COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

R.
                v. Yang,

2004 BCCA
            24

Date: 20040114

Docket: CA030433

Between:

Regina

Respondent

And

Shun Lan
      (a.k.a. Ricky) Yang

Appellant

Before:

The Honourable
            Chief Justice Finch

The Honourable
            Madam Justice Prowse

The Honourable
            Madam Justice Ryan

Oral Reasons for Judgment

P. Leask, Q.C.
J. Gellis

Counsel for the Appellant

C. Deedman

Counsel for the (Crown) Respondent

Place and
            Date:

Vancouver, British Columbia

January 14, 2004

[1]

RYAN,
          J.A.
: The appellant appeals his conviction for
          possession of counterfeit money pronounced 30 August 2002 after a trial
        in Richmond Provincial Court.

[2]

On
        17 March 2001 members of the RCMP Drug Squad executed a search warrant
        at an address in Richmond.  A search of the property outside the residence
        turned up guns and ammunition.  A search of a bedroom in the home turned
        up a cardboard box.  In the box the police found several invoices and bank
        documents in the appellants name.  At the bottom of the box the officer
        found $20,800 in counterfeit bills made up of six individual $100 bills
      and three bundles of $50 bills.

[3]

Seven
      people, including the appellant were arrested in the house.

[4]

The
      appellant did not testify or offer other evidence in his defence.

[5]

It
        was the position of the defence, faced with the finding of a large sum
        of bills in the appellants bedroom, that the appellant might have been
        aware of drug related activity in the house, and might have known that
        large sums of money would be found present in the house, but that the Crown
        could not prove that the appellant had possession or control over the bills
        or that he had examined the money or had any knowledge that the bills were
      counterfeit.

[6]

The
        trial judge found that the bedroom was occupied solely by the appellant.  He
        found that the appellant was in possession of the bills.  The issue became
      whether the appellant had knowledge that the bills were counterfeit.

[7]

The
        trial judge was unwilling to infer simply from the amount of counterfeit
        money stashed in the room that the appellant would know of its counterfeit
      nature.

[8]

In
      convicting the appellant the trial judge said this:

As suggested in the Mak case, I have taken the opportunity to examine
        the money in this case.  I find as well that the colour of the money in
        this case is something less than vivid and is somewhat muted.  Otherwise,
        the general appearance of the currency is not particularly noticeable that
        it is something other than genuine.  I also found that the feel of the
        paper that the currency is on is something substantially less than the
        genuine bill.  As I say, otherwise, the money, at first glance, does not
        cause me to suspect it to be counterfeit.  It is only once the money
      is handled that the concerns arise.

Sgt. Murdoch said in his evidence that he guessed that the money was
        counterfeit when he first located it.  Given the way the money was bundled
        and its location, I find that Mr. Yang must also have known the true character
        of the money.  He must have had an opportunity to see the colour and texture
        of it.  It is, in my view, obvious that Mr. Yang must have handled the
        money that was in the box and therefore find that he was aware of its
      nature.

[9]

I
        should note here, that although not much turns on it, Sgt. Murdoch did
        not testify that he guessed that the money was counterfeit when he first
        located it.  What is clear is that at some point the police suspected
        that the bills were counterfeit since they were eventually sent to Ottawa
        for
      expert examination.

[10]

As
        I read the reasons for judgment the trial judge based his finding that
        the appellant knew that the money was counterfeit on his conclusion that
        having touched it at some point, the appellant would have been alerted
      to its texture and colour and its counterfeit nature.

[11]

We
        have had an opportunity to look and feel the bills in question.  Without
        an experts opinion that the bills were counterfeit, I am not persuaded
        that the colour and feel of the bills would alert a member of the public
        to the fact that they are, in fact, counterfeit.  In my view, the essential
      finding of fact in this case cannot be supported by the evidence.

[12]

In
        my view, the verdict cannot be supported by the evidence.  I would allow
      the appeal, set aside the conviction, and enter an acquittal.

[13]

FINCH,
        C.J.B.C.
: I agree.

[14]

PROWSE,
        J.A.
: I agree.

[15]

FINCH,
          C.J.B.C.
: The appeal is allowed, the conviction set
        aside and an acquittal entered.

The Honourable
      Madam Justice Ryan


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

Instrumenttitehdas
                Kytola Oy v. Esko,

2004 BCCA
            25

Date: 20040115

Docket: CA030817

Between:

Instrumenttitehdas
      Kytola Oy

Appellant

(
Plaintiff
)

And

Esko Industries
      Ltd.

Respondent

(
Defendant
)

Before:

The Honourable
            Mr. Justice Braidwood

The Honourable
            Mr. Justice Mackenzie

The Honourable
            Mr. Justice Low

Oral Reasons for Judgment

R.J.C. Deane
B.A. Rebane

Counsel for the Appellant

K. Wright

Counsel for the Respondent

Place and
            Date:

Vancouver, British Columbia

January 15, 2004

[1]

BRAIDWOOD,
          J.A.
: We have heard a preliminary application
          as to whether or not two of the points advanced on this appeal can be
          heard by this Court on the basis they were not raised below, and, further,
          that if they had been raised below counsel would have conducted the matter
        in a different manner.

[2]

We
        accede to that argument and we will not, at this stage, hear the two
      points that are identified.  These reasons at this stage are very short
      and, depending on how the balance of the case is argued, this point will
      be elaborated
      further later.

(submissions by counsel)

[3]

LOW,
          J.A.
: This is an appeal from an order staying
          proceedings in this action for debt under s. 8(1) of the
International
          Commercial Arbitration Act
, R.S.B.C. 1996, pending arbitration
          in Finland under the law of that country.  The issue between the parties
          is whether the contract between them containing an arbitration clause
          was terminated pursuant to notice when the debt arose or whether the
          debt was incurred during a time extension of the contract.  If the
          latter is the case the arbitration clause would still be operative
          and the trial
        court would not have jurisdiction.

[4]

The
        chambers judge determined that because of conflicts in the evidence it
        was not clear that the contract was terminated and that the debt was
      not incurred pursuant to the contract containing the arbitration clause.  In
        so doing, he applied this Courts decision in
Gulf Canada Resources
        Ltd. v. Arochem International Ltd.
(1992), 66 B.C.L.R. (2d) 113
        (C.A.), a case that is directly on point.  The appellant did not seek
        a five judge panel to attempt to persuade this Court that the Gulf Canada
      case was wrongly decided and ought not to be followed.

[5]

I
        am not persuaded that either the evidence or the law leads to the clear
        conclusion that the contract containing the arbitration clause was not
        continuing when the debt in question was incurred.  Therefore I would
        not give effect to the substantive issue raised by the plaintiff appellant
      essentially for the reasons given by the chambers judge.

[6]

I
        would add one thing not mentioned by the chambers judge.  The issue here
        is whether the contract was terminated as of a certain date.  The arbitration
        clause in the contract provides for arbitration to resolve disputes or
        controversies arising out of or in connection with this contract including
        any question regarding its existence, validity or termination.  The
        use of the word termination in that provision suggests that an arbitrator
        in Finland must determine the issue of termination once raised before
        the
      trial court here can assume jurisdiction.

[7]

The
        chambers judge, in his oral reasons, ordered that the defendant respondent
        would recover costs of the action.  I expect that he misspoke.  The stay
        of proceedings did not determine the action.  If an arbitrator in Finland
        decides the termination issue against the respondent the action here
        will continue, therefore I would allow the appeal to the extent only
        of amending
        the order for costs to provide that the issue of costs in the stay application
        will be dealt with by the trial court following the conclusion of the
      arbitration.

[8]

Except
        for this minor amendment of the order under appeal I would dismiss the
      appeal.  I would award costs of the appeal to the respondent.

[9]

BRAIDWOOD,
        J.A.
: I agree.

[10]

MACKENZIE,
        J.A.
: I agree.

The Honourable
      Mr. Justice Braidwood

The Honourable
      Mr. Justice Low


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

R.
                v. Tammie,

2004 BCCA
            18

Date: 20040115

Docket: CA028666

Between:

Regina

Respondent

And

Aaron Bradley
      Tammie

Appellant

Before:

The Honourable
            Chief Justice Finch

The Honourable
            Mr. Justice Mackenzie

The Honourable
            Mr. Justice Lowry

S. Goldberg

Counsel for the Appellant

J.M. Gordon
            and B. McLean

Counsel for the Respondent

Place and
            Date of Hearing:

Vancouver, British Columbia

December 4, 2003

Place and
            Date of Judgment:

Vancouver, British Columbia

January 15, 2004

Written
              Reasons by
:

The Honourable
            Mr. Justice Mackenzie

Concurred
              in by:

The Honourable
            Chief Justice Finch

The Honourable
            Mr. Justice Lowry

Reasons for Judgment of the Honourable Mr. Justice Mackenzie:

Overview

[1]

At
        the conclusion of the hearing we dismissed the appellants appeal from
        his conviction for first degree murder with reasons to follow.  These
      are the reasons.

[2]

The
        appellant was convicted of the first degree murder of Patricia MacPherson
        for the second time on 7 June 2001.  He was first charged on 9 December
        1988, shortly after the nude body of Ms. MacPherson was found in a swampy
        area adjacent to the Newton Inn in Surrey, B.C.  The first eight-day trial
        resulted in a conviction for first degree murder on 1 March 1990.  At that
        trial, the appellant admitted that he had killed Ms. MacPherson.  His
      unsuccessful defence was intoxication and lack of intent.

[3]

No
        appeal was taken from that conviction until 1999 when an extension of
      time to appeal was granted on the ground that the appellants former counsel
        had not acted on instructions to launch a timely appeal.  On 19 October
        1999, this Court allowed the appeal and directed a new trial on the ground
        that the charge to the jury on the issue of intention failed to meet
        the standard stated in
R. v. Seymour
, [1996] 2 S.C.R. 252,
        106 C.C.C. (3d) 520.  The retrial commenced on 29 May 2000 and resulted in
        a second jury guilty verdict of first degree murder on 7 June 2001.  The
        retrial involved approximately three months of hearing days in
voir
      dires,
followed by another three months of evidence with the jury.

[4]

After
        the verdict, the appellant applied for a stay of proceedings which was
      dismissed by the trial judge on 28 June 2001.  This appeal followed.

[5]

The
        appellant did not testify before the jury at his second trial, although
        on a
voir dire
he confirmed his admission and evidence at the
        first trial that he had killed Ms. MacPherson.  The defence was successful
        in excluding the appellants confession to police, which had been admitted
        at the first trial, on the ground that it was involuntary and obtained
        in breach of the appellants
Charter
rights.   Hair samples
        obtained from the appellant, and opinion evidence related to those samples,
        was also excluded.  This opened the door to the defence strategy to raise
        doubt that the Crowns case was sufficient to prove the appellants link
      to the homicide.

[6]

The
        appellant raised numerous issues on this appeal which are addressed under
      the various headings below.

The verdict

[7]

The
        appellant submits that the jury rendered an inconsistent verdict.  The
        issue arises from the manner in which the verdict was received and recorded
      in the transcript as follows:

THE REGISTRAR:    Members
      of the jury, have you reached a verdict?

MR. FOREMAN:      Yes.

THE REGISTRAR:    Mr
        Foreman, do you find the accused Aaron Bradley Tammie, as to the charge
      of first degree murder, guilty or not guilty?

MR. FOREMAN:      Guilty.

THE REGISTRAR:    As
        to the lesser included charge of second degree murder, guilty or not
      guilty?

MR. FOREMAN:      Not
      guilty.

THE REGISTRAR:    As
      to the lesser included charge of manslaughter, guilty or not guilty?

MR. FOREMAN:      Not guilty.

[8]

No
        issue was raised immediately with the manner in which the verdict was
      taken and the jury was discharged.  The issue was raised later by Mr. Goldberg
      and the trial judge characterized it as:

. . . an accidental clerical error in the taking of the verdict.  Madam
        Registrar and the court received the verdict of guilty to first degree
        murder from the foreman.  That was the verdict of the jury.  She ought
        to have stopped reading there, but accidentally went on to ask about second
        degree murder and manslaughter.  I didnt say anything at that point, because
        I was of the view at that point that anything that happened after the guilty
        verdict to first degree murder was a nullity and redundant and I knew there
        was no confusion on the first question about the charge, because the verdict
        was clear and complete and everyone understood it to be so.  The jury
        was clearly instructed five or six times in the charge that they must
        find
        all the essential ingredients of second degree murder proved beyond a
        reasonable doubt and then, in addition, certain additional ingredients
        in order to
        find the accused guilty of first degree murder, so the only recorded
      verdict will be guilty to first degree murder.

[9]

It
        is common ground that having received the verdict of guilty of first degree
        murder, the registrar should have stopped there and not proceeded with
        the questions as to the lesser included offences of second degree murder
      and manslaughter.

[10]

In
        my view, the trial judge was correct in her characterization of the answers
        to the questions related to the lesser included charges as redundant
      and not an indication of any confusion in the minds of the jury.  I agree with
        her assessment that from the jurys point of view the verdict was entirely
        consistent.  Their verdict of guilty of first degree murder precluded a
        verdict of guilty of the lesser included offences.  Any other verdict on
        those offences would be logically inconsistent.  I would not give effect
      to this ground of appeal.

The expert evidence issues

[11]

These
        issues surround the expert evidence of a forensic pathologist, Dr. James
        Ferris, and a hair and fibre analysis expert, Staff Sergeant B.J. Wladichuk.  The
        appellant contended that the hair and fibre opinion evidence should have
        been excluded.  The appellant also submits that the trial judge unfairly
        restricted the ability of defence counsel to establish through cross-examination
        that the evidence of these witnesses was biased in favour of the Crown.  The
        appellant also contended that the charge to the jury failed to adequately
      warn the jury of the frailties of scientific evidence.

[12]

Dr.
        Ferriss opinion that the cause of death was strangulation was not in
      dispute.  The
        contentious part of his evidence related to a liver laceration on the victims
        body.  At the first trial he concluded that the laceration probably was
        caused shortly before death.  He changed his opinion and concluded it was
        probably post-mortem at the retrial, based on his experience in the intervening
        years.  The pathologist called by the defence was unable to come to any
        firm conclusion one way or the other.  The liver laceration was not a
        contributing cause of the victims death and the opinions with respect
        to the timing
      of its cause were not central issues.

[13]

The
        evidence of Staff Sergeant Wladichuk was that hair samples found on the
        bedding in the appellants room at the Newton Inn were microscopically
        consistent with the hair of the victim.  He also concluded that acrylic
        fibres removed from the victims torn jeans as well as fibres from a top
        and sweater seized from the appellants residence were indistinguishable
        from fibres used in the blanket.  He cautioned that hair and fibre comparisons
      were not a positive means of identification.

[14]

Staff
        Sergeant Wladichuk had been an expert in the comparison and identification
        of human hair and textile fibres during the initial investigation and at
        the time of the first trial. He testified that DNA analysis had supplanted
        hair and fibre analysis in the early 1990s and as the emphasis shifted
        he had not kept up with the literature in the area of hair and fibre examination
      and was not aware of current protocols.

[15]

Certain
        hair samples taken during the investigation and available at the first
        trial were subsequently lost or inadvertently destroyed.  This came to
        the attention of the defence during the cross-examination of Staff Sergeant
        Wladichuk on a
voir dire
.  Vaginal swabs containing semen taken
        from the body of the victim by Dr. Ferris were also apparently destroyed
      after analysis and the first trial.

[16]

Staff
        Sergeant Wladichuk testified that the fibre samples were destroyed in
      the course of the examination process and that the slides of the hair samples
        were apparently destroyed in an RCMP lab sometime in the years intervening
        between the two trials.  The hair samples were atrophied and lacking
      root sheath material and consequently not amenable for nuclear DNA analysis.

[17]

The
        evidence of the expert witnesses was only marginally controversial.  Much
        of Dr. Ferris's evidence was consistent with the opinions of the pathologist
        called by the defence, including the cause of death by strangulation, the
        estimated time of death, and indications that injuries to the back of the
      victim's neck were caused earlier than injuries to the front of the neck.

[18]

The
        hair and fibre analysis was candidly admitted to be of limited value.  Staff
        Sergeant Wladichuk did not dispute that forensic DNA technology had overtaken
        hair and fibre comparisons in the 11-year period between the first and
        second trials.  He said in direct examination that hair comparison is not
        a positive means of identification and he agreed that his evidence did
        not independently prove that either the appellant or the victim had been
        in hotel room 214.  While the comparison opinions were of limited weight
        I do not think that the trial judge erred on the evidence before her in
      refusing to exclude it entirely.

[19]

As
        noted, Mr. Goldberg cross-examined these two witnesses for four days
      each in an effort to show bias favouring the prosecution.  In his instructional
        textbook, An Advocacy Primer (2nd ed. 1997, p. 153), Lee Stuesser lists
        ten principles of effective cross-examination, commencing with Be Brief
        and ending with Seize the Moment.  Mr. Golbergs cross-examination flouted
        virtually all of them.  Most of the questions were on collateral matters.  Overall
        the cross-examinations were lacking in focus, repetitive, confused and
        insulting both to the witnesses and the judge.  Many questions were either
        ineptly framed or improper, and required the intervention of the trial
        judge.  In my view, the restrictions imposed by the trial judge on further
        cross-examination on collateral matters were fully justified.  Cross-examination
      is not unlimited.

[20]

The
        disclosure of lost exhibits from the first trial and Dr. Ferriss revised
        opinion were timely and did not contain any element of surprise that would
      adversely affect cross-examination.

[21]

The
        trial judge gave a standard charge to the jury with respect to the expert
        evidence including the instructions that they were not required to accept
        the opinions of the expert witnesses, that they should assess the experts
        impartiality, and that they should consider whether the loss or destruction
        of exhibits affected the Crown's case.  In my view, that instruction was
        adequate in the circumstances of this case and no further instruction was
      required.

Refusal to permit reference to
Milgaard,

Morin
and
Marshall
cases
        in cross-examination of Dr. Ferris and in closing

[22]

The
        trial judge refused to permit reference to the
Morin
,
Milgaard
and
Marshall
cases
        by defence counsel in the cross-examination of Dr. Ferris and in his
        closing address to the jury as examples of miscarriages of justice, on
        the ground
        of risking that the jury could become inflamed and misled by the references.  In
        my view, the rulings of the trial judge were not in error.  The proper
        focus of the jury, as the trial judge emphasized in her charge, was the
        evidence adduced in the courtroom and nothing else.  The possibility of
        a miscarriage of justice based on other cases risked distracting the jury
        from the proper focus on the evidence before them relating to the facts
        of the particular homicide in issue, and inciting them to decide the case
        on an improper basis extraneous to those facts.  I do not think that
      there is any merit in this ground of appeal.

Admissibility of prior statements of Crown witnesses

[23]

The
        defence submitted that the previous testimony or out of court statements
        of several witnesses should have been admitted for the truth of their
      contents under the principle of exception to the hearsay rule.  Apart from Elizabeth
        Petry, the occupant of the room next to the room rented to the appellant
        at the Newton Inn, no application was made to admit the prior statements.  The
        trial judge rejected the application with respect to Petrys statements
        on the ground that the test of necessity had not been met.  Petry was present
        in court and the trial judge concluded that the reliability of her statements
        would be best assessed on her evidence as a whole, including her cross-examination
        on any prior statements.  In my view there was no error in the trial judges
        ruling.  As the other witnesses were also in court and subject to cross-examination
        on prior statements, there was similarly no basis to admit those statements
      if there had been any application to do so.

Criminal Record Issues

[24]

The
        trial judge refused to allow counsel for the appellant to elicit from
      a police witness the fact that the appellant did not have a criminal record.  In
        my view, that ruling was correct.  A criminal record goes to credibility.
        The appellant did not testify before the jury and there was no issue
      relating to credibility to which his record could be relevant.

[25]

The
        trial judge also refused to allow counsel for the appellant to see the
        criminal file of the victims father, Archie MacPherson Sr., which was
        sealed as the subject of a pardon.  She relied on
R. v. Paterson
(1998),
        122 C.C.C. (3d) 254 (B.C.C.A.).  Counsel did not ask Mr. MacPherson Sr.
        about a criminal record in cross-examination and not having done so, I
        do not think it was open to attempt to lead evidence of his record through
        other witnesses, quite apart from the barrier presented by the pardon to
        disclosure of the record.  Accordingly there was no error in the trial
      judges ruling.

Collusion, Reputation and Propensity Issues

[26]

The
        trial judge refused to permit cross-examination of several members of
      the victims extended family with respect to propensity to violence, criminal
        activity and collusion, on the ground that the probative value of such
        evidence was outweighed by its prejudicial effect.  The appellant submitted
      that the ruling resulted in an unfair trial.

[27]

The
        trial judge allowed cross-examination of witnesses as to whether they
      had been intimidated or otherwise pressured by anyone with respect to their
        evidence.  She refused to permit cross-examination on more remote collateral
        matters and she intervened to deal with questions that were improperly
        framed, vexatious or insulting.  As noted above with respect to the cross-examination
        of expert witnesses, much of the questioning was confused and inept.  In
        my respectful view, the patience of the trial judge was sorely tried by
        Mr. Goldberg and his cross-examination was given more than ample latitude
        in the circumstances.  I do not think that there was any error in the
        limits that the learned trial judge imposed on cross-examination in the
      circumstances.

[28]

The
        trial judge also refused to receive the evidence of Kelly Corbett which
        the appellant wished to tender with respect to discussion among witnesses
        outside the courtroom during a trial lunch break.  The trial judge reviewed
        a statement of Ms. Corbetts prospective testimony and concluded that it
        was irrelevant and completely collateral to the issues before the jury.  There
      is no basis to question that ruling.

[29]

The
        trial judge also refused an application to have Shelley Taks recalled
      for further cross-examination as to whether she had been told before she
      gave
        evidence that a previous witness had been cross-examined about being
      on welfare.  She ruled it was irrelevant and collateral.  In my view, her
        ruling was within the trial judges discretion:
R. v. Pritchard
(1997),
      86 B.C.A.C. 140 (C.A.), paras. 19-20.

The Other Disputed Evidence of Shelly Taks

[30]

Shelley
        Taks saw the appellant on 9 December 1988 and observed a mark on his
      neck.  The
        trial judge refused to allow defence counsel to elicit in cross-examination
        her opinion that the mark looked like a large hickey, on the ground that
        the witness was not qualified to express that opinion.  Ms. Taks had no
        expertise that would qualify her to express an expert opinion and the jury
        had a photograph of the appellant from which they could observe the mark
        and draw their own inference.  In my view, the exclusion of this evidence
        as unqualified opinion was within the discretion of the trial judge and
      there was no reversible error.

The application for a judicial stay

[31]

After
        his conviction the appellant applied for a judicial stay of proceedings
        on the grounds of unreasonable delay within the meaning of s. 11(b) of
        the
Canadian Charter of Rights and Freedoms
, abuse of process
        based on the loss and destruction of exhibits between the first and second
        trials, and impairment of his s. 7
Charter
rights to make
        a full answer and defence based on the loss and destruction of exhibits.  The
        trial judge dismissed the application in reasons reported at [2001] B.C.J.
      No. 1949; 2001 BCSC 1219.

[32]

The
        delay between the trials was the result of the failure to appeal the
      first conviction until 1999.  The time for commencing an appeal was extended
        because of inaction on the part of the appellants former counsel.  The
        appeal was allowed because of a clarification of the law with respect
        to the proper jury instructions on the defence of intoxication, relied
        upon
      by the appellant at his first trial.

[33]

The
        delay allowed the appellant to obtain the benefit of developments in
      the law that would not have been available on a timely appeal.  As the
      trial judge noted, the loss of the hair samples and the vaginal swabs could
      not
        have raised a significant risk of a miscarriage of justice, inasmuch
      as the appellant admitted on a
voir dire
that he did have sexual
      intercourse with the victim and that he killed her.  Those admissions were not before
        the jury but in the circumstances of this case I think that the trial judge
        was entitled to consider them on the stay application.  The hair samples
        and slides were lost or destroyed some time after the appeal period from
        the first conviction had expired, apparently through inadvertence.  The
        trial judge gave considered reasons for dismissing the stay application
        and in my view there are no grounds on which this Court could disturb
      her conclusion.

Conclusion

[34]

The
      appeal was dismissed for the foregoing reasons.

The Honourable
      Mr. Justice Mackenzie

I AGREE:

The Honourable Chief Justice Finch

I AGREE:

The Honourable
      Mr. Justice Lowry


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

Advanced
                Coatings Inc. v. Angela Fournell

R.P.C.
                Inc .v. Angela Fournell,

2004 BCCA
            30

Date: 20040116

Docket: CA031013

Between:

Advanced
      Coatings Inc. and Atlas Block Co. Ltd.

Appellants

(
Plaintiffs
)

And

Angela
      Fournell, individually and as personal
representative of the Estate of Steve Fournell,
deceased, and Diane Regan, as personal representative of the
Estate of Randie Regan (also known Randy Regan)

Respondents

(
Defendants
)

- and -

Docket: CA031020

Between:

R.P.C.
      Inc.

Appellant

(
Plaintiff
)

And

Angela
      Fournell, individually and as
Personal Representative of the Estate of Stephen Fournell and
Diane Regan, individually and as Personal Representative
of the Estate of Randie Regan

Respondents

(
Defendants
)

Before:

The Honourable
            Mr. Justice Braidwood

The Honourable
            Mr. Justice Mackenzie

The Honourable
            Mr. Justice Low

Oral Reasons for Judgment

W.T. Morley

Counsel for the Appellant, Advanced Coatings
            Inc.

A.L. Eged

Counsel for the Appellant, R.P.C. Inc.

J. Fiorante

Counsel for the Respondents

Place and
            Date:

Vancouver, British Columbia

January 16, 2004

[1]

BRAIDWOOD,
          J.A.
: This is an application for an order dismissing
        a petition for what has been termed before us an anti-suit injunction.

[2]

The
        learned chambers judge, in the first three paragraphs, by way of introduction
      to the matter wrote as follows:

[1] The plaintiff in Action S026531,
        R.P.C. Inc. (RPC) together with the plaintiffs in Action S026876, Advanced
        Coatings Inc. and Atlas Block Co. Ltd. (Advanced), seek an injunction
        to restrain proceedings commenced in the State Court of Georgia by Angela
        Fournell individually and as the personal representative of the Estate
        of Stephen Fournell, deceased and by Diane Regan, as personal representative
        of the Estate of Randie Regan, deceased (the Georgia Plaintiffs).

[2] The litigation arises out
        of an explosion that occurred while Mr. Fournell and Mr. Regan were applying
        Code Blue Type F, a waterproofing material, to a concrete water cistern
        at a mobile home park in Nanaimo, British Columbia on May 8, 1997.  As
        a result of the explosion Stephen Fournell suffered severe burn injuries
        which ultimately resulted in his death.  Randie Regan suffered serious
        injuries, including severe burns to his hands and his face.  Mr. Regan
        later died of causes unrelated to the explosion.

[3]
        RPC is incorporated pursuant to the laws of Georgia and maintains its
      head office in that state.  RPC manufactures Code Blue and Code Blue Type F
      products.  Code Blue Type F is manufactured by RPC in Ohio.

[3]

I
        have not found that there has been any error identified which would cause
      me to interfere with the order made by the learned chambers judge.

[4]

Accordingly,
      I would dismiss these two appeals.

[5]

MACKENZIE,
        J.A.
: I agree.

[6]

LOW,
        J.A.
: I agree.

The Honourable Mr. Justice Braidwood


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Fink
                v. HMTQ,

2004
            BCCA 388

Date: 20040116

Docket: CA030662

Court Appeal Action No. CA030662

SCBC Action No. S013723

Vancouver Registry

Court of Appeal

Between:

MONIQUE ROY FINK

Respondent (Plaintiff)

And:

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH
        COLUMBIA

Appellant (Defendant)

PUBLIC GUARDIAN AND TRUSTEE OF BRITISH COLUMBIA

Respondent
      (Defendant)

ORAL JUDGMENT

BEFORE:

The Honourable Chief Justice Finch

The Honourable Madam Justice Prowse

The Honourable Madam Justice Ryan

Vancouver, British Columbia, January 16, 2004

THE APPEAL
from
      the judgment of Madam Justice Satanove, of the Supreme Court of British
      Columbia at Vancouver, British Columbia dated, February 17, 2003, coming
      on for hearing on January 16, 2004,
AND ON HEARING
Thomas MacLachlan,
      Q.C. and E.W. (Heidi) Hughes, Counsel for the Appellant; D. Brent Adair,
      Q.C., Counsel for the Respondent, Public Guardian and Trustee of British
      Columbia; and Kathleen H. Walker, Counsel for the Respondent, Monique Roy
      Fink;
AND ON READING
the materials filed herein;

THIS COURT ORDERS
that

The
        February 17, 2003 Judgment of Madam Justice Satanove that the Defendant
        Her Majesty the Queen in right of the Province of British Columbia is
        liable for the Plaintiffs loss and the Order to pay the Plaintiff the
        sum of $80,773.10 plus court order interest from July 1, 2000 to date
        of judgment are set aside;

The
        Appellant shall pay the costs of this appeal to the Respondent Monique
        Roy Fink at Scale 3; and

The
        October 3, 2003 Order of Madam Justice Satanove regarding costs is preserved.

No
        costs shall be payable to the Public Guardian and Trustee of the British
        Columbia in this Appeal.

FOR THE COURT:

Patrick Boyer

Deputy Registrar

Settled by: J. Jordan, Registrar

June 7, 2004

L.S.G. Finch, C.J.B.C.

Entered Vancouver Registry

Jun 09 2004, Vol 269

Fol 18 By DMS


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Fink
                v. HMTQ,

2004
            BCCA 389

Date: 20040116

Docket: CA030671

Court of Appeal Action No. CA030671

SCBC Action No. S013723

Vancouver Registry

COURT OF APPEAL

Between:

MONIQUE ROY FINK

Appellant (Plaintiff)

And:

HER MAJESTY THE QUEEN IN RIGHT OF
        THE

PROVINCE OF BRITISH COLUMBIA

PUBLIC GUARDIAN AND TRUSTEE OF BRITISH
        COLUMBIA

Respondent
      (Defendants)

ORAL JUDGMENT

BEFORE:

The Honourable Chief Justice
      Finch

The Honourable Madam Justice
      Prowse

The Honourable Madam Justice
      Ryan

Vancouver, British Columbia, January
      16, 2004

THE APPEAL
from the judgment of Madam Justice
      Satanove, of the Supreme Court of British Columbia at Vancouver, British
      Columbia dated, February 17, 2003, coming on for hearing on January 16,
      2004,
AND ON HEARING
Kathleen H. Walker, Counsel for the Appellant,
      Monique Roy Fink; Thomas MacLachlan, Q.C., and E.W. (Heidi) Hughes, Counsel
      for the Respondent, Her Majesty the Queen in right of the Province of British
      Columbia; and Brent D. Adair, Q.C., Counsel for the Respondent, Public
      Guardian and Trustee of British Columbia;
AND ON READING
the materials
      filed herein;

THIS COURT ORDERS
that:

1.         The appeal be dismissed;
      and

2.         No costs are payable by
      any party.

FOR THE COURT:

Patrick Boyer

Deputy Registrar

Settled by: J. Jordan, Registrar

June 7, 2004

L.S.G. Finch, C.J.B.C.

Entered Vancouver Registry

Jun 09 2004, Vol 269

Fol 18 By DMS


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

Jensen
                v. Jensen,

2004 BCCA
            29

Date: 20040116

Docket: CA029076; CA030859

Between:

Susan Elizabeth
      Jensen

Respondent

(
Plaintiff
)

And

Gregory
      Paul Jensen

Appellant

(
Defendant
)

Before:

The Honourable
            Mr. Justice Braidwood

The Honourable
            Mr. Justice Mackenzie

The Honourable
            Mr. Justice Low

Oral Reasons for Judgment

J.M. Schwarz

Counsel for the Appellant

R.S. Tretiak,
            Q.C.

Counsel for the Respondent

Place and
            Date of Hearing

Vancouver, British Columbia

January 12, 2004

Place and
            Date of Judgment:

Vancouver, British Columbia

January 14, 2004

[1]

LOW,
          J.A.
: Before us are two appeals from spousal
          support orders made by two chambers judges in these matrimonial proceedings.  Madam
          Justice Wedge made the first order on 28 September 2001 and Madam Justice
          D. Smith made the second order on 29 April 2003.  The husband appeals
          both orders.  He argues that both judges erred in different respects
          and says that spousal support should be eliminated or should be substantially
        reduced below the amount of $800 fixed by the second order under appeal.

[2]

The
      history of the marriage and the proceedings is as follows.

[3]

The
        husband is now 52 years old and the wife is 50 years old.  They married
        in 1979 and a son and a daughter were born in 1981 and 1984 respectively.  The
      parties separated in 1998.

[4]

The
        husband is a bricklayer with a current annual income of $53,000.  The wife
        did not work outside the home from the time of her first pregnancy in 1981
        until 1992 when she did some casual work at a daycare facility.  Prior
        to her first pregnancy she had worked for several years in the housekeeping
        department of a hospital.  She has a grade 12 education and apparently
        no specific job training.  She was 45 years old when the parties separated
      and it is obvious that her employment prospects were extremely limited.

[5]

The
        wife commenced these proceedings in August 1998.  On 16 August 1999 the
        court granted an order of divorce and the parties consented to an order
        that the wife would receive 65% of the family assets and the husband 35%.  The
        wife retained the family home and half the husbands pensions under the
        formula set out in the
Family Relations Act
.  The Guideline
        amount of child support for the two children was fixed at $833 per month
        and the husband agreed to pay spousal support of $1200 per month.  The
      husband then had an annual income of $61,752.

[6]

The
        order contained a clause that there would be a review of the amount of
        spousal support at any time after 1 August 2000 without the need to
      show a material change in circumstances.

[7]

This
        agreement recognized the limited employment prospects of the wife.  The
        idea was that the wife would use the former matrimonial home to operate
        a daycare business to provide her with an income.  She obtained a licence
      to operate the business in July 2000.

[8]

Before
        the wifes income from the daycare business was known, the husband applied
        in August 2000 for a reduction in spousal support.  On August 31, Mr. Justice
        Pitfield made an order reducing spousal support to $1,000 per month commencing
        1 January 2001 with leave to apply for a review without a change of circumstances
        after 1 July 2001.  This order also reduced child support to $513 per month
        because only the younger child remained dependant.  The husbands income
        was still $61,752 per year.  We do not have the reasons for judgment of
        Mr. Justice Pitfield but I presume the reduction of spousal support four
        months down the calendar was in anticipation of the wife achieving some
      net income from her business.

[9]

In
        2000 the wife earned a net business income of only $1400.  On 28 September
        2001, Madam Justice Wedge made the first order under appeal.  By then the
        husbands income was down to $53,000 per year and the wifes anticipated
        net business income for 2001 was only $4,000 to $5,000.  The judge determined
      that a change in spousal support was premature.  She said this:

[7]   On all of the materials, I cannot conclude that spousal support
        ought to be cancelled or reduced at this point in time time.  Ms. Jensen
        submits she needs the support for antoher year to make the daycare a viable
        business by which to support herself.  I accept that submission.  Payments
        to ms. Jensen ought to remain at $1,000 per month, but that amount will
        be subject to review on or after June 1
st
of next year without
      the need to show a material change in circumstances.

[10]

It
        is common ground that Madam Justice Wedge erred when she said that the
        husband no longer paid child support.  In fact, the child support order
        for the younger child continued in effect at $513 per month.  The husband
        argues that but for this misunderstanding of the evidence the judge would
        have lowered spousal support having regard to the reduction in the husbands
        income, a projected increase in the wifes income and the continuing
      obligation the husband had to pay child support.

[11]

In
        my opinion, the wide disparity in the incomes of the parties at that
      time makes it unlikely that the judge would have then lowered spousal support
        even if she did have in mind that child support was continuing.  Indeed,
        she might well have had it in mind and merely misspoke.  She made an order
        that had effect for only nine monthly payments.  The situation was fluid
        and required relatively early review.  On the order made, the wife had
        a pre-tax income of perhaps $1400 per month plus the child support of $513
        per month.  It appears that during the anticipated duration of the order
        there remained a substantial disposable income gap between the parties
      in favour of the husband after the husband discharged his support obligations.

[12]

I
      would dismiss the first appeal.

[13]

The
        matter came on again before Madam Justice Smith on 29 April 2003.  The
        husband sought an order eliminating spousal support or substantially reducing
      the amount.  He seeks the same on the second appeal.

[14]

Madam
        Justice Smith reviewed the previous orders made in the proceedings.  She
        expressed concern about the cost to the parties of yearly reviews of spousal
        support.  She determined that the wifes circumstances, while improved
        since the divorce, continue to reflect an ongoing need for spousal support,
        even with the income she now receives from a daycare business.  She anticipated
        that child support would cease in two or three months from the date of
        her judgment.  She found that the wifes then established daycare business
      gave her an expected annual pre-tax income of $18,000.

[15]

The
        judge noted that the husband had anticipated that spousal support would
        cease after the wifes business was established.  In response, the judge
      said this:

[8] In spite of the
        plaintiffs relative success in her daycare operation, I am of the view
        that the defendant is likely to have an ongoing obligation for spousal
        support.  I say that based on the parties respective roles in the marriage,
        the plaintiffs economic dependence on the defendant during the marriage,
        and the plaintiffs significantly lower earning capacity as a result
      of the economic consequences of the marriage and its breakdown.

[9] In that regard,
        after carefully reviewing the parties incomes since the marriage breakdown,
        I have determined that, at this time, the defendant has an earning capacity
        as a bricklayer of $55,000 a year, and the plaintiff has an earning capacity,
        through the daycare business, of about $18,000 per annum.

[10] By operation
        of law, spousal support may be increased or decreased based on a material
        change of circumstances of either of the parties.  However, I am of the
        view, that it is likely that the plaintiff will require some amount of
        spousal support on an ongoing basis given the difference in the parties
        earning capacities.

[11] While the defendant
        received a reduced capital base in the divorce order, he also has the
      higher earning capacity.  Because of the defendants ongoing spousal support obligation,
        it is unlikely that he will be able to replace the additional capital awarded
        the plaintiff in the property division.  However, by awarding the plaintiff
        the family home, which has permitted her to contribute to her own support,
        the amount of the defendants obligation for spousal support has been
        reduced.

[12] Even with the
        business income she receives, in my view, the plaintiff will continue
      to need a top-up to her earning capacity.  After a lengthy marriage, the
        parties are entitled to enjoy comparable standards of living.  Without
        the capital base of the family home, it is unlikely the plaintiff could
        have even achieved the degree of self-sufficiency that she has at $18,000
        per annum, and the defendants spousal support obligation would likely
        have been higher.

[13] The parties have
        one remaining dependant child.  In crafting the order I propose to make,
        I have not factored in the defendants obligation for child support because
        I have been advised by counsel it is likely the defendants obligation
        for child support will end in June, 2003 (in two months time).

[14] To summarize,
        I have concluded, based on the parties financial statements, that the
        plaintiffs earning capacity is about $18,000 per annum or $1,500 per
      month, and the defendants earning capacity is about $55,000 per annum
      or $4,583
        per month.  From the defendants income must be deducted his annual pension
        contributions of $2,836, and annual union dues of $1,124, (together which
        amount to about $330 per month), which provide a gross monthly income
        of $4,250 for the purpose of calculating the tax consequences of a spousal
        support payment under the Price Waterhouse Tax Tables.

[15] Based on those
        Tables, I have determined that if the plaintiff were to receive monthly
        spousal support of $800, her net monthly income would be $1,963 and the
        defendants net monthly income would be $2,593, a difference of about
      $600.  That
        difference, in my view, is not unreasonable given the capital reapportionment
        the plaintiff received in the divorce and the standard of living each
      party is able to enjoy as a result of that order and their respective earning
        capacities.

[16] Accordingly, there will be an order varying the order of September
        28, 2001, and granting the plaintiff a permanent order of spousal support
      in the amount of $800 per month commencing February 1, 2003.

[16]

With
      respect to further reviews, the judge said this:

[18] There will not be a provision for a further review of spousal support.  However,
        I will order that the parties annually exchange their respective income
        tax returns, along with updated property and financial statements, by May
        15 of each year.  That disclosure will provide a basis for assessing
        whether there has been a material change in either partys circumstances
        for the
      purposes of a variation application.

[17]

The
        husband argues that this reasoning does not take into account some features
        of the evidence that he says should give rise to elimination or greater
        reduction of spousal support.  First, he says that neither chambers judge
        mentioned or took into account the evidence of the husband that the original
        amount of negotiated spousal support included $400 per month for the keep
        of a horse owned by the daughter of the marriage and not reflected in child
        support.  This expense apparently was eliminated when arrangements were
      made in December 2000 for the keep of the horse at no cost.

[18]

I
        see no error in the reasons underlying the second order in this regard.  This
        was merely an historical expense that was not present when the first order
        under appeal was made nor, of course, when the second order under appeal
        was made.  The fortunate elimination of the expense is not a basis for
        automatically reducing spousal support.  Each of the orders under appeal
        was made on the basis of the expenses of the wife that existed at the
      time of each hearing.

[19]

Second,
        the husband contends that the second order did not take into account
      the argument that the deductible business expenses of the wife overlapped
      her
        personal expenses to some extent.  There is no merit in this submission.  That
        was a matter argued before the judge and it is of no significance that
        she did not specifically mention it in her reasons.  It is to be assumed
        that she took it into account generally in settling on an amount of spousal
      support.

[20]

Third,
        the husband says that the judge did not deal with the argument that the
        wife did not develop the daycare business as fully or as diligently as
        she might have done.  It is said that she should have done more advertising
        for example.  This point was not presented with any vigour.  The evidence
        does not support it and Madam Justice Wedge had already found that the
        wife pursued her business venture diligently.  There was evidence from
        another daycare operator that word of mouth was the best way to develop
        this kind of business, particularly because of safety concerns that arise
        from possible responses to advertising.  It is implicit in Madam Justice
        Smiths reasons that she rejected this argument, a result amply supported
      by the evidence.

[21]

Fourth,
        the husband argues that the fixing of the spousal support order at $800
        per month does not adequately take into account the unequal division
      of capital between the parties.  He says that he will never be able to
      recover his capital loss because of the burden of spousal support and the
      level
      of that support should attempt to address that disadvantage.

[22]

In
        my opinion, Madam Justice Smith took this disparity into account.  She
        noted that the purpose of the unequal division of family assets was to
        permit the wife to earn an income that she otherwise would not have been
        able to earn.  She also noted the lower disposable income the wife will
        have with spousal support at $800 per month, as compared with that of the
        husband, a discrepancy she thought to be reasonable to address the family
        asset reapportionment.  This is a matter of judicial discretion not shown
        to have been based on a misunderstanding of principle or of the evidence.  Therefore,
      it is a result with which this court cannot interfere.

[23]

The
        final point raised by the husband is that the second order ought not
      to have made the amount of spousal support permanent.  He says that the review
        process from the three previous orders ought to have continued so that
        he could seek a review of the level of spousal support without having to
        prove a change in circumstances.  The difference between the two situations
        and time-limited support orders is set out by Madam Justice Prowse in
Schmidt
      v. Schmidt
(1999) 1 R.F.L. (5
th
) 197 BCCA:

[9] It is my understanding
        that such review proceedings are not uncommon in the Supreme Court. They
        are considered particularly useful in circumstances where there is some
        doubt as to whether spousal maintenance should be continued and, if so,
        in what amount. Rather than force the parties to go through a variation
        proceeding with its strict threshold test of change in circumstances, the
        court provides that maintenance shall be reviewed. In some cases, the court
        also states how the proceedings will be conducted and the nature of the
      evidence to be called. Pending review, the order remains in effect.

[10] This Court
        has recognized the practice of review orders in such cases as
Rogers
        v. Rogers
,[1999] B.C.J. No. 849 and
Koppang v. Taves
,[1994]
        B.C.J. No. 2865. The latter case is instructive as it indicates the importance
        of framing the review order in such a way that it is clear that the parties
        are not required to establish a change in circumstances in order to be
      entitled to a review.

[11] I should note
        that a review order is not to be confused with an order for limited time
        maintenance or an order for the payment of maintenance until the happening
        of a specific event. The following passage from
Payne on Divorce
(4
th
ed.;
      1996) at p. 326 clarifies that distinction as follows:

Where an order
        for periodic spousal support is declared subject to review after one
      year, the word "review" does not imply termination of the order. A
        change of circumstances need not be proved where the original order provided
        for a review after a fixed time. In such a case, any necessary modification
        is triggered by the direction of the court, not by a change of circumstances.
        An order for spousal support that is declared "reviewable" after
        a designated period of time is not an order "for support for a definite
        period or until the happening of a specified event" such as triggers
        the severe restrictions on variation that are imposed by section 17(1))
        of the
Divorce Act
[or under the
Family Relations Act
].
        A spousal support order that was declared subject to review may be continued
        where the obligee has not achieved self-sufficiency but is striving to
      do so and in other circumstances.

[12] It is apparent
        that such review orders are also recognized in Ontario. See, for example,
Andrews
        v. Andrews
,[1999] O.J. No. 3578, a decision of the Ontario Court
      of Appeal, decided September 29, 1999.

[24]

The
        chambers judge did not find as a fact that the wife had reached the maximum
        of her earning power in the operation of the daycare business.  The evidence
        strongly suggests that the establishment of this kind of business requires
        time and patience.  In addition, it appears that when the court heard the
        last application the business had not yet reached the maximum capacity
        allowed by the applicable business licence obtained by the wife.  I do
        not think it could be said therefore that she had maximized her earnings
        potential.  Because the situation remained fluid I think that determination
        of the permanent level of spousal support ought to have awaited further
        developments.  Therefore, although I share the concern of the chambers
        judge about the number of applications made by the parties, I would allow
        the second appeal to the extent of including a provision for review of
        spousal support after 1 June 2004 at the instance of either party without
        the necessity to prove a material change in circumstances.  I would not
      disturb the provision for the annual exchange of financial information.

[25]

Because
        success has been divided, I would order that the parties bear their own
      costs of both appeals.

[26]

BRAIDWOOD,
        J.A.
: I agree.

[27]

MACKENZIE,
        J.A.
: I agree.

The Honourable Mr. Justice Low


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

R.
                v. Samardzich,

2004 BCCA
            31

Date: 20040116

Docket: CA031335

Between:

Regina

Respondent

And

Michael
      Anthony Samardzich

Appellant

Before:

The Honourable
            Chief Justice Finch

The Honourable
            Madam Justice Prowse

The Honourable
            Madam Justice Ryan

Oral Reasons for Judgment

P.M. Kendall

Counsel for the Appellant

P. Dohm

Counsel for the (Crown) Respondent

Place and
            Date of Hearing:

Vancouver, British Columbia

January 14, 2004

Place and
            Date:

Vancouver, British Columbia

January 16, 2004

[1]

RYAN,
          J.A.
: This is an application under s. 680 of
          the
Criminal Code
for a review of the applicants order
          of detention made by Madam Justice Loo on 2 October 2003 pending his
        trial on two counts of first degree murder.

[2]

The
        applicant stands charged with two others for the first degree murders
      of Eugene and Michelle Uyeyama.  The murders took place on 21 December 1995
        in Burnaby.  A jury will be selected in two weeks time.  The trial will
      take place in March of this year.

[3]

The
        murders of the Uyeyamas remained unsolved until October 2002 when Robert
        Moyes, a long time violent criminal, pleaded guilty to those murders
      and the murders of five others in a separate incident.  Moyes admitted that
        he was hired to kill the Uyeyamas.  He told police that he was hired to
        kill them by a man named Ciancio because Ciancio and some of his criminal
        confederates believed Eugene Uyeyama to be a police informant.  He also
        told police that the applicant was conscripted by Ciancio to assist him
      to commit the murders.

[4]

The
        case for the Crown and the weaknesses in it as it stood in October of
      last year were fully set out by Judge Loo in the reasons she provided for
      making
        the order for detention.  As she said at the beginning of her reasons,
        the case for the Crown turns on the evidence of Moyes and an analysis
        of the records and movements of the cellular phones used by the applicant
      and Ciancio around and on the day of murders.

[5]

In
        deciding whether to detain the applicant, the Supreme Court justice found
        that the applicant had satisfied her that his detention was not required
        on the primary or secondary grounds.  She considered that the question
        of release turned on the tertiary ground found in s. 515 (10)(c) of the
Code
,
        specifically, whether the applicant ought to be detained to maintain
        the confidence of the public in the administration of justice.  Judge
      Loo found that a detention order was required.

[6]

In
        deciding whether to apply the tertiary ground, the Supreme Court Justice
        analyzed the strength of the Crowns case.  She concluded that the evidence
        that the Crown would call at trial fairly strongly implicated [Samardzich]
      in a senseless contract killing said to be linked to organized drug trafficking.

[7]

She
      said this at para. 53 of her reasons for judgment:

[53] Having considered the apparent strength of the Crowns case, the
        gravity of the nature of the offence, the circumstances surrounding its
        commission and the potential for life imprisonment, I conclude that Samardzichs
        detention is necessary to maintain the publics confidence in the administration
      of justice.  His application for judicial interim release is dismissed.

[8]

Since
        the order of detention was made counsel for the defence, Mr. Kendall,
      has been able to examine in some detail volumes of disclosure materials
      provided
        to him by the Crown.  He seeks to file further evidence in this Court
        which he says weakens the Crowns case to a greater degree than recognized
        by
      Judge Loo.

[9]

Some
        of the new evidence that the applicant wishes to place before this Court
        addresses facts placed before Judge Loo while other parts constitute new
      evidence relating to the Crown witnesss indiscretions and inconsistencies.

[10]

In
R.
            v. Dempsey
(2001) 153 C.C.C. (3d) 311 Mr. Justice Lambert said
          this about the nature of the review in this Court:

[15] It is said, in quoting
Wu
in
J.W.R.
,
        that the review is in the nature of an appeal on the record and not a hearing
de
        novo.
Also, the reviewing court exercises independent discretion and
        may substitute its own opinion for that of the single judge under review.
        It must base its review on facts found by the single judge's evaluation
        of the evidence. It is not necessary that a reviewing court, before intervening,
        come to a conclusion that the decision of the single judge under review
        was unreasonable or that an error in principle was committed. This is what
      was said in
J.W.R.
:

A
        review under s. 680(1) of the
Criminal Code
is in the nature
        of an appeal on the record and not a hearing
de novo
. While the
        reviewing court exercises an independent discretion and may substitute
        its own opinion for that of the single judge under review, it must base
        its review on facts found by the single judge's evaluation of the evidence.
        It is not necessary that a reviewing court, before intervening, come to
        a conclusion that the decision of the single judge under review was unreasonable
      or that an error in principle was committed.

[16] The review described there
        is different from some other reviews conducted by this court where, as
        the Nova Scotia Court of Appeal said in
Benson
, the standard
        of review on questions fact or on the weighing of evidence, is whether
        the decision below was clearly wrong. I believe that the matter should
        not be regarded as having been fully argued and clearly settled as to what
        the standard of review is under s. 680 of the
Criminal Code
.

[17] Let me say also, that the
        fact that fresh evidence may be introduced does not deprive this court
        of jurisdiction. But the nature of the fresh evidence must have a bearing
        on the nature of the review that the court is being asked to undertake.
        Some fresh evidence might go to the very facts in issue in the evidence
        that was before the judge of first instance who made the first ruling.
        But that is not so in this case. The fresh evidence and all the material
        on which this application is based is material that arose from and within
        the trial that ended in a mistrial. It could, by its vary nature, not have
        been before the Supreme Court judge who heard the initial bail application.

[18] In my opinion, following
        the
Turner
case and the
Daniels
case and the
Patterson
case,
        I would conclude that the review that we are being asked to undertake in
        this case is not a true review as contemplated in s.680. It is instead
        in the nature of a completely new application for interim release based
        on entirely new materials and in circumstances where the original order
        was conceded to have been properly made and correctly made, at the time
        it was made.

[19] In my opinion, s. 680 does
        not confer on this court the jurisdiction to make an order dealing with
        judicial interim release on the basis of the kind of circumstances that
        I have described in this particular case. Accordingly, I would decide that
      we are without jurisdiction.

[11]

While
        the fresh material, in the case at bar, is abundant I am not prepared
      to find that it serves to change the nature of this review.  I would admit
      the fresh evidence.

[12]

Having
        examined the material, I can say that the evidence of Mr. Moyes is obviously
        fraught with difficulty.  The Crown says that he has nothing to gain from
        testifying against the applicant and the other two accused.  He is serving
        a life sentence, mostly in segregation, and will receive a couple of hundred
        dollars he would otherwise earn if he were in a regular institution.  While
        the monetary and physical incentives may seem rather meaningless in this
        case, it is not difficult to conclude that other motives may lie behind
        the willingness of the witness, an admitted sociopath, to concoct a story
        against the applicant.  Counsel for the applicant has pointed us to many
        other inconsistencies in the narrative provided by Moyes of the manner
      in which the killings were planned and executed.

[13]

However,
        the fact remains, as pointed out by Mr. Dohm for the Crown, cell phone
        evidence analyzed by an expert puts the applicant in a mile or two radius
        of the place where he is alleged to have met Moyes the morning of the murders,
        within the same size radius of the murders in Burnaby at approximately
        the time they were said to have been committed, and back near his residence
      in Abbotsford when he was said to be have returned home.

[14]

There
        is further evidence of a series of calls made on the applicants cell
      phone to Ciancio before and after the killings.  Counsel for the applicant says
        that the calls were made because the applicant was attempting to get some
        of his property back that had been left with Ciancio.  He says that there
        were a great number of calls recorded only because his cell phone was
      malfunctioning.

[15]

The
        case against the applicant is not easy to assess at this stage of the
      proceedings.  While
        Mr. Moyes is a witness who must be treated with extreme caution, there
        is some evidence that could be found by a jury to independently corroborate
        what Moyes has to say about the applicants involvement in these murders.  When
        Moyes implicated Samardzich in the murders Moyes could not have known that
      the cell phone evidence existed.  The coincidence is noteworthy.

[16]

The
        strength of the Crowns case is one aspect of the consideration under
      the tertiary ground.  In my view, while the case will be a weaker one than
        the evidence suggested before Judge Loo, its strength, along with the other
        factors discussed by Judge Loo, nonetheless militate for an order of detention.  I
        would confirm the decision of the Supreme Court justice and dismiss the
      review.

[17]

FINCH,
        C.J.B.C.
: I agree.

[18]

PROWSE,
        J.A.
: I agree.

[19]

FINCH,
        C.J.B.C.
: The review application is dismissed.

The Honourable
      Madam Justice Ryan


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

Tahvili
                v. HSBC Bank Canada ,

2004 BCCA
            22

Date: 20040116

Docket: CA030828

Between:

Omid Tahvili

Appellant

(
Defendant
)

And

HSBC Bank
      Canada

Respondent

(
Plaintiff
)

Before:

The Honourable
            Madam Justice Southin

The Honourable
            Mr. Justice Braidwood

The Honourable
            Mr. Justice Mackenzie

H.C.R. Clark,
            Q.C.

Counsel for the Appellant

J.G. Shatford

Counsel for the Respondent

Place and
            Date of Hearing:

Vancouver, British Columbia

November 25, 2003

Place and
            Date of Judgment:

Vancouver, British Columbia

January 16, 2004

Written
              Reasons by
:

The Honourable
            Mr. Justice Braidwood

Concurred
              in by:

The Honourable Madam Justice Southin

The Honourable Mr. Justice Mackenzie

Reasons for Judgment of the Honourable Braidwood:

Background

[1]

This
        is an appeal from the decision of Madam Justice Loo allowing the respondents
        action on an application brought under Rule 18 of the
Rules of Court
:
      2003 BCSC 844.

[2]

The
      material facts are not in dispute.

[3]

On
        29 September 2000, Mr. Omid Tahvili executed a line of credit overdraft
        agreement and statement of disclosure (the Line of Credit) with HSBC
        Bank Canada (HSBC). Under the terms of the Line of Credit HSBC agreed
        to advance up to $25,000.00 to Mr. Tahvili by way of overdraft. Mr. Tahvili
        agreed to repay any amount advanced under the Line of Credit together with
      interest at HSBCs prime rate of interest plus 2% per annum.

[4]

The
      Line of Credit was the only account Mr. Tahvili had with HSBC.

[5]

On
        1 November 2001, HSBC demanded payment from Mr. Tahvili for $24,264.09,
        the amount advanced to Mr. Tahvili under the Line of Credit as of that
      date.

[6]

Mr.
        Tahvili does not deny the amount claimed by HSBC, that HSBC has made the
        demand for payment, or that he has failed to pay the amount claimed by
      HSBC.

[7]

On
        26 February 2002, HSBC filed a writ of summons and statement of claim.
      A statement of defence and counterclaim were filed in May 2002.

[8]

In
        his statement of defence, Mr. Tahvili alleges that HSBC put some form of
        security warning about him on a service accessed by HSBC and other financial
        institutions in the Lower Mainland. Mr. Tahvili submits that, as a result
        of this security warning, HSBCs decision to freeze the accounts of the
        Corporations in October 2001 and HSBCs refusal to honour cheques drawn
        on the Corporations accounts, he has been unable to open bank accounts
        at other financial institutions; his credit rating has been ruined; and
        his credit cards have been cancelled. All of these consequences, Mr. Tahvili
      argues, have caused him loss and damage.

[9]

The
        counterclaim was filed by five corporate plaintiffs controlled by Mr.
      Tahvili: A & R Rent-a-Benz Ltd.; First British National Holdings Ltd.; South
        Seas International Holdings Ltd.; D & C General Holdings Ltd.; and
        Show Time Car Wash Inc. (collectively, the Corporations). Each of the
        Corporations had a separate account with HSBC. The counterclaim repeats
      Mr. Tahvilis allegations as contained in the statement of defence.

[10]

In
        granting HSBCs claim for summary judgment against Mr. Tahvili, Loo J.
        expressed some doubt as to whether Mr. Tahvili was also the plaintiff by
        counterclaim. The learned chambers judge found that whatever claims the
        Corporations may have against HSBC are totally unconnected to HSBCs
      claim under the Line of Credit against Mr. Tahvili.

[11]

Keeping
        in mind Mr. Tahvilis cross-claim that his credit rating has somehow
      been ruined and that he has had difficulty dealing with other financial
      institutions,
        Loo J. held that equitable set-off was not available to Mr. Tahvili,
      that it would not be manifestly unjust to allow HSBC to enforce payment
      of
        Mr. Tahvilis debt under the Line of Credit without taking into account
      Mr. Tahvilis cross-claim.

[12]

Mr.
        Tahvili raises two issues on appeal. First, did the learned chambers judge
        fail to apply the appropriate test for determining the Rule 18 application?
        Second, did the learned chambers judge fail to properly apply the law of
      equitable set-off?

Discussion

[13]

The
        test to be applied on a Rule 18 application for summary judgment is well-settled:
        is there a
bona fide
triable issue? See
Memphis Rogues Ltd.
        v. Skalbania
(1982), 38 B.C.L.R. 193, 29 C.P.C. 105 (C.A.);
Ewachniuk
        v. Abraxis Holdings Ltd.
, 2003 BCCA 611 at para. 3. The applicant
        for judgment, in this case HSBC, bears the burden of proving beyond a reasonable
        doubt that no such issue exists:
Montroyal Estates Ltd. v. D.J.C.A.
      Investments Ltd. et al.
(1984), 55 B.C.L.R. 137 at 138-39, (C.A.).

[14]

As
        noted above, Mr. Tahvili does not deny his outstanding debt to HSBC under
        the Line of Credit. The only defence advanced by Mr. Tahvili and the
      Corporations before Loo J. was that damage and loss to Mr. Tahvili as a
      result of HSBCs
        alleged security warning about him to other Lower Mainland financial
        institutions and losses suffered by the Corporations as a result of HSBCs
        decisions vis-à-vis the Corporations accounts should be set-off in equity
      against HSBCs claim against Mr. Tahvili under the Line of Credit.

[15]

Mr.
        Tahvili submits that, rather than merely determining whether there was
        a triable issue, the chambers judge decided a complicated issue of fact
        and law, namely, the availability of the defence of equitable set-off.
        Essentially, Mr. Tahvili argues that a trial is necessary to determine
      whether equitable set-off is available.

[16]

I
        cannot accede to Mr. Tahvilis submissions on this issue as it is clear
        from the authorities that a chambers judge has the discretion to grant
        summary judgment for the amount of a claim even if there is an arguable
        cross-claim or counterclaim offered as a defence:
Metro-Can Construction
        (HS) Ltd. v. Noel Developments Ltd.
(1996), 26 B.C.L.R. (3d) 26,
        78 B.C.A.C. 61, 29 C.L.R. (2d) 47 at paras. 28-30;
First City Development
        Corp. Ltd. v. Stevenson Construction Co. Ltd.
(1983), 3 D.L.R.
      (4th) 505 at 508, 48 B.C.L.R. (2d) 242, 40 C.P.C. 253, 3 C.L.R. 230 (C.A.).

[17]

The
        question for the chambers judge was therefore whether the defence of equitable
        set-off was a
bona fide
triable issue in this proceeding. In my
        view, Loo J. applied the appropriate test and correctly held that it was
      not.

[18]

Five
        main principles with respect to equitable set-off were discussed and set
        out by this Court in
Coba Industries Ltd. v. Millies Holdings (Canada)
        Ltd.
(1985), 20 D.L.R. (4th) 689, 65 B.C.L.R. 31, [1985] 6 W.W.R.
        14, 36 R.P.R. 259 (C.A.), and cited with approval by Madam Justice Wilson
        in
Holt v. Telford
, [1987] 2 S.C.R. 193 at 212, 81 A.R. 385,
      41 D.L.R. (4th) 385, [1987] 6 W.W.R. 385:

1.    The party relying on a set-off must show some
        equitable ground for being protected against his adversary's demands:
Rawson
      v. Samuel
, [1841] Cr. & Ph. 161, 41 E.R. 451 (L.C.).

2.    The equitable ground must go to the very root
        of the plaintiff's claims before a set-off will be allowed:  [
Br.
Anzani
(
Felixstowe
) Ltd. v. Int.
        Marine Mgmt (U.K.) Ltd.
, [1980] Q.B. 137, [1979] 3 W.L.R. 451, [1979]
      2 All E.R. 1063].

3.    A cross-claim must be so clearly connected with
        the demand of the plaintiff that it would be manifestly unjust to allow
        the plaintiff to enforce payment without taking into consideration the
        cross-claim:  [
Fed. Commerce and Navigation Co. v.
Molena
Alpha
      Inc.
, [1978] Q.B. 927, [1978] 3 W.L.R. 309, [1978] 3 All E.R. 1066].

4.    The plaintiff's claim and the cross-claim need
        not arise out of the same contract:
Bankes
v.
      Jarvis
, [1903] 1 K.B. 549 (Div. Ct.);
Br.
Anzani
.

5.    Unliquidated
claims are on the same footing as liquidated
        claims:  [
Nfld. v. Nfld.
Ry
. Co.
,
      [1888] 13 App. C. 199 (P.C.)].

[19]

In
        my view, in light of the above, well-established principles, equitable
        set-off is not available to Mr. Tahvili in this case. Mr. Tahvili has not
        demonstrated some equitable ground for being protected against HSBCs claim.
        The relationship between Mr. Tahvili and HSBC is in the nature of debtor-creditor;
        there certainly was no fiduciary relationship between HSBC and Mr. Tahvili.
        Thus, any claims Mr. Tahvili may have against HSBC appear to fall under
        other areas of the law, such as contract or tort; his cross-claim does
      not, at any rate, sound in equity.

[20]

Furthermore,
        I do not view Mr. Tahvilis cross-claim as so clearly connected to HSBCs
        demand that it would be manifestly unjust to allow HSBC to enforce payment
      of the Line of Credit without taking into consideration Mr. Tahvilis cross-claim.

[21]

Equitable
        set-off was not available to Mr. Tahvili in this case and he raised no
        other defence to HSBCs claim. The decision to grant summary judgment was
      therefore just and appropriate in this case.

[22]

Accordingly,
      I would dismiss this appeal.

The Honourable
      Mr. Justice Braidwood

I AGREE:

The Honourable
      Madam Justice Southin

I AGREE:

The Honourable
      Mr. Justice Mackenzie


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

R.
                v. Briltz,

2004 BCCA
            32

Date: 20040119

Docket: CA031288

Between:

Regina

Respondent

And

David Tyson
      Briltz

Appellant

Before:

The Honourable
            Mr. Justice Hall

The Honourable
            Mr. Justice Low

The Honourable
            Mr. Justice Lowry

Oral Reasons for Judgment

Appellant appeared in person via video
            conference

E. Froess

Counsel for the (Crown) Respondent

Place and
            Date:

Vancouver, British Columbia

January 19, 2004

[1]

HALL,
          J.A.
: This is a case in which Mr. Briltz, a 24
          year old man, is appealing from a sentence of 18 months imposed last
          September on charges of trafficking in cocaine at or near Tumbler Ridge
          between 21 March and 23 March 2003.  There was also a sentence for
          a breach of an undertaking that occurred on 29 June 2003 at Tumbler
          Ridge
          wherein Mr. Briltz had breached the undertaking that he was out on
        by being involved in the consumption of alcohol.

[2]

The
        circumstances of the offence are that an undercover officer met with
      Mr. Briltz in March and purchased a small amount of cocaine.  He was told that
        he could get a small amount of cocaine for $60 a half, as it was described.  He
        got the telephone number and name of Mr. Briltz, who was then working as
        a doorman at a bar in Tumbler Ridge.  He discussed with him how much a
        ball would be.  That refers to an eight ball, which is a quantity of cocaine
        greater than the portion he was purchasing.  He was advised that that would
        be about $420.  He met the appellant a couple of days later and it was
        agreed that he could purchase an additional two half grams for $120 and
      an eight ball for $420, which transaction was concluded.

[3]

The
        undercover operator then asked Mr. Briltz if he could get a one-quarter
        ounce.  Mr. Briltz said that that would be possible but the price would
        be around $700.  The officer did not proceed any further.  Later on, a
        decision was made to arrest Mr. Briltz and he was arrested in early June
        and returned to the Tumbler Ridge detachment where he was released on an
        undertaking requiring him to abstain from the consumption of alcohol.  On
        29 June he apparently breached that by being found in a vehicle with an
        odour of liquor on his breath.  He was given a breathalyser test and
      it was found that he had a reading that was significant.

[4]

Mr.
        Briltz has a prior record in the past including: mischief; failing to
      comply with an undertaking in Hinton, Alberta and in Edmonton, theft.  In Hay
        River in 2000 he was convicted of possession of a scheduled substance for
        the purpose of trafficking.  On that he was given a 10 month sentence.  I
      am told that substance was marihuana.

[5]

It
        appears from the transcript at the sentence proceedings that Mr. Briltz
        has had a problem with the consumption of marihuana.  His lawyer at the
        time said that Mr. Briltz had a marihuana addiction problem and the following
      passage from the judgment, I think, is significant.  His lawyer is speaking:

MR. JOHNSTON: He knew the Crown was asking for eighteen
        months here today.  We are in agreement with that.  Id ask the Court
        waive the victim crime surcharge fee, as he will be incarcerated and
        have no
      way to pay.

[6]

Mr.
        Briltz then was asked if he had anything to say and he said to the judge
        that he thought that this might have been a way to make money, obviously
        it was not.  He knew it was wrong and he was there to face the consequences
        of his actions.  Thereafter, Judge Cleaveley sentenced Mr. Briltz to
        the sentence of 18 months imprisonment and a probation order for two
      years.

[7]

As
        I say, this was done pursuant to an agreed sentence between the Crown
      and the defence.  This morning, in his submission to us, Mr. Briltz suggested
        that he had been told by others in the prison system that the sentence
      he was given was excessive and that he felt that he ought to appeal it.

[8]

We
        have been furnished with a number of cases this morning by Crown counsel
        who gathered together some of the previous authorities which demonstrate
        to us that this sentence is very much within the range of other sentences
        that have been imposed for this sort of activity.  I refer, amongst others,
        to the case of
R. v. Ahmed (S.)
(2001), 159 B.C.A.C. 136
        in which the Court found that a conditional sentence of 18 months should
        be set aside and a custodial sentence of 18 months should be imposed
        for trafficking in cocaine in a case that bears some similarity to the
        case
      at bar.

[9]

Also,
        there was a case in 2001 before another panel of the Court wherein a
      sentence of 18 months was imposed and two years probation, as well.  That
      is the case of
R. v. Cook (K.) et al
(2001), 154 B.C.A.C.
      252, a judgment of the Chief Justice who observed that these sentences
      are imposed
        to protect communities against these kinds of difficulties.  I think we
        should note that Tumbler Ridge is a small and relatively remote community.  Obviously,
        if drug trafficking is occurring there, that would be of concern to this
      community.

[10]

Another
        case that was cited to us in which is a somewhat higher sentence was imposed
        was a case from several years ago,
R. v. Vu (B.)
(1996),
        81 B.C.A.C. 267.  There a sentence of three years imprisonment was imposed.  The
        court considered the pre-sentence custody that the individual had served
        and he was sentenced to two years in addition to that.  The sentence
      worked out to between two years and eight months and three years.

[11]

The
        appellant has said to us that he has some hope that he may be able to
      get into the army.  If that is possible certainly that would be a desirable
        thing for him to do to introduce some regularity into his life.  He is
        a young man and it is to be hoped that he will be able to do better in
        avoiding difficulties with the law than he recently has.  I must say though
        that there is nothing in principle that is wrong with this sentence.  It
        is very much within the parameters of the cases that have been previously
        dealt with in this Court as well as other courts in British Columbia in
        the recent past.  I simply say to the appellant, Mr. Briltz, that it seems
        to me that his counsel was quite correct in his assessment of the case.  This
        sentence was one that could properly be agreed to by counsel for the
        respondent and the Crown to possibly avoid what might have been a higher
        sentence
        in light of the circumstances Mr. Briltz did possess a previous conviction
      for a similar offence not long before this incident.

[12]

The
        appellant has told us that he believes he will have some parole eligibility
        coming up in the Spring.  It is to be hoped that the appellant will be
        able to get on with his life and to avoid the sort of difficulty he has
        had here.  I should say for Mr. Briltzs benefit that if he should get
        back into further difficulty, the unfortunate reality is that he might
        then face a very heavy sentence indeed.  The sentence that is before the
        Court today is one in my view that was appropriate having regard to the
        circumstances of this offence and this offender.  Therefore the Court
      does not propose to allow the appeal.

[13]

I
      would grant leave to appeal but I would dismiss this appeal from sentence.

[14]

LOW,
        J.A.
: I agree.

[15]

LOWRY,
        J.A.
: I agree.

[16]

HALL,
        J.A.
: The sentence appeal is dismissed.

The Honourable
      Mr. Justice Hall


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Coal Harbour Properties Partnership v. Liu et al,

2004
            BCCA 65

Date: 20040122

Docket: CA031533

Between:

Coal Harbour Properties Partnership

Appellant

(
Plaintiff
)

And

Wei Wei Liu and James Chien Sheng Liu

Respondents

(
Defendants
)

And

Parolin & Company, Coal Harbour Properties Partnership,
Delta Real Estate Services Ltd. and Anthony Li

Appellants

(
Defendants by Counterclaim
)

Before:

The
            Honourable Madam Justice Saunders

(In
            Chambers)

Oral Reasons for Judgment

C.
            McKechnie

Counsel for the Appellant

K.
            P. Regier, Q.C.

Counsel for the Respondent

Place
            and Date:

Vancouver, British Columbia

January 22, 2004

(application for
      a stay)

[1]

SAUNDERS,
        J.A.
:
        The appellant, Coal Harbour Properties Partnership, appeals an order
        dismissing its claim to $391,000 plus interest and ordering that that
        sum, a deposit on a real estate transaction now held by the appellants
        solicitors, be paid to the respondent Lius.  This application by the
        appellant is for an order staying the order for payment of the deposit.

[2]

The
      issue between the parties arises from a sale of real estate, a condominium
      unit in the Coal Harbour area of Vancouver, British Columbia, that did
      not complete.  The respondents had paid a deposit in the amount of $391,000.  The
      real estate project was undertaken by Coal Harbour Properties Partnership,
      but the property was in the name of the managing partner, Carina Properties
      Ltd.  The agreement for sale named Coal Harbour Properties Partnership
      as vendor and was accepted by Coal Harbour Properties Partnership, by
      its managing partner, Carina Properties Ltd.

[3]

A
      disclosure statement provided to the respondents set out the scheme of
      the development, being that the developer was Coal Harbour Properties Partnership,
      a general partnership between Carina Properties Ltd. and the Coal Harbour
      Trust.  That statement provided that Legal Title to the property is held
      by Carina Properties Ltd. as agent and nominee for the Developer.

[4]

The
      sale did not complete and both the appellant and the respondents claimed
      entitlement to the deposit monies.  The respondents defended the claim
      to the deposit saying as to one ground that Coal Harbour Properties Partnership
      was not ready, willing and able to complete because it did not have in
      its own name the title to the property, raising s. 6 of the
Property
      Law Act
, R.S.B.C. 1996 c. 377.  That section says:

6

(1)
      A person who transfers land, or who makes an agreement, or assignment of
      an agreement, for the sale of land by which the purchase price is payable
      by installments or at a future time, must register his or her own title
      in order that a person to whom all or part of the land is transferred and
      a person claiming under the agreement or assignment can register their
      instrument under the
Land Title Act
.

(2)
      An action must not be brought on the agreement or assignment referred to
      in subsection (1) by a person who fails to comply with this section.

[5]

In
      his reasons for judgment the learned trial judge said:

[25] I do not accept from the fact that Coal
      Harbour, as a partnership, was not able to hold title to land, together
      with the knowledge of Mr. and Mrs. Liu that the property was registered
      in the name of Carina Properties Ltd., that they consented to a direct
      transfer from Carina Properties Ltd.  They were entitled to assume, on
      reading the Agreement, that the transfer would come from Coal Harbour.  The
      fact that Coal Harbour could not hold title to the land was a problem for
      Coal Harbour, as vendor, not for Mr. and Mrs. Liu as purchasers.

[26] Coal Harbour, as the vendor, was not in a position to convey registrable
    title, and is thus not entitled to sue on the Agreement.

[6]

The
      order made disposed entirely of the appellants claim, but not the respondents
      counterclaim for damages.  On the other hand a successful appeal will not
      dispose of the appellants claim as other defences raised by the respondents
      would be required to be tried.

[7]

The
      issue here is whether there should be a stay of the payment out of the
      deposit monies.  This Court derives jurisdiction to order a stay through
      s. 18 of the
Court of Appeal Act
.  In
Coburn v. Nagra
,
      (2001) BCCA 607, this Court discussed the jurisprudence relating to stay
      applications, observing that the tests for a stay are the same as for an
      injunction:

¶3    On
      the theory that a stay of execution is a particular brand of stay of proceedings,
      the parties urged this Court to apply the three part test for an interlocutory
      injunction described in Manitoba (Attorney General) v. Metropolitan Stores
      (MTS) Ltd., [1987] 1 S.C.R. 110, re-affirmed inn RJR-Macdonald Inc. v.
      Canada (Attorney General), [1994] 1 S.C.R. 311: That there is some merit
      to the appeal in the sense that there is a serious issue to be resolved;
      that the applicant would suffer irreparable harm if the application were
      denied; and that the balance of inconvenience favours a stay.

¶4 The relevance of the criteria for injunctions to the criteria for a stay of
proceedings is explained by Mr. Justice Beetz in Metropolitan Stores by reference
to their common roots:

Prior to the Supreme court of Judicature
      Act, 1873, 36 & 37 vict., c. 66, no distinction between injunctions
      restraining proceedings and other sorts of injunctions was drawn in English
      law (Halsburys Laws of England, vol. 24, 4
th
ed., p. 577) The
      Parliament of Westminster then enacted the Act referred to above, which
      in the main has been adopted by all of the provinces of Canada except Quebec
      where the distinction between equity and law is unknown.  The distinction
      the English Judicature Act created between a stay of proceedings and an
      injunction was, however, essentially procedural

A stay of proceedings and an interlocutory
      injunction are remedies of the same nature.  In the absence of a different
      test prescribed by statute, they have sufficient characteristics in common
      to be governed by the same rules and the courts have rightly tended to
      apply to the granting of the interlocutory stay the principles which they
      follow with respect to interlocutory injunctions: [citations deleted]

¶7    Whether
      the criteria for an injunction is two part or three may be a topic of debate
      for scholars.  In British Columbia the common test for injunctions has
      been two-pronged since B.C. (A.G.) v. Wale (1986), 9 B.C.L.R. (2d) 333
      (C.A.), with the issue of irreparable harm being subsumed into the discussion
      of balance of convenience (or inconvenience).  As Madam Justice McLachlin
      (now C.J.C.) noted in Wale, the distinction is likely without practical
      effect.  The question in most cases is the relative weight of the convenience
      and inconvenience of the order sought, always considering the paramount
      measure, the interests of justice.

[8]

As
      observed by Madam Justice Southin in concurring reasons:

¶19
      When the loser in an action in the court below appeals and seeks a stay
      of execution, two rights compete:  the right of the successful party to
      the fruits of victory, whether those fruits be a money judgment, a decree
      of specific performance, or an order for the recovery of property and the
      right of the defendant to appeal and if his appeal succeeds, to be in as
      good a position as if the judgment below had never been pronounced.  To
      put it another way, it is a right not to have his right of appeal made
      nugatory.  See
Wilson v. Church (No. 2)
(1879), 12 Ch.D.
      454 (C.A.), in which Brett L.J. said, at 459:

This
      is an application to the discretion of the Court, but I think that Mr.
Benjamin
has
      laid down the proper rule of conduct for the exercise of the judicial discretion,
      that where the right of appeal exists, and the question is whether the
      fund shall be paid out of Court, the Court as a general rule ought to exercise
      its best discretion in a way so as not to prevent the appeal, if successful,
      from being nugatory.

She further observed:

¶25
      An underlying problem now is the length of time it takes for appeals to
      this Court to be heard and determined.

¶29 My purpose in making in this context a reference to this aspect of litigation
is this:  a respondent should not hesitate to seek as a term of a stay, whether
of proceedings or execution, an order putting the appellant on terms to be expeditious
and if the appellant does not observe the terms, to seek an order dissolving
the stay.

[9]

In
      the case before me, it is said for the respondents that the appeal lacks
      merit, that there is no prejudice to the appellant if the sum is paid to
      the respondents and that the balance of convenience in general does not
      favour a stay.

[10]

The
      appellant contends that the application of s. 6 of the
Property Law
      Act
failed to consider the inability of the Partnership, under
      our land titles system, to be shown on title as registered owner, the effect
      of the
Partnership Act
R.S.B.C. c. 348, and all aspects of
      the Agreement.  The respondents argue to the contrary, and say there is
      so little merit to the appeal the application may be dismissed on this
      ground alone.

[11]

In
      my view, given the issue of the application of s. 6 to a partnership vendor,
      I cannot say there is not an arguable appeal, or to put it another way,
      that there is no serious issue to be resolved.  The first test for a stay,
      in my view, is met.

[12]

The
      second question then is the balance of convenience.  There is no evidence
      before me that would assist in determining the balance of convenience other
      than information that the respondents own two other properties and information
      relating to the status quo.  The tension is truly between preserving the
      subject matter of the lawsuit, the deposit, versus permitting the respondents
      immediate use of the fruits of the litigation.  In this, consideration
      of the status quo favours the appellant.  The monies are, and were when
      the litigation commenced, on deposit and out of the hands of the respondents.  Considering
      the contingencies that may cause that fund to disappear if paid out before
      the appeal is heard, and I say this without suggesting at all that there
      would be fault by the Lius, I am of the view that the balance of convenience
      favours a stay of proceedings.

[13]

The
      funds, however, are now in the hands of the solicitors for the appellant.  It
      seemed to me in the hearing of this application that the respondents were
      uneasy with that arrangement.  On the advice of Mr. Regier they would prefer
      the funds to be paid into Court which is, of course, what his client is
      entitled to, I order that the funds be paid by Parolin & Company into
      Court.  Upon the respondents counsel filing with the Registrar a letter
      of credit, in a form acceptable to the appellant or to the Registrar, to
      secure repayment with interest at post-judgment interest rates if the appeal
      be successful, the respondents may withdraw the funds from Court.  And,
      consistent with the comments of Madam Justice Southin in
Coburn v.
      Naga
,
supra
, this order is given on the basis that the appeal
      proceed expeditiously.  Given the nature of the issue that was heard it
      should not take long to prepare the appeal books.  I am told that there
      are appeal dates that may secured before the summer recess.

[14]

If
      the appellant does not proceed expeditiously the respondents may apply
      for an order varying this order.

The Honourable
      Madam Justice Saunders