COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

E.
          Sands & Associates Ltd. v. Dextras,

2006
          BCCA 82

Date: 20060125

Docket: CA033646

Between:

E.
    Sands and Associates Ltd., Trustee of the

Estate
    of National Shoring Ltd., a Bankrupt

Respondent

(
Plaintiff
)

And

Ken
    Dextras and Susan Dextras

Appellants

(
Defendants
)

Before:

The
          Honourable Madam Justice Prowse

(In
          Chambers)

Oral Reasons for Judgment

M.
          Sandor

Counsel for the Appellants

B.
          Konst

Counsel for the Respondent

Place
          and Date:

Vancouver, British Columbia

25 January 2006

[1]

PROWSE, J.A.
:  This is an application for directions with
    respect to an order made by Mr. Justice Tysoe on 30 November 2005, dismissing
    the defendants (applicants) application for relief pursuant to Rules 25,
    53 and 52(4) of the rules of Court (the Rules) relating to an earlier order
    of Master Bolton made 15 July 2004 which struck the applicants statement
    of defence.  Master Boltons order was followed by a further order dated 18
    October 2004 in which judgment in default of defence was awarded against the
    applicants, leaving only the issue of damages to be assessed.  The result
    of Mr. Justice Tysoes order was to leave the default judgment in effect.
    Thus, the issue of liability has been disposed of, subject only to appeal.

[2]

The issue on this application for directions is whether leave to appeal
    is required from the order of Mr. Justice Tysoe.

[3]

When this matter first came before me, I referred counsel to a recent
    decision of this Court,
Radke v. M.S. (Guardian ad litem of)
2006 BCCA 12, which was released 12 January 2006.  That judgment dealt with
    a situation in which the issue of liability had been severed from the issue
    of damages, with the issue of liability to be heard first.  The liability
    issue was determined and the question arose whether the finding with respect
    to liability was an interlocutory or a final order.  This Court noted that
    the question of interlocutory or final order had been a matter of ongoing
    concern to both the profession and the Court over the years, requiring parties
    who were unsure in that regard to apply to the Court for directions as to
    whether they should proceed by way of notice of application for leave to appeal
    or notice of appeal.

[4]

In
Radke
, this Court moved away from the former test
    set forth in
Bozsdon v. Altrincham Urban District Council
, [1903]
    1 K.B. 547 for determining whether an order was interlocutory or final.  At
    pp.548-49. of
Bozsdon
, Lord Alverstone C.J. stated the test
    as follows:

It
    seems to me that the real test for determining this question ought to be this:
    does the judgment or order, as made, finally dispose of the rights of the
    parties?  If it does, then I think it ought to be treated as a final order;
    but if it does not, it is then, in my opinion, an interlocutory order.

[5]

This Court noted that the English courts had moved to what has sometimes
    been called the application approach which does not look to the order as
    made, but rather to the application that gave rise to the order.  According
    to this Court, On this approach, a final order is one made on such an application
    or proceeding that, no matter who succeeds, the order will, if sustained,
    finally determine the matter in the litigation.  This Court noted that the
    application approach had been followed by the English Court of Appeal in
White
    v. Brunton
, [1984] 2 All E.R. 606.  The Court in
Radke
went
    on to state, at paras. 21-23

[21]      The application approach was again adopted
    by the English Court of Appeal in
Holmes v. Bangladesh Biman Corporation
[1988] 2 Lloyds Rep. 120.  There, after citing
White
with approval,
    Lord Justice Bingham (as he then was) said:

Order 33, r. 3 gives the Court a wide discretion to order the separate
    trial of different issues in appropriate cases and a decision is not to be
    regarded as interlocutory simply because it will not be finally determinative
    of the action which ever way it goes. Instead, a broad common sense test should
    be applied, asking whether (if not tried separately) the issue would have
    formed a substantive part of the final trial. Judged by that test this judgment
    was plainly final, even though it did not give the plaintiff a money judgment
    and would not, even if in the airlines favour, have ended the action.

See
    also
Dale v. British Coal Corp.
[1992] E.W.J. No. 351 (QL) and
Webb v. Webb
[1996] E.W.J. No. 141 (QL).

[22]      More recently in
Roerig v. Valiant Trawlers
    Ltd.
[2002] 1 W.L.R. 2304, [2002] 1 All E.R. 961, [2002] 1 Lloyds
    Rep. 681, after referring to
White v. Brunton
and the broad
    common sense test expressed by Lord Justice Bingham in
Holmes v. Bangladesh
,
    Lord Justice Waller said this:

If
    one poses the question-if no preliminary issue had been ordered would the
    decision as to the appropriate law have formed a substantive part of the final
    decision on damages?-the answer would undoubtedly be that it would, and that
    an appeal would have lain to the Court of Appeal against that final decision.
    The fact that the issue is sensibly taken separately should not deprive a
    party of their right to go to the Court of Appeal, and furthermore it would
    be an active discouragement to parties to support the trial of preliminary
    issues if the result was to so deprive them. That is the principle that the
    new rules in my view seek to uphold.

[23]      In my view, the time has now come to restate
    the principle expressed by this Court in
Boslund v. Abbotsford
(1925), 36 B.C.R. 386 (B.C.C.A.) and to adopt the approach of the English
    Court of Appeal in
White v. Brunton
and the subsequent English
    cases referred to above.  If liability had not been tried separately, it would
    have been tried as part of a single trial.  The parties would have had the
    right of appeal no matter what the outcome.  If the action had been dismissed
    on liability, the plaintiff would have had a right of appeal.  It is unfair
    that the defendant should not have a right of appeal when liability has been
    found.

[6]

This is the first application for directions in which I have had an
    opportunity to consider the
Radke
decision and it may well be
    that there will be further judgments from this Court which discuss the extent
    to which the test set out in
Radke
applies in any particular
    case.  I leave that for the further development of the law.

[7]

In this case, however, I am satisfied that, both on the basis of the
    tests set forth in
Radke
and on the basis of prior decisions
    of this Court, the order of Mr. Justice Tysoe is a final order.  I am simply
    unable to see how it could be interpreted as an interlocutory order on any
    analysis.  Subject to an appeal, it finally determines the liability issue.
    I come to that conclusion despite a strong submission to the contrary on behalf
    of counsel for the applicants.  My direction is that this is an appeal as
    of right for which the proper initiating document is a notice of appeal.

[8]

The notice of appeal which was filed in this matter will be effective
    as of todays date.  To make it perfectly clear, that means that all of the
    time limits run as if the notice of appeal had been filed today.

(discussion with appellants counsel)

[9]

The costs should be in the cause.  That means the successful party
    at the end of the appeal will be entitled to the costs of this application.

The Honourable Madam Justice Prowse


COURT OF APPEAL FOR
BRITISH COLUMBIA

Citation:

Breeden
          v. West Vancouver (District),

2006
          BCCA 33

Date: 20060126

Docket: CA032651

Between:

Jack
    L. Breeden

Appellant

(Petitioner)

And

Corporation
    of the District of West Vancouver,
West Vancouver Professional Fire Fighters' Union, Local 1525
and British Columbia Labour Relations Board

Respondents

(
Respondents
)

Before:

The
          Honourable Madam Justice
Southin

The
          Honourable Mr. Justice Smith

The
          Honourable Mr. Justice Lowry

C.
          B. Coutts

Counsel for the Appellant

T. A.
Sigurdson

Counsel for the Respondent,
District of West Vancouver

F. A. Schroeder

Counsel for the Respondent,
West Vancouver Professional Fire Fighters' Union, Local 1525

S. L.
Basarab

Counsel for the Respondent,
British Columbia Labour Relations Board

Place and Date of Hearing:

Vancouver, British Columbia

January 12, 2006

Place
          and Date of Judgment:

Vancouver, British Columbia

January 26, 2006

Written
          Reasons by
:

The
          Honourable Mr. Justice Lowry

Concurred
          in by:

The
          Honourable Madam Justice
Southin

The Honourable Mr. Justice Smith

Reasons for Judgment of the Honourable Mr. Justice Lowry:

[1]

Jack Breeden was
    employed as a firefighter by the Corporation of the District of West Vancouver
    for 22 years.  He was, throughout, a member of the West Vancouver Professional
    Firefighters Union, Local 1525.  In December 2000, his employment was terminated
    for insubordination.  The Union informed Mr. Breeden that it could not, in
    the circumstances, succeed in grieving his termination and it declined to
    pursue such to arbitration.  In March 2001, Mr. Breeden wrote an apology for
    his actions that led to his employment being terminated, but the District
    told him it was too late.  The Union closed his file in August of that year.
    The question that underlies this appeal is whether the Union failed to represent
    its member fairly.

[2]

In September 2001,
    Mr. Breeden filed a complaint under s. 12(1) of the
Labour Relations
    Code
, R.S.B.C. 1996,
c
. 244 with the Labour
    Relations Board.  The section provides:

12
(1)   A trade union or council of trade unions
    must not act in a manner that is arbitrary, discriminatory or in bad faith

(a)
in
representing
    any of the employees in an appropriate bargaining unit, or

(b)
in
the referral
    of persons to employment

whether
or not the employees or persons are members of the trade union or a constituent
    union of the council of trade unions.

[3]

Mr. Breedens contention
    is that the Union acted arbitrarily in representing him.  The complaint was
    considered under s. 13 by Catherine R. McCreary, a Vice-Chair of the Board.
    After a six-day hearing that commenced in June and concluded in October 2002,
    she rendered a decision in December 2002 dismissing the complaint, BCLRB No.
    B376/2002.  Mr. Breeden promptly applied for reconsideration of the decision
    under s. 141 of the
Code
in an attempt to raise an arguable
    case that what Ms. McCreary decided was inconsistent with the principles of
    the
Code
.  His application was considered by Mark J. Brown,
    also a Vice-Chair of the Board, and was dismissed in June 2003, BCLRB No.
    B189/2003.  In October 2003, Mr. Breeden made application for judicial
    review of both of the Boards decisions.  His application was heard by Mr.
    Justice
Burnyeat
in December 2004 and was dismissed
    the following month.  This appeal is taken from that decision.

[4]

The circumstances
    that led to Mr. Breedens employment being terminated are fully set out in
    the reasons, 2005 BCSC
14,
the judge gave for his
    disposition of the application.  They need only be summarized here.

[5]

At the root of what
    led to what his employer considered to be Mr. Breedens insubordination was
    a change the employer made in the spring of 2000.  The employer delegated
    training to the Training Department and Station Officers who were part of
    the bargaining unit.  Previously, training had been the responsibility of
    a manager, a superior officer, who was part of the non-union personnel.  The
    majority of the members of the bargaining unit of perhaps 70 firefighters
    supported the change, but Mr. Breeden saw training by his peers to be a violation
    of the chain of command that created what he perceived to be a conflict
    because, as trainers, other members of the bargaining unit would be reviewing
    his performance.  He made it clear that he would not participate in training
    sessions unless specifically ordered to do so.  He was ordered and did attend
    a training session in June.  He was excused from attending a training session
    in July.

[6]

The position taken
    by Mr. Breeden led to disciplinary measures being imposed on him which in
    turn led to the Union initiating grievances.  However, in July, the Union
    obtained a legal opinion that stated it would not succeed in arbitrating the
    grievances.  Counsel advised the Union that under the Collective Agreement
    the employer had the right to determine who would provide training and that
    Mr. Breedens conduct constituted a refusal of normal co-operation which
    amounted to insubordination and employment misconduct justifying discipline
    and, if it continued, discharge.  The advice was unequivocal.  It is accepted
    that Mr. Breeden was given a copy of the opinion when it was received.

[7]

In the fall, Mr.
    Breeden refused to produce his drivers licence to the employer when asked
    to do so.  His refusal related to a collective bargaining dispute over who
    was to pay the expense of a medical certificate required for the renewal of
    the licence.  Mr. Breedens refusal led to further disciplinary measures being
    taken against him and a further grievance being initiated by the Union.  Again,
    the legal advice obtained by the Union was that the Union would not succeed
    in arbitration.  Counsel advised that Mr. Breedens conduct amounted to insubordination
    and that, if his acts of insubordination persisted, he would be fired and
    the termination of his employment would be upheld in arbitration.  His record
    of discipline was said to be very serious.  The Union maintains that Mr. Breeden
    was also given a copy of this opinion when it was received, but he claims
    he did not receive it until after he was dismissed.  Ms. McCreary appears
    to have accepted what the Union says in this regard.

[8]

Mr. Breeden attended
    a training session in November but he was disciplined for his lack of participation
    during the session.  He was suspended for four days.  He attended another
    training session in December.  His employment was terminated that day for
    refusing to participate in training and for the earlier instances of uncooperative
    behaviour.

[9]

The judge reviewed
    each of the two decisions of the Board, quoting from them at some length.
    He considered the standard of review which he was to apply and the standard
    which the Board ought to have applied in disposing of Mr. Breedens application
    for reconsideration in accordance with the decision of the Supreme Court in
Dr. Q v. College of Physicians and Surgeons of British Columbia
,
    [2003] 1 S.C.R. 226.  He concluded that the standard to be applied throughout
    was that of patent unreasonableness because the questions before both Ms.
    McCreary and Mr. Brown were squarely within the realm of labour relations,
    as reflected in the several decisions of the courts of this province that
    he cited (
para
. 43).  They engaged the expertise
    of the Board and fell within its exclusive jurisdiction.  He then considered
    the reasoning advanced in both decisions on that basis and concluded neither
    decision could be said to be patently unreasonable.  He went on, however,
    and concluded that, even if the decisions were reviewed on a standard of correctness,
    they were correct.

[10]

Mr. Breeden contends
    that the principles that govern a s. 12 complaint are largely contained in
    s. 2 of the
Code
and that the standard of review to be applied
    on his application for reconsideration and on his application for judicial
    review was one of correctness, at least insofar as the applicability of s.
    2 is concerned because that is a question of law.  He attaches particular
    importance to s. 2 having been amended (proclaimed in force September 1, 2002).
    He emphasizes that where s. 2 once merely provided a statement of the objects
    of the
Code
, it now imposes obligations on those who exercise
    powers and perform duties under the
Code
.  In material respects,
    the section provides:

2
The board and other persons who exercise powers
    and perform duties under this Code must exercise the powers and perform the
    duties in a manner that

(a)
recognizes
the rights and obligations of employees,
    employers and trade unions under this Code, ...

[11]

Mr. Breeden puts
    his case on this appeal, as he did before the judge, on the proposition that
    the amendment to s. 2 has altered the scope of what the Board must take into
    account when considering whether a union has acted arbitrarily in representing
    one of its members.  In particular, Mr. Breeden contends that, while the Board
    has been seen to be justified in having only limited regard for the merits
    of an employees dismissal when considering a s. 12 complaint against a union
    (see
Aujla
v. British Columbia (Labour Relations
    Board)
, 2000 BCSC 1896,
affd
(2001), 94
    B.C.L.R. (3d) 80 (C.A.)), as did Ms. McCreary in this case, the Board is now
    required to weigh the merits of the termination of the employment to determine
    whether a unions conduct in representing one of its members can be said to
    have been arbitrary.  This is said to be so because the amendment recognizes,
    and requires that much greater effect be given to, the rights of an employee
    who must rely on a union to grieve the termination of his employment, such
    being his only recourse in the event of his having been wrongfully dismissed.

[12]

Mr. Breeden maintains
    that his acts of insubordination did not warrant his dismissal such that if
    the termination of his 22 years of employment was considered on its merits,
    as it had to be for the proper disposition of his s. 12 complaint to be correct
    in law, Ms. McCrearys determination that the Union did not fail to represent
    him fairly is not supportable even if otherwise reviewed on a standard of
    patent unreasonableness.

[13]

The judge did not
    accede to this argument.  He reasoned that the amendment to s. 2 of the
Code
did not enhance the rights of employees and that the Board was not
    required to consider the merits of a dismissal to any greater extent than
    recognized in the
Aujla

case in the disposition
    of a s. 12 complaint (
paras
. 55-59).  While, in
    my view, there is much to commend his analysis, it is unnecessary to decide
    whether s. 2, as amended, has the effect for which Mr. Breeden contends in
    order to dispose of this appeal.  That is because, as the Union maintains,
    it appears to have done all that it could have been expected to do for Mr.
    Breeden in the circumstances.

[14]

Assuming without
    deciding that what Mr. Breeden says about the effect of the amendment to s.
    2 is correct, and that, viewed on its merits, Ms. McCreary was bound to find
    that his insubordination did not justify dismissal, it does not follow that
    Mr. Breeden was not fairly represented because the Union acted arbitrarily
    in not pursuing the grievances, and in particular the grievance of the termination
    of his employment, to arbitration.

[15]

There is no suggestion
    that the Union did not fully investigate each of the incidents that led to
    grievances with respect to Mr. Breedens insubordination, including his dismissal,
    or that it showed any disregard or disinterest in the action that the employer
    took, first to discipline Mr. Breeden, and ultimately to terminate his employment.
    There can be no suggestion that the Union did not obtain and pay for sufficient
    legal advice on Mr. Breedens behalf.  It obtained two legal opinions that
    left no question that Mr. Breeden had given the employer
cause
to discipline him and that further acts of insubordination
    could lead to his being fired.  The Union shared counsels views with Mr.
    Breeden and he was warned about the tenuous nature of his employment, but
    he chose to persist with conduct that he knew could lead to his dismissal.

[16]

The Union entered
    into discussions with the employer and endeavoured more than once to negotiate
    a resolution of the grievances predating Mr. Breedens dismissal, but he was,
    throughout, less than co-operative.  Ms. McCrearys
description
    of the events following his dismissal are
particularly telling.  She
    said, at
paras
. 26-31:

On December 21, 2000, the Union grieved both the December 12, 2000 four-day
    suspension and the termination of December 20, 2000.  With the agreement of
    all parties, all of Breeden's grievances went to a Step II meeting
with  the
Municipal Manager on January 3, 2001.

The Union met with Breeden to get his assistance for the strategy they should
    adopt in the meeting.  Similar to his past behaviour, Breeden did not provide
    much assistance merely reiterating to the Union representatives that it was
    their job to represent him.  He did not provide a reason or excuse for his
    behaviour.  He said the Union had made errors in the past but provided no
    details.

During the January 3, 2001 meeting, David Stuart, the Municipal Manager said
    that if he heard from Breeden that he was prepared to co-operate normally
    with training in the future he would reconsider the termination.  Immediately
    after the statement was made the Union caucused with Breeden and urged him
    to accept the "olive branch" being extended by Stuart.  The Union
    told Breeden that it could not win any arbitration of his grievance.  Breeden
    refused to make such a commitment because to do so would compromise his principles.
    In the absence of such a commitment, Stuart upheld the termination and prior
    discipline.

The Union and the Employer met with an industrial psychologist and described
    Breeden's behaviour to him.  As a result of the meeting the Employer proposed
    settlement that included an assessment by the psychologist and the resignation
    of Breeden with possible re-employment after two years.  Also, because of
    the meeting with the psychologist, Gary Howard, the Union president, thought
    there might be a medical explanation for Breeden's behaviour.

Breeden appeared to be engaged in the attempt to get his job back.  He wrote
    a letter, apologizing for his behaviour.  He looked like he was working with
    Howard to try to get a medical assessment.  Howard undertook much effort to
    try to arrange such an assessment.

Breeden's attempts were not sincere.  Howard testified that
    the assessors told him Breeden said that he was just trying to get medical
    certification so he could get his job back.  An attempt to go to mediation
    was rejected by Breeden because the Union said he would have to speak for
    himself to convince the Employer he was committed to a change in behaviour.
    Breeden rejected the Union's advice and refused to speak because of the Union's
    role as his exclusive bargaining agent.  Breeden testified that his letter
    was insincere.

[17]

Ms. McCreary concluded
    as follows, at
para
. 57:

It is difficult to imagine what more the Union could have
    done in the face of Breeden's position.  Nevertheless, the Union persisted
    in trying to determine if there was a medical reason for the behaviour.  This
    attempt also was fruitless due to Breeden's refusal to fully co-operate.
    Breeden's letter apologizing for his behaviour is admittedly insincere.  From
    his evidence and demeanour at the hearing I conclude that he is unrepentant.
    He still does not appear to accept the Employer's right to organize the workplace
    or the importance of the "work now, grieve later" rule.

[18]

I consider the efforts
    the Union made in taking legal advice and entering into discussions with the
    employer, on the one hand, and Mr. Breedens insincerity and lack of co-operation
    with the Union, on the other, entirely undermine his contention that the Union
    acted arbitrarily and did not fairly represent him.  I, too, do not see what
    else the Union could have been expected to do, particularly in light of the
    legal advice about Mr. Breedens position it had obtained.  He simply had
    no cause for
a
s. 12 complaint and there is
    no basis on which Ms. McCrearys conclusion can be said to have been wrong.

[19]

I would dismiss the
    appeal.

The Honourable Mr. Justice Lowry

I agree:

The Honourable
    Madam Justice
Southin

I agree:

The Honourable Mr. Justice Smith"


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Chapman
          Sand & Gravel Ltd. v. Alvarez,

2006
          BCCA 31

Date: 20060126

Docket: CA032965

Between:

Chapman
    Sand & Gravel Ltd.

Respondent

(
Plaintiff
)

And

Marianne
    Alvarez

Appellant

(
Defendant
)

And

Russell
    N. Shortt

Respondent

(
Third Party
)

Before:

The
          Honourable Mr. Justice Hall

The
          Honourable Mr. Justice Low

The
          Honourable Mr. Justice Lowry

Marianne Alvarez, appearing on her own behalf

M.J. Yawney

Counsel for the Respondent,
Chapman Sand & Gravel Ltd.

Place
          and Date of Hearing:

Vancouver, British Columbia

21 November 2005

Place
          and Date of Judgment:

Vancouver, British Columbia

26 January 2006

Written
          Reasons by
:

The
          Honourable Mr. Justice Hall

The Honourable
          Mr. Justice Low

The Honourable Mr. Justice Lowry

Reasons for Judgment of the Honourable Mr. Justice Hall:

[1]

This is an appeal from a judgment of Mr. Justice Metzger pronounced
    after summary trial proceedings under Rule 18A on 13 April 2005.
    Metzger J. granted judgment against the appellant in the amount of $85,990,
    plus interest and costs.  The dispute between the parties originates from
    a troubled development project undertaken by the appellant on lands owned
    by her near Lumby, B.C.

[2]

Some background history of the matter is set out in an affidavit of
    Mrs. Alvarez sworn in the proceedings on 24 February 2003, as follows:

3.         In 1995, I was the owner of agricultural property in Lumby,
    British Columbia, which I had wanted to subdivide into residential lots.
    This property is legally described in the pleadings herein (the "Property").

4.         In or about the summer of 1995, I entered into an agreement
    with Mr. Russell Shortt, a member of the Corporation of Land Surveyors
    of the Province of British Columbia, for the [
sic
] Mr. Shortt
    to provide professional expertise for the design and surveying of a subdivision
    of the Property and to act as the Defendant's agent for the development of
    same (the "Shortt Agreement").

5.         Pursuant to the terms of the Shortt Agreement, Mr. Shortt
    surveyed the Property and drew up plans for the proposed subdivision.  Now
    produced and shown to me and marked as Exhibit "A" to this
    my Affidavit is a true copy of the said plans.

6.         As part of the development of the Property, I needed to have
    a road built on the Property to give access to the future subdivided lots
    and to connect them to the neighbouring road system (the "Road").
    I made some inquiries with the engineering firm Reid Crowther & Partners
    Ltd. with respect to the costs for designing the Road.  On or about December 7,
    1995, my husband received a letter from Reid Crowther setting out their fees
    for designing the Road.  Now produced and shown to me and marked as Exhibit "B"
    to this my affidavit is a true copy of the said letter.

7.         Upon reading the letter from Reid Crowther, Mr. Shortt
    informed me that he would be able to design the Road much more cheaply.  Mr. Shortt
    assured me that although he was not an engineer that he had the requisite
    skills and experience to design the Road and I agreed to have him design it.

8.         Either I, or Mr. Shortt on my behalf, contacted a number
    of contractors to solicit bids for the construction of the Road.  On April 10,
    1997, Chapman Contracting Ltd. or Brad Chapman, on behalf of the Plaintiff,
    wrote to me and agreed to construct the Road to Mr. Shortt's specifications
    for $146,000.

[3]

At all material times, Mr. Shortt acted as the agent for Mrs. Alvarez
    on this project.  A road to access the development was constructed by the
    respondent contractor in the summer of 1997.  The Ministry of Highways required
    certain additional work on the access road be performed before it was prepared
    to grant approval in relation to the subdivision project.  What was required
    by way of additional work is detailed in an affidavit of Chris Chekerda, a
    retired Ministry of Highways Subdivision Approval Technician.  This affidavit
    was sworn on 14 June 2004, and was filed in the proceedings.  Mr. Chekerda
    deposed as follows:

2.         The subject road works were designed by Russell N. Shortt,
    B.C. Land Surveyor.  These road works were part of the conditions as detailed
    in a preliminary layout approval for subdivision works.  The Plaintiff was
    the contractor for the above road works portion of the Alvarez Subdivision
    Approval.

3.         As part of the subdivision approval process, I required Mr. Shortt,
    who acted as a consultant/design engineer for the Albers Road works project,
    to direct the contractor, the Plaintiff, to construct and build a number of
    extra construction works to satisfy the Ministry of Highways subdivision approval
    requirements.  A number of these changes or additional works were carried
    out near project completion.  Those works are summarized as follows:

(a)
    Installation of a culvert on Albers Road approximately one block away for
    drainage to the natural discharge course;

(b)
    Ditching of Mabel Lake Road from Albers Road to Bessette Creek;

(c)
    Rip rapping ditches on the newly constructed road Right-of-Way;

(d)
    Extension of flumes from culverts to below the toe of the slope;

(e)
    Asphalt curbing portions of the newly constructed road Right-of-Way; and

(f)
    Site grading the eastern most lot on the newly constructed road Right-of-Way
    for drainage to the natural course.

[4]

It appears that one change that attracted extra costs was a change
    related to a gas line location.  There was also a change related to a BC Tel
    cable location.  In an affidavit of 27 February 2003, Leonard Chapman,
    a principal of the respondent contractor, deposed as follows:

4.         In reply to the Affidavit of Marianne Alvarez #2, paragraph 27(a),
    (b) and (c), the Defendant has been provided with time cards and backup for
    all the Extra Work.  Also her consultant/agent was on site directing the work
    needed.  Ms Alvarez left the construction supervision and details to
    her consultant Mr. Shortt.  She does not appear to understand or know
    the full scope of the work done to complete the subdivision and roadway.
    This is shown in paragraph 27.  In specific response to 27(a), (b) and
    (c), I state as follows:

(a)
    Attached and marked as Exhibit "A" to this my Affidavit is
    a copy of a Job Initiation Form from BC Gas for lowering of a gas main
    within the road right of way.  This had to be done because the road design
    was changed by Russell Shortt at the direction of the Ministry of Highways
    staff to add larger than original design North and South accelerating lanes
    on Mabel Lake Road as part of the subdivision roadway.  The gas main was not
    shown on any drawings provided by the Defendant or her consultant.  In order
    to make these changes the existing BC Gas gas main had to be moved out
    into the shoulder and lowered in some areas to provide minimum bury so that
    maintenance could be performed without asphalt restoration.  BC Gas came
    out twice to deal with this issue.  The work done had nothing to do with connecting
    gas to the Defendant's property.  She simply does not understand the scope
    of the work that had to be done.

(b)
    In terms of BC Tel works, there was a 50mm X 22mm toll cable
    in Mabel Lake Road that had to be realigned due to the addition of the acceleration
    lanes required by Ministry of Highways.  BC Tel had to attend to assist
    with this.  Highways also requested additional off site work on Albers Road
    as part of its subdivision requirements and BC Tel was on site assisting
    on cable relocation and cable splicing.  These extra works were not part of
    the original scope of the work, nor were they noted on the original drawings.

(c)
    With respect to the extra work for rip rap and spillways, it was not part
    of the original scope of the work as shown in the original drawings upon which
    the Plaintiff based its original contract price.  Ministry of Highways required
    culvert extensions and regrading of property for storm water containment,
    which required extra rip rap and spillway work.  This work was done under
    the supervision of Ministry of Highways staff and the Defendant's consultant,
    Mr. Shortt.

[5]

The respondent contractor billed the appellant approximately $86,000
    for this extra work required on the road construction project.  By the fall
    of 1997, Mrs. Alvarez was having financial difficulty and this extra
    amount of billing came as an unpleasant surprise to her.  The bill for this
    work was not paid promptly and consequently the respondent filed a builder's
    lien.  This, of course, tied up the property.  Throughout the course of the
    project during 1997, Mrs. Alvarez had legal advice from her then solicitor,
    Mr. Hardwick.  The respondent contractor was represented throughout by
    Mr. Yawney of the Nixon Wenger firm.

[6]

When it appeared that Mrs. Alvarez was not going to be able to
    pay in any timely way for the extras billed for by the contractor, discussions
    ensued between the parties as to what was to be done.  Ultimately, a compromise
    agreement was reached with the assistance of counsel whereby the bill for
    extras was to be reduced somewhat and some cash was to be contributed by the
    respondent contractor in exchange for a lot in the subdivision to be transferred
    to the respondent.  It was a term of this compromise agreement entered into
    on 9 December 1997 that failure to complete the transaction in a timely
    way would result in the full amount of approximately $86,000 becoming due
    and payable by the appellant to the respondent.

[7]

Mrs. Alvarez was out of the country for some time in early 1998
    and the transfer did not complete as scheduled.  As a result, in March 1998,
    the solicitor for the respondent contractor advised the solicitor for the
    appellant that the compromise arrangement was at an end and that the full
    amount owing for the extras was now due and payable.  The present lawsuit
    followed.

[8]

The action did not move with any great dispatch and it appears that
    as the years passed the subdivision project never did achieve success.  I
    gather that the property may ultimately have been foreclosed on by a lender.
    Although in the initial pleadings the defendant appellant agreed that there
    was a contract between the parties for the construction for the road, she
    apparently sought to withdraw this admission and there were proceedings taken
    before Master Hyslop on 17 August 2004, 2004 BCSC 1163, wherein Mrs. Alvarez
    sought to withdraw this admission.  In that proceeding, Mr. Lovell was
    counsel for Mrs. Alvarez and Mr. Yawney acted on behalf of the contractor.
    The Master refused the application to withdraw the admission.  Thereafter,
    the Rule 18A proceedings brought by the contractor came on for hearing
    before Metzger J. in April 2005.  Both parties were represented by counsel
    in this proceeding before Metzger J.

[9]

Mrs. Alvarez sought to defend the proceedings on the basis that
    she had never authorized the additional work in writing and that the agreed
    contract price was $146,000.  She also asserted that the contractor had not
    informed her of the extra work until after it was completed and she further
    pleaded that she was under economic duress when she signed the agreement in
    December 1997 that acknowledged the debt owing for extra work.

[10]

The trial judge rejected these defences.  He said as follows in the
    course of his reasons for judgment:

[14]       [T]he evidence is that Mr. Shortt acted as her agent
    throughout.  The extra work he authorized on her behalf was required in order
    to obtain the approval of the Ministry of Transport.  She cannot now be heard
    to say that the changes had to be in writing, as it was necessary for Ministry
    approval that Mr. Shortt's errors be corrected.

[15]      Marianne Alvarez acknowledged in her examination for discovery
    the "problem" was not between the plaintiff and herself, but between
    herself and Mr. Shortt.

[16]      Thus, I find that the extra work was authorized by the defendant
    throughout by her agent Mr. Shortt.

[17]      I dismiss the defendant's plea of economic duress.  The plaintiff
    held a legal claim of builder's lien along with other consideration.  The
    plaintiff gave that up when he signed the agreement drawn by the defendant's
    solicitor.  The defendant's signature was witnessed by her lawyer.  There
    was no improper pressure brought to bear on Marianne Alvarez by the plaintiff
    so that she did anything against her interest.

[18]      The defendant was under financial pressure due to her lack of
    funds.  As her solicitor drafted the agreement as a compromise, she entered
    into this agreement after having obtained legal advice.  The agreement between
    the parties is not voidable because of duress on the part of the plaintiff.

[19]      The agreement was entered into at the request of Marianne Alvarez.
    The parties understood that if the conveyance failed the $85,990 was due and
    payable to the plaintiff.  The parties understood the agreement was legally
    enforceable.

[20]      The purchase and sale agreement is a binding agreement.  The
    plaintiff is entitled to judgment in the agreed amount of $85,990.

[11]

Before this Court, Mrs. Alvarez also questioned the quantum of
    the extra work.  She appeared to suggest in argument that much of the work
    was not required and that it was over-charged.  The difficulty with these
    submissions is that it is clear that on the basis of legal advice, Mrs. Alvarez
    in December 1997 clearly acknowledged that the debt to the contractor for
    extras was owing by her.  She agreed further that the sum of approximately
    $86,000 would be owing to the respondent contractor in the event that the
    compromise arrangement of the exchange of a lot for the indebtedness was not
    completed.  When that arrangement did not complete, it seems clear that the
    respondent contractor was entitled to demand the agreed amount owing on account
    of the extra work performed on the road project.  There may exist issues between
    Mrs. Alvarez and her agent, Mr. Shortt, relating to his approval
    of the extra works, but it is in my opinion abundantly clear from the record
    that on the advice of her counsel, Mrs. Alvarez was prepared to agree
    in 1997 that the sum was properly due to the respondent contractor for extras.
    I do not see how it is possible in law for her now to assert that it is somehow
    permissible for her to seek to resile from that agreement.

[12]

I do not consider that the appellant has demonstrated any error in
    the factual or legal conclusions of Metzger J., the judge who heard the
    summary trial proceedings under Rule 18A.  This project proved to be
    an unfortunate venture economically for Mrs. Alvarez, but I do not consider
    that she has demonstrated any basis before this Court for us to interfere
    with the decision of Metzger J. granting judgment in favour of the respondent
    against her.

[13]

Accordingly, I would dismiss this appeal.

The
    Honourable Mr. Justice Hall

I
    Agree:

The
    Honourable Mr. Justice Low

I
    Agree:

The
    Honourable Mr. Justice Lowry


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Cooper,

2006
          BCCA 40

Date: 20060126

Docket: CA033374

Between:

Regina

Respondent

And

Phillip
    Thompson Cooper

Appellant

Before:

The
          Honourable Madam Justice Rowles

The
          Honourable Mr. Justice Mackenzie

The
          Honourable Madam Justice Kirkpatrick

Oral Reasons for Judgment

Appellant appearing In Person

K.S.
          Wikberg

Counsel for the Respondent

Place
          and Date:

Vancouver, British Columbia

26 January 2006

[1]

ROWLES, J.A.
:  Mr. Cooper has brought a sentence
    appeal and this morning, after some inquiries were made of him in regard to
    what was done in the Provincial Court with respect to a conditional sentence,
    it appeared that he had misunderstood what had occurred.  After it had become
    clear to him what had occurred, he told the panel that he did not wish to
    pursue his appeal.

[2]

Accordingly, we are all in agreement that the appeal ought to be dismissed.

[3]

Thank you, Mr. Cooper.

[4]

MACKENZIE, J.A.
:  I agree.

[5]

KIRKPATRICK J.A.
:  I agree.

The Honourable Madam Justice Rowles

Correction:
15 February 2006

In the reasons for judgment dated January
    26, 2006
, the following change
    should be noted:

The date located at the bottom of the front
    page should read as follows:

26
          January 2006


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Kamloops
          Square Mgmt. Ltd. v. Baron,

2006
          BCCA 37

Date: 20060127

Docket: CA032304

Between:

Kamloops
    Square Management Ltd.

Respondent

(
Plaintiff
)

And

Roy
    Baron

Appellant

(
Defendant
)

And

Blair
    Curtis and Anita Perazich

Defendants

Before:

The
          Honourable Madam Justice Prowse

The
          Honourable Mr. Justice Donald

The
          Honourable Madam Justice Saunders

J.B.
          Carter

Counsel for the Appellant

D.A.
          Carroll

Counsel for the Respondent

Place
          and Date of Hearing:

Kamloops, British Columbia

September 21, 2005

Place
          and Date of Judgment:

Vancouver, British Columbia

January 27, 2006

Written
          Reasons by
:

The
          Honourable Madam Justice Saunders

Concurred
          in by:

The
          Honourable Madam Justice Prowse

The
          Honourable Mr. Justice Donald

Reasons for Judgment of the Honourable Madam Justice
    Saunders:

[1]

Mr. Baron appeals from the order made September 2, 2004, that he pay
    to Kamloops Square Management Ltd. the sum of $160,000 as damages under a
    commercial lease.  Judgment in the same amount was given against the co-defendant
    Mr. Curtis, who did not defend the case and has not filed a notice of appeal.
    Judgment was not taken against the third defendant for the stated reason that
    she was then a bankrupt.

[2]

The trial judge laboured under several difficulties.  First, as I have
    stated, the defendant Mr. Curtis against whom judgment was taken did not defend
    the action.  Second, the trial judge did not have the assistance of counsel
    for Mr. Baron.  Third, the original lease was not tendered in evidence.  Fourth,
    a key witness, one Mr. Chalmers who was agent for the lessor, by reason of
    a medical problem had lost all recollection of the critical events.  Facing
    those limitations, the trial judge reached the conclusion that judgment should
    go in favour of the plaintiff for $160,000.  With the benefit of counsel for
    Mr. Baron on this appeal, I have come to a different conclusion and would
    order that the matter be remitted to the trial court for an assessment of
    damages, for the reasons that follow.

[3]

Mr. Baron admitted in his testimony that he was one of three lessees
    of about 8,000 sq. ft. of retail commercial space in Kamloops, British Columbia.
    The other two lessees, he said, were Mr. Friesen Jr. who was the son-in-law
    of the principal of the lessor, and Ms. Perazich.   Kamloops Square Management
    Ltd. was the lessor.   Mr. Baron testified that he did not have the original
    or a copy of the lease, and the lessor was only able to tender in evidence
    a document described by the learned trial judge as "a purported copy
    of the lease".  This document, which set out a term of five years, displayed
    black lines through the names of Mr. Friesen Jr. and the name of the defendant
    Mr. Curtis was inserted.  Black lines also obliterated all of clause 9.  Adjacent
    to the substitution, was the signature and initials of both Mr. Friesen and
    Mr. Chalmers, but not of the other two lessees.  The document also displayed
    initials of, apparently, the three original lessees and Mr. Chalmers opposite
    all amendments to the original typewritten text except for the black lines
    through clause 9, against which there were no initials.   Mr. Chalmers, for
    lack of memory, was unable to assist the court with an explanation of the
    events that led to the document, or to explain the whereabouts of the original
    lease.

[4]

The statement of claim joined the appellant Mr. Baron, Mr. Curtis and
    Ms. Perazich.  Paragraph 5 of the Second Further Amended Statement of Claim
    pleaded:

5.
    The Plaintiff and each of the Defendants, Baron, Curtis & Perazich, entered
    into a written lease agreement (the Lease) with the Plaintiff as the Landlord
    and each of the Defendants as the Tenant, which Lease was for that portion
    of . . .

[5]

Only Mr. Baron filed a statement of defence.  He pleaded:

2.         Baron denies the allegation contained in paragraph 5 of the
    Statement of Claim and amendments thereto and says that the Plaintiff and
    Roy Baron, Thane Friesen Jr. and Anita Perazich entered into a lease agreement
    with the Plaintiff, as landlord, and Roy Baron, Thane Friesen Jr. and Anita
    Perazich, as tenant.

3.         Baron states that it was a condition precedent to his signature
    on the Lease that Thane Friesen Jr. also be a signatory to the Lease as a
    lessee.

5.         Baron states that at a date unknown to him the said lease was
    altered without his knowledge or consent and the name "Thane Friesen
    Jr." was blacked out on the first page of the lease agreement and the
    name "Blair Curtis" was inserted by hand.

6.         Baron was aware that Blair Curtis had become a party to the
    lease but believed at all times material hereto that Thane Friesen Jr. remained
    a party to the lease.

8.         At all times material hereto, prior to the commencement of
    the within action, Baron relied on the fact that Thane Friesen Jr. was a party
    to the Lease Agreement and that his removal from the Lease at the instance
    of the Landlord without the prior consent of Baron, seriously prejudices Baron
    and voids the Lease dated July 1, 1996.

[6]

In reply, Kamloops Square pleaded:

1.         In reply to paragraphs 2 and 3 of the Amended Statement of
    Defence of the Defendant Roy Baron, the Plaintiff admits that the Plaintiff
    and Roy Baron, Thane Friesen Jr. and Anita Perazich executed a lease agreement
    as alleged, but says that the lease agreement was shortly thereafter amended,
    with the knowledge and consent of all parties, to substitute Blair Curtis
    as a tenant in the place of Thane Friesen Jr.

3.         In reply to paragraphs 5 to 8 inclusive of the Amended Statement
    of Defence of the Defendant Roy Baron, the Plaintiff says that the lease agreement
    was in fact amended with the knowledge and consent of all parties, including
    the Defendant, Roy Baron,
and that the resulting lease agreement is as
    pleaded by the Plaintiff in its Statement of Claim, as amended.

4.         In the alternative, if the lease agreement was amended without
    the prior knowledge and consent of the Defendant Roy Baron, which is not admitted
    but specifically denied, then the Defendant is estopped and precluded from
    saying that the lease is void as against him by virtue of the following:

a.
    The Defendants and each of them, whether with or without Thane Friesen Jr.,
    entered into the lease agreement for the purpose of carrying on a business
    in partnership, which business was known as the Creators and Collectors Craft
    Mall (the "Partnership");

b.
    The Partnership carried on the business of the Creators and Collectors Craft
    Mall without Thane Friesen Jr. and at all material times performed the covenants
    of the tenant pursuant to the lease agreement without protest, notice of protest
    or notice of any kind concerning the validity of the lease; and

c.
    The Defendant Roy Baron by his silence aforesaid permitted and induced the
    Plaintiff to believe the lease was valid.

[Underlining added.]

[7]

At trial, counsel for Kamloops Square presented four issues, saying:

from the pleadings there are essentially four issues.  The first is
    whether or not there is liability on the part of Mr. Baron and Mr. Curtis
    for damages under the lease.  Is the lease enforceable against them?  Mr.
    Baron, in his defence, has argument that he says the lease is not enforceable
    against him.  The second issue, My Lord, is that if the lease is in fact enforceable,
    what are the damages owing under the lease.  Third, is if the lease is not
    enforceable, if there's no valid lease, are the defendants liable for damages
    as a result of use and occupation of the premise.  And if so, what damages
    is payable  are damage  are payable for use and occupation.

[8]

He then described an agreement as to damages without providing the
    amount:

Now, thankfully, the parties have settled B, which would
    have taken this court some significant amount of time, and B being the damages
    owing under the lease.  The amount of that, my friend, Mr. Baron prefers me
    not to tell you at this stage, but I can say that the settlement of damages
    is without prejudice in every respect to the defendant's right to argue that
    the lease is not enforceable.

[9]

The testimony as to the document tendered focused upon the deletion
    of Mr. Friesen Jr.s name, and the insertion of the name of Mr. Curtis, without
    reference to the deleted paragraph 9.  Mr. Baron agreed that initials on each
    page and a signature were copies of his initials and signature and that the
    terms in the document were the terms he agreed to:

Q         Now, Mr. Baron, you acknowledged already that
    your initials appear on the bottom right-hand corner of every page of this
    document?

A          I believe every page, yes.

Q         And your signature is also at the signature
    line at the back of the document, Page 23 of the document?

A          Yes, sir.

Q         And this document, in substance, barring the
    removal of Thane Friesen, Junior, is the lease document that you would've
    signed with Mr. Chalmers back in June or July of 1996, correct?

A          Well, other than this not being an original
    document, which leaves open to question, I guess, whether it is the original
    document or not, I would accept that it probably is.

Q         It's a copy of

A          It appears to be.  Obviously it's a copy by
    the black lines on it.

Q         But I'm going to suggest to you, you're taking
     you take no issue with that  that the terms in here are the terms that
    you agreed to with Kamlops Square Management Limited, save and except for
    the removal of Thane Friesen, Junior?

A          Yes, sir.

Q         And am I right, Mr. Baron, but for the fact
    that Mr. Friesen was removed and I guess  and I think your argument, if I
    have it right, is that you didn't get a chance to initial that removal, but
    for that fact, this would be  you would have no difficulty with these [
sic
]
    lease?

A          If the original parties and everything were
    still on it and it was  nothing else had transpired since, I'd have no difficulty
    with this lease.

[10]

Mr. Baron further testified that he had no issue with the addition
    of Mr. Curtis as lessee, but that he did not want Mr. Friesen released from
    his obligations under the lease until he, Mr. Baron, met with Mr. Chalmers
    or the lessor to address issues that had arisen:

Q         All right.  So we've got an original agreement
    between yourself, Mr. Friesen and Ms. Perazich and Kamlops Square Management
    Limited, the original lease commencing July 1, 1996?

A          Yes, sir.

Q         There is essentially two changes that happened
    to that lease.  One is that Mr. Friesen's removed, and the other is that Mr.
    Curtis is added?

A          Yes, sir.

Q         You agree and consent to the adding of Mr.
    Curtis?  You take no issue with that?

A          Yes, sir.

Q         That doesn't affect the validity of the lease
    as far as you're concerned?

A          No, sir.

Q         All right.  And you  I think you'd said that
    your evidence was that you suggested to him that he go down and remove himself
    from the lease?

A          That's correct.

Q         All right.  You were agreeable to him doing
    that?

A          Yes.

Q         All right.  And if Mr. Chalmers  you've given
    evidence that no one ever phoned you or confirmed that he did that, but if
    someone would have at the time, you would've said no problem?

A          No, I wouldn't have.

Q         Why not?

A          Because I wanted to have a meeting with Mr.
    Chalmers and/or the plaintiff and address issues that they were either dodging
    or running away from or refusing to negotiate.

Q         Oh, I understand that.  But that had nothing
    to do with Mr. Friesen getting off the lease.  You didn't

A          Yes, it did, because I felt that he should
    stay on the lease until this was renegotiated or whatever was going to happen.

Q         Oh, I see.  So your evidence is that you had
    a conditional agreement to Mr. Friesen being off the lease?

A          Well, in my mind it was conditional, I guess.

[11]

On May 31, 1999, Kamloops Square terminated the tenancy for failure
    to pay rent, leading to this action.

[12]

The trial judge first found that Mr. Friesen Jr. had left the partnership.
    He then went on to discuss Mr. Friesens place in the lease, and held:

[8]
    . . . I accept that Roy Baron at no time consented to the removal of Thane
    Friesen Jr. from the lease.  I accept that he was prepared to do so at a meeting
    between the plaintiff and the lessees.  However, that meeting never occurred.

And:

[12]
    This was a unilateral change by the plaintiffs, made without consent.  This
    was not a valid amendment.  The attempt to change the lease did not invalidate
    the lease.  The original lease remained in effect.  Therefore, the lease remains
    in its original form, with Thane Friesen Jr. as one of the lessees.

[13]      I note that Roy Baron has testified that the copies of the lease,
    filed as Exhibit 2 and Exhibit 3, set out the essential terms of the lease
    regarding location, size of premises and rent due.  He admitted that the original
    lease between the plaintiff and himself, Thane Friesen Jr. and Anita Perazich
    was valid and enforceable.

[14]      One of the essential terms is that the partners are liable,
    jointly and severally.  The plaintiff has pursued Blair Curtis and Roy Baron
    only, as is their option.  Blair Curtis did not file a defence to the plaintiff's
    claim that he is liable under the amended lease which shows him as an added
    lessee.  He did not call any evidence or make any submissions in court, despite
    having been given the opportunity to do so.  Not having disputed the plaintiff's
    claim, Blair Curtis is liable under the lease as amended.

[13]

This is only Mr. Baron's appeal; Mr. Curtis as yet has not challenged
    the order against him although it is premised upon the so-called amended lease.

[14]

At the hearing of the appeal, the issues resolved to two.  The first
    was whether the trial judge erred in finding the original lease was valid
    and enforceable, absent production of the original lease or at least a copy
    that witnesses could say was a true copy of the document they signed.  In
    this Mr. Baron relies upon the best evidence rule articulated by
R.
    v. Betterest Vinyl Mfg. Ltd.
(1989), 42 B.C.L.R. (2d) 198, 52 C.C.C.
    (3d) 441 (C.A.).  The second issue was whether the trial judge erred in assessing
    damages in the amount of $160,000.  Mr. Baron contends that his agreement
    on the quantum of damages was an agreement in the event that the trial judge
    found the lease to be as pleaded, that is, the amended document that substituted
    Mr. Curtis in place of Mr. Friesen Jr.

[15]

The best evidence rule is not as strict as in former days.  In
Betterest
    Vinyl Mfg. Ltd.
Cumming J.A., observed:

As I read the text writers and the authorities we are no longer bound
    to apply strictly the best evidence rule as it relates to copies of documents
    and especially to photocopies of them.

[16]

Mr. Justice Cumming then went on to quote from various learned texts
    and recent cases, all to the effect that the question on the admission of
    evidence that is not the original is largely a matter of weight, with the
    issues being its authenticity and accuracy and the reason the original is
    not tendered.

[17]

In this case Mr. Baron, in the passages quoted above, agreed that the
    substance of the original lease is to be found in the document tendered in
    evidence. On that evidence, the best evidence rule permitted the introduction
    of the document as evidence of the terms of the lease.  However, it appears
    that no person noticed, or at least commented upon, the obliteration of clause
    9 nor addressed the matter of its content.  Apart from my concern as to clause
    9, I would have no hesitation in concluding that the trial judge was correct
    in finding a lease between Mr. Baron and Kamloops Square in the terms pleaded,
    albeit with different parties than pleaded.  Given my resolution of the second
    issue which I now address, however, I consider that the question of the content
    of that provision and its effect upon damages should be referred to the trial
    court.

[18]

I turn to the question of the order as to damages based upon the agreement
    described to the trial judge by counsel for the plaintiffs.  Here the respondent
    contends that the question answered by the trial judge was: is the July 1,
    1996 lease enforceable against the defendants given the subsequent deletion
    of Mr. Friesen Jr. as a party to the lease?  It says that the agreement on
    damages was based upon that question and that the trial judge was correct
    in assessing damages as he rightly concluded that the lease was enforceable
    against Mr. Baron.

[19]

On the matter of the agreement, however, I think it can be said that
    the parties were at cross purposes.  While counsel for Kamloops Square obviously
    understood the agreement to be an agreement in the event that a lease was
    established between Mr. Baron and Kamloops Square, Mr. Baron appears to have
    understood it to be an agreement in the event the lease as pleaded, that is,
    one without Mr. Friesen Jr. as lessee, was established.

[20]

There is no documentation in evidence as to the agreement, only the
    passage from the opening of counsel for Kamloops Square quoted above.   It
    would not be unreasonable for a lay person, in my view, to consider that the
    agreement applied only in the event the plaintiff proved all aspects of the
    lease that were pleaded.  Much of the evidence adduced addressed the removal
    of Mr. Friesen Jr.s name as lessee, and the statement of claim certainly
    directed attention to the document that supported the theory that he was not
    a lessee, rather than to the original lease.  In defence, Mr. Baron pleaded
    the facts that were found by the trial judge, that is, that the lease was
    the one with himself, Mr. Friesen Jr. and Ms. Perazich as lessees.  Kamloops
    Square in reply reiterated its contention that the lease was one with Mr.
    Curtis, not Mr. Friesen Jr. as a lessee, and pleaded alternatively estoppel,
    a defence not dealt with by the trial judge.

[21]

We do not know what mischief the above described focus caused, or whether
    steps would have been taken in a timely way to join Mr. Friesen as a third
    party had the plaintiff correctly defined the parties to the lease.  Nor do
    we know the basis upon which the agreement as to damages was reached and the
    effect, if any, of the identity of the parties liable under the lease upon
    any compromise reflected in that amount.

[22]

With respect, given the trial judge's conclusion that Mr. Friesen Jr.
    was still a party to the lease and that the unilateral amendment was not binding
    upon Mr. Baron, the premise of the question that Kamloops Square says was
    addressed in the trial, fails.  While it was open to the trial judge to find
    that there was a lease, he was not in a position to adopt the amount agreed
    as damages.

[23]

It follows that I would allow the appeal and would remit the matter
    to the trial court for an assessment of damages.  In completing that task
    the trial court should include in its enquiry the content of clause 9, the
    circumstances of its obliteration, and the effect, if any, of those conclusions
    upon the damages that are payable.

The
    Honourable Madam Justice Saunders

I AGREE:

The Honourable Madam Justice Prowse

I AGREE:

The Honourable Mr. Justice Donald


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Peters
          v. Kay,

2006
          BCCA 42

Date: 20060127

Docket: CA032295

Between:

Harry
    Thomas Peters

Respondent

(
Plaintiff
)

And

Aran
    Serenity Kay, John Kay and

Ellen
    Van Stolk

Appellants

(
Defendants
)

Before:

The
          Honourable Madam Justice Ryan

The
          Honourable Mr. Justice Mackenzie

The
          Honourable Madam Justice Kirkpatrick

Oral Reasons for Judgment

A.M.
          Mersey

Counsel for the Appellant

T.R.
          Berger, Q.C.

P. Dosanjh

Counsel for the Respondent

Place
          and Date:

Vancouver, British Columbia

27 January 2006

[1]

RYAN, J.A.
:  The respondent, Dr. Peters, is a family
    physician who was injured in a motor vehicle accident on 10 May 1997.
    Liability was admitted by the defendants at trial.

[2]

The trial judge, Madam Justice Gill, found that the accident caused
    a disk herniation in the respondents lower back at L5 including an annular
    tear.  At trial the respondent continued to suffer from the residual effects
    of his injuries.  The prognosis was that while other soft tissue injuries
    suffered in the accident had healed, the herniated disk would not likely improve
    much further.

[3]

The judgment of Madam Justice Gill assessing damages was pronounced
    1 September 2004, and entered 20 October 2004.  It provided:

a.         Non-pecuniary loss
    $   80,000.00

b.         Pass loss of income
    $ 184,000.00

c.         Future loss of income
$ 450,000.00

TOTAL
    $ 714,000.00

[4]

The grounds of appeal as stated by the appellants are the following:

I.
    It is respectfully submitted that the learned trial judge erred in her assessment
    of the Plaintiff's non-pecuniary damages, resulting in an award that is inordinately
    high.

II.
    It is respectfully submitted that the learned trial judge erred in her assessment
    of the Plaintiff's loss of past earnings or earning capacity, by taking into
    account irrelevant factors and failing to take into account relevant factors.

III.
    It is respectfully submitted that the learned trial judge erred in her assessment
    of the Plaintiff's loss of future earnings or earning capacity, by taking
    into account irrelevant factors and failing to take into account relevant
    factors.

We have heard extensive argument and reply on all of
    these grounds.  In my view there was evidence to support the conclusions of
    the trial judge.

[5]

In spite of the very able efforts of Mr. Mersey, I am inclined
    to accept the view of Mr. Berger:  that as developed this appeal amounts
    to an effort to re-try this case.

[6]

We are all of the view that the trial judge did not err in law or in
    fact in any way which would permit this Court to intervene.

[7]

I would dismiss this appeal.

[8]

MACKENZIE, J.A.
:  I agree.

[9]

KIRKPATRICK, J.A.
:  I agree.

[10]

RYAN, J.A.
:  The appeal is dismissed.

The Honourable Madam Justice Ryan