COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Fahlman,
          by his guardian ad litem Fiona Gow v. Community Living British Columbia
          et al,

2007
          BCCA 15

Date: 20070109

Docket: CA034239

Between:

Neil
    Fahlman, An infant and a mentally incompetent person,

By
    his guardian
ad litem
, Fiona Gow

Respondent

(
Petitioner
)

And

Community
    Living British Columbia and

Her
    Majesty the Queen in right of the

Province
    of British Columbia, as represented by

The
    Ministry of Children and Family Development

Appellants

(
Respondents
)

Before:

The
          Honourable Madam Justice Rowles

The
          Honourable Madam Justice Levine

The
          Honourable Madam Justice Kirkpatrick

E.
          E. Vanderburgh

Counsel for the Appellants

F.
          Kelly

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver
,
British Columbia

15 December 2006

Place
          and Date of Judgment:

Vancouver
,
British Columbia

9 January 2007

Written
          Reasons by
:

The
          Honourable Madam Justice Kirkpatrick

Concurred
          in by:

The
          Honourable Madam Justice Rowles

The
          Honourable Madam Justice  Levine

Reasons for Judgment of the Honourable Madam
    Justice Kirkpatrick:

[1]

The appellants (respondents in the Supreme Court), Community Living
    British Columbia (CLBC) and the Ministry of Children and Family Development
    (the Ministry), appeal from the order of the Supreme Court pronounced 12
    June 2006 and entered 28 July 2006.  The order quashed CLBCs decision to
    deny benefits to the respondent (petitioner in the Supreme Court) Neil Fahlman
    and required CLBC to reconsider Mr. Fahlmans eligibility for benefits on
    the basis of the criteria mandated by the
Community Living Authority
    Act
, S.B.C. 2004, c. 60 (the
Act
) as it currently
    reads.

[2]

At the conclusion of the appellants submissions, we dismissed the
    appeal with reasons to follow.  These are the reasons.

BACKGROUND

[3]

Mr. Fahlman, who was nineteen at the time of the Supreme Court proceedings,
    was adopted by the respondent (petitioner in the Supreme Court) Fiona Gow
    at the age of five weeks.  He has multiple difficulties.  Specifically, Mr.
    Fahlman has been diagnosed with fetal alcohol syndrome, attention deficit
    disorder and pervasive developmental disorder, which is a type of autism.

[4]

CLBC is a Crown corporation established pursuant to the
Act
.

Prior to 1 July 2005, the Ministry and Community Living Services
    delivered services and support to adults with developmental disabilities living
    in the community.  As of 1 July 2005, CLBC assumed responsibility for delivering
    such support.

[5]

It appears that without adequate support, Mr. Fahlmans disabilities
    create serious behavioural issues.  At age twelve, Mr. Fahlman qualified to
    receive services from the Ministry.  At age fourteen, he began receiving services
    from Community Living Services.

[6]

By the time Mr. Fahlman reached age fifteen, his emotional volatility,
    impulsiveness, size, strength and weight rendered Ms. Gow and her husband
    incapable of caring for him at their home.  He was placed in various foster
    homes.  Nonetheless, Ms. Gow has remained active in attempting to stabilize
    Mr. Fahlmans circumstances.

[7]

At the time of the Supreme Court proceedings, Mr. Fahlman was unemployed
    but in a stable situation.  He was living in a small cabin in Shawnigan

Lake and seeing his
    care provider daily.  Mr. Fahlman had been receiving disability benefits from
    the provincial government since May 2005.  In addition, he was receiving funding
    for seven hours of one-on-one assistance, which enabled him to maintain a
    modicum of independence and stability.

[8]

In June 2005, CLBC commissioned a psychological assessment report to
    determine Mr. Fahlmans eligibility for adult services once he turned nineteen
    on 29 January 2006.  CLBCs eligibility criteria, as stated in its Provisional
    Policy Manual, are as follows: onset before age eighteen; measured significant
    limitations in two or more adaptive skill areas; and measured intellectual
    functioning of approximately 70 or below.

[9]

In preparing her psychological assessment report dated 15 June 2005,
    Dr. Barbara J. Burnside reviewed two reports prepared by Nathan Ory of the
    Island Mental Health Support Team and she assessed Mr. Fahlmans cognitive
    abilities.  She framed her mandate as follows:

Neil
    was referred for assessment of his cognitive abilities in order to decide
    upon his eligibility for services from the adult team of the MinistryandCommunity
    Living Services.  At the time of this assessment Neil was a client of the
    childrens team, but his case was reviewed as he approached age 19. ..
To
    determine eligibility for services from the Adult Team, Neils IQ had to be
    determined
.  [Emphasis added.]

[10]

Dr. Burnside concluded:

Although
    Neils IQ scores were not in the range that defines eligibility for services
    from Community Living Services, his adaptive behaviour was markedly challenged.
    His scores on the Vineland Adaptive Behavior Scales were in the range of moderate
    deficit, and included a high level of maladaptive Behavior as well.  The Vineland
    scores justify presenting his case to the Eligibility Screening Committee,
    regardless of his cognitive scores.

[11]

She noted that without the supports now in place Neil would be extremely
    vulnerable to his own aggressiveness and impulsivity.  He could do significant
    harm to himself and the community without support.

[12]

On 22 September 2005, the Victoria Eligibility Committee for CLBC Adult
    Services discussed Mr. Fahlmans case.  The Eligibility Committee concluded
    that Mr. Fahlman does not meet the criteria of intellectual functioning of
    70 or below.  Accordingly, CLBC advised Ms. Gow that it would cease providing
    services to Mr. Fahlman after he turned nineteen.  On 12 October 2005, Ms.
    Gow, on Mr. Fahlmans behalf, requested a review of the decision.  By a letter
    dated 24 October 2005, Dale Chandler, Quality Service Manager for the South
    Vancouver Island Region of CLBC, affirmed the CLBCs decision.  The letter
    stated in part:

The
    eligibility criteria are:

·

Onset before age 18

·

Measured significant
    limitations in two or more adaptive skill areas

·

Measured intellectual
    functioning of approximately 70 or below

All
    of the above criteria must be present for an individual to be eligible for
    Adult Community Living Services.

In
    Neils situation all the criteria are not present
.  The report states that his full Scale IQ score was in the borderline
    range, better than 8 percent of his age mates.
His Full Scale IQ is listed
    as 79.  We do have some discretion as the intellectual functioning of approximately
    70 or below does allow for some variation.  In Neils case however the variation
    is so great than an exception is not possible
.

I
    have determined that Neil is not eligible for supports through the Adult Community
    Living Services of Community Living British Columbia.  [Emphasis added.]

[13]

Ms. Gow made unsuccessful efforts to locate alternative support for
    Mr. Fahlman.  Thereafter, she requested a review of Mr. Chandlers decision.
    Carol Goozh, Vice President of Quality Services at CLBC, conducted a further
    review of the decision to discontinue services.  She affirmed the decision
    by a letter dated 16 December 2005.  The letter read in part as follows:

As
    outlined in the Community Living Authority Act, CLBC provides support and
    services to adults with developmental disabilities.
The definition of
    a developmental disability corresponds with the definition in the DSM 4 where
    significantly impaired intellectual functioning means an IQ of 70 or below,
    with a small margin for error, and exists concurrently with impaired adaptive
    functioning.  CLBC policy also specifies that the eligibility criteria for
    adult service is
onset before age 18, measured significant limitations
    in two or more adaptive skill areas, and
measured intellectual functioning
    of approximately 70 or below
.

As
    Neil has been assessed being in the borderline range of intelligence, with
    a full scale IQ of 79, he unfortunately does not meet the eligibility criteria
    for adult CLBC services
.
    [Emphasis added.]

[14]

In his affidavit sworn 3 February 2006, Mr. Chandler reconsidered and
    confirmed Mr. Fahlmans ineligibility for benefits.

[15]

In the Supreme Court, Mr. Fahlman and Ms. Gow sought,
inter alia
:
    an order quashing CLBCs 24 October 2005 decision to deny Mr. Fahlman adult
    services when he turned nineteen; a declaration that the CLBCs decision to
    deny benefits on the basis of an IQ criterion is
ultra vires
its statutory
    authority; an order quashing Mr. Chandlers reconsideration dated 3 February
    2006 confirming Mr. Fahlmans ineligibility; and an order remitting the complaint
    back to CLBC to reconsider Mr. Fahlmans eligibility for adult services according
    to proper criteria.

[16]

The learned chambers judge quashed CLBCs decision and Mr. Chandlers
    reconsideration.  He also ordered a reconsideration of Mr. Fahlmans eligibility
    for benefits on the basis of criteria mandated by the
Act

as
    it currently reads.

Statutory Framework

[17]

At this point, it is helpful to set out the statutory scheme and the
    relevant sections of the
Act
:

"adult"
means
    a person 19 years of age or over;

"authority"
means
    Community Living British Columbia, established under section 2 (1);

"child"
means
    a person under 19 years of age;

"community
    living support"
means any of the following:

(a) support and
    services to children and adults with developmental disabilities;

(b) support and
    services to families to assist them in caring for a child or an adult with
    a developmental disability;

(d) support and
    services to other prescribed persons;

"developmental
    disability"
means significantly impaired intellectual
    functioning that

(a) manifests
    before the age of 18 years,

(b) exists concurrently
    with impaired adaptive functioning, and

(c) meets other
    prescribed criteria;

Authority established

2
(1)
    There is established an authority to be known as Community Living British
    Columbia to exercise the powers and perform the functions and duties given
    to it under this Act.

(2)  The authority
    is a corporation consisting of the board.

Duties of authority

11
The
    authority must do all of the following:

(a) provide for
    the delivery in
British Columbia
of community living
    support identified by the minister and of administrative services

(i)
    using available resources through its own employees, or

(ii)  by entering
    into agreements with the government or other persons to deliver or provide
    for the delivery of that support;

(b) comply with
    Provincial standards prescribed by the minister under section 18 (1) (a);

(c) manage the
    delivery of community living support and administrative services, including,
    without limitation, developing policies, setting priorities and allocating
    resources, in accordance with its service plan, budget plan and capital plan;

(d) comply with
    the ministers directions in carrying out his or her power under section 18
    (1) (b) to monitor and assess the authority, and comply with processes to
    assess performance, set by the minister under section 18 (1) (c);

(e) prepare,
    and submit to the minister after the end of its fiscal year, an annual report
    in accordance with the regulations;

(f) perform other
    prescribed functions and duties.

Service plan and other plans

12
(1)  The authority must submit to the minister for approval, by a date
    specified by the minister,

(a) a proposed
    service plan respecting the provision of community living support and administrative
    services for the period specified by the minister, and

(b) a proposed
    budget plan and capital plan related to the provision of community living
    support and administrative services by the authority under the service plan
    referred to in paragraph (a).

(2)  In developing
    a proposed plan referred to in subsection (1) in relation to the provision
    of community living support, the authority must endeavour to

(a) offer a range
    of funding and planning options that promote choice, flexibility and self-determination,
    for example, individualized funding, independent planning support and the
    involvement of community resources,

(b) promote choice
    and innovation in the manner in which services are delivered,

(c) encourage
    shared responsibility among families, service providers and community resources,

(d) utilize and
    further develop the capacity of individuals, families and community resources,

(e) assist adults
    with developmental disabilities to achieve maximum independence and live full
    lives in their communities,

(f) promote
    equitable access to community living support, and

(g) coordinate
    the provision of community living support with services provided by the government
    and community resources.

(3)  The minister
    may require that the authority modify a proposed plan referred to in subsection
    (1) in order to obtain the ministers approval under that subsection.

Power to make regulations

29
(1)  The Lieutenant Governor in Council may make regulations referred
    to in section 41 of the
Interpretation
    Act
.

(2)  Without
    limiting subsection (1), the Lieutenant Governor in Council may make regulations
    as follows:

(a) prescribing
    additional persons for the purposes of paragraph (d) of the definition of
    community living support in section 1;

(b) prescribing
    additional criteria for the purpose of paragraph (c) of the definition of
    developmental disability in section 1;

(c) prescribing
    additional duties of the authority under section 11;

(d) respecting
    a policy under section 8 (3) or any matter relating to conflicts of interest,
    whether actual or potential, by a director, the chief executive officer, or
    another officer or employee;

(e) establishing
    the authority for, or requirements or standards relating to the collection,
    use, disclosure, custody, control or ownership of, or access to, information
    by the minister, the authority, service providers or persons who are in receipt
    of funding under this Act;

(f) respecting
    a common client information system among the minister, the authority and service
    providers, or any of them;

(g) defining,
    for the purposes of this Act and the regulations, words or expressions used
    but not defined in this Act.

(3)  The minister
    may make regulations as follows:

(a) prescribing
    the form and content of and process for an annual report under section 11
    (e) or a proposed plan under section 12 (1);

(b) for the purposes
    of section 13, respecting consultation and collaboration and the making of
    agreements;

(c) establishing
    a process to determine whether the authority is meeting and continues to meet
    the Provincial standards set by the minister under section 18 (1) (a);

(d) respecting
    the transfer of records to or from the authority under section 23.

(4)  A regulation
    made by the Lieutenant Governor in Council or the minister under this Act
    may provide differently for

(a) different
    persons or classes of persons, and

(b) different regions
    of British Columbia.

[18]

As can be seen, s. 11 of the
Act
requires CLBC to provide
    community living support.  Community living support includes support
    and services to children and adults with developmental disabilities and support
    and services to families to assist them in caring for a child or an adult
    with a developmental disability.  Section 1 defines developmental disability
    as

significantly impaired intellectual functioning
    that

(a) manifests
    before the age of 18 years,

(b) exists concurrently
    with impaired adaptive functioning, and

(c) meets other prescribed criteria;

[19]

In contrast, CLBCs eligibility criteria, as stated in its Provisional
    Policy Manual, are as follows: onset before age eighteen; measured significant
    limitations in two or more adaptive skill areas; and measured intellectual
    functioning of approximately 70 or below.

[20]

It is clear that the IQ criterion relied on by CLBC is not expressly
    in the
Act
.

[21]

By virtue of s. 29, only the Lieutenant Governor in Council can pass
    regulations prescribing criteria for the definition of developmental disability.
    It is common ground that the
Community Living Authority Regulation
,
    B.C. Reg. 231/2005 is silent on an IQ criterion and that no additional criteria
    has been promulgated by the Lieutenant Governor in Council.

ISSUES

[22]

The appellants frame the issues on appeal as follows:

(a)
    The learned chambers judge erred in his interpretation of the statutory definition
    of developmental disability in the
Act
by ignoring the requirement
    in the definition that applicants have significantly impaired intellectual
    functioning.

(b)
    The learned chambers judge erred in holding that CLBCs use of an IQ criterion
    to interpret the phrase significantly impaired intellectual functioning
    in the statutory definition of developmental disability in the
Act
was an unlawful sub-delegation of the power granted to the Lieutenant Governor
    in Council to make regulations prescribing additional criteria for the definition
    of developmental disability.

(c)
    The learned chambers judge erred in holding that CLBCs use of an IQ criterion
    to interpret the phrase significantly impaired intellectual functioning
    as used in the statutory definition of developmental disability in the
Act
was an unlawful fettering of CLBCs discretion under the
Act
.

DISCUSSION

Standard of Review

[23]

I preface my consideration of the issues on appeal with the observation
    that the appellants do not challenge the chambers judges conclusion that
    the proper standard of review in this case is one of correctness.

[24]

In my opinion, the chambers judge properly stated at para. 34 of his
    reasons that the decision of the Board attracts a correctness standard of
    review where very little deference will be observed.

The Meaning of Significantly Impaired Intellectual
    Functioning

[25]

I now turn to the appellants first ground of appeal.  CLBC and the
    Ministry contend that the learned chambers judge erred in his interpretation
    of the statutory definition of developmental disability in the
Act
by ignoring the requirement in the definition that applicants have significantly
    impaired intellectual functioning.

[26]

The appellants submit that an error is manifest in para. 23 of the
    chambers judges reasons, which reads in part: the determination of the
    CLBC, although meeting the first two statutory criteria, has been denied benefits
    on the basis of a third criteria [
sic
] of its own making.  They allege
    that the chambers judge considered the requisite criteria for developmental
    disability to consist only of the lettered sub-paragraphs in the statutory
    definition.  The appellants argue that the chambers judges interpretation
    of developmental disability erroneously omits an unlettered criterion; that
    is, the existence of significantly impaired intellectual functioning.  Ultimately,
    the appellants maintain that Mr. Fahlman does not have significantly impaired
    intellectual functioning; as such, the board properly decided against his
    eligibility for benefits.

[27]

The appellants contend that significantly impaired intellectual functioning,
    which the
Act
omits to define, should be accorded its technical
    and scientific meaning, which they claim can be found in internationally
    accepted standards and authorities on mental retardation.  One such authority
    is the American Psychiatric Associations
Diagnostic and Statistical Manual
    of Mental Disorders
, 4
th
ed. (Washington, DC: American Psychiatric
    Association, 2000) (DSM-IV), which provides diagnostic criteria for mental
    retardation.  The DSM-IV defines significantly subaverage intellectual functioning
    as an IQ of approximately 70 or below, with a measurement error of approximately
    five points.  The appellants cite additional international standards that
    employ criteria similar to those found in the DSM-IV.  They also cite extracts
    from legislative debates to the effect that the definition of developmental
    disability should correspond with the DSM-IV criteria.

[28]

In my respectful view, the chambers judge did err in finding only two
    statutory criteria for developmental disability.  Whether an applicant has
    significantly impaired intellectual functioning so as to be eligible for
    adult CLBC services constitutes another statutory criterion.  However, it
    is apparent from paras. 37 to 48 of the chambers judges reasons that he recognized
    the relevance of the inquiry into significantly impaired intellectual functioning.

[29]

It remains to consider whether the IQ criterion falls under the rubric
    of significantly impaired intellectual functioning.  I am not persuaded
    that it does.  The
Act
does not support the construction of
    the term as meaning only measured intellectual functioning of approximately
    70 or below.  The appellants rely on the DSM-IV and other comparable texts
    to justify their use of the IQ criterion in determining whether the applicant
    is developmentally disabled.  However, it is apposite to note that the texts
    define mental retardation, as opposed to developmental disability.  Further,
    the phrase significantly
impaired
intellectual functioning appears
    in none of the texts: the DSM-IV alludes to significantly
subaverage
intellectual functioning.  These factors limit the texts usefulness.

[30]

In addition, I am not prepared to take judicial notice of the DSM-IV
    extracts.  Judicial notice is properly taken when facts are either (1) so
    notorious or generally accepted as not to be the subject of debate among reasonable
    persons; or (2) capable of immediate and accurate demonstration by resort
    to readily accessible sources of indisputable accuracy:
R. v. Find
,
    [2001] 1 S.C.R. 863, 2001 SCC 32 at para. 48, as cited in
R. v. Krymowski
,
    [2005] 1 S.C.R. 101, 2005 SCC 7 at para. 22.

I do not consider
    the texts to state unequivocally, the diagnostic criteria for developmental
    disability.  The texts in the instant case are distinguishable from the historical
    texts in
Law Society of British Columbia v. Gravelle
(2001),
    154 B.C.A.C. 25,

[2001] 7 W.W.R. 15, which were accepted as
    authoritative.

[31]

The DSM-IV and other texts can properly be characterized as expert
    evidence, only to be entered through a qualified witness.  No such evidence
    was adduced at the hearing in the Supreme Court.  In
Nesbitt
    v. Nesbitt
, 2005
    BCSC 1311, the judge preferred an experts application of DSM-IV criteria
    over several lay interpretations.
In
Egli
    (Committee of) v. Egli
(2003), 20 B.C.L.R. (4
th
) 386, 2003
    BCSC 1716, the judge made the following remark at para. 26 with which I agree:
    diagnostic criteria from the psychiatric manual DSM IV
contain
    technical language that requires explanation.

[32]

The appellants essential argument on this point is circular.  They
    submit that the court does not need expert evidence because the term significantly
    impaired intellectual functioning has a technical meaning, to be ascertained
    by reference to authoritative texts such as the DSM-IV.  However, at the same
    time, the appellants urge this Court to take judicial notice of those texts.
    This line of reasoning does not advance the appellants argument and is unpersuasive.

[33]

The appellants also rely on Hansard extracts to argue that the legislature
    intended use of an IQ benchmark to ascertain significantly impaired intellectual
    functioning.  However, it would be imprudent to equate the apparent intention
    of certain individual legislators to the intention of the legislature as a
    whole.  Moreover, in my view, the appellants interpretation of the Hansard
    extracts is unsustainable: the extracts cannot be said to indicate the legislatures
    endorsement of the IQ criterion.  The IQ figure employed by the DSM-IV is
    referred to as a guideline and not a hard-and-fast number in all instances.
    The respondents submit, and I accept, that the Hansard extracts more reasonably
    support the interpretation that the legislature decided against imposing an
    IQ criterion due to community concerns with a rigid guideline and the need
    for flexibility.  The inclusion of an IQ or other rigid criterion was to be
    the subject of ongoing consultation and review.  I note the following passages
    from British Columbia, Legislative Assembly,
Hansard
, Vol. 13, No.
    5 (26 March 2003) at 5654-55:

J.
    MacPhail:
Let me ask the minister a question. Community
    living services for children, whether they be adult children or children under
    19. I understand that the services are delivered on the basis of an IQ test
    and that the dividing line is 70. If you have an IQ of under 70, you get the
    programs, and if you have an IQ above 70, you don't  whether you're a child
    or an adult child...

Hon.
    L. Reid:
At this stage in the discussion, it is the
    international standard under the DSM-IV guideline, if you will. The reality
    is that the guideline isn't hard and fast at 70. It's supposed to be 70 plus
    or minus 5. That standard deviation is supposed to be considered in terms
    of functional assessment. My colleague assures me that process is underway
    in terms of people finding better ways to approach that.

The
    member opposite is correct.
It is clearly not in people's best interests
    to have a hard-and-fast number in all instances
.

J.
    MacPhail:
That's good newsI met with one parent, for
    instance. Her child is just an adult now, 19 or 20, and with autism. The child
    is diagnosed autistic and is able to actually attend a post-secondary education
    institution, but is every day having to learn how to take the bus, cannot
    live independently and yet does not qualify for services because his IQ is
     if I recall correctly  higher than 75 even. It's not much higher, but it's
    higher than 75.
Because of this arbitrary cut-off point, as the minister
    describes it, he is unable to maximize his independence
. It would be a
    maximization of independence in a way that would actually save the state money
    in the long run, because he will be able to get an education and probably
    be able to get a job as well, but he needs community living support.

Hon.
    G. Hogg:
Yes, we've been in many discussions with
    the interim board of community living B.C. around the definitional issues.
    Certainly, as the member appropriately points out,
there are a number of
    parents who have concerns around the hard-and-fast guidelines
. We have
    to have some standards by which we start to evaluate and provide services.

At
    this stage, the best standard is the international standard through the diagnostic
    and statistical manual  DSM-IV  of the American Psychiatric Association.
    We have had discussions with them. They're well aware that
there is needed
    to be some flexibility
...

They
    have been having a number of consultationsThere have been a number of submissions
    from parents about that  about the definition, about the flexibility.
They
    are looking at ways they can provide the greatest range of services with the
    greatest amount of flexibility that they can have
.

They
    are still having further consultations and discussions around how they can
    find an operational definition which is allowed to be based on the DSM-IV
    standard as well as giving them some flexibility  flexibility that also allows
    them to control or have a bar that makes some sense in terms of what the access
    criteria to the services are.  [Emphasis added.]

[34]

Additionally, the appellants point to s. 5(1)(a)(i)(A) of the Regulation,
    which requires the authority to provide, until 31 December 2006, for the delivery
    of support and services that are the same as community living support to
    a child who is diagnosed with Autism Spectrum Disorder.  Subsection 5(2) of
    the Regulation then requires the authority to, before 31 December 2006, determine
    whether the child has a developmental disability.  The appellants urge this
    Court to make the following negative inference.  The Regulation explicitly
    mandates the delivery of support to children with Autism Spectrum Disorder
    (from which, I note, Mr. Fahlman suffers).  This mandate appears distinct
    from the requirement to provide support for a child with a developmental
    disability.  It follows, the appellants suggest, that all persons  children
    or adults  with Autism Spectrum Disorder were not intended by the legislature
    to fall under the category of having a developmental disability.  However,
    I am not persuaded that such inference is warranted.

[35]

I emphasize that the legislature could easily have provided by regulation,
    under s. 29 of the
Act
,

that only individuals
    with an IQ of 70 or below are eligible for adult CLBC services.  It did not.
    Therefore, IQ level cannot be determinative of the existence of significantly
    impaired intellectual functioning.  In my view, the
Act

is
    unambiguous in this respect.  In any event, it has been suggested that any
    ambiguity in a benefit-conferring statute should be resolved in favour of
    the claimant.  In the context of unemployment insurance benefits, the Supreme
    Court of Canada remarked in
Canada (Attorney General) v. Abrahams
, [1983] 1 S.C.R. 2, 142 D.L.R. (3d) 1 at
    para. 16 that since the overall purpose of the Act is to make benefits availableI
    would favour a liberal interpretation of theprovisions.  I think any doubt
    arising from the difficulties of the language should be resolved in favour
    of the claimant.  In my view, the
Act
can fairly be characterized
    as a benefit-conferring statute that is protective of vulnerable persons in
    the community.  Subsection 12(2) provides insight on the
Act
s
    general purposes: to assist adults with developmental disabilities to achieve
    maximum independence and live full lives in their communities and to promote
    equitable access to community living support.

[36]

Ultimately, I do not consider that on any reasonable interpretation
    it can be said that the term significantly impaired intellectual functioning
    imports the IQ criterion employed by CLBC.  Thus, although the learned chambers
    judge may have failed to acknowledge directly the statutory criterion of significantly
    impaired intellectual functioning, I see no basis for interfering with his
    conclusion that the IQ threshold constitutes an unlegislated criterion that
    CLBC improperly applied in determining Mr. Fahlmans eligibility.  I note
    in passing that in declining Mr. Fahlmans application, CLBC essentially contravened
    the Operational Directive 2001/02 (effective 18 April 2001) issued by the
    Assistant Deputy Minister, which expressly stated that an IQ of approximately
    70 is not to be used as the sole determinant of eligibility.  Although the
    Provisional Policy Manual dated April 2005 specifying the current eligibility
    criteria subsequently came into existence, the Operational Directive provides
    some insight as to how the CLBC was to make eligibility determinations.

Unlawful Sub-delegation

[37]

With respect to the second ground of appeal, the appellants contend
    that the chambers judge erred in holding that CLBCs use of an IQ criterion
    to interpret the phrase significantly impaired intellectual functioning
    in the statutory definition of developmental disability constituted an unlawful
    sub-delegation of the power granted to the Lieutenant Governor in Council
    to make regulations prescribing additional criteria for the definition of
    developmental disability.  They submit that the chambers judges inattention
    to significantly impaired intellectual functioning in defining developmental
    disability led him to misconstrue CLBCs reliance on an IQ score as an attempt
    to introduce unlegislated criteria into the definition.  The appellants maintain
    that the term significantly impaired intellectual functioning within the
    definition of developmental disability necessarily includes an IQ criterion.

[38]

Given my conclusion that the IQ measure does not fall under the criterion
    for significantly impaired intellectual functioning, it follows that the
    chambers judge did not err in construing CLBCs express use of IQ as part
    of its eligibility criteria as an attempt to deny benefits on the basis of
    a criterion of its own creation.  It is clear from CLBCs correspondences
    to Ms. Gow that Mr. Fahlman was denied benefits predominantly on the basis
    of his IQ score.  The chambers judge stated as follows at para. 24 of his
    reasons:

It
    has often been stated that where legislation authorizes a delegate to make
    regulations then the delegate must make them and any delegation of that statutory
    authority will be
ultra vires
. In other words, the delegate cannot
    sub-delegate the law making power without statutory authority to do so. In
    the case at bar, the Lieutenant Governor has chosen not to promulgate a regulation
    to create the IQ criterion as a statutory consideration to be applied by the
    CLBC. Nevertheless, the CLBC appears to have adopted policy which amounts
    to binding regulation which appears to state that only individuals with an
    IQ below 70 to 75 will be eligible for the services it provides in accordance
    with the statutory scheme.

[39]

The chambers judge relied on the Supreme Court of Canada decisions
    of
Canada (A.G.) v. Brent
, [1956] S.C.R. 318, 114 C.C.C. 296
    [
Brent
] and
Brant Dairy Co. v. Ontario (Milk Commission)
,
    [1973] S.C.R. 131, 30 D.L.R. (3d) 559 [
Brant Dairy
].  In
Brent
,
    immigration legislation empowered the Governor in Council to make regulations
    limiting or prohibiting a persons admission into Canada for reasons enumerated
    in the statute.  The Governor in Council exercised its power by purporting
    to enact a regulation that delegated to special inquiry officers, the discretion
    to deny a person admission into Canada.  The regulation reflected the specifically
    legislated reasons and it was drafted in comparable language as the regulation-empowering
    section.  The court stated as follows at para. 4:

Parliament
    had in contemplation the enactment of such regulations relevant to the named
    subject matters, or some of them, as in His Excellency-in-Council's own opinion
    were advisable and not a wide divergence of rules and opinions, ever-changing
    according to the individual notions of Immigration Officers and Special Inquiry
    Officers.
There is no power in the Governor General-in-Council to delegate
    his authority to such officers
.  [Emphasis added.]

[40]

The court applied
Brent
in
Brant Dairy
,
    which similarly involved an improper attempt to sub-delegate statutory regulation-making
    power by converting it into a discretionary power to be exercised by sub-delegates.

[41]

Ultimately, I see no basis for interfering with the chambers judges
    conclusion at para. 27 that

the
    CLBC's action following these two lines of authorities, was
ultra vires
on the basis that it was an unlawful delegation of the power to make regulations,
    which under s. 29 of the statute resides with the Cabinet. In accordance with
    the statutory enactment, the Lieutenant Governor in Council alone has the
    ability to promulgate criteria to determine who meets the criteria for "developmental
    disability" as set out in s. 1 of the
Act
.

[42]

Accordingly, I would not accede to this ground of appeal.

Fettering of Discretion

[43]

In respect of the third ground of appeal, the appellants contend that
    the chambers judge erred in holding that CLBCs use of an IQ criterion to
    interpret the phrase significantly impaired intellectual functioning constituted
    an unlawful fettering of CLBCs statutory discretion.  The crux of their argument
    is that the
Act
does not confer discretion on CLBC to determine
    eligibility for adult services.  The
Act
sets out specific criteria,
    the precise application of which is CLBCs mandate.  According to the appellants,
    a precondition of fettering of discretion is the existence of discretion,
    which they claim CLBC did not enjoy.

[44]

The chambers judge concluded as follows at para. 28:

I
    am of the view thatthe CLBC has fettered its own discretion by adopting the
    IQ policy and then refusing to consider other factors that are relevant. Dr.
    Burnside made her recommendations in this case knowing full well that the
    IQ criterion established by the CLBC was not met but considered the seriousness
    of N.F.'s condition to be appropriate for continued assistance notwithstanding
    non-conformance with the IQ criteria which I have found to be wrongfully established
    by the CLBC. Therefore, in this case I find that the CLBC has impermissibly
    structured its discretion using its own rigid criteria of IQ below the 70
    to 75 range in a manner which precluded it from considering the merits of
    N.F.'s case.

[45]

The chambers judge also rejected the submission that the board justifiably
    adopted the IQ policy as part of its duty under s. 11 of the
Act
to manage the delivery of community living supportservices.  The board
    had claimed that this duty included enunciating guidelines to interpret the
    undefined term significantly impaired intellectual functioning.

[46]

As Professor David J. Mullan explains in his text at 115-16, fettering
    of discretion as a ground of review falls under the category of abuse of discretion.
    The essential allegation is that the decision-maker failed to exercise its
    discretionary powers
genuinely
in an individual case; rather, it rendered
    a decision on the basis of pre-existing policy.  Judicial tolerance for the
    adoption of guidelines has not extended to the establishment of formal rules
    to govern in particular cases.  A specific statutory power is a prerequisite
    to promulgating such rules.

[47]

Further, Professor Mullan observes how courts have admonished against
    informal policies and guidelines becoming invariable rules applied automatically
    in every case.  Individual matters warrant individual attention.  Accordingly,
    a statutory authoritys discretion should not be so fettered as to preclude
    individualized consideration of particular cases.

[48]

In
Ainsley Financial Corporation v. Ontario Securities Commission
(1995), 21 O.R. (3d) 104, 77 O.A.C. 155 (C.A.), the court declared
ultra
    vires
, a policy statement of the Commission.  The court found that the
    policy statement did not merely contain informal guidelines that facilitated
    the Commissions regulatory functions.  Rather, the Commission had instituted
    rules that appeared mandatory due to the threat of sanctions.  The court at
    para. 14, citing
Pezim v. British Columbia (Superintendent of Brokers)
,
    [1994] 2 S.C.R. 557, 168 N.R. 321 at para. 79,

held that the
    Commission had no statutory authority to issue
de facto
laws disguised
    as guidelines.

[49]

Moreover, the respondents cite
Maple Lodge Farms v. Canada
,
    [1981] 1 F.C. 500, 42 N.R. 312 at para. 29 (F.C.A.), affd [1982] 2 S.C.R.
    2, 44 N.R. 354 for the proposition that

[t]he
    Minister may validly and properly indicate the kind of considerations by which
    he will be guided as a general rule in the exercise of his discretionbut
    he cannot fetter his discretion by treating the guidelines as binding upon
    him and excluding other valid or relevant reasons for the exercise of his
    discretion

[50]

In the case at bar, I see no sound basis for interfering with the chambers
    judges conclusion that CLBC fettered its discretion.  First, I prefer the
    respondents characterization of CLBCs mandate.  In my view, the
Act
clearly grants to CLBC discretion in determining eligibility for adult services.
    As is evident from para. 37 of the chambers judges reasons, CLBC recognized
    in Supreme Court its wide ranging discretion with respect to the provision
    of the benefits it is authorized to administer.  Whether an applicant has
    significantly impaired intellectual functioning so as to have a developmental
    disability and therefore warrant community living support appears to be
    a discretionary decision.  Application of the statutory criteria does not
    necessarily yield an incontrovertible result.  CLBCs duty to satisfy itself
    as to the presence of a qualifying impairment is to be exercised on the facts
    of each case.

[51]

Second, in adopting a policy interpreting significantly impaired intellectual
    functioning as requiring a below-70 IQ, CLBC can fairly be said to have fettered
    its discretion.  The respondents cite the Supreme Court decision of
Lewis
    v. B.C. (Superintendent of Motor Vehicles)
(1979), 18 B.C.L.R. 305,
    108 D.L.R. (3d) 525 (S.C.) [
Lewis
], which the Federal Court
    referred to in
Apotex Inc. v. Canada (Attorney General)
(1993),
    59 F.T.R. 85 at para. 78 (T.D.).

[52]

In
Lewis
,
    motor vehicle legislated provided
that upon being satisfied as to
the
    fitness and ability of the applicant to drive and operate motor-vehicles of
    the relevant category", the superintendent shall issue a licence.  The
    judge noted at paras. 3 and 10 that

the superintendent cannot, of course, lay down specific
    requirements and say that those who meet these criteria will receive a licence
    and those who fail to meet any one of them will be refused. That would be
    to enact regulations, which the superintendent has not the authority to do,
    and to abdicate the judgmental role which is given to him by the Act.

I am satisfied that in this case the responsible officer
    refused the licence solely by application of an inflexible rule and without
    regard to the
actual fitness or ability of the applicant
    to drive a vehicle of the type in question. The limitation which the officer
    placed on the scope of appeal makes this very plain.

[53]

The judge at para. 10 made the following remarks with which I agree:

Those performing the superintendent's duties quite understandably
    desire to avoid consideration of the merits of individual cases and the controversy
    which arises when applicants are turned down on the basis of judgment. They
    prefer the strict application of rules to which reference can be made. Had
    the legislature desired that licences be granted or refused on the basis of
    compliance with particular standards, it would have authorized such standards
    to be established by regulation. Instead, it has determined that the decision
    should be based on "fitness" and "ability", and made the
    superintendent and his delegates judges of these qualities in individual applicants.

[54]

This Court considered a similar question in
Lloyd v.
British Columbia (Superintendent of Motor Vehicles)
, [1971] 3 W.W.R. 619, 20 D.L.R. (3d) 181
    (B.C.C.A.).  In that case, the court found that the superintendent fettered
    his discretion by adopting a blanket policy of automatically suspending the
    licence of any person convicted of impaired driving.  This policy prevented
    the superintendent from undertaking the statutorily-mandated inquiry into
    the facts, circumstances and merits of each case.

[55]

In the instant case, had the legislature intended IQ to be partially
    determinative of significantly impaired intellectual functioning and, therefore,
    developmental disability, it could have invoked s. 29 of the
Act
.
    Namely, the Lieutenant Governor in Council could have specifically prescribed
    the IQ threshold as an additional criterion for the purpose of paragraph
    (c) of the definition of developmental disability in section 1.  Instead,
    the legislature seemed reticent to impose rigid rules.  Until the legislature
    decides to impose such rules, the Act as it currently reads confers discretion
    on CLBC to determine whether an applicant has significantly impaired intellectual
    functioning so as to be developmentally disabled and thus eligible for community
    living support.  In exercising its discretion, CLBC is to consider fully
    the facts, circumstances and merits of each application.  The IQ policy precludes
    such consideration and application thereof gives rise to a fettering of discretion.

[56]

Accordingly, I would not accede to this ground of appeal.

CONCLUSION

[57]

For the foregoing reasons, I would dismiss the appeal.  In so doing,
    I dismiss the appellants application to adduce fresh evidence.  In applying
    the test articulated in
Palmer v. The Queen
, [1980] 1 S.C.R.
    759 at 775-76, 50 C.C.C. (2d) 193, I emphasize that the proposed evidence
    was entirely within the appellants capacity to obtain prior to the hearing
    of the petition.  The court in
Palmer
established that evidence
    should generally not be admitted if, by due diligence, it could have been
    adduced at trial.  This general principle is strictly applied in civil cases:
    See:
Spoor v. Nicholls
(2001), 90 B.C.L.R. (3d) 88, 2001 BCCA
    426 at para. 16.

[58]

Ultimately, I uphold the chambers judges order quashing CLBCs decision
    and the reconsideration.  I also uphold his order for reconsideration of Mr.
    Fahlmans eligibility for benefits on the basis of the criteria mandated by
    the Act as it currently reads.

The Honourable
    Madam Justice Kirkpatrick

I agree:

The Honourable Madam Justice Rowles

I agree:

The Honourable Madam Justice Levine


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Gallant
          v. Gallant,

2007
          BCCA 21

Date: 20070109

Docket: CA034026

Between:

Roy
    Gallant, Grant Gallant,

Ashley
    Gallant and Jennifer Gallant

Respondents

(
Plaintiffs
)

And

Opal
    Gallant and Trevor Nowosekski

Appellants

(
Defendants
)

And

Clay
    Anthony Gallant

Respondent

(
Defendant
)

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Mr. Justice Donald

The
          Honourable Mr. Justice Chiasson

Oral Reasons for Judgment

J.
          Roberts

Counsel for the Appellant

R,B.
          Kearl

Counsel for the Respondents R. Gallant, G. Gallant,
          A. Gallant & J. Gallant

Place
          and Date:

Vancouver
,
British Columbia

9 January 2007

[1]

DONALD, J.A.
: The plaintiffs, respondents in this Court,
    brought this action for the following relief:

(a)        A declaration that the Defendants hold the
    Property in trust equally for the five children, namely Opal Claire Gallant,
    Clay Anthony Gallant, Grant Gallant, Ashley Gallant and Jennifer Gallant,
    so that each child has a twenty (20%) beneficial ownership in the Property;

(b)        An accounting regarding contributions made
    to the Property by all parties;

(c)        A Certificate of Pending Litigation against
    the Property more particularly known and described as:

Parcel Identifier: 025-917-170
Lot 8 Section 7 Township 8
New Westminster District Plan BCP10520

(d)        A sale of the Property pursuant to the
Partition
    of Property Act
, R.S.B.C. 1996, c. 347, with the net proceeds being divided
    equally among the five children, namely Opal Claire Gallant, Clay Anthony
    Gallant, Grant Gallant, Ashley Gallant and Jennifer Gallant, after an accounting
    for all parties' contributions toward the Property;

(e)        Special costs against Opal Claire Gallant
    and Trevor John Nowoselski;

(f)
    Such further and other relief as this Honourable Court deems meet and just.

[2]

Opal Gallant and Trevor John Nowoselski, two of the defendants below,
    appeal from the judgment of Mr. Justice Romilly, who granted the plaintiffs'
    Rule 18A application for judgment and dismissed the defendants' cross application
    for an order removing the Certificate of Pending Litigation and granting them
    conduct of sale of the subject property.  The judge's reasons are indexed
    as 2006 BCSC 523.  We are informed by counsel that the property has been sold
    and the proceeds are being held pending the outcome of the appeal.

[3]

In the judges reasons, he accepted the plaintiffs' evidence that Roy
    Gallant, father of Grant Gallant, Ashley Gallant, Jennifer Gallant, Opal Gallant
    and Clay Gallant, and father-in-law to Trevor Nowoselski, developed a plan
    to purchase with his own funds an investment property for the equal benefit
    of his five children.  The judge held this constituted a trust, the terms
    of which are embodied in a document entitled "House Purchase Plan"
    created by Roy Gallant, which provides, in part, as follows:

The
    proposal is to purchase a house in Cloverdale.

1.         The ownership of the house will be in the
    names of Opal, Trevor, and Clay
or
Grant.

2.         There will be a 2nd Mortgage on the house,
    held by Opal, Clay, Grant, Ashley and Jennifer.  Each of the 5 kids will own
    20% equity in the property.

3.         Clay and Grant will help Opal and Trevor subsidize
    the monthly payments.

4.         The home is on a large lot, and can be subdivided
    into 3 properties when the lane is put in at the back of the property, by
    the neighbours to the south.

5.
    There is an estimated 5 to 10 year hold on the property.

[4]

Roy Gallant caused the title to be registered in the names of Clay
    Anthony Gallant, Trevor John Nowoselski and Opal Claire Gallant, and not the
    others, for reasons explained by the judge at paragraph 7 of his reasons:

[7]  In the summer of 2001, Roy Gallant decided to buy the aforesaid Lands
    and Premises for the benefit of the Children, two of whom were minors.  Each
    child was to receive a one-fifth share.  To facilitate this purchase, Roy
    Gallant decided with the consent of the Children and his wife, to make a gift
    of the down payment on the Lands and Premises in the sum of $52,500.00 to
    the five Children equally.  Because two of the Children were minors, however,
    Roy Gallant decided that the title to the Lands and Premises would be placed
    in the names of his oldest daughter Opal Claire Gallant and her boyfriend,
    Trevor John Nowoselski, to be held in trust for the Children.  Opal and her
    boyfriend could not qualify for the mortgage on the premises, however.  Consequently,
    Opals brother Clay decided to be placed on the title to enable them to qualify
    for a mortgage on the Lands and Premises.  In order to have Opal, Trevor and
    Clay get the mortgage on the Lands and Premises, however, Roy Gallant had
    to sign a mortgage letter to the mortgage lender stating that the sum of
    $52,500.00 was a gift to Clay Anthony Gallant, Opal Claire Gallant and Trevor
    John Nowoselski only, the persons who were registered on the title to the
    Lands and Premises.

The defendants asserted that their interest should be
    as reflected in the title.

[5]

The down payment for the property was $52,500.00, which the judge found
    was Roy Gallant's gift to all five children.  He rejected the evidence of
    Opal Gallant and Trevor Nowoselski where it conflicted with the evidence of
    her father and siblings on the crucial issue as to the overall plan for the
    property and their holding title to it.

[6]

The defendants attacked the judgment on procedural as well as substantive
    grounds.  They say that the judge should not have decided the case on conflicting
    affidavits.  In my opinion, there was sufficient documentary evidence of an
    unimpeachable nature that confirmed the plaintiffs' evidence and which allowed
    the judge to resolve the dispute in a fair manner.  The defendants also alleged
    that the judge erred in not striking out Roy Gallants claim as disclosing
    no cause of action in that he makes no claim against the property.  In my
    view, Roy Gallant as the settlor had a valid basis for seeking a declaration
    of the trust as a party in the proceedings.

[7]

The substantive grounds of appeal amount to a retrial of the facts,
    which we are not permitted to do.  I am satisfied that there was a reasonable
    basis in the evidence for the conclusions reached by the trial judge and I
    would not give effect to the appeal on the merits.

[8]

The judge refused to cancel the Certificate of Pending Litigation on
    consideration of the factors discussed in
Wiest v. Middelkamp
,
    2005 BCSC 1626, where Mr. Justice Halfyard set out a three-part test:

[13]
    In my opinion, the factors relevant to the exercise of the court's discretion
    in this type of application include the following:

(a)        Whether the respondent has given an acceptable
    explanation for the delay in prosecuting the claim;

(b)        Whether, despite the presumed prejudice, no
    actual prejudice would be incurred by the applicant if the order was not granted;
    and

(c)
    Whether the respondent's claim for an interest in the land has at least a
    reasonable prospect of succeeding.

[9]

The appeal concerning the request for cancellation of the certificate
    of pending litigation and an order granting the power of sale to the defendants
    is advanced on the basis that the appeal on the merits is successful.  On
    the view I take of the principal issues on the merits, these additional issues
    are unnecessary to decide.  In any event, the sale of the property renders
    the conduct of sale issue entirely moot.

[10]

No basis having been shown for interfering with the order under appeal,
    I would dismiss the appeal.

[11]

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

[12]

CHIASSON, J.A.
: I agree.

[13]

FINCH, C.J.B.C.
: The appeal is dismissed.

The Honourable Mr. Justice Donald


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

James
          v. British Columbia (Labour Relations Board),

2007
          BCCA 30

Date: 20070110

Docket: CA034111

Between:

Nicholas
    James

Appellant

(
Petitioner
)

And

Labour
    Relations Board of British Columbia,

Professional
    Employees Association,

University
    of Victoria

Respondents

(
Respondents
)

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Mr. Justice Donald

The
          Honourable Mr. Justice Chiasson

Oral Reasons for Judgment

W.J.
          Andrews

Counsel for the Appellant

E.
          Miller

Counsel for the Respondent Labour Relations
          Board of B.C.

L.
          Terai

Counsel for the Respondent Professional
          Employees Association

P.
          Gilligan-Hackett

P.A.
          Murray

Counsel for the Respondent University of Victoria

Place
          and Date:

Vancouver, British Columbia

10 January 2007

[1]

DONALD, J.A.
:
Nicholas James complained to the Labour Relations Board that his Union,
    the Professional Employees Association (PEA), failed to represent him fairly
    when it refused to continue with an arbitration of his several grievances
    against his employer, University of Victoria (the Employer).

[2]

The Union dropped the grievances because they did not like James's
    chances in the arbitration and because he refused two offers from the Employer
    the Union thought were better than anything he could achieve at arbitration.

[3]

The Board dismissed the complaint which James brought under s. 12 of
    the
Labour Relations Code
, R.S.B.C. 1996, c. 244.  He petitioned
    for judicial review.  The matter went before Mr. Justice Sigurdson who, for
    reasons cited as 2006 BCSC 784, dismissed the petition.

[4]

This appeal focuses on the allegation that the Board breached its duty
    of fairness in refusing to entertain four points of argument advanced in support
    of the s. 12 complaint and the reviewing judge erred in not so finding.
    James seeks an order quashing the Board's decision and remitting the complaint
    for a rehearing.

[5]

I am not persuaded the reviewing judge was wrong in dismissing the
    petition.

[6]

The judge set out the background circumstances fully and I need not
    repeat them here in any detail.  As I see it, the essence of the appeal involves
    the power of the Board to control its processes.

[7]

Section 12 offers protection for the individual employee in a collective
    environment but complaints under that provision can consume much time and
    energy and many create vexing administrative challenges for the tribunal and
    for the respondents to the complaint.  This is reflected in the observations
    concerning the Board's experience in
Judd (Re)
, [2003] B.C.L.R.B.D.
    No. 63 (QL), BCLRB Letter Decision No. B63/2003:

¶
    24  Employee rights under Section 12 of the Code are rights contemplated by
    Section 2.  Those rights in turn form the obligations owed by unions to employees
    under Section 12.  However, it is important to recognize that a union also
    has an overall right and obligation to represent all of the employees in the
    bargaining unit:   Section 27 of the Code.  An employee's Section 12 rights,
    and the union's concomitant obligations, must be interpreted in the context
    of the union's obligations to the rest of the bargaining unit it represents.
    It is not consistent with the overall purposes of the Code for any single
    employee, or group of employees within the larger unit, to be allowed to inordinately
    monopolize or drain a union's resources through excessive and unwarranted
    demands for representation.

¶
    25  Every year the Board receives a far greater number of Section 12 complaints
    than are justified on the facts.  This has resulted in excessive demands being
    placed on the resources of unions and the labour relations system as a whole,
    including the resources of the Board.  While in part this may be due to an
    increased level of sophistication amongst employees in the workforce in general,
    in our view it may also flow from a fundamental misconception regarding the
    nature of the rights and obligations arising under Section 12.

¶ 26  Section 12 contains a narrow right and protection.  It has long
    been interpreted that way in this as well as other jurisdictions and that
    interpretation has been upheld by the Courts.  Despite that, Section 12 complainants
    often have expectations far beyond what is provided for by the Legislature.
    This has resulted in a consistently large number of unmeritorious complaints,
    which is contrary to the goals of the labour relations system identified earlier,
    and diverts critical resources both from unions and from the system as a whole.

[8]

James filed a complaint of extraordinary length.  It consisted of 153
    closely typed pages with 146 documentary exhibits attached.

[9]

The first Vice-Chair (constituting a single person panel) to tackle
    this case prepared a four page summary which distilled the complaint to manageable
    proportions.  It was used by the second Vice-Chair (again a single person
    panel) in the case, who conducted a rehearing into the complaint after the
    first decision  dismissing the complaint  was overturned on an internal
    reconsideration ([2002] B.C.L.R.B.D. No. 69 (QL), BCLRB Letter Decision No.
    B69/2002):  judicial review dismissed (
Professional Employees' Assn.
    v. James
, 2002 BCSC 736); appeal dismissed (
Professional Employees'
    Assn. v. James
, 2003 BCCA 181).  At the argument stage of the second
    hearing, counsel for the respondents objected to a series of arguments proposed
    by James, which they submitted lay outside the scope of the issues settled
    by the summary.  The Vice-Chair upheld the objection on the basis that it
    would be unfair to the respondents to allow James to elaborate a new theory
    after the hearing had been conducted on a different footing and the respondents
    elected to call no evidence.

[10]

James applied for leave to reconsider this decision, which was denied:
    [2004] B.C.L.R.B.D. No. 135 (QL).

[11]

The reviewing judge found no breach of natural justice in the refusal
    to entertain the additional arguments.  He said in his reasons:

[64]  The Vice-Chair had an obligation to manage the case in order to
    conserve the resources of the Board.  Here the Vice-Chair was faced with an
    enormous and unmanageable complaint and, with at least the initial agreement
    of the parties, simplified the issues while still leaving the petitioner with
    a substantial complaint.  This case cried out for case-management.  The petitioner
    himself requested that the Board define the boundaries of the hearing and
    limit the issues.  In determining the role that Summary was to play, which
    was to limit and focus the complaint, the Vice-Chair was responding both to
    her obligation to conserve the Boards resources and to the submissions of
    the parties.  It was a ruling that she was entitled to make.  I also think
    that, having made the ruling, it was open to her to not allow the petitioner
    to argue different theories than appeared in the Summary.

[12]

On appeal, James alleges that the judge failed to recognize that the
    arguments in question went to the core of his complaint.  The arguments are
    these:

1.         Ground A.  The Union's conduct was unconscionable
    in setting up the Appellant to be disciplined for harassment as the bait in
    the Union's trap for the Employer; and then unilaterally abandoning the arbitration.

2.         Ground C.  The Union's handling of the Appellant's
    employment issues was grossly negligent in that the Union deliberately 'snowballed'
    more and more grievances (and issues not specifically grieved) into the arbitration
    instead of even considering attempting to resolve specific issues with the
    Employer.

3.         Ground G.  The Union is estopped by its own
    conduct from asserting what would otherwise be its right to abandon the arbitration
    for its own reasons.  The Union led the Appellant to believe that if he withheld
    certain exculpatory witness statements until after he had been disciplined
    the Union would vigorously pursue the harassment arbitration to completion
    and that it would not exercise whatever right the Union might otherwise have
    had to abandon the arbitration prematurely.  That was a promise intended to
    be relied upon, and the Appellant did rely on it, to his detriment.

4.
    Ground H.  The Union's conduct as whole shows the Union improperly using the
    Appellant's employment issues as a vehicle for attacking the Employer, arbitrarily
    abandoning the Petitioner's employment issues, then reacting with hostility
    and retaliation toward the Petitioner, and conducting a fatally flawed, hence
    arbitrary, form of appeal.

[13]

James did not articulate these grounds in his complaint nor are they
    encapsulated in the summary.  He made no objection that the arguments did
    not appear in the summary.  The judge found that the substance of his complaint
    was before the Vice-Chair and I cannot say he was wrong in taking that view.

[14]

James asserts that he understood the summary to be a guide only and
    did not circumscribe the limits of his case.  The Board found against him
    on that point and I view the finding as not patently unreasonable and therefore
    unassailable.

[15]

This is a classic illustration why pleadings or an informal substitute
    like the pre-hearing definition of issues that occurred in this case are so
    important.  Here, James alleges that he was denied a fair hearing when points
    he did not formulate at the outset were not considered at the close of evidence.
    However, his complaint was so wide reaching and unfocussed that he could make
    virtually any argument on the basis of it.  Unless the tribunal imposed some
    sense of order, the respondents would have to take aim at an ever moving target.
    The hearing had to be fair to all parties.

[16]

James also submits that the reviewing judge failed to recognize that
    there was evidence supporting the questioned grounds.  He says that since
    a party should be able to advance any argument based on the evidence in the
    record, it was clearly wrong for the Vice-Chair to refuse to entertain these
    grounds.

[17]

I think, with respect, that this argument fails to distinguish between
    evidence and issues.  Issues determine relevancy and guide the parties in
    their preparation of the case and the calling of witnesses.  Evidence could
    relate to a number of potential subjects, but it only has significance in
    relation to the subject matter of the dispute.  If it were open to a party
    to argue anything to which the evidence might relate, his opponents would
    have to respond with evidence in answer to all possible issues arising.  This
    would defeat the ends of the administrative process reflected in Rule 1(2)
    of the
Labour Relations Board Rules
:

The purpose of these Rules is to secure the just, speedy and inexpensive
    settlement and adjudication of every proceeding having regard to the real
    substance of the matters in dispute and the respective merit of the positions
    of the parties to the proceeding.

[18]

In my opinion, the Board had ample authority to impose reasonable limits
    on the scope of the hearing and did not fail to address "the real substance
    of the matters in dispute".  It follows that I see no basis for interfering
    with the reviewing judge's decision and I would accordingly dismiss the appeal.

[19]

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

[20]

CHIASSON, J.A.
: I agree with the disposition of the appeal
    as proposed by Mr. Justice Donald, but wish to express a concern I have with
    respect to judicial review proceedings of decisions of the Labour Relations
    Board.

[21]

The legislature has established a complete code to address matters
    of industrial relations in the Province.  Part of that code is a mechanism
    for the resolution of disputes related,
inter alia
, to union representation
    of members.  The mechanism includes determinations by the Board at first instance
    and a process for review by way of a reconsideration with leave of the Board.

[22]

The reconsideration process is addressed in s. 141 of the
Labour
    Relations Code
, RSBC 1996, c. 244.  It provides specific criteria
    for granting leave for a reconsideration and the remedies available to the
    Board if there were a reconsideration.

[23]

In this case, the appellant sought judicial review of a second decision
    at first instance, which occurred as a result of the Boards reconsideration
    of a first decision at first instance.

[24]

The appellant applied unsuccessfully for leave for a reconsideration
    of the second decision.

[25]

Although it appears to be the practice in these matters often to seek
    judicial review of a decision at first instance or of it and a refusal by
    the Board to grant leave to have the decision reconsidered, considering the
    scheme of the legislation and the specialized jurisdiction of the Board, I
    am inclined to the view that the decision that should be the subject of judicial
    review should be the refusal to grant leave for a reconsideration and not
    the decision at first instance.

[26]

Recognizing that the Board has not delivered a separate factum in this
    appeal and adopts the position of the respondent Professional Employees Association,
    I do not think it appropriate to do more in this case than identify the issue.

[27]

I add the following comments on the merits on the appeal.

[28]

In this case, the Board on the first reconsideration directed the appellants
    complaint be, remitted to a new panel for determination on the basis of the
    statement of facts agreed to by the parties before the original panel.

[29]

Counsel agree that there was no statement of facts agreed to by the
    parties and that the Board was referring to the Summary.

[30]

Although there was a judicial review of the Boards reconsideration
    decision, it did not address this aspect of the decision.

[31]

I find it difficult to think that the second panel denied the appellant
    natural justice by following the direction given to it by a three-member panel
    of the Board as a result of the reconsideration process.

[32]

For these reasons and for the reasons expressed by Mr. Justice Donald,
    I would dismiss this appeal.

[33]

FINCH, C.J.B.C.
: The appeal is dismissed.

The
    Honourable Mr. Justice Donald

The
    Honourable Mr. Justice Chiasson


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Holmes,

2007
          BCCA 28

Date: 20070110

Docket: CA033715

Between:

Regina

Respondent

And

Ivan
    Holmes, aka Ivan Howard Holmes

Appellant

Before:

The
          Honourable Madam Justice Ryan

The
          Honourable Madam Justice Newbury

The
          Honourable Mr. Justice Hall

Oral Reasons for Judgment

D.
          Kripp

Counsel for the Appellant

J..
          Duncan

Counsel for the (Crown) Respondent

Place
          and Date:

Vancouver
,
British Columbia

10 January 2007

[1]

RYAN, J.A.
: The appellant, Ivan Holmes, was convicted
    on 14 October 2005 in Provincial Court in Merritt of one count of recklessly
    causing damage by fire to a car he did not own in whole or in part contrary
    to s. 434 of the
Criminal Code
.

[2]

The appellant appeals his conviction on the basis that the verdict
    is unreasonable or cannot be supported by the evidence.

[3]

On 22 April 2004 at 9:35 p.m. an officer from the Merritt detachment
    of the RCMP responded to a call in a residential neighbourhood eight to 10
    blocks from the police station.  The officer testified that on his arrival
    he observed a motor vehicle parked in the driveway of a home.  There were
    flames up the passenger side of the vehicle and the interior was filled with
    smoke.  The officer used a fire extinguisher to douse most of the fire.  He
    said that once the fire was put out he observed debris under the passenger
    door that he took to be burning paper.

[4]

The owner of the vehicle, Ms. Hourie, testified that her estranged
    common law husband, Ivan Holmes, had visited her between 9:00 and 9:30 on
    the evening in question.  Mr. Holmes was intoxicated and wanted to see his
    daughter.  Ms. Hourie asked him to leave.  The two argued.  Mr. Holmes left
    but soon returned.  Ms. Hourie testified that Mr. Holmes told her he wanted
    to stay at her place because he said he had nowhere to go.  She refused.
    The argument escalated to the point that Mr. Holmes, in Ms. Houries words,
    kicked off a baby gate that was on the porch and began to throw things.
    Ms. Hourie said that she went back into the house and told her mother that
    they might have to call the police.

[5]

Ms. Hourie said that her mother and her son went to the windows to
    make sure that Mr. Holmes left.  Ms. Hourie went to the front window.  She
    said that her son who had been at the upstairs window said that he smelled
    smoke.  Ms. Hourie moved to another window, pulled the curtain aside and saw
    flames coming from her car parked in the driveway.  She then took her family,
    ran across the street and called the fire department.

[6]

Ms. Hourie said that when she ran across the street she saw Mr. Coutlee,
    a neighbour, walking along the street.

[7]

Mr. Courtlee testified that he was returning from the bingo hall that
    night when he saw Mr. Holmes about a block from his place.  As Mr. Coutlee
    approached his home he saw Ms. Hourie and her family running across the street.
    He said that Ms. Hourie told him there was a fire.  He said he tried to put
    it out with an extinguisher but it was beyond control.

[8]

The appellant did not testify.

[9]

The trial judge concluded that the only inference he could draw was
    that Mr. Holmes set the fire.

[10]

The appellant says that the verdict is unreasonable.  The appellant
    says that there was insufficient evidence of damage to the vehicle, insufficient
    evidence that the fire was deliberately started, and insufficient evidence
    of identity to convict him.

[11]

As for the first point, both the police officer and Mr. Coutlee testified
    as to the extent of the fire.  Damage can be reasonably be inferred from that
    fact.

[12]

The case against Mr. Holmes was circumstantial.  He had motive and
    opportunity to set the fire.  In
R. v. Yebes
, [1987] 2 S.C.R.
    168 the Supreme Court of Canada noted that the Crown is not required to prove
    exclusive opportunity where evidence of opportunity is accompanied by other
    evidence.  In the case at bar the other evidence consisted of motive and temporal
    proximity.  The fire was observed on the heels of the appellants angry departure.
    The trial judge examined whether someone else might have started the fire.
    He noted that Ms. Hourie had no problems with any of her neighbours and that
    no one else was observed in the neighbourhood that night.  His rejection of
    other reasonable inferences was itself not unreasonable.

[13]

I note the appellant did not testify.  In accordance with
R.
    v. Noble
, this Court is entitled to take this into account in determining
    whether the verdict is unreasonable.  In reweighing the evidence to the extent
    permitted by the principles enunciated in
R. v. Biniaris
, [2000]
    1 S.C.R. 381, I am of the view the evidence is capable of supporting the incendiary
    origin of the fire and the identity of the appellant as the person who started
    it.  In my view, the trial judge was entitled to reach a conclusion of guilt
    on the evidence before him.

[14]

I would dismiss the appeal.

[15]

NEWBURY, J.A.
: I agree.

[16]

HALL, J.A.
: I agree.

[17]

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

The Honourable Madam Justice Ryan


`COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Lambert,

2007
          BCCA 26

Date: 20070110

Docket: CA033290

Between:

Regina

Respondent

And

Shane
    Eldon Lambert

Appellant

Before:

The
          Honourable Madam Justice Newbury

The
          Honourable Mr. Justice Lowry

The
          Honourable Madam Justice Kirkpatrick

Oral Reasons for Judgment

P.
          Benning

R.P. Thirkell

Counsel for the Appellant

F.
          Tischler

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver
,
British Columbia

5 January 2007

Place
          and Date of Judgment:

Vancouver
,
British Columbia

10 January 2007

[1]

NEWBURY, J.A.
: Mr. Lambert appeals his conviction on five
    counts of fraud arising from a scheme whereby a woman, Ms. Hauser (the appellants
    common law wife), and at least one man, defrauded several restaurants of food
    and cash.  The ground of appeal advanced at the hearing was the trial judges
    reasons contained an analytical flaw in that the third step described in
R. v. Carter
, [1982] 1 S.C.R. 938 and
R. v. Mapara
,
    [2005] 1 S.C.R. 358, for the application of the co-conspirator hearsay exception
    was, the appellant contends, missing.  I should note, the accused in the instant
    case were not charged with conspiracy but with the substantive offence of
    fraud, so that the existence of a joint venture could be shown on the balance
    of probabilities in accordance with
R. v. Bouvier
, [1985] 2
    S.C.R. 485 and
R. v. Sutton
, [2000] 2 S.C.R. 595, which affirmed
    the New Brunswick Court of Appeal at 1999 N.B.J. No. 548.

[2]

Mr. Benning for the appellant says that although the trial judge correctly
    asked the question whether a joint venture existed between Mr. Lambert and
    Ms. Hauser and whether on the balance of probabilities Mr. Lambert was a participant
    therein and answered both questions affirmatively, the trial judge did not
    go on to consider whether, on all the evidence (including the acts and declarations
    in furtherance of the venture) the Crown had proven
on the criminal standard
that Mr. Lambert was guilty.  Because of this flaw, counsel contends, the
    reasons do not permit meaningful appellate review in accordance with the
Sheppard
line of cases:
R. v. Sheppard
, [2002] 1 S.C.R. 26;
R.
    v. Gagnon
, [2006] 1 S.C.R. 621;
R. v. S.J.D.
(2004),
    186 C.C.C. (3d) 304 (Ont. C.A.), and this courts recent decision in
R.
    v. Thomas
, 2006 BCCA 411.

[3]

Mr. Benning sought to illustrate his argument with reference to Count
    6 in particular, which allegedly took place in August 2004, two months before
    the two co-accused moved into the motel owned by Ms. Halosny.  He notes that
    the trial judge did not consider expressly this question of timing, nor find
    expressly that Mr. Lambert was the male caller, or explain why he concluded
    Mr. Lambert had participated on that occasion.  He suggests that although
    the two co-accused said they had been together for five years, there was
    no evidence that prior to their arrival at the motel in October, Mr. Lambert
    had been participating in the fraudulent scheme.  As well, it is said the
    trial judge failed to address the question of whether another male had been
    involved in the scam, as was suggested by evidence regarding men with different
    accents on the phone and in the cabs.

[4]

I do not find these arguments persuasive.  After the trial judge had
    considered and resolved the first two steps of the modified
Carter
analysis, he did go on to consider the question of Mr. Lamberts guilt, beyond
    a reasonable doubt, on the basis of the acts and declarations which were almost
    totally, I would say, in furtherance of the joint venture.  In other words,
    as the Crown argued in its factum, almost all of Ms. Halosnys acts and statements
    adduced by the Crown were done and said in the course of carrying out the
    fraud.  It was not necessary for the judge, sitting alone, to review again
    all of the evidence he summarized at para. 6 in his Reasons, in order to illustrate
    that that evidence supported a conclusion of guilt beyond a reasonable doubt.
    Indeed I would have said the case, including Count 6, was overwhelming.

[5]

The trial judge did go on, after dealing with the first two steps in
Carter
, to make clear credibility findings against the defence
    witnesses.  He stated that where their evidence conflicted with the Crowns
    evidence, he preferred the latter.  Then, on considering the Crowns entire
    case, he found that it had been proven to the criminal standard.  I do not
    agree with the defence that the Reasons do not admit meaningful appellate
    review within the meaning of the cases mentioned earlier, or that the pathway
    to conviction was not clear.  The trial judges findings were clearly stated
    and fully supported the verdict.

[6]

In the result, I would give leave to appeal but dismiss the appeal.

[7]

LOWRY, J.A.
: I agree.

[8]

KIRKPATRICK, J.A.
: I agree.

The Honourable Madam Justice Newbury


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Davey
          v. Gruyaert,

2007
          BCCA 20

Date: 20070111

Docket: CA034097

Re:
    The Estate of Ricky Allan Davey, also known as

Rick Allan Davey, also known as Rick Davey

Between:

Ivy
    Christina Davey

Appellant

(
Plaintiff
)

And

Brenda
    Gruyaert, Wayne Kirton and John Doe

Respondents

(
Defendants
)

Before:

The
          Honourable Madam Justice Ryan

The
          Honourable Madam Justice Newbury

The
          Honourable Madam Justice Levine

R.J.
          Cuddeford

Counsel for the Appellant

B.
          Gruyaert

Acting on Her Own Behalf

Place
          and Date of Hearing:

Vancouver
,
British Columbia

December 11, 2006

Place
          and Date of Judgment:

Vancouver
,
British Columbia

January 11, 2007

Written
          Reasons by
:

The
          Honourable Madam Justice Newbury

Concurred
          in by:

The
          Honourable Madam Justice Ryan

The
          Honourable Madam Justice Levine

Reasons for Judgment of the Honourable Madam Justice
    Newbury:

[1]

For reasons indexed as 2006 BCSC 622, the Chambers judge below ordered
    that the costs of the unsuccessful defendant and counter-claimant, Ms. Gruyaert,
    be paid from the estate of the deceased, Mr. Davey.  Mr. Davey died at the
    age of 46 without leaving a will.  The plaintiff/appellant was his mother
    and is now, I understand, the administratrix of his estate.  Ms. Gruyaert
    claimed a share of the estate on the basis that she qualified as the deceaseds
    common law spouse as that term is defined at s. 1 of the
Estate Administration
    Act
, R.S.B.C. 1996, c. 122.

[2]

In her earlier reasons after trial (dated December 8, 2005) the Chambers
    judge found that Ms. Gruyaert had not met the onus on her to establish that
    she had been the common law spouse of Mr. Davey.  At paras. 32  35, the Chambers
    judge reasoned as follows:

In
    the circumstances of this case, I must look at the objective factors.  These
    parties did not share legal rights to their living accommodation, nor did
    they share any bank accounts or have access to each others bank statements.
    There was no financial intermingling at all.  Ms. Gruyaert had no access to,
    or knowledge of, Rickys financial affairs.  There was no blending of incomes.
    The two kept their belongings entirely separate.  They had separate vehicles.
    Ms. Gruyaert did not contribute any money to the upkeep or ongoing expenses
    of Rickys house.  Ms. Gruyaert not only kept her paycheque to herself but
    also her benefit plans, though it would have cost her nothing to enrol Ricky
    in her medical plans.  She maintained a separate mailing address and maintained
    a residence with her parents until very shortly before Rickys death.  None
    of these objective factors point to a marriage-like relationship.  Finally,
    as I have noted, Ricky had virtually no relationship with Travis.  While I
    am sure Ricky saw Travis from time to time and interacted with him, he did
    not conduct himself as one who was involved in a marriage-like relationship
    with Traviss mother.

There
    is a great deal of evidence in this case of two people who loved each other
    and spent a good deal of time together.  Ricky and Ms. Gruyaert clearly had
    a strong bond.  I do not doubt that Ms. Gruyaert was Rickys companion in
    his pursuits, as was acknowledged by many at Rickys funeral, and even by
    Rickys mother and sister in the obituary they placed in the local newspaper.
    I certainly reject the evidence of Ivy Davey and Sandra Ward that there was
    no intimate relationship at the time of Rickys death.  In my view, their
    views were entirely coloured by their dismay at Ms. Gruyaerts claim to Rickys
    estate.

However,
    I accept the evidence of Ms. Gruyaerts mother, Carol Davies, and her husband,
    Ken Davies, which significantly undermines Ms. Gruyaerts claim.  From that
    evidence, I conclude Ms. Gruyaert did maintain her residence and that of her
    son, with her parents until she and Travis moved into the basement of Rickys
    home a few weeks before Rickys death.  It is also telling, in my view, that
    Ms. Gruyaert and Travis then moved to the basement suite and began paying
    rent to Ricky.

As
    noted by Parrett J. in
Harris v. Wille Estate
, [2001] B.C.J. No. 169,
    the court should be very slow to impose on parties commitments which, by their
    conduct, they have clearly not intended to make.  On Ms. Gruyaerts evidence
    alone, I conclude that absent from the relationship was any element of economic
    [dependence], a sharing of and commitment to a common principal residence,
    and a general recognition that they were a family unit.

The Court also dismissed a claim in constructive trust
    asserted by Ms. Gruyaert, noting that in return for her contributions of companionship
    and some domestic and personal support, Ms. Gruyaert had received a substantial
    benefit in the form of living rent-free in Mr. Daveys basement suite, and
    the payment of certain travel expenses.

[3]

Notwithstanding this result, the Chambers judge wrote in her later
    reasons that Ms. Gruyaert should have her costs from the estate on a party-and-party
    basis.  In reaching this conclusion, the Chambers judge relied on a decision
    of the Supreme Court of British Columbia in
Re Schipmann Estate
[1999] B.C.J. No. 1377, where a Master had referred to a judge a question
    regarding the propriety of certain deductions for taxes payable on a bequest
    of real estate.  The question was resolved by Cowan J. in favour of the executrix
    and against the residuary beneficiary, but both sought to recover their costs
    from the estate.  Cowan J. ordered special costs in favour of the executrix
    and costs on scale 3 from the estate in favour of the beneficiary, and stated:

A
    review of the several cases referred to by counsel on the issue of the award
    of costs in matters pertaining to issues arising in estate cases leads me
    to conclude that, while the general rule that an unsuccessful party is obligated
    to pay the costs of the successful party in matters pertaining to issues which
    arise relating to such matters as the capacity of the testator or the proper
    construction of a will and issues arising therefrom, the court may in its
    discretion depart from that general rule and award costs to an unsuccessful
    party out of the estate,
particularly so if the court is of the opinion
    that the party seeking a judicial resolution of the issues concerned had reasonable
    grounds for bringing an application for that purpose.

In
    the present case I am of the view, given the somewhat complex issue which
    was before the court pertaining to the administration of the deceaseds estate
    in this case, that it was reasonable and appropriate for the application to
    be made and for the beneficiary  to seek a resolution of the issue favourable
    to him.  [At paras. 7-8; emphasis added.]

The Chambers judge in the instant case noted that similar
    reasoning had also been followed in
Janus v. Lachocki
, 2001
    BCSC 1702 at para. 79.

[4]

Ms. Davey appealed the costs order to this court but did not obtain
    leave prior to the hearing as required by s. 7(2) of the
Court of Appeal
    Act
, R.S.B.C. 1996, c. 277.  When this was brought to counsels attention,
    he applied for leave from the panel and Ms. Gruyaert did not object and informed
    the Court that she was ready to proceed, although she had not filed a factum.
    I am of the view that leave to appeal should be granted.

[5]

On the merits of the appeal, I do not believe that the question of
    whether the claim was brought reasonably is the correct one.  The starting
    point, of course, is the principle that costs follow the event and that any
    departure from that rule is usually intended to deprive the successful party
    of costs rather than to award costs to an unsuccessful party.  In
Vielbig
    v. Waterland Estate
(1995) 1 B.C.L.R. (3d) 76, this court noted that
    exceptions are made to the usual rule more readily in estate cases than in
    other areas of the law.  Writing for the Court, Hinds J.A. quoted the following
    passage from the judgment of Master Horn in
Lee v. Lee Estate
(1993) 84 B.C.L.R. (2d) 341 (S.C.) as follows:

An
    order for costs in favour of a completely unsuccessful party against a completely
    successful party is a most exceptional order.  The general rule
    is that costs follow the event and, while a court may depart from this rule,
    any departure is usually in the way of depriving a successful party of costs
    and not of awarding costs to an unsuccessful party.  In either case,
    the usual rule should not be departed from simply because an unsuccessful
    party did not expect to lose.  (
Baart v. Kumar
(1985) 21
    D.L.R. (4th) 705 [66 B.C.L.R. 61] (B.C.C.A.), at p. 711;
Burnaby (District)

Approving Officer) v. Mutual Development Corp
., [1971] 5 W.W.R. 97
    (B.C.C.A.) at pp. 100 and 105;
Donald
Campbell & Co.
v. Pollak
[1927]
    A.C. 732 (H.L.), at p. 776.)

In
    probate or administration actions or in proceedings for the construction of
    wills, the rule may be more frequently departed from.  In such cases
    where the validity of a will or the capacity of the testator to make a will
    or the meaning of a will is in issue, it is sometimes the case that the costs
    of all parties are ordered to be paid out of the estate.  This is
    upon the principle that where such an issue must be litigated to remove all
    doubts, then all interested parties must be joined and are entitled to be
    heard and should not be out of pocket if in the result the litigation does
    not conclude in their favour.  The estate must bear the cost of
    settling disputes as a cost of administration.  This is the reasoning
    which underlies such cases as
Re Dingwall
(1967), 65 D.L.R. (2d) 43
    (Ont. H.C.); and
McNamara v. Hyde
[1943] 2 W.W.R. 344 (B.C.C.A.); and
Re Lotzkar Estate
(1965), 51 W.W.R. 99 (B.C.C.A.).  The question
    to be asked in such case is whether the parties were forced into litigation
    by the conduct of the testator or the conduct of the main beneficiaries.

But
    the case is different where the litigation does not relate to the validity
    of the will or the capacity of the testator or the construction of the will.
Actions
    brought under dependants relief legislation presume the validity of the will
    and the capacity of the testator and that his intentions are clear.  There
    are no doubts to be settled.
The remedies provided by such legislation
    are directed to the maintenance and support of the dependants of the testator
    and are based on public policy.  The legislation does not invalidate
    the will, it merely permits the court to vary the provisions made by the testator.
So an unsuccessful action under such legislation cannot be said to have
    been caused by a testator, or to  have been necessary to enable the estate
    to be distributed.  The action does not benefit the estate.
[At
    346-7; emphasis added.]

In
Lee Estate
, Master Horn also noted the
    comment of Robertson J.A. in
Lukie

v. Helgason
(1976) 1 B.C.L.R. 1 (C.A.) to the effect that he looked without favour on
    any notion that persons without meritorious claims under the dependants relief
    legislation should be in a position of trying to obtain part of the estate
    without risk to themselves and at the expense of the persons whom the testator
    wished to benefit.  (At 15.)

[6]

Vielbig v. Waterland
    Estate
concerned
    a claim under the
Wills Variation Act
, R.S.B.C. 1979, c. 435.
    Hinds J.A. concluded for the Court that since no question had arisen of the
    validity of the will, the testators capacity or the meaning of the will,
    it could not be said that the litigation had been necessitated by the testators
    fault.  Accordingly, the Court ruled that the general rule should prevail
    and costs follow the event.

[7]

Although the case at bar does not arise under the
Wills Variation
    Act
, the similarities between Ms. Gruyaerts claim and a claim made
    under that statute are obvious.  The litigation in this case was not necessitated
    by any failure on the part of the deceased to express his intentions clearly
    or by a question as to his capacity.  As in
Re Bowe Estate
[1971]
    4 W.W.R. 234 (B.C.S.C.), a decision of Chief Justice Wilson, there was a simple
    assertion and denial of a claim under a statute.

[8]

In my respectful view, the usual rule should have prevailed in this
    case and Ms. Gruyaert should not have been awarded her costs from the estate
    of Mr. Davey, thus diminishing the estate.

[9]

I would allow the appeal and strike out the Chambers judges order
    which awarded costs to Ms. Gruyaert, but I would not order costs against her.

The Honourable
Madam Justice Newbury

I Agree:

The Honourable
Madam Justice Ryan

I Agree:

The Honourable
Madam Justice Levine