in the
WRA
. I
will focus my reasons on this discrete question.

[85]

The action was commenced in 2003. This is the second time the case has
been to this Court. The claim is in negligence and breach of contract. Three
negligence issues and two contract issues have been certified.

[86]

When Mr. Lam and the other class members stored their semen in the
University of British Columbia (UBC) freezer for procreation at a future
time, they signed a Sperm Bank Facility Agreement. The Agreement contains an
exclusion clause which UBC relies on to defend the claims.

[87]

The two contract issues were split from the litigation with the
intention of addressing them first:

Common Issue 4. Is the defendant, UBC, entitled to rely on
the exclusion clause against any or all of the proposed class members?

Common Issue 5. Is the
exclusion clause in the contract unenforceable by being contrary to public
policy?

[88]

Difficulties arose in moving the litigation forward, and the parties
decided to have the following sub‑issue tried:

Is the defendant, UBC, precluded
from relying upon the exclusion clause in the Agreement as against the Class
members by virtue of the
Warehouse Receipt Act,
R.S.B.C. 1996,
c. 481?

[89]

The Agreement is set out in full in
Lam v. University of British
Columbia
, 2013 BCSC 2094, at para. 5. The Agreement allowed for the
testing, storing and freezing of the donors sperm, at the request of the
donor. Continuance of storage beyond a year could only be at the donors
request. The specimen could only be delivered to the donors physician upon the
physicians written request. The sperm is to be used only for the purpose of
the artificial insemination of your legal or common-law spouse by a duly
authorized physician, however UBC would have no responsibility or liability,
once the sperm was in the custody of the physician. A deposit fee, an annual
storage fee and a withdrawal fee were required to be paid by the donors. The
donor consented to the sperm being tested by UBC for the number and motility of
the spermatozoa for any purpose it chose, including research and statistical
purposes.

[90]

Either party could terminate the Agreement with notice. The Agreement
terminated automatically upon UBC receiving notice of the donors death or if
the donor failed to pay the required fee. Upon termination, UBC had the
absolute discretion to dispose of the semen in any manner it considered
proper, except that it could not be used to cause a pregnancy by way of
artificial insemination without the donors consent.

[91]

UBC argues that from a historical and contextual
analysis, property in the
WRA
must refer to commercially-traded
property. It argues that when the
WRA
was enacted, human sperm could not
have been considered property as cryogenic freezing and artificial
insemination were matters for science fiction writers.

[92]

UBC points out that now, under the
Assisted Human
Reproduction Act
,

S.C. 2004, c. 2

(
AHRA
), human
sperm cannot be commercially traded in Canada (see ss. 7 and 12). The
AHRA
,
enacted in 2004, prohibits payment for sperm donation. Prior to this, sperm
donors were paid for their donation. Mr. Lams sperm was deposited in 1997
and the freezer failed in 2002, at a time when human sperm could be purchased.
This argument does not, in my respectful view, assist UBC. Indeed, there are
other examples of goods that someone came into possession of legally, but due
to changes in legislation, can no longer be lawfully sold commercially. Those
goods, such as products of endangered species or certain artefacts, would still
be considered property under the
WRA
. My conclusion, however, that the
human sperm is property does not turn on this issue, and therefore I do not
need to decide this point, and in any event, I do not disagree with the
analysis of Chiasson J.A.

[93]

A number of decisions have tackled the question of
storing human reproductive material including human sperm, and although
referenced in the reasons of Chiasson J.A., I propose to discuss some of
them in more detail. The reason for this is that there are many situations in which
the definition of property as it relates to human sperm arises. It is therefore
important to ensure that defining human sperm as property on the facts of this
case does not lead to the application of the same definition in very different
circumstances. Defining human sperm as property may bring with it a host of
other legal rights and issues. Uncertainty exists with respect to the contexts
in which human sperm could be considered property, and it is necessary to
carefully circumscribe the limitations of the definition in this case. Indeed,
defining human sperm as property under the
WRA
in this case may widen
the available remedies to Mr. Lam and the class members.

[94]

For example, Mr. Lam arranged to freeze his sperm
as he was about to receive cancer treatment that could leave him infertile. He
froze his sperm as a contingency plan for having children of his genetic
make-up should he no longer be able to produce viable sperm. If someone broke
into the lab and stole the sperm, could he or she be charged with theft? Theft
is a crime against property. Could Mr. Lam have donated his sperm to a
sperm bank if he chose not to have his own children? What would happen if
Mr. Lam had died? Would he be able to leave his sperm to his family or
someone else in a will? Could he leave it to a sperm bank in his will? These
are all questions that may arise if human sperm is generally classified as
property.

[95]

Historically, there was no property interest in the human body, dead or
alive. Save for the despicable period of history when slavery and ownership of
humans was legally recognized, ownership of the human body has been eschewed.

[96]

In
Yearworth v. North Bristol NHS Trust
, [2009] EWCA Civ 37,
[2009] 2 All E.R. 986, the England and Wales Court of Appeal in strikingly
similar circumstances to this case, traced the history of the law in relation
to the ownership or lack thereof, of the human body. I will be discussing
Yearworth
in some detail, as the Court concluded that in the context of that case, human
sperm was property.

[97]

Through the 17th, 18th and 19th centuries, the law did not change
neither a living body nor a human corpse could be owned. (See for example,
Williams
v. Williams
, [1882] 20 Ch D 659, where a person could not will his
body to someone).

[98]

An exception to this rule was carved out by the Australian High Court in
Doodeward v. Spence
, (1908) 6 C.L.R. 406 (Aust HC). The Court
recognized ownership in a stillborn two‑headed fetus that had been
preserved 40 years earlier. The mothers physician had preserved the fetus,
and when he died it was sold to C. who was showing it as a curiosity. Chief
Justice Griffith for the majority held:

[W]hen a person has by the
lawful exercise of work or skill so dealt with a human body or part of a human
body in his lawful possession that it has acquired some attributes
differentiating it from a mere corpse awaiting burial, he acquires a right to
retain possession of it

[99]

This principle was applied in
R. v. Kelly; R. v.
Lindsay
, [1999] QB 621, to uphold convictions for theft of human body parts
from the Royal College of Surgeons, where they had been used to train surgeons.
Lord Justice Rose concluded that the human body parts were capable of being
property within the
Theft Act
if they have acquired different
attributes by virtue of the application of skill, such as dissection or
preservation techniques, for exhibition or teaching purposes, applying
Doodeward
.

[100]

In
Yearworth
, five men who had been diagnosed with cancer
supplied sperm specimens prior to undergoing chemotherapy to be held by the
defendant should their treatment render them infertile. The storage of the
sperm was provided gratuitously. After the samples were stored, the amount of
liquid nitrogen in the storage tanks fell below the requisite level and the
mens semen thawed, becoming useless for fertilization of their partners eggs.

[101]

The Court considered a number of decisions, including
Hecht v.
The Superior Court of Los Angeles County
, 16 Cal. App. (4th) 836 (1993);
Hecht
v. The Superior Court of Los Angeles County
, 50 Cal. App. 4th 1289 (1996)
[1]
.
In
Hecht
, the deceased, prior to his suicide, ejaculated sperm and
stored it with the apparent intention that his girlfriend could give birth to
his child. He bequeathed the sperm to her in his will. The Court concluded that
at the time of his death, the deceased had sufficient decision-making
authority in relation to the use of his sperm for it to amount to property for
the purpose of the States Probate Code. The Court in
Yearworth
saw the
Hecht
decision as taking the law a step further than was being asked on the facts of
Yearworth
.

[102]

The Court in
Yearworth
referred to the
limitations facing the donors found in the
Human Fertilisation and
Embryology Act 1990
(
HFEA
)
at para. 42:

(a) they could not themselves
have used their sperm to bring about the creation of an embryo outside the
human body: s. 3(1);

(b) they could not themselves
have stored their sperm, i.e. in effect by freezing it themselves:
s. 4(1)(a); and

(c) they could not themselves
have tested, prepared, packaged, transported or delivered their sperm insofar
as it was intended for human application: s. 4(1A).

Conditions
of licences specified in the Act would have had the following, further effect:

(e) once it had stored the
sperm, the unit would not have been able to supply it to an unlicensed person
otherwise than in the course of treatment and thus could not have acceded to a
demand by the men that it be delivered back to them: s. 14(1)(b); and

(f) the unit would not have
been able to store their sperm for longer than the statutory storage period and
it would then have had to allow it to perish: s. 14(1)(c).

[103]

However, the Court also noted, at para. 44,
relying on
Evans v. Amicus Healthcare Ltd.
, [2005] Fam 1, that the
HFEA
also provided:

(a) the [fertility] unit would
have been unable to store the mens sperm without their consent:
para. 8(1);

(b) it would have been unable
to store it for a longer period than that specified by the terms of their
consent: para. 2(2);

(c) it would have been unable
to use it for the purpose of any treatment of persons other than the men
themselves (with their wives or partners) without their consent to such use:
para. 5;

(d) it would have been unable
either to store or for any purpose to use any embryo created
in vitro
with the use of the mens sperm without the consent of the men (and indeed of
the women who provided the egg) to its storage or use for such purpose: paras
8(2) and 6(3);

(e) the mens consent for the
above purposes would have to have been given in writing and signed:
para. 1; and

(f) by notice to the unit, the
men could have withdrawn their consent to the storage or use of their sperm at
any stage prior to its use in the creation of an embryo; and could have
withdrawn their consent to the storage or use of any embryo thereby created
in
vitro
at any stage prior to its use in the provision of treatment or in
other specified ways: para. 4.

[104]

In determining whether human sperm was property, or capable of being
owned, the Court in
Yearworth
said the following at para. 28:

A decision whether something
is capable of being owned cannot be reached in a vacuum. It must be reached in
context; and in this section of our judgment the context is whether an action
in tort may be brought for loss of sperm consequent upon breach of the Trusts duty
to take reasonable care of it. The concept of ownership is no more than a
convenient global description of different collections of rights held by
persons over physical and other things. In his classic essay on Ownership
(Oxford Essays in Jurisprudence, OUP, 1961 Chapter V) Professor Honor
é
identified 11 standard incidents of ownership but
stressed that not all of them had to be present for ownership to arise. He
suggested that the second incident was the right to use and he added, at
p. 116, that:

The right (liberty) to use at
ones discretion has rightly been recognised as a cardinal feature of ownership
and the fact that certain limitations on use also fall within the standard
incidents of ownership does not detract from its importance

We have no doubt that, in
deciding whether sperm is capable of being owned for the purpose which we have
identified, part of our enquiry must be into the existence or otherwise of a
nexus between the incident of ownership most strongly demonstrated by the facts
of the case (surely here, the right, albeit limited, of men to use the sperm)
and the nature of the damage consequent upon the breach of the duty of care
(here, their inability to use it notwithstanding that this was the specific
purpose for which it was generated).

[105]

The Court
concluded that it could find that the sperm was property under the
Doodeward
exception, in that storing the sperm in liquid nitrogen at minus 196 degrees
centigrade was an application of work and skill to the sperm (at
para. 45). In my view, however, the Court failed to recognize that under
the
Doodeward
analysis, this would give the defendant the ownership in
the sperm, not the donors.

[106]

The Court continued, and decided the case on a broader basis. It
concluded that for the tort of negligence, the sperm was property. Its
conclusions are as follows at para. 45:

(i) By their bodies, they
alone generated and ejaculated the sperm.

(ii) The sole object of their
ejaculation of the sperm was that, in certain events, it might later be used
for their benefit. Their rights to its use have been eroded to a limited extent
by the [
HFEA
] but, even in the absence of the [
HFEA
], the
men would be likely to have needed medical assistance in using the sperm: so
the interposition of medical judgment between any purported direction on their
part that the sperm be used in a certain way and such use would be likely to
have arisen in any event. It is true that, by confining all storage of sperm
and all use of stored sperm to licence-holders, the [
HFEA
] has effected
a compulsory interposition of professional judgment between the wishes of the
men and the use of the sperm. So Mr. Stallworthy [counsel for the
defendant] can validly argue that the men cannot direct the use of their
sperm. For two reasons, however, the absence of their ability to direct its
use does not in our view derogate from their ownership. First, there are
numerous statutes which limit a persons ability to use his property - for
example a land-owners ability to build on his land or to evict his tenant at
the end of tenancy or a pharmacists ability to sell his medicines - without
eliminating his ownership of it. Second, by its provisions for consent, the [
HFEA
]
assiduously preserves the ability of the men to direct that the sperm be
not
used in a certain way: their negative control over its use remains absolute.

(iii) Ancillary to the object
of later possible use of the sperm is the need for its storage in the interim.
In that the [
HFEA
] confines storage to licence-holders,
Mr. Stallworthy stresses its erosion of the ability of the men to arrange
for it to be stored by unlicensed persons or even to store it themselves; he
also stresses their inability to direct its storage by licence-holders for
longer than the maximum period provided by the [
HFEA
]. But the
significance of these inroads into the normal consequences of ownership, driven
by public policy, is, again, much diminished by the negative control of the
men, reflected in the provisions that the sperm cannot be stored or continued
to be stored without their subsisting consent. Thus the [
HFEA
]
recognises in the men a fundamental feature of ownership, namely that at any
time they can require the destruction of the sperm.

(iv) The analysis of rights
relating to use and storage in (ii) and (iii) above must be considered in
context, namely that, while the licence-holder has
duties
which may
conflict with the wishes of the men, for example in relation to the destruction
of the sperm upon expiry of the maximum storage period, no person, whether human
or corporate, other than each man has any
rights
in relation to the
sperm which he has produced.

(v) In reaching our conclusion
that the men had ownership of the sperm for the purposes of their present
claims, we are fortified by the precise correlation between the primary, if
circumscribed, rights of the men in relation to the sperm, namely in relation
to its future use, and the consequence of the Trusts breach of duty, namely
preclusion of its future use.

[107]

I have
quoted extensively from these conclusions, as many of the limitations found in
the
HFEA
in
Yearworth
are found in the Agreement signed by the
donors in this case.

[108]

The
decision in
Yearworth
has been the subject of many academic articles.
Many of the criticisms are based on suggestions that the decision was not
soundly based in property rights, that the analysis was unconvincing and
incomplete, that the analysis did not go far enough, that the Court was
attempting to reach a pragmatic and just result.
[2]
The question of whether a person has ownership in his or her body or body parts
has been a hot topic of debate for a considerable period of time amongst the
academic medical and legal ethicists, and many were disappointed when the court
failed to answer many of the broad questions this issue raises.

[109]

In my
respectful view, some of the criticisms are misplaced as they fail to consider
the genesis of the common law. The common law develops slowly and
incrementally, adjusting as it must to societal changes, in terms of
technological changes, cultural, social changes and advances in science.
Sometimes the common law will address the changes ahead of a legislature,
particularly when human rights are engaged (the case of
Vriend v. Alberta
,

[1998] 1 S.C.R. 493, comes to mind).

[110]

In
Yearworth
,
the Court was determining whether human sperm was property in a very narrow
context. It was not determining if all biological or reproductive material is
henceforth to be considered as property with rights of ownership. It was not
even determining whether sperm in other contexts, such as probate or
matrimonial law, could be considered property. It was determining whether
damage to frozen human sperm could be considered damage to property in order to
base a cause of action against the defendant for negligence. More specifically,
to bring a claim in negligence for losses caused by damage to property, the
claimants in
Yearworth
had to have had either legal ownership of or
possessory title to the property at the time the damage occurred (at
para. 25). Therefore the Court considered whether sperm in that case was
owned by the claimants.

[111]

Ownership
has some basic fundamental components. The Court in
Yearworth
cited
Professor Honor
és 11 leading
incidents of ownership, which have been
modified over time by courts and
other authors (A.M. Honor
é,
Ownership
in A.G. Guest, ed.,
Oxford Essays in Jurisprudence
(Oxford: Oxford
University Press, 1961)). The Court acknowledged that the concept of ownership
is one type of interest in a thing, no more than a convenient global
description of different collections of rights held by persons over physical
and other things (at para. 28). Honor
é
further defines ownership as the greatest possible interest in a thing which a
mature system of law recognizes (Honoré at 108).

[112]

There may
be property interests less than ownership that a person can have in sperm. The
Court in
Yearworth
acknowledged that if they had found that the
claimants did not have ownership of the sperm for the purposes of a negligence
claim, it would clearly have been important  to proceed to enquire whether
nevertheless [the claimants] had such lesser rights in relation to [the sperm]
as would render them capable of having been bailors of it for a bailment claim
(at para. 47).

[113]

The nature
and scope of property interests that a person can have in human sperm need not
be decided on the facts of this case. This case, unlike for example,
J.C.M.
v. A.N.A.
, 2012 BCSC 584, does not deal with competing property interests
in human sperm. This case considers whether Mr. Lam, a cancer patient, has
ownership of the sperm he produced, such that he can contract for its storage
to enable his personal use of the sperm at a later date. If so, the sperm is
property, as something must be property if it is capable of being owned. There
may also exist things that are property that cannot be owned, but that is not
something that needs to be decided in the context of this case.

[114]

Not all of
Professor Honor
és 11 incidents
of ownership need to be present for ownership to arise (
Yearworth
at
para. 28).
Ownership of body parts must be contextual, and often
limited by legislation because of public policy reasons. No one would argue
that if a cancer patient cut her hair and stored it for the purpose of later
making a wig after treatment that she did not own her hair in that context.
On the other hand, legislation prevents the selling of sperm and organs such as
kidneys, but does not prevent their donation. The prohibition on sale does not
necessarily mean the legislation is inconsistent with ownership. It has
provided limits to ownership in some contexts.

[115]

The Court
in
Yearworth
provided a framework to determine whether the human sperm
in that case was property. The Court set out the rights of the donors over
their sperm and the limitations of those rights imposed by legislation. It
weighed the factors and concluded that there was a sufficient basis to define
the human sperm as property. I propose to use the same framework and analysis.

[116]

In this
case, the donors:

ejaculated the sperm;

contracted to store the sperm for their future
      personal use;

paid a fee for storage;

could consent to the sperm being tested;

could terminate the storage agreement;

could consent to the sperm being released to
      their physician, to be used by their legal or common-law spouse;

could exclude all others from using the sperm
      that is to say UBC agreed that no sperm would be used for the purpose of
      causing pregnancy in any person without the donors consent; and

pursuant to the termination clause, could
      consent to their sperm being used to cause a third partys pregnancy, in
      other words donate the sperm if he no longer wished to preserve it for
      his own use, if UBC chose to dispose of it in that manner. However, the
      donors could not require the sperm to be donated.

[117]

The donor
could not either because of legislation or the storage agreement:

i.

dispose of the sperm by
testamentary document, in other words leave it to someone in his will;

ii.

remove it from the storage
himself; and

iii.    sell
the sperm.

[118]

In my respectful opinion, each of the donors had ample rights in
relation to his own sperm specimen that invested him with ownership of that
specimen sufficient to be defined as property and thus be goods under the
WRA
.

[119]

I would
dismiss the appeal.

The
Honourable Madam Justice Bennett

I
agree:

The Honourable Mr. Justice
Frankel

[1]

This case has been deleted from the reports (see: 1997 Cal.
LEXIS 131); thus, I have relied on the summary found in
J.C.M. v. A.N.A.
,

2012 BCSC 584.

[2]

For example, see: Cynthia Hawes, Property Interests in Body
Parts:
Yearworth v. North Bristol NHS Trust
(2010) 73:1 Mod. L. Rev.
130; Muireann Quigley, Property: The Future of Human Tissue?

(2009) 17
Med. L. Rev. 457; Luke David Rostill, The ownership that wasnt meant to be:
Yearworth
and property rights in human tissue (2014) 40:1 J. Med. Ethics 14.