COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Angus v. Themis Program Management and Consulting Ltd.,

2011 BCCA 37

Date: 20110107

Docket:
CA038461; CA038469

Docket: CA038461

Between:

Robert Michael
Angus

Respondent

(Plaintiff)

And

Themis Program Management
and Consulting Ltd.

Appellant

(Defendant)

And

Her Majesty the
Queen in Right of the Province of British Columbia
as represented by the Ministry of Attorney General

Defendant

Docket
CA038469

Between:

Robert
Michael Angus

Respondent

(Plaintiff)

And

Her
Majesty the Queen in Right of the Province of British Columbia
as represented by the Ministry of Attorney General

Appellant

(Defendant)

And

Themis
Program Management and Consulting Ltd.

Defendant

Before:

The Honourable Mr. Justice Groberman

(In Chambers)

On appeal from: Supreme
Court of British Columbia, August 30, 2010
(
Angus v. Themis Program Management and Consulting Ltd.
,
Vancouver Registry S064911)

Oral Reasons for Judgment

Counsel for the Appellant/Defendant, Themis Program
  Management and Consulting Ltd.

A.S. Dosanjh

Counsel for the Appellant/Defendant, Ministry of the
  Attorney General

B.A. Mackey

Counsel for the Respondent:

D.J. O'Donnell

Place and Date of Hearing:

Vancouver, British
  Columbia

January 7, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January 7, 2011

[1]

GROBERMAN J.A.
: These are two applications for leave to appeal a
judgment of a Supreme Court judge dismissing a summary trial application.

[2]

The plaintiffs claims arise from actions taken by the Family
Maintenance enforcement program against him. He alleges that the defendants
transmitted his social insurance number to certain companies without a legal
right to do so, and so committed a statutory tort under the
Privacy Act
,
R.S.B.C. 1996, c. 373. He also alleges that the programs actions in
having the government of Canada refuse to issue a passport to him violated his
constitutional rights.

[3]

The summary trial application in the Supreme Court was brought on by the
defendants, and concerned only the
Privacy Act
claim. The summary trial
judge found that claim unsuitable for summary determination. Her finding was
based on her view that as the
Privacy Act
claim should not be dealt with
separately from the other claim.

[4]

Although I have heard from counsel for Mr. Angus at some length, it is
not apparent to me that there are inter-connections between the two claims that
would make summary disposition of the
Privacy Act
claim inappropriate.
The judgment from which the defendants seek leave to appeal also fails to refer
to any specific inter-connections.

[5]

The tests that I must consider on leave to appeal, however, are not
concerned primarily with the merits of the decision below. I must, as a
threshold matter, consider whether the appeal has some merit, that is, whether
it has a possibility of success, but that is merely one issue before me.

[6]

Having heard the arguments of the parties, I am left in no doubt that
the proposed appeal has at least some merit and, indeed, has considerable
strength. An argument can be made that the claim under the
Privacy Act
was wholly distinct from the claim with respect to the denial of a passport. It
is arguable that it should have been dealt with by summary disposition. In
short, I am satisfied that there is a case of sufficient merit to warrant an
appeal.

[7]

The other questions on an application for leave to appeal deal with
whether an appeal is an appropriate manner in which to deal with an
interlocutory ruling. In particular, the practice of this Court requires that I
consider whether the matter is one of importance to practice generally, whether
it is of important to the litigation, whether it will in some way hinder or
delay the disposition of the matter in the trial court; and, finally, whether
it is in generally the interests of justice that an appeal go forward.

[8]

Counsel for the proposed appellants have suggested two manners in which
this matter is important to practice generally. First, they say that, as a
matter of principle, the summary trial judge ought to have considered the fact
that two different causes of action were present here rather than simply two
different issues. Counsel say that this Court has not fully considered the
question of whether the general concerns about litigating in slices ought to
apply where there are two distinct causes of action.

[9]

While it is correct that the Court has not specifically addressed that
issue, the Court has discussed the importance of inter-connectedness of issues
in determining suitability of summary trial. I am not convinced that there is,
as a matter of principle, a distinct principle that applies when there is more
than one cause of action. It seems apparent to me that the question of whether
an issue can be hived off from the balance of a claim will turn on the question
of whether the issue is inter‑connected factually or legally with the
balance of the claim. I am not persuaded that the question of whether, from the
standpoint of pigeon-holing the claim into causes of action, two separate
causes of action can be stated has any bearing on the suitability of a summary
trial. In any event, I am not satisfied that, as a matter of practice, it is
important for this Court to address that issue.

[10]

The other issue that is said to be of importance to practice is the recent
amendments to the Supreme Courts
Rules of Court
. The rules now enshrine
a principle that procedures should be proportional to the matters in issue.
This is one of the first cases in which the rule governing proportionality of
procedures is in play.

[11]

Counsel says that this case would be an opportunity for the Court to
address the place of the proportionality principle in the test for summary
trial. While I agree that that principle could tangentially be brought into
play within this appeal, it does not appear to me to be an issue that is front
and centre in the proposed appeal. I do not see this case as a particularly
suitable one for this Court to embark upon the interpretation of the
proportionality principle, particularly since the principle is a new one and
particularly since it was not addressed by the chambers judge in this matter.

[12]

There will be other more suitable times for this Court to address that
principle, and the possibility that it could be addressed in this case does
not, standing alone, convince me that the issues in this case are of importance
generally to practice.

[13]

The fact that the proposed appeal is not of general importance to
practice. Is not conclusive of this application. I must take into account other
considerations, as well.

[14]

The question of whether the case is of importance to parties is the next
issue. I understand that in this case discoveries have been completed and the
matter was ready to go for trial in October, but it was not heard at that time
due to some confusion as to the necessity of a pre-trial conference. The case is,
therefore ready for trial. It does not appear that any great amount of time or
effort in pre-trial preparations will be saved by having the appeal proceed.

[15]

The trial is set for nine days in October 2011. As I remarked during the
course of the hearing of this application, that seems to be very lengthy period
for a case that does not, on the face of it, appear to be factually or legally
complex. I acknowledge, however, that I do not have the full appreciation for
the complexities of the case.

[16]

It does not appear to me that a great deal of time at trial will be devoted
to the
Privacy Act
issue, which, on the face of it, is factually
uncomplicated. Indeed, the very facts and arguments that the applicants put
forward in favour of having this matter dealt with on a summary trial suggest
to me that not a great deal of time will be expended at trial in dealing with
this matter as opposed to the passport matter.

[17]

In the circumstances, I am unable to conclude that there will be great
prejudice to the applicants in this matter proceeding to trial or any great
saving in the litigation if the matter goes to this Court on an interlocutory
appeal.

[18]

In terms of delay of the trial proceedings in this matter, I am
convinced by the submissions of Mr. Dosanjh that the appeal could be completed
in advance of trial and that the appeal proceedings would not be disruptive to
the trial process.

[19]

The final issue is whether there are considerations of justice generally
that impinged on the granting of leave. None of the parties has referred to any
particular injustice that would be a result of either granting or withholding
leave, and I do not see that there would be any such injustice in this case.

[20]

To summarize, there is a strongly arguable case on appeal, but it does
not appear to me that there is an issue of general principle involved or a
matter of importance to practice or, indeed, to the parties. There is no real
detriment to the trial process that would result from granting leave, nor is
there any great saving to the parties or to the justice system that would
result from granting leave.

[21]

I am not convinced in the circumstances that there is any great value in
an appeal going forward and it is for that reason that I am denying leave to
appeal on both of these applications.

(discussion with
counsel re. costs)

[22]

GROBERMAN J.A.
: On the issue of costs, Mr. Dosanjh and Mr. Mackey
suggest that the appropriate order is that each party bear its own costs. Ms.
O'Donnell is seeking costs and suggesting that they might be fixed summarily.

[23]

There is some merit in the arguments of Mr. Dosanjh and Mr. Mackey that
certain aspects of the application were accepted, that a great deal of time on
this application was spent on issues of whether it was meritorious, which I
have determined in favour of the defendants. That said, I am not convinced that
I should depart from the ordinary rule that costs follow the event. Mr. Angus
will have his costs of these leave applications. I am going, however, to provide
that because the applications were heard together and a single response was
made, there will be only one set of costs and not two. Those will be divided
between the respondents. Hopefully, the respondents are able to agree on a
manner of dividing it between them; if not, that can be dealt with.

[24]

With respect to the suggestion that the costs be set summarily, if you
want to pursue that, I will consider it, otherwise the costs should be agreed
between the parties or assessed by the Registrar.

(discussion
with counsel re. costs)

[25]

GROBERMAN J.A.
: As I indicated, my order is that leave to appeal
on both matters is dismissed with one set of costs. I am making a further
order, and this is by consent, that those costs be assessed in the amount
$1,752.80, including HST.

(discussion re. when
costs should be paid)

[26]

GROBERMAN J.A.
: The costs will be payable forthwith.

The
Honourable Mr. Justice Groberman


COURT OF APPEAL FOR BRITISH
COLUMBIA

Citation:

Jones v. Donaghey,

2011 BCCA 6

Date: 20110107

Docket: CA038412

Between:

Cody Jones by his
Litigation Guardians,
Keith Jones and Crystal Seward

Respondent

(Plaintiff)

And

Julie Ann Donaghey

Appellant

(Defendant)

Corrected
Judgment:
the date of the lower Court Order was corrected and the citation
for the lower Court judgment was removed.

Before:

The Honourable Madam Justice
  Newbury

The Honourable Mr. Justice Mackenzie

The Honourable Mr. Justice K. Smith

On appeal from: the
Supreme Court of British Columbia, August 6, 2010,
(
Jones v. Donaghey,
Victoria Registry No. 08-1842)

Counsel for the Appellant:

R. Harper

Counsel for the Respondent:

N. Foley, F. Sierecki

Place and Date of Hearing:

Vancouver, British
  Columbia

November 30, 2010

Place and Date of Judgment:

Vancouver, British
  Columbia

November
  30, 2010

Date of Reasons:

January
  7, 2011

Written Reasons by:

The Honourable Mr. Justice K. Smith

Concurred in by:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Mackenzie

Reasons for Judgment of the Honourable
Mr. Justice K. Smith:

[1]

After hearing this appeal, we allowed the appeal with reasons to
follow.  These are my reasons.

[2]

Julie Ann Donaghey, a defendant in the underlying action, appeals with
leave from an order of the Honourable Mr. Justice Macaulay of the Supreme
Court of British Columbia by which, on application of the plaintiff, he ordered
her to attend for a psychiatric examination pursuant to Rule 7-6(1) of the
Supreme
Court Civil Rules
, (the successor of Rule 30(1) of the
Rules of Court
),
which provides,

(1)        If the physical
or mental condition of a person is in issue in an action, the court may order
that the person submit to examination by a medical practitioner....

[3]

The question is whether the chambers judge erred in concluding that Ms. Donagheys
mental condition is an issue in the litigation and consequently ordering Ms. Donaghey
to attend for a psychiatric examination pursuant to Rule 7-6(1) on the basis
that evidence of her mental condition is potentially ... relevant to an issue
or issues in the case.  In my view, he did and I would allow the appeal.

[4]

The
Supreme Court Civil Rules
prescribe the rules that regulate
practice and procedure in the Supreme Court  they set out the administrative
system under which disputes are taken to the court and adjudicated.  Clearly,
such a system must have an orderly method of determining the precise point or
points to be decided in each case.  In the Supreme Courts administrative
system, this method is known as pleading.  The rules governing pleading are
set out in Part 3 of the
Rules
.  Thus, the law of pleading is an element
of the law of practice and procedure.

[5]

Part 7 of the
Rules
sets out another element of this system.  It
is entitled Procedures for Ascertaining Facts.  Rule 7-6(1), pursuant to
which the order under appeal was made, regulates part of this component of the
administrative system.

[6]

It is trite to say that words take their meaning from their context.
The modern principle of statutory interpretation mandates that words are to
be read in 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:  Elmer A. Driedger,
The Construction of Statutes
,
2d ed. (Toronto: Butterworths, 1983) at 87.  This approach is equally
applicable to subordinate legislation, like the
Supreme Court Civil Rules
,
enacted by the provincial legislatures.  Thus, the meaning of issue in Rule
7-6(1) must be ascertained by considering it in the context of the
Rules
as a whole in accordance with this modern principle.

[7]

In the law of pleading, issue is a term of art.  As was said in
Farrell
v. Secretary of State for Defence
, [1980] 1 All E.R. 166 at 173 (H.L.), the
primary purpose of pleadings is to define the issues and thereby to inform the
parties in advance of the case they have to meet and so enable them to take
steps to deal with it.  In D.B. Casson,
Odgers on High Court Pleading and
Practice
, 23rd ed. (London: Sweet & Maxwell/Stevens, 1991) at 123-124, issue
is explained in this way:

The pleadings should always be conducted so as to evolve some
clearly defined
issues
, that is, some definite propositions of law or
fact, asserted by one party and denied by the other, but which both agree to be
the points which they wish to have decided in the action.

...

The function of pleadings then is to ascertain with precision
the matters on which the parties differ and the points on which they agree; and
thus to arrive at certain clear issues on which both parties desire a judicial
decision.

[Emphasis in original.]

[8]

Thus, an issue of fact is a disputed question of fact.  However, not
every disputed question of fact is an issue.  In
Howell v. Dering
,
[1915] 1 K.B. 54, Lord Justice Buckley, discussing the meaning of issue in a
rule of court that provided for costs to follow the event of an issue tried
before a jury, said, at 62,

It is impossible to say that
every question of fact which is in dispute between a plaintiff and a defendant
is an issue.  The word can be used in more than one sense.  It may be said
that every disputed question of fact is in issue.  It is in a sense, that is to
say, it is in dispute.  But every question of fact which is in issue and
which a jury has to determine is not necessarily an issue within the meaning
of the rule.  I should define issue for the purposes of this rule in some
such words as these:
An issue is that which, if decided in favour of the
plaintiff, will in itself give a right to relief, or would, but for some other
consideration, in itself give a right to relief; and if decided in favour of
the defendant will in itself be a defence
.  [Emphasis added.]

[9]

Accordingly, an issue is a disputed fact the resolution of which will,
without more, have legal consequences as between the parties to the dispute.

[10]

Such facts are referred to as material facts in
Danyluk v.
Ainsworth Technologies Inc.
, 2001 SCC 44 at para. 54, [2001] 2 S.C.R.
460:

[54]

A cause of
action has traditionally been defined as comprising every fact which it would
be necessary for the plaintiff to prove, if disputed, in order to support his
or her right to the judgment of the court:
Poucher v. Wilkins
(1915),
33 O.L.R. 125 (C.A.).  Establishing each such fact (sometimes referred to as
material facts) constitutes a precondition to success.

[11]

Professor James B. Thayer called them ultimate facts in
A
Preliminary Treatise on Evidence at the Common Law
, Reprint (South
Hackensack, N.J.: Rothman Reprints Inc., 1969) at 194, where he said, ... [R]easoning
... intervenes ... between the primary facts, what may be called the raw
material of the case, and the secondary or ultimate facts, and at 197, where
he stated, When it is said that a fact is for the jury, the fact intended ...
is that which is in issue, the ultimate fact, that to which the law directly
annexes consequences.

[12]

The
Rules of Court
, which governed when the underlying action was
commenced, adopted the description material in Rule 19(1):

(1)        A pleading shall be as
brief as the nature of the case will permit and must contain a statement in
summary form of the material facts on which the party relies ....

[13]

The
Supreme Court Civil Rules
has continued this traditional usage
in Rule 3-1(2)(a):

(2)        A notice of civil claim must do the following:

(a)        set out a concise statement of the material facts
giving rise to the claim....

[14]

Accordingly, since the purpose of pleadings is to define the issues of
material or ultimate fact as between the parties, whether a proposition of fact
is in issue for purposes of Rule 7-6(1) must be determined from an
examination of the pleadings:
Astels v. Canada Life Assurance Co.
, 2006
BCCA 110 at para. 4, 23 C.P.C. (6th) 266.

[15]

Relevant, the term used by the chambers judge, belongs to the law of
evidence.

[16]

The relationship between relevance and issues of material or ultimate
fact was explained in
R. v. Watson
(1996), 30 O.R. (3d) 161 at 172, 108
C.C.C. (3d) 310 (C.A.):

Relevance ... requires a
determination of whether as a matter of human experience and logic the
existence of Fact A makes the existence or non-existence of Fact B more
probable than it would be without the existence of Fact A.  If it does then Fact
A is relevant to Fact B.  As long as Fact B is itself a material fact in
issue or is relevant to a material fact in issue in the litigation then Fact A
is relevant and
prima facie
admissible.

[17]

This concept is succinctly illustrated, albeit using different
terminology, in
R. v. White
, [1926] 2 W.W.R. 481 at 485, 45 C.C.C. 328
(B.C.C.A.), where the Court adopted a passage from S. L. Phipson, ed.,
Best
on Evidence
, 12th ed. (London: Sweet & Maxwell, 1922) at 6 that
included these words:

The fact sought to be proved is
termed the principal fact; the fact which tends to establish it, the
evidentiary fact.  When the chain consists of more than two parts, the
intermediate links are principal facts with respect to those below, and
evidentiary facts with respect to those above them.

[18]

Thus, a material fact is the ultimate fact, sometimes called ultimate
issue, to the proof of which evidence is directed.  It is the last in a series
or progression of facts.  It is the fact put in issue by the pleadings.
Facts that tend to prove the fact in issue, or to prove another fact that tends
to prove the fact in issue, are evidentiary or relevant facts.  And, as
Professor Thayer said at 197, Issues are not taken upon evidential matter.

[19]

In the case at bar, the plaintiffs litigation guardians are his natural
parents.  The plaintiff was born on July 9, 2006.  In September 2006, he was
removed from the custody of his parents by the Director of Child Development
pursuant to the provisions of the
Child, Family and Community Service Act
,
R.S.B.C. 1996, c. 46 and, following a presentation hearing in the
Provincial Court, he was ordered, over the opposition of his parents, into the
interim custody of the Director.  In the late fall of 2006, the Director placed
him in the foster care of Ms. Donaghey and her partner, Erana King.  In
December 2006, while he was in their care, the plaintiff claims, he suffered a
traumatic brain injury when either Ms. Donaghey or Ms. King shook
him.

[20]

The plaintiff pleaded intentional assault (i.e., battery) and
negligence against Ms. Donaghey, as follows:

16.       On or about December 20, 2006, while the Infant was
in a Director appointed foster home with the Defendants, Donaghey and King, the
Defendant Donaghey intentionally assaulted the Infant by:

(a)        Violently shaking the
infant; or

(b)        Such further particulars
which are not yet known to the Plaintiffs.

...

27.       In addition and/or in the alternative to the
allegations set out in paragraph 16 hereof, the Defendant, Donaghey was
negligent and breached her duty of care to the Infant, the particulars of which
include:

(a)        agreeing to act and/or
to continue to act as a foster parent when she knew or ought to have known that
she and/or King were not adequately trained, supervised or supported by the Director
or that she and King were unable to meet the needs of the Infant;

(b)        failing to care for
and/or adequately meet the needs of the Infant;

(c)        failing to adequately
supervisor [
sic
] and/or support King;

(d)        interfering with the
proper and/or appropriate fostering of the relationship between the Infant and
the Parents;

(e)        causing harm to the
Infant by negligent and/or inappropriate physical handling of the Infant;

(f)         failing to adequately
discharge her duties as locus parentis to the Infant;

(g)        failing to protect the
Infant from harm;

(h)        leaving the Infant with
King when she knew or ought to have known that King was prone to violence
and/or prone to take inappropriate and potentially dangerous behaviours in
relation to the Infant;

(i)         such further particulars as are not yet know[n]
to the Plaintiff.

[21]

Ms. Donaghey denied these allegations in her statement of defence.

[22]

The plaintiff also pleaded negligence against Ms. King and the
Director in these terms:

28.       In addition and/or in the alternative to the
allegations set out in paragraph 18 hereof, the Defendant, King was negligent
and breached her duty of care to the Infant, the particulars of which include:

...

(d)        Leaving the Infant with Donaghey when she knew or
ought to have known that Donaghey was prone to violence and/or prone to take
inappropriate and potentially dangerous behaviours in relation to the Infant;

...

29.       The Director and/or its agents were negligent and
breached its duty of care to the Infant, the particulars of which include:

...

(n)        placing the Infant into the care of Donaghey
and/or King when the Director knew or ought to have known that such a placement
was and/or continued to be unsafe, inappropriate or unsafe and/or inconsistent
with the best interests of the Infant.

[23]

Ms. King and the Director denied these allegations in their
respective statements of defence.

[24]

On his application, the plaintiff relied on evidence that Ms. Donaghey
had admitted on examination for discovery to anger management issues as a
young woman (more than 20 years ago) for which she had received psychological
counselling and that she had yelled at a co-worker in 2009, and on expert
psychiatric opinion evidence that, during a videotaped statement she gave to a
police officer investigating the plaintiffs injury, she displayed an
exaggerated emotional response; that although such responses can occur in the
general population, they are more likely to occur in a person with a
personality disorder; that although anger management problems may occur in
the general population, they are more likely to occur in persons with
personality disorders; and that to determine whether Ms. Donaghey has a
personality disorder would require a psychiatric examination.  Accordingly, he
contended, Ms. Donagheys mental condition was in issue in the action and
he was therefore entitled to an order that she attend for examination by a
qualified psychiatrist to investigate whether she suffers from a personality
disorder.

[25]

The chambers judge agreed.  He began his reasons by noting that the
plaintiffs specifically allege that Ms. Donaghey was prone to violence and/or
prone to take inappropriate and potentially dangerous behaviours in relation to
the infant and that

[v]irtually identical allegations
are made against the co-defendant, King, who was also a foster parent at the
material time.  In addition, the plaintiffs claim that Her Majesty the Queen,
as represented by the ministries responsible, negligently approved the personal
defendants as foster parents when they knew, or ought to have known, that the
foster parents were prone to violence as set out above.

[26]

After stating that [t]he plaintiffs expressly raised the question of
pre-disposition in their pleadings, the chambers judge said,

Whether proof of a personality
disorder with associated anger management problems may go more to the question
whether the ministry, having known of the past counselling, should have made
further inquiries into Donagheys background rather than to proving that
Donaghey committed the alleged assault, is an open question.  Potentially, such
evidence is relevant to one or both issues, depending on the actual content.

[27]

He concluded,

In my view, the plaintiffs are
entitled to the order sought.  I am satisfied that Donagheys mental condition
at the relevant times is an issue in the litigation.

[28]

Thus, he concluded that whether Ms. Donaghey has a personality
disorder is relevant to one or both issues he identified and, as well, that
her mental condition is an issue in the litigation.

[29]

In my view, the chambers judge erred.  The test under Rule 7-6(1) is not
whether the mental condition of a person is relevant to an issue; rather, it
is whether the mental condition is itself in issue.  Moreover, Ms. Donagheys
mental condition is not put in issue by the pleadings.

[30]

The issue raised by Ms. Donagheys denial of the allegation in
paragraph 16 of the statement of claim is whether she intentionally assaulted
the plaintiff by violently shaking him.  That Ms. Donaghey suffered from a
personality disorder is not a material fact in respect of this issue, that is,
proof that she suffered from a personality disorder would not in itself have
legal consequences as between these parties.

[31]

The issue raised between the plaintiff and Ms. Donaghey in
paragraph 27 is whether Ms. Donaghey breached her duty of care to the
plaintiff in any one or more of the specified ways.  None of these allegations
put Ms. Donagheys mental condition in issue.

[32]

The issues raised as between the plaintiff and Ms. King and as
between the plaintiff and the Director respectively in paragraphs 28(d) and
29(n) of the statement of claim are whether these defendants breached their
duty of care to the plaintiff by leaving him with Ms. Donaghey when they knew
or ought to have known one or more of the particularized facts.  Thus, the
issue in each case is the state of mind of these defendants.  Proof that Ms. Donaghey
suffered from a personality disorder would not entitle the plaintiff to success
on these issues.  Her mental condition is not a definite proposition of ...
fact, asserted by [the plaintiff] and denied by [Ms. King/the Director],
... which both agree to be the point which they wish to have decided:  Odgers,
supra
, at para. 5.

[33]

Ms. Donagheys mental condition might be an evidentiary fact
relevant to the issues raised in the paragraphs under discussion, as the
chambers judge concluded.  However, as I have said, relevance of the mental
condition of a person to an issue is not the test under Rule 7-6(1).  Rather,
the persons mental condition itself must be in issue to warrant an order
pursuant to the rule and none of these allegations put Ms. Donagheys
mental condition in issue.

[34]

This situation may be contrasted with the more common situation in which
a plaintiff claims damages on the basis that a defendant has negligently caused
him or her personal injury.  In such a case, the defendants denial puts the
plaintiffs condition, whether physical or mental or both, in issue.  The
plaintiffs injury is a material fact and the failure to prove it will be fatal
to the action.  Accordingly, the defendant may be entitled to a medical
examination pursuant to Rule 7-6(1) to obtain evidence of the plaintiffs
physical or mental condition.  However, as I have explained, this is not such a
case.

[35]

For those reasons, I would allow the appeal, set aside the order that Ms. Donaghey
attend for a psychiatric examination, and dismiss the plaintiffs application.

The
Honourable Mr. Justice K. Smith

I agree:

The Honourable Madam Justice
Newbury

I agree:

The Honourable Mr. Justice
Mackenzie


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Kerton v. Workers Compensation Appeal Tribunal,

2011 BCCA 7

Date: 20110110

Dockets:
CA038134, CA038146

Docket: CA038134

Between:

Fred Kerton

Respondent
(Appellant on Cross-Appeal)

(Petitioner)

And

Workers
Compensation Board of British Columbia

Appellant
(Respondent on Cross-Appeal)
(Respondent)

And

Workers
Compensation Appeal Tribunal

Respondent (Respondent
on Cross-Appeal)

(Respondent)

-and-

Docket: CA038146

Between:

Fred Kerton

Respondent
(Appellant on Cross-Appeal

(Petitioner)

And

Workers
Compensation Appeal Tribunal

Appellant
(Respondent on Cross-Appeal)

(Respondent)

And

Workers
Compensation Board of British Columbia

Respondent (Respondent
on Cross-Appeal)

(Respondent)

Corrected Judgment:  The text of the judgment was corrected
at paragraphs

4, 5, 32 and 33 where changes
were made on January 12, 2011

Before:

The Honourable
  Chief Justice Finch

The Honourable Madam Justice Kirkpatrick

The Honourable Mr. Justice Groberman

On appeal from: Supreme
Court of British Columbia, 5 May 2010,
(
Kerton v. Workers Compensation Appeal Tribunal
, Docket S081267)

Counsel for the Appellant, Workers

Compensation Appeal Tribunal:

T.J. Martiniuk, C.
  Berkey

Counsel for the Appellant, Workers

Compensation Board

L. Courtenay, S.A.
  Nielsen

Counsel for the Respondent, Kerton,

Appellant on the Cross-Appeal:

V.A. Ishkanian

Place and Date of Hearing:

Vancouver, British
  Columbia

December 2, 2010

Place and Date of Judgment:

Vancouver, British
  Columbia

January 10, 2011

Written Reasons by:

The Honourable Chief Justice Finch and The Honourable Mr.
  Justice Groberman

Concurred in by:

The Honourable Madam Justice Kirkpatrick

Reasons for Judgment of the Honourable
Chief Justice Finch and the Honourable Mr. Justice Groberman:

I.  Introduction

[1]

The Workers Compensation Appeal Tribunal (WCAT) and the Workers
Compensation Board (WCB) appeal from the order of the Supreme Court of
British Columbia pronounced 5 May 2010.  That order granted judicial review of
two decisions of WCAT, quashed both decisions, and remitted the matter to WCAT
for reconsideration.  Both of the impugned WCAT decisions depended upon that
tribunals interpretation and application of s. 243(3) of the
Workers Compensation
Act
, R.S.B.C. 1996, c. 492, governing its discretion to extend time for
filing a notice of appeal.

[2]

The first decision, 20 October 2006, denied the petitioners request for
an extension of time (the EOT Decision).  The second decision, 8 January
2008, denied the petitioners request for reconsideration of the earlier
decision (EOT Reconsideration Decision).  The effect of the two decisions was
to bar the petitioners intended appeal from the decision of the Workers
Compensation Review Division on 19 December 2005.

[3]

The learned chambers judge held that the two WCAT decisions addressed a
jurisdictional issue, and were therefore reviewable on the standard of
correctness.  He held that the decisions refusing an extension of time, and
refusing reconsideration, were incorrect and should therefore be set aside.

[4]

For the reasons that follow, we are of the opinion that the learned
chambers judge erred in characterizing the issue as one of jurisdiction, and
erred in applying the standard of correctness.  The applicable standard of
review, as prescribed by the
Administrative Tribunals Act
, S.B.C. 2004,
c. 45, is patent unreasonableness.  In our opinion, neither of the impugned
decisions can be said to be patently unreasonable.  We would allow the appeal.

[5]

The petitioner, Mr. Kerton, cross-appeals from the order of the Supreme
Court of British Columbia, arguing that the court should have made an order in
the nature of
mandamus
compelling WCAT to grant the extension of time.  We
would dismiss the cross-appeal.

II.  Facts

[6]

The learned chambers judge summarized the background of Mr. Kertons
case as follows:

[2]   Mr. Kerton injured his left leg and knee on the job in
1991 and the Board compensated him for his injuries at that time. In 2005, as a
result of on-going knee difficulties, the Board re-opened his claim under s.
96(2) of the
Workers Compensation Act
, R.S.B.C. 1996, c. 492

[
WCA
].
The date of re-opening was set by the Board as April 1, 2005, the date of his
knee surgery. The Board paid his temporary benefits under s. 29 (wage loss and
benefits).

[3]   Where a claim is re-opened after three years, s. 32(1)
of the
WCA
gives the Board discretion to determine compensation benefits
by reference either to the workers average earnings before the original injury
or before its recurrence.

[4]   Mr. Kerton attempted to
make four appeals in this case, but one was not filed in time. It is this
fourth late appeal that is in issue in this case. For completeness, I will
briefly outline the four appeals below:

[7]

It is not necessary for these reasons to review the first three
appeals.  With respect to the fourth appeal, the only one at issue here, the
learned chambers judge said:

[8]   On June 10, 2005, the Board
determined Mr. Kertons average net earnings for long-term and short-term wage
rates. Mr. Kerton requested a review of that decision by the Review Division,
which issued its decision on December 19, 2005, confirming the Boards decision.
Mr. Kerton filed an appeal of that Fourth Review Division decision to WCAT.
Section 243(1) of the
Act
provides that an appeal from a decision of the
Review Division must be filed within 30 days after the decision being appealed
was made. WCAT allows for an 8-day mailing period to ensure receipt of the
Review Division decision. Mr. Kertons filing was approximately 186 days late.

[8]

As indicated above, the WCAT EOT Decision of 20 October 2006 refused the
petitioner an extension of time .  The WCAT EOT Reconsideration Decision of 8
January 2008 refused the petitioners request for a reconsideration of the earlier
refusal.

[9]

WCATs authority to extend time for the filing of a notice of appeal is
set out in s. 243(3) of the
Workers Compensation Act
.  That section
provides:

(3) On application, and where the chair is satisfied that

(a) special circumstances existed which
precluded the filing of a notice of appeal within the time period required in
subsection (1) or (2), and

(b) an injustice would otherwise
result,

the chair may extend the time to
file a notice of appeal even if the time to file has expired.

[10]

In the EOT Decision of 20 October 2006 WCAT held that the petitioner had
shown the existence of special circumstances within the meaning of subsection
3(a).  WCAT was further satisfied that an injustice would otherwise result if
an extension of time were refused.  The tribunal held, however, that the
petitioner had failed to explain adequately the delay in bringing the appeal,
and exercised its discretion against extending time.

[11]

In the EOT Reconsideration Decision of 8 January 2008 WCAT held that the
earlier decision was to be reviewed on a standard of patent unreasonableness,
as provided for by s. 58 of the
Administrative Tribunals Act
.  The
tribunal concluded that the decision under review was not only a rational
interpretation of s. 243(3) but was also a correct interpretation.  As grounds
to set aside and reconsider the earlier decision had not been established, it
was declared to stand as final and conclusive in accordance with section 255(1)
of the Act.

III.  Reasons for
Judgment in the Supreme Court of British Columbia

[12]

In considering the standard of review to be applied on the application
for judicial review, the learned chambers judge directed his attention to s. 58
of the
Administrative Tribunals Act
.  It provides:

58 (1) If the tribunals enabling Act contains a privative
clause, relative to the courts the tribunal must be considered to be an expert
tribunal in relation to all matters over which it has exclusive jurisdiction.

(2) In a judicial review proceeding relating to expert
tribunals under subsection (1)

(a) a finding of fact or law or an
exercise of discretion by the tribunal in respect of a matter over which it has
exclusive jurisdiction under a privative clause must not be interfered with
unless it is patently unreasonable,

(b) questions about the application
of common law rules of natural justice and procedural fairness must be decided
having regard to whether in all of the circumstances the tribunal acted fairly
and

(c) for all matters other than
those identified in paragraphs (a) and (b), the standard of review to be
applied to the tribunals decision is correctness.

(3) For the purposes of subsection (2) (a), a discretionary
decision is patently unreasonable if the discretion

(a) is exercised arbitrarily or in
bad faith,

(b) is exercised for an improper
purpose,

(c) is based entirely or
predominantly on irrelevant factors, or

(d) fails to take statutory requirements into account.

[13]

The judge identified the privative clause in the
Workers Compensation
Act
, at ss. 254 and 255, which provide:

254 The appeal tribunal has exclusive jurisdiction to inquire
into, hear and determine all those matters and questions of fact, law and
discretion arising or required to be determined under this Part and to make any
order permitted to be made, including the following:

(a)        all
appeals from review officers decisions as permitted under section 239;

(b)        all
appeals from Board decisions or orders as permitted under section 240;

(c)        all
matters that the appeal tribunal is requested to determine under section 257;

(d)        all
other matters for which the Lieutenant Governor in Council by regulation
permits an appeal to the appeal tribunal under this Part.

255 (1) Any decision or action of the chair or the appeal
tribunal under this Part is final and conclusive and is not open to question or
review in any court.

(2) Proceedings by or before the chair or appeal tribunal
under this Part must not

(a)        be
restrained by injunction, prohibition or other process or proceeding in any
court, or

(b)        be removed by certiorari or otherwise into any
court.

[14]

The judge considered that it is important to parse out when WCAT was
operating within its exclusive jurisdiction and when it was not.  He referred
to some decisions of the Supreme Court of British Columbia which held the
standard of review for WCAT decisions was patent unreasonableness, but he held
the view that those cases were not determinative.

[15]

The learned chambers judge then engaged in a standard of review
analysis as described in
Dunsmuir v. New Brunswick
, 2008 SCC 9, [2008]
1 S.C.R. 190.  With respect to the tribunals expertise the judge said:

[51] Turning to the nature of the issue in question; in my
view, it is best characterized as a decision as to whether the word may in s.
243(3) of the
WCA
confers a residual discretion upon WCAT to reject
requests for extensions of time, even if WCAT determines that the two criteria
of special circumstances and injustice have been met. It is true that this
is a matter of statutory interpretation of WCATs home statute. However, it is
a different sort of matter than, for example, the definition of special
circumstances or injustice under s. 243(3). The question at hand is more
general than that, and lies more towards the general legal reasoning end of
the spectrum.

[52] A look at the authorities
cited by WCAT in the EOT Reconsideration when it determined the question bears
out the foregoing contention. In considering the meaning of the word may, the
Reconsideration Panel considered the words dictionary definition, the
Interpretation
Act
, R.S.B.C. 1996, c. 238 (which is, incidentally, not its home statute),
a textbook on statutory interpretation, and a structural and contextual
analysis of the
WCA
. I take these to be indicia (although I stress that
they are not determinative in this regard) that WCAT was engaged in general
legal reasoning, rather than invoking its specialized knowledge of workers
compensation issues. This tends to tilt the balance back toward the
correctness end of the deference spectrum. The Legislature could not have
intended WCAT to have the last word on matters of general legal interpretation
for issues that determine the extent of its own powers.

[16]

As to the purpose of the legislation he said:

[56] ... As stated before, the
issue cannot simply be characterized as who should be granted an extension of
time? but rather it is more properly described as what is the extent of
WCATs discretionary power? When viewed in this manner, the issue is not only
a matter of balancing the interests of a respondent and appellant in an appeal
process, but also encompasses the larger issue of balancing delegated power
between administrative bodies. Determinations of that nature are the province
of the judiciary.

[17]

And as to the nature of the question in issue, the judge said:

[61] As can be seen from the foregoing discussion, the
characterization of the nature of the question in issue is critical in the
functional and pragmatic approach. WCAT takes the position that the issue in
question here is one of statutory interpretation of its own statute, and thus
it should be granted deference:
Council of Canadians with Disabilities v.
Via Rail Canada Inc.
, 2007 SCC 15, at para. 92.

[62] However, WCAT recognizes
that a true jurisdictional question will not be one over which it has exclusive
jurisdiction (
Dunsmuir
, at para. 59). It nevertheless argues that the
question here is not a true jurisdictional question because the dispute is not
whether
WCAT has the power to extend the time to appeal a decision but rather
when
that power should be exercised. I disagree. This dispute encompasses both
questions  whether WCAT has a residual discretionary power to refuse to extend
the time to appeal (a true jurisdictional question), and when that power should
be exercised (not jurisdictional).

[18]

He concluded:

[63] Considering all the factors set out above, I conclude
that the legislature did not intend the question of whether WCAT has residual
discretion under s. 243(3) of the
WCA
to be one within the exclusive
jurisdiction of WCAT.

Conclusion on Standard of Review

[64] Since an application of the
functional and pragmatic approach to the residual discretion question in the
case at bar leads me to the conclusion that the question was not one within the
exclusive jurisdiction of WCAT, I thus conclude that in this case, the
appropriate standard of review for WCATs decision on that question is
correctness.

[19]

The judge then applied the standard of correctness to WCATs
interpretation of s. 243(3) and concluded that it was incorrect.  He said:

[116] In my view, the presence of
the injustice clause, as well as the legislative intent evinced in the
Core
Services Review
and elsewhere provide the appropriate clear case of
impelling context as contemplated in the jurisprudence. In such a context, the
word may in s. 243(3) of the
WCA
should be construed as being
imperative, and not conferring upon WCAT a residual discretion to reject
applications for an extension of time under that section, once the two
statutory criteria are met. Thus, the decision on this issue in the EOT
Reconsideration is incorrect.

[20]

The judge refused the petitioners request for mandatory relief and
referred the case back to WCAT for reconsideration.

IV.
Discussion

[21]

As may be seen from the passages of the judges reasons quoted above, he
characterized the issue before WCAT as the extent of WCATs discretion under
s. 243(3) to extend time (para. 32); or as whether the language of s.
243(3) conferred a residual discretion to reject a request to extend time even
where the criteria of s. 243(3)(a) and (b) were met (para. 51); or as whether
WCAT has a residual discretionary power to refuse to extend the time to appeal
(a true jurisdictional question), and when that power should be exercised (not
jurisdictional) (para. 62).

[22]

All of these formulations characterize the issue for WCAT as a question
of jurisdiction.  In framing the issue in that way, the learned chambers judge
asked the wrong question, and consequently came to the wrong conclusion (at
paras. 63 and 64).

[23]

Section 58 of the
Administrative Tribunals Act
governs the
standard of review where, as in this case, the tribunals enabling Act contains
a privative clause.  The correct question for the judge to ask was which of the
standards set out in s. 58 applied to WCATs interpretation of its home statute.
The issue at the standard of review stage is not the manner in which WCAT
interpreted s. 243(3), or the outcome of its interpretation, but rather the
degree of deference to be accorded to WCATs interpretation of the section, as prescribed
by s. 58 of the
Administrative Tribunals Act
.

[24]

To decide whether the tribunals findings are to be reviewed on a
standard of patent unreasonableness or a standard of correctness, the court
must determine whether the matter under consideration falls within the
tribunals exclusive jurisdiction under a privative clause.

[25]

In
United Brotherhood of Carpenters and Joiners of America, Local 527
v. British Columbia Labour Relations Board)
, 2006 BCCA 364, this Court
was of the opinion that that determination should be made by applying the
pragmatic and functional approach, taking into account four factors: the presence
or absence of a privative clause; the tribunals expertise relative to the
court; the purpose of the statute as a whole and the provision in particular;
and the nature of the problem under consideration.

[26]

There is some incongruity in using these factors to determine whether a
tribunal is acting within its exclusive jurisdiction for the purposes of s. 58,
because the section makes explicit use of them at other stages of the
analysis.  The presence or absence of a privative clause, for example, is the
threshold criterion for the applicability of s. 58.  The issue of whether a
question is one of fact, law, discretion, procedural fairness, or something
else determines the appropriate standard of review under s. 58(2) of the
Administrative
Tribunals

Act
.  Finally the expertise of the tribunal is, under s. 58(1)
determined by asking whether the tribunal is acting within its exclusive jurisdiction.
To use it as a factor in determining exclusive jurisdiction would be circular.

[27]

Since
United Brotherhood
was decided, there have been further
developments in the law.  The pragmatic and functional approach was
significantly refined in
Dunsmuir v. New Brunswick
.  In that case, the Court
warned against a mechanical application of what it preferred to call the
standard of review analysis and noted that it will not always be necessary to
undertake an analysis of all four factors in the test to determine the appropriate
standard of review.

[63] The existing approach to determining the appropriate
standard of review has commonly been referred to as pragmatic and functional.
That name is unimportant. Reviewing courts must not get fixated on the label at
the expense of a proper understanding of what the inquiry actually entails.
Because the phrase pragmatic and functional approach may have misguided
courts in the past, we prefer to refer simply to the standard of review
analysis in the future.

[64] The analysis must be
contextual. As mentioned above, it is dependent on the application of a number
of relevant factors, including: (1) the presence or absence of a privative
clause; (2) the purpose of the tribunal as determined by interpretation of
enabling legislation; (3) the nature of the question at issue, and; (4) the
expertise of the tribunal. In many cases, it will not be necessary to consider
all of the factors, as some of them may be determinative in the application of
the reasonableness standard in a specific case.

[28]

Most recently, in
Rio Tinto Alcan Inc. v. Carrier Sekani Tribal
Council
, 2010 SCC 43, the Supreme Court of Canada was called upon to
determine the standard of review applicable to the B.C. Utilities Commission, a
tribunal protected by a privative clause, and to which s. 58 of the
Administrative
Tribunals Act
applies.  While the reasoning of the Court is not entirely
explicit, it would appear that the Court simply considered the language of the
applicable privative clause to determine whether the matters addressed by the
tribunal were within its exclusive jurisdiction.

[29]

The approach endorsed by the Supreme Court of Canada, then, is somewhat
different than the one that this Court followed in
United Brotherhood of
Carpenters
.  Rather than considering all factors in the pragmatic and
functional approach to determine whether a matter is within the exclusive
jurisdiction of a tribunal under its privative clause, the preferred approach
is simply to examine whether the privative clause covers the matters in
issue.  While the common law standard of review analysis is instructive,
particular attention must be paid to the governing legislative provisions, such
as s. 58 of the
Administrative Tribunals Act
.

[30]

In the case before us, the matter in issue is the extension of an appeal
period under s. 243(3) of the
Workers Compensation Act
.  The language of
s. 254 of the
Workers Compensation

Act
manifestly places such a
matter under the exclusive jurisdiction of WCAT:

254 The appeal tribunal has
exclusive jurisdiction to inquire into, hear and determine all those matters
and questions of fact, law and discretion arising or
required
to be
determined under this Part ....

[31]

In the result, s. 58(2) of the
Administrative Tribunals Act
establishes the appropriate standard of review in this case.  The standard is
one of patent unreasonableness.

[32]

The decisions of WCAT cannot be said to be either irrational or
unreasonable.  Its interpretation of s. 243(3) is well within the range of
interpretive options, and is, in fact, the most reasonable interpretation.  In our
respectful opinion, WCATs decision is not only not patently unreasonable, it
is the same decision that a court would reach.

[33]

We would allow the appeals of both WCAT and WCB against the order
pronounced 5 May 2010.  It follows that the petitioners cross-appeal for
mandatory relief must be dismissed.

[34]

As the appellants did not seek costs, none are awarded.

The Honourable Chief Justice Finch

The Honourable Mr. Justice Groberman

I agree:

The Honourable Madam Justice
Kirkpatrick


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Wong,

2011 BCCA 13

Date: 20110111

Docket: CA037954

Between:

Regina

Respondent

And

Elizabeth Wong

Appellant

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Hall

The Honourable Mr. Justice Hinkson

On appeal from: Supreme
Court of British Columbia, October 16, 2009
(
R. v. Wong
, Vancouver Registry 25186)

Oral Reasons for Judgment

Counsel for the Appellant:

H. Rubin, Q.C.

Counsel for the (Crown) Respondent:

S.J. Brown

Place and Date of Hearing:

Vancouver, British
  Columbia

January 7, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January 11, 2011

[1]

NEWBURY J.A.
: The appellant Ms. Wong was convicted in Provincial
Court of operating a motor vehicle while her blood alcohol level exceeded .08. A
conditional stay was entered with respect to a charge of impaired driving and
she was acquitted of failing to remain at the scene of an accident. Ms. Wong
appealed her conviction to the Supreme Court, where it was affirmed by Mr.
Justice Bowden for reasons delivered orally on February 12, 2010. Ms. Wong
now appeals Bowden J.s decision and seeks a new trial on the charge under
s. 253(1)(b) of the
Criminal Code
, R.S. 1985, c. C-46.

Factual background

[2]

The basic facts are that early in the morning of February 6, 2009,
Constable Bell, an officer with over five years experience, was on duty in
West Vancouver. He received a report of a motor vehicle accident in the 2600
block of Marine Drive. The report stated that one of the vehicles involved was
a silver SUV, and that it had collided with another car and then left the scene
of the accident driven by a woman with long hair. The vehicle had an Alberta
plate. Constable Bell was also told that a bus driver had seen the damaged
vehicle proceeding northbound on 23rd Street from Marine Drive. A few minutes
later, he was told that a damaged SUV had been found at an address on Orchard
Way. Constable Bell drove to that location, where he saw two women, one older
and one younger, standing in the street near a silver SUV that was damaged and
had an Alberta plate. A Constable Wood was talking to the older woman and
Constable Bell approached the younger one, Ms. Wong.

[3]

As recounted by Bowden J. at para. 10 of his reasons, Constable Bell made
the following observations about Ms. Wong:

[10]      Insofar as they are relevant to Constable Bell's
decision to demand a sample of the appellant's breath, his observations of the
appellant were as follows:

1.

There was
a strong odour of liquor emanating from her breath.

2.

Her face
appeared flushed, and her cheeks and nose appeared to have a reddish tinge to
them.

3.

From
overhearing a conversation between Constable Wood and the older woman, he
concluded that the appellant had been driving the SUV and that it had been in
an accident. He did not have any information regarding the collision, other
than he knew that it had occurred; that the SUV had extensive damage; that the
young female was the driver of the SUV; and that she had left the scene of the
accident.

4.

She walked
very slowly, slower than a normal person with a normal gait, and each step
appeared to be quite deliberate.

5.

As she stood at the back of the police car, she had a slight sway,
approximately two inches front to back and side to side.

In cross-examination, Constable Bell acknowledged that he
had not noticed that Ms. Wong had watery or bloodshot eyes, dilated or
constricted pupils, slurred speech, that she was stuttering, confused or
incoherent; nor was she "staggering" or "wobbling". Ms.
Wong testified that it was very cold at the time, that the road looked as
though it might be icy, and that that was why she was walking slowly. She also
testified that she swayed back and forth when she was nervous or cold.

[4]

Constable Bell formed the opinion Ms. Wong had been operating the SUV
within the preceding three hours while her ability to do so was impaired by
alcohol. He arrested her and read her her rights to counsel under the
Charter
and then read the usual demand for a breath sample to her, together with a warning
about her right to silence. He did not inform her that he was investigating a 'hit
and run'.

[5]

At police headquarters, Ms. Wong was asked if she wanted to speak
to a lawyer and said she did. She did not know any lawyers in British Columbia
and was therefore given the number for Legal Aid and spoke to a Legal Aid
lawyer almost immediately. After doing so, she said she was satisfied with the
advice she had received. She then provided two breath samples, which produced
readings of .140.

[6]

The trial judge stated in his reasons on the
voir dire
that the constable
had not known the circumstances under with the SUV had left the scene of the
accident and that he was still trying to find out what involvement, if any,
Ms. Wong might have had in the SUV accident on Marine Drive, suggesting
this was why the constable had not arrested Ms. Wong for leaving the scene.
The trial judge did not refer expressly to the constables evidence in
cross
-examination
that he had had reasonable and probable grounds to believe Ms. Wong was
involved in the hit and run but that at that point, he had not reviewed all
the evidence in terms of determining all the charges and had been unsure
whether the offence should be charged under the
Code
or under the
Motor
Vehicle Act.

[7]

The trial judge found at the end of the
voir dire
that if the
officers failure to warn the appellant that she was a suspect for such an
offence had constituted a breach of the
Charter,
it had at best been a
fleeting and technical breach rather than something profoundly intrusive, and
that the truth-seeking function of the criminal process would be better
served by the admission of the evidence rather than its exclusion. As well, he
found Ms. Wong had provided the breath samples voluntarily, and that she was articulate
and appeared to have no difficulty with the English language. He rejected her
testimony that she was shocked and intimidated and that she had told the
police she was satisfied with the Legal Aid advice only because she wanted to
be polite.

[8]

With respect to the question of reasonable and probable grounds, the
trial judge did not mention Ms. Wongs explanation of why she had walked
slowly or why she was swaying back and forth. He simply concluded that what
Constable Bell, whose evidence he said he accepted in its entirety, had
observed had been sufficient to give him reasonable and probable grounds to
form the opinion he did. In the trial judges words:

[34]      These factors, in my view, constitute reasonable
and probable grounds for Constable Bell, a fairly experienced officer, to form
the opinion he did and the form the basis for the breathalyser demand that he
properly read to the accused.

[35]      Accordingly I rule the
statements of the accused and the certificate are admissible.

[9]

The defence called no evidence when the trial proper resumed, and the
trial judge found Ms. Wong guilty on Count 2.

Summary Conviction
Appeal

[10]

On the summary conviction appeal in Supreme Court, Bowden J. noted that
the standard of review to be applied where the existence of reasonable and
probable grounds is challenged is one of correctness, since whether particular
facts amount to reasonable and probable grounds is a question of law: see
R.
v. Shepherd,
[2009] S.C.J. No. 35. Counsel for Ms. Wong does not challenge
this statement of the appropriate standard on this appeal.

[11]

Bowden J. also enunciated the fact that there is both a subjective and
objective element to establishing reasonable and probable grounds, citing
Shepherd
and
R. v. Daggitt,
[1991] B.C.J. No. 3210. He inferred that the
trial judge had accepted that Constable Bell honestly believed Ms. Wong had
committed an offence under s. 253 of the
Code
. Again, as I
understand the appellants argument, this conclusion is not challenged on
appeal.

[12]

This leaves the question of whether the constable's subjective belief was
reasonable in the circumstances. Bowden J. noted that in accordance with this
courts decision in
R. v. Todd
[2007] B.C.J. No. 892, the trial judge
had been required to consider all of the factors together, rather than
separately or on a fragmentary basis. Bowden J. was of the view that the
trial judge had not erred in failing to consider, or consider expressly, the
explanations Ms. Wong gave in her testimony regarding the slowness of her
pace and her swaying, and had not erred in failing to refer to these
explanations. On this point, he cited
R. v. Feder
[1996] B.C.J. No.
1380, in which Low J. (as he then was)  ruled that a trial judge had erred in
finding that a police officer had not had reasonable and probable grounds to
request a breath sample. The officer had not questioned the accused about his
medical condition or possible causes for stutter-stepping at the scene of the
accident. The summary conviction appeal judge found that the trial judge had
erred in dealing separately with various indicators on which the officer had
relied, without considering the collective effect of those indicators in
objectively assessing the officers subjective belief. Further, she had erred
in placing an onus on the officer to inquire as to other possible causes of all
or some of the indicators. (Para. 13.)

[13]

At the end of the day, Bowden J. concluded in the case at bar that the
trial judge had considered all the evidence and had not erred in failing to
refer to the possible explanations of some of the indicia of intoxication noted
at trial. Further, he found the trial judge had applied the correct test in determining
that the constable had had reasonable and probable grounds to demand a breath
sample. Ms. Wongs appeal was dismissed.

On Appeal

[14]

In this court, Ms. Wong asserts the following three grounds of appeal:

1.       The trial judge
ignored the cross examination of Constable Bell, the picture showing an icy
road and the explanations of the appellant for walking slow on the ice and
moving side to side because she was cold. It is impossible to infer as the
summary conviction did infer, that the learned trial judge considered the
totality of the evidence.

2.       When considering the
totality of the evidence the minimal indicia of impairment are grounds only of
suspicion and sufficient only for an ASD demand. These issues are not
sufficiently articulated by the trial judge, to allow an appellate court to
conclude that the trial judge applied the correct test.

3.       The
trial judge misapprehended parts of the evidence, resulting in an unfair
hearing of the
voir dire
.

[15]

It is difficult to analyse these arguments in watertight compartments. The
so-called misapprehension ground of appeal in fact was three arguments rolled
into one  i.e., that the trial judge failed to address contradictory evidence
and failed to address the officers inability to answer questions with respect
to the road and weather conditions and ... failed to accurately address the
cross examination with respect to the officers reasons for not arresting the
accused for leaving the scene of the accident or warning her that she was a
suspect for that offence before questioning her. It will be convenient to deal
with these latter grounds and the first stated ground, together. They formed
the focus of Mr. Rubins oral submissions.

[16]

The cross-examination of Constable Bell at trial included the following
questions and answers:

Q:        What youve got in your report is she walked
slower than an average person and took longer to take each step. But if a
person was concerned about black ice or snow that wouldnt be unusual, would
it?

A:         Well, I believe that if I was concerned about
my footing or a black ice situation then I would be walking slow as well so it
would feel like your normal pace or both of us walking slowly together, but
unfortunately I dont have any notes in terms - - or anything in the report in
terms of the road conditions, but I have referred to her walking slower than
normal, and to me this would indicate that I was forced to slow down quite a
bit because she was walking quite slow.

Q:        Okay. And more important than that is this is
February, one of the colder months of the year, weve just looked at a
photograph, theres still snow on the road and it was cold, right?

A:         Unfortunately, I dont have any notes in
terms of the weather, but I would assume that in February, yes, it would be
relatively cold at night.

Q:        Well, if theres still snow beside the road
then it has to be cold enough that the snow hasnt been able to completely
melt, right?

A:         Correct. But I wear short-sleeves all year
round so cold I guess is a - -

Q:        But were talking of a young woman who comes
from Hong Kong and
Im going to suggest to you that when youre cold people
sometimes sway a little bit to keep themselves warm. In fairness, youd agree
with that, wouldnt you?

A:
I dont know if Im in any position to
make a comment in terms of that.
I can only speak for myself and I havent
noted anything in terms of myself being cold or anything like that, and I know
for myself - - like I said, I guess I handle cold maybe differently than other
people.

Q;        All right. Thats fine. Can we leave it this
way, if Ms Wong says that she was cold and moving from foot to foot you have
nothing - - no reason to dispute that. Well leave it there.

A:         I would assume that Ms. Wong will have her
own explanation as to what occurred.

[17]

Ms. Wong testified in the
voir dire
as follows:

Q:        Now, Im going to take you to that morning of
February 6
th
. What can you say about any snow? Tell us about that?

A:         Umm, it was definitely cold. I remember there
was snow on the side of the road.
I just remember it being very cold and the
road looked a little maybe slippery, icy.

Q:        Okay. So the officer has said that you swayed
two inches side by side. What can you say about that?

A:         Umm, I believe at that point I was standing
somewhere and he was asking me questions and I was very cold and I was just
going, like, this.
Thats something that I do when I get nervous or - - and
Im cold.

Q:        And he said that you were walking very slow.
What can you say about that?

A:
Well, the road
looked slippery so I was taking my time and being careful.
I dont want to
trip or stumble right there by a police officer.

[18]

Constable Bell in his cross-examination was shown a photograph taken by
the West Vancouver Police of the location where the arrest had taken place. He
acknowledged that there appeared to be snow on the ground, but said he had no
recollection of whether the road had been icy or wet. The photograph was not
entered as an exhibit, but another photo was. It is of little, if any,
assistance regarding the condition of the road. No further evidence of
prevailing weather conditions was adduced.

[19]

It is perhaps trite law, and counsel for Ms. Wong acknowledged,
that in deciding whether an officer had reasonable and probable grounds to
demand a breath sample, the court is concerned only with the circumstances
known
to the officer
. There is no evidence that Constable Bell knew Ms. Wong was
from Hong Kong or that she might have a lower tolerance for cold than other
persons; nor was there any evidence Ms. Wong told him she swayed when she was
cold. As we have seen from
Feder
, there was no onus on the constable to
enquire as to possible causes of any of the factors noted by the officer.
With respect to Ms Wongs explanation for walking very slowly, it appears the
trial judge accepted the officers response in cross-examination, which did not
necessitate or equate to a finding that Ms Wongs testimony was not credible.

[20]

As the Ontario Court of Appeal noted recently in
R. v. Wang
, 2010
ONCA 435, the test of whether the constable's belief was reasonable in the
circumstances is not an overly onerous one. A
prima facie
case need not
be established. Rather, when impaired driving is an issue, what is required is
simply that the facts as found by the trial judge be sufficient objectively to
support the officers subjective belief that the motorist was driving while his
or her ability to do so was impaired, even to a slight degree, by alcohol (Para.
17). In my respectful view, even if the trial judge had discounted the slow
walking factor. In this case, there was ample evidence to support,
objectively, the constables opinion.

[21]

The appellant submits, however, that before turning to the evidence as a
whole, or in its totality, to determine whether reasonable and probable
grounds existed, the trial judge was required to resolve
any factual
dispute
on the evidence. (My emphasis.) On this point, he notes
R. v.
Usher,
2010 BCSC 1745 at para. 24,
R. v. Todd,
2007 BCCA 176 at
para. 36,
R. v. Armbruster,
2010 SKCA 25 at para. 29; and on the general
duty to give reasons,
R. v. Vanloon
(1997) 39 O.T.C. 140 at paras. 15
and 23, and
R. v. Stewart,
Ont. C.A., January 31, 2003 at para. 16. In
Mr. Rubins submission, the trial judge in this case was required at least to
mention and ideally, to address, what counsel regards as an inconsistency in
Constable Bells testimony as to why he had not arrested Ms. Wong for
leaving the scene of an accident, given his acknowledgement that he had had
reasonable and probable grounds to do so. Thus Ms. Wongs factum asserts:

Of the five grounds of reasonable
and probable cause for the demand for a breathalyzer sample referred to by the
trial judge, all but item 1 referred to leaving the scene of the accident. The
admission of the statement on leaving the scene is not
per se
a ground of
appeal. But there is a contradiction in finding that the police officer knew
nothing about the details of leaving the scene and yet the trial judge could
rely on the details of leaving the scene of the accident when it came to
reasonable and probable grounds for the demand. See paragraph 12 above and
pages 12 and 13 of the transcript. Moreover, Constable Bell could not describe
or say anything at trial about any damage.

[22]

However, I see no contradiction between Constable Bells statement
that he had not reviewed all the evidence in detail at the time he formed his
opinion, and the
nine
factors listed by the trial judge at para. 33 of
his reasons. Four of these factors did refer to the accident and they tended to
confirm that Ms. Wong had been driving the SUV and that the vehicle had been in
an accident. This belief that she had been driving while intoxicated was not
"contradicted or weakened by the constable's decision to review the evidence
further and to consult the
Code
and the
Motor Vehicle Act
before deciding
whether she would be charged for leaving the scene. Again, the test of whether
the constable's belief that he had reasonable grounds to demand a breath sample
is not an onerous one.

[23]

With regard to Mr. Rubins submission on the sufficiency of the trial
judge's reasons, none of the authorities he cited stands for the proposition
that every factual uncertainty or inconsistency arising on the evidence must be
resolved in a trial judges reasons. Even in
R. v. McMillan
, for
example, the Court noted that a trial judge does not have to specifically
address every argument raised by the defence. The Court went on to say that
surely he or she must engage
the most important ones
, at least to the
extent the parties can have some understanding of what she/he decided and why.
(My emphasis.)

[24]

The point relied on by Ms. Wong, regarding the other charge was hardly
an important one even if it was an inconsistency (which I doubt). The same is
true of the slow walking factor. While a trial judge must of course give
reasons that fulfill the functional requirement of preserving and enhancing
meaningful appellate review of the correctness of the decision in question (see
R. v. Sheppard
[2002] 1 S.C.R. 869, 2002 SCC 26, at para. 24), I cannot
agree that the trial judge in this case was required to mention and/or
resolve the two points raised by Ms. Wong. The trial judge's reasons did
permit meaningful review, as do the reasons of Bowden J.

[25]

With respect to the remaining ground of appeal  that the indicia of
impairment were grounds only of suspicion and sufficient only for an ASD
demand"  the appellant did not elaborate on these at all in her
factum and counsel did not pursue them in oral argument. We were not referred
to any legal authority for the proposition that a higher degree of suspicion
or evidence of impairment is necessary to justify a request for a breath sample
as opposed to the taking of an ASD test.

[26]

In the result, I would grant leave but dismiss the appeal.

[27]

HALL J.A.
: I agree.

[28]

HINKSON J.A.
: I agree.

[29]

NEWBURY J.A.
: The appeal is dismissed.

The Honourable Madam Justice Newbury


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Rainbow Country Estates Ltd. v. Whistler (Resort
  Municipality of),

2011 BCCA 38

Date: 20110113

Docket: CA038022

Between:

Rainbow Country
Estates Ltd.

Respondent

(Plaintiff)

And

Resort
Municipality of Whistler

Appellant

(Defendant)

Before:

The Honourable Mr. Justice K. Smith

(In Chambers)

On appeal from: Supreme
Court of British Columbia, March 10, 2010
(
Rainbow Country Estates Ltd. v. Whistler (Resort Municipality of)
2010 BCSC 300, Vancouver Registry

Oral Reasons for Judgment

Counsel for the Appellant:

S. Manhas

Counsel for the Respondent:

G.K. Macintosh, Q.C.
J. Leong

Place and Date of Hearing:

Vancouver, British
  Columbia

January 13, 2011

Place and Date of Judgment:

Vancouver, British
  Columbia

January 13, 2011

[1]

K. SMITH J.A.
: This is an application by the respondent to
dismiss the appeal as abandoned for the failure of the appellant to file a
factum within the time limited by the
Rules
.

[2]

The appeal arises out of a valuation determined at a hearing in the
Supreme Court before Madam Justice Adair of some property on Alta Lake in
Whistler, which was expropriated from the respondent in 1987. The trial judges
decision was handed down on April 3, 2010 and she assessed the market value of
the property at $1.3 million. There was an advance of $367,000 paid into court in
1991 and it appears that some portion of that was paid out to the respondent in
early 2003, although the evidence does not disclose how much.

[3]

The appellant filed notice of appeal on April 9, 2010, and filed an
appeal record on June 8, 2010. Following the judgment there were negotiations
about the possibility of some sort of a settlement, but the respondent made it
clear that the negotiations should not affect the progress of the appeal and
that the appellant would be expected to get on with it. As it turned out, the
negotiations did not bear fruit.

[4]

In the result, the appellant's factum was due by July 8, 2010, as
required by Rule 21(1) of the
Court of Appeal Rules
. The appellant has
not yet filed its factum. It is more than six months out of time, as are the
appeal books and transcripts.

[5]

In early August the respondent wrote to the appellants counsel (not
counsel on this application, Mr. Manhas) inquiring about the factum and when it
would be filed, advised that it would, perhaps, be a waste of the clients
money and counsels time to apply to dismiss, and that the respondent would
like the appeal to get on. Counsel followed up on August 27, 2010 with a phone
call and appellant's counsel promised the factum would be submitted within a
week. On September 17, 2010, counsel for the respondent wrote again reminding counsel
for the appellant that the factum had been promised within a week and had not been
delivered, but no response was received. There were other communications
between counsel about the filing of the factum, both orally and in writing, in
which counsel for the respondent was either assured that the factum would be
delivered soon or received no response at all.

[6]

The appellant did nothing to advance the appeal after filing the record
until after this application to dismiss its appeal was filed. Since then there
has been a flurry of activity and counsel for the appellant filed an affidavit
yesterday and Mr. Manhas has arrived in court this morning with a written
argument, a brief of authorities, and a draft factum.

[7]

The property in question was owned by the respondent, which was
essentially a family corporation for the Saxton family. According to the
evidence it was purchased in the late 1970s at the instance of Mrs. Saxton, the
matriarch of the family. Although Mrs. Saxton has given each of her children an
unregistered lot on the property, she is still the beneficial owner of the
proceeds of the expropriation, as I understand it, and she has been actively
involved in the court proceedings since 1987. Her health has declined during
that period of time. The property had been her main source of income and that
income was lost to her when the property was expropriated. As I said, she may
have received some compensation from the advance payment in 2003 but, if so,
the evidence does not disclose how much. The evidence is that because of her
personal and financial involvement in the property, she has a strong interest
in the outcome and remains continuously updated on the proceedings. She is in
frail health. She suffered multiple strokes during 2003 and 2004. She is unable
to speak. In the last year she has broken both hips and she is now confined to
a wheelchair. She is 82 years old, the state of her health is deteriorating,
and, according to her son's affidavit, her outlook is not optimistic.

[8]

I have listened to counsels submissions for at least an hour and a half
this morning in which they have reviewed the evidence and explained their
positions. I do not intend to deal with the submissions in any detail.

[9]

The test to dismiss an appeal as abandoned is set out in
Davies v.
Canadian Imperial Bank of Commerce
(1987), 15 B.C.L.R. (2d) 256 at 260
(C.A.). The submissions here focus on three of the relevant factors: prejudice,
the merits of the appeal, and the overall interests of justice. This case, I
find, is very similar on its facts to the decision in
Redpath v. Redpath,
2009 BCCA 168, in which Mr. Justice Lowrys decision dismissing an appeal as
abandoned was affirmed on review.

[10]

Mr. Manhas has striven valiantly to convince me that there is an error
of law that should be heard by a division of this Court, but I am not persuaded
that is so. He says the error is that, in arriving at a valuation, the trial
judge relied on the comparable value of a property that had a different highest
and best use than the property being valued. This point turned on the evidence
of Mr. O'Mara, a witness at the trial, who said that the subject property, if
re-zoned RR1 for commercial development, would have been worth $1.925 million.
The trial judge relied on that figure in part in assessing the value of the
subject property. As I understand his submission, Mr. Manhas argues that was an
error because the property was not in fact viable for commercial development as
it turns out, but only for golf course use. He says also that Mr. O'Mara's
evidence on that point was inconsistent.

[11]

However, the trial judge was entitled to accept some or all of Mr.
O'Mara's evidence and it was up to her to weigh any inconsistencies in his
evidence, if any, of which I am not convinced. That is not a ground for
interfering with the judgment. And I am not persuaded that there is any reasonable
prospect that the error of law asserted by counsel would be successful in this
Court.

[12]

When considering the relevant factors, I am most influenced by the last
factor, the overall interests of justice. The matter has gone on, despite the
urgings of counsel for the respondent, for over six months with nothing being
done since the record was filed. Mr. Manhas says the appellant should not
suffer for the failings of its counsel. I appreciate that that is a factor to
consider but, in the circumstances of this case, I do not consider it an
overriding factor.

[13]

Given the inordinate delay and the explanation given by counsel for the
delay, which essentially was that he was too busy on other matters to attend to
this matter, and given the circumstances of Mrs. Saxton and her ill health, I
consider that it is in the interests of justice that this matter be finally
resolved and that she not be put through the further stress and anxiety of a
continuing appeal in which it is apparent that no active interest has been
displayed for such a long time.

[14]

I have concluded that the application must be granted and the appeal
dismissed as abandoned for failure to file the factum within the time specified
in the
Rules of Court
.

The Honourable Mr. Justice K. Smith