COURT OF
APPEAL FOR BRITISH COLUMBIA

Citation:

R. v.
  W.K.C.,

2005 BCCA 19

Date: 20050106

Docket: CA031675

Between:

Regina

Respondent

And

W.K.C.

(Y.C.J.A.)

Appellant

Before:

The Honourable Mr.
  Justice Donald

The Honourable Madam
  Justice Levine

The Honourable Mr.
  Justice Smith

Oral Reasons for Judgment

C.D. Sicotte

Counsel for the Appellant

V.C. Toselli

Counsel for the Respondent

Place and Date:

Vancouver, British Columbia

January 6, 2005

[1]

SMITH J.A.:
On January 30, 2004, the appellant was
convicted by the Honourable Judge Lytwyn of aggravated assault following a
trial in the Provincial Court.  He appeals from that conviction and seeks
either an acquittal or a new trial.

[2]

The appellant, along
with two others, D.P. and J.H., all young persons within the meaning of the
Youth
Criminal Justice Act
, were charged as follows:

Count 1

[D.P.], [W.K.C.] and [J.H.], on or about the 26
th
day of September, 2003, at or near Surrey, in the
Province of British Columbia, did commit robbery of Gurjant Singh SIDHU,
contrary to Section 344(b)

Count 2

[D.P.], [W.K.C.] and [J.H.], on or about the 26
th
day of September, 2003, at or near Surrey, in the
Province of British Columbia, did commit aggravated assault of Gurjant Singh
SIDHU, contrary to Section 268(2) of the Criminal Code.

[3]

The appellant was 14
years old at the material time.

[4]

The appellant's
co-accused were dealt with separately.  D.P. pleaded guilty to aggravated
assault and J.H. pleaded guilty to common assault.  Neither of them testified
at the appellant's trial.  Nor did the victim, Mr. Sidhu.  He was unable to
attend because of the injuries he suffered in the assault.

[5]

At the close of the
Crowns case, Crown counsel directed a stay of proceedings on the robbery
count, Count 1.

[6]

After observing that
the circumstances were both "tragic and senseless", the trial judge
summarized the relevant events and the consequences for Mr. Sidhu.  She said:

[1]        ... Sidhu is a 45 year old Indo-Canadian male.  Around 8:30
p.m. on September 26, 2003, a Delta Police Officer spoke with Sidhu at the
Scottsdale Mall.  Sidhu had been drinking but was not intoxicated.  The Police
Officer directed Sidhu to go home and watched him walk eastbound into Surrey.
Unfortunately, he never made it home.

[2]        On 124th Street and 98th Avenue in Surrey, Sidhu encountered
a group of youths and was pushed to the ground, kicked and left unconscious.
At 10:50 p.m., Brian Ayre who lives near this intersection was disturbed by a
bang at his front door.  When he looked out, he saw feet and a body lying on
the ground.  Ayre called the RCMP who found Sidhu, lying on his back,
unresponsive, bleeding from his nose and wheezing when breathing.

[3]        Sidhu had suffered a severe beating.  He had a closed head
injury and initially was in a prolonged coma with no spontaneous eye or limb
movement.  He had multiple facial fractures, right rib fractures, and a
collapsed lung.

[4]        Sidhu has improved but has suffered a serious head injury
that will leave with him with a significant long-term disability.  Dr. Willms,
the head of the Hospitalist Physician Program at Surrey Memorial Hospital saw
Sidhu at Surrey Memorial on October 27, 2003.  Sidhu could answer simple 'yes'
or 'no' questions but was not oriented as to time or place.  He could move
himself about the bed but could not sit unaided.  He needed assistance with all
aspects of daily living and needed to be fed.  He was incontinent and needed to
be placed in restraints at night to prevent falls out of bed and further
injury.

[5]        Sidhu's condition has not significantly changed since
October 2003.  He remains at Surrey Memorial Hospital with an uncertain
future.  He cannot yet be moved to a long term care facility, the next step in
any rehabilitation plan.  The prospect of full recovery and independent living
is remote and any recovery will likely be slow.

[6]        What happened at the corner of 98th and 124th Street is not
in dispute although W.K.C.'s role in the events is.  Sidhu was pushed to the
ground, and then for no reason, viciously and senselessly, kicked by a number
of youths.  What is also unsettling is the presence of a number of other youths
in the area.  Only one took some steps to stop the beating and no one
telephoned the police or called an ambulance.  Why is uncertain  alcohol,
immaturity, fear of peer disdain, the inability to appreciate the gravity of
the events or some other unknown factor.

[7]

The appellant's role in
the events was in issue because, although he admitted to being present while
Mr. Sidhu was assaulted, he denied that he took part in the attack.  On the
other hand, one witness testified that she observed the appellant push Mr.
Sidhu to the ground and subsequently kick him and another testified that he saw
the appellant kicking Mr. Sidhu while he lay on the ground.  A third testified
that the appellant admitted his participation in the beating and bragged about
it.  Thus, as the trial judge noted, the central issue was credibility.

[8]

The Crown called some
members of the large group of young teenagers of which the appellant was a
part, although it did not call all.  The trial judge observed that many of the
witnesses, including the appellant, had been drinking heavily and that
recollection was a problem.  She commented that the recollection of the Crown
witnesses was varied.  She noted, as well, that each witness had opportunity to
discuss his or her evidence with others before being interviewed by the police
and that the possibility of reconstruction was a concern.

[9]

She set the stage as
follows:

[8]        All the witnesses confirmed the events of the early evening
of September 26.  A number of youths including W.K.C., D.P. J.H. met at D.B.'s
house.  They obtained some hard liquor and began to drink.  Throughout the
evening, this group moved to different locations but continued drinking.
First, they went to Moffatt Park where they met others including B.A., D.H.,
J.S. Roger and Ravi.  They, then, went to a birthday party staying until it was
ended because too many teens had shown up.  Rather than breaking up, the group
moved to Prince Charles Elementary School where they hung about drinking more
alcohol.  By this time, many of the youths were quite drunk.  The group then
began to walk up 124th Street towards Cedar Hills Elementary School near 98th
Avenue.  They did not walk together but in smaller groups.  It was at the
corner of 98th Avenue, where some of the youths encountered Sidhu.

[10]

In her reasons, the
trial judge expressed particular reliance on the evidence of two eyewitnesses, B.A.
and J.S., and on the evidence of the appellants foster father, R.C.

[11]

B.A., who was 15 years
old, testified that she was in the second group that walked up the hill.  She
acknowledged that she was drunk and that her recollection was "blurry".
She was with the appellant, a girlfriend and her boyfriend  the co-accused J.H.
She said that she saw Mr. Sidhu cross the intersection at 98th Avenue toward
them.  She said words were exchanged, but she could not recall what was said.
She said the appellant pushed Sidhu to the ground.  She and her friend
continued walking, while the appellant and J.H. remained behind.  She said she
saw both J.H. and the appellant kick Mr. Sidhu while he was on the ground.

[12]

J.S., who was 16 years
old, was in the last group to walk up 124th Street.  J.S. said he saw Sidhu
lying on the ground at the 98
th
Avenue intersection.  He said D.P. was kicking Sidhu in the head and shoulders
and that the appellant was kicking Sidhus legs.  He was not certain how many
people were present.  He said he grabbed D.P. and tried to hold him since it
appeared to him that D.P. was doing the most damage.  His back was turned to
the appellant as he talked to D.P. and he did not see what the appellant was
doing at that time.  He did not see the appellant leave the scene and he could
not remember if the appellant was still there when he finished dealing with D.P.
He admitted that he was very drunk as well and that he suffers from memory
lapses when he drinks.

[13]

R.C. is the foster
father of both D.P. and the appellant.  He recalled the two of them going out
for the evening at about 5:30 p.m.  In the early morning hours of September 27
th
, one of them telephoned and asked for a
ride home from Surrey.  R.C. refused and went to bed.  He was awakened at about
3:00 a.m. by noise coming from the appellant's bedroom.  He went upstairs and
saw D.P. and the appellant in the bedroom.  Both seemed to be excited and under
the influence of alcohol.  He saw blood on D.P.'s sock and shoes.  As well, he
saw blood on the appellant's shoes.  He recalled a conversation in which one of
them, in an excited manner, discussed a fight.  He recalls D.P. saying, "You
should have seen it.  We kicked the shit out of him" and the appellant
saying, "You should have seen it.  It was awesome.  We stomped him."
He characterized their statements as "bragging".  The next morning,
the appellant asked him to help to remove "a fair amount of blood"
from the sleeve of the appellant's jacket.  In cross-examination, R.C. conceded
the words he attributed to the appellant and D.P. in the bedroom were not
necessarily the exact words used and that he was not sure what each youth said
specifically.  However, he stated that they both said words to the effect that "we
stomped this guy, it was awesome, you should have seen it".

[14]

The blood on the
appellant's jacket and on both shoes was subsequently identified as Mr. Sidhu's
blood.

[15]

The appellant
testified.  He agreed that he was with B.A. as he walked up 124
th
Street toward 98
th
Avenue.  He said that Sidhu crossed the street toward
them and that he believed Sidhu asked for a cigarette.  He said J.H. punched
Sidhu in the head and pushed him to the ground.  He said B.A. and her
girlfriend walked away but he remained at the scene.  He said that D.P. and
others ran up and D.P. and began to kick Sidhu.  He said J.H. joined them in
kicking Sidhu.  He said D.P. kicked Sidhu in the head, kicked him in the right
ribs, and J.H. kicked him on the left side.  He said he watched and did not get
involved.  He said he told D.P. to stop.  He said J.S. came up from behind and
grabbed D.P., saying "you are going to kill him".  Then, he said, J.S.
kicked Sidhu in the head four or five times.

[16]

The appellant testified
that Sidhu was unresponsive after the beating stopped.  He said D.P. said, "Let's
throw him in the ditch" but he intervened because he did not want Sidhu to
die.  He said he convinced D.P. and J.H. to drag Sidhu to the front of a
house.  He said they left Sidhu lying face up in front of the house.  He said
he knocked on the door and they ran.

[17]

Further, he
acknowledged that he and D.P. spoke to their foster father about the fight
later.  He conceded that D.P. may have said, "We stomped some guy"
but maintained that he acknowledged only his presence and not any personal
involvement.

[18]

The trial judge set out
her analysis of the appellant's credibility in her reasons.  While she accepted
the appellant's evidence on some points, she rejected it on the material
issues.  In doing so, she accepted the evidence of R.C. as to the appellant's
demeanour and excitement during their conversation in the bedroom.  She also accepted
his evidence that the appellant effectively admitted his joint participation in
the assault.

[19]

Further, she relied on
the evidence of B.A. and J.S.  She said:

[29]       Of the Crown witnesses, B.A. and J.S. are the most
significant.  They both testified that they saw W.K.C. involved but at
different points in the beating so their evidence cannot be said to have been
tainted by each other.  They do not parrot one another but give evidence of
different stages of the beating.  They do not attend the same school so the
possibility of contamination is more remote.  Despite their alcohol
consumption, I am satisfied that neither witness endeavoured to over-state
W.K.C.'s involvement and accept their evidence.

[20]

The appellant submits
that the trial judge misapplied the test for credibility, misapprehended the
evidence, and did not give adequate reasons.

[21]

First, he says that she
failed to analyze the evidence of B.A. and J.S. with the same vigour that she
analyzed that of the appellant and that, if she had, she would have found their
evidence unreliable.  I cannot agree.

[22]

Trial judges are
presumed to know the law and are deemed to apply the law correctly in the
absence of some demonstrable error.  A trial judge does not err simply because
he or she does not give reasons for deciding problematic points, does not
demonstrate a consideration of all aspects of the evidence, or does not explain
why he or she does not entertain a reasonable doubt.  In that regard, see
R.
v. Burns
, [1994] 1 S.C.R. 656 at 664.  In exceptional cases, such as
R.
v. R.(D.)
(1996), 107 C.C.C. (3d) 289 (S.C.C.), and
R. v. Horton
(1999), 133 C.C.C. (3d) 340 (B.C.C.A.), to which the appellant referred, it may
be an error of law to fail to resolve troublesome issues arising out of bizarre
and confusing evidence, but this is not such a case.  This case turns entirely
on its facts and involves an ordinary assessment of the credibility of the
appellant and other witnesses.  There is nothing highly unusual or troublesome
involved.

[23]

The appellant next complains
that the trial judges simple assertion that she accepted the evidence of B.A.
and J.S. fails to meet the minimum standard for reasons, which is set out in
R.
v. Sheppard
(2002), 162 C.C.C. (3d) 298 (S.C.C.).  He contends that,
since it is clear that she did not accept everything said by these witnesses,
he cannot ascertain what particular evidence of the witnesses was accepted by
the trial judge.

[24]

I would reject that
submission.  It is clear from para. 29 of the reasons, which I have already reproduced,
that the evidence she accepted was the evidence that the appellant was observed
by these witnesses to be participating in the assault.  These reasons, read together
with the record, meet the functional test for reasons enunciated in
R. v.
Sheppard
.

[25]

The appellant
identifies a number of inconsistencies and anomalies in the evidence of B.A.
and J.S. and the trial judge's treatment of it.  However, they relate almost
entirely to peripheral matters.

[26]

It is true that the
trial judge misapprehended the evidence in some instances, but these
misapprehensions were on matters of no consequence.  For example, she said that
B.A. admitted she was "quite drunk", while the appellant points out
that the admission was that she was "very drunk".

[27]

It is true, as well, as
the appellant points out, that the positive assertions of the three witnesses
on material issues of fact given in their direct testimony was, in several
instances, qualified in cross-examination.  J.S. admitted that he was not sure
that the appellant was the second assailant, along with J.H., and that he might
have been given that information by others later.  R.C.'s attribution of words
of admission by the appellant was rendered less specific in cross-examination.
And B.A.'s testimony that she saw both J.H. and the appellant kicking Mr. Sidhu
was qualified by her answer on cross-examination that she was not sure that
both were doing so.  Further, her evidence relating to her point of observation
was clouded in cross-examination.  In direct, she said the appellant pushed Mr.
Sidhu to the ground while she was with him at the intersection; in cross, she
allowed that this might have occurred when she was looking back from a vantage
point further up 124
th
Street.

[28]

However, B.A. was not
shaken or contradicted in her testimony that she observed the appellant push
Sidhu to the ground at the beginning of the beating.  Nor did R.C. resile from
his evidence that the appellant effectively admitted his joint participation.

[29]

The alleged frailties
in the evidence were for the trial judge to consider in the context of the
evidence as a whole.  I am not persuaded that she committed any error in the
manner in which she dealt with this issue.  We cannot simply substitute our
view of the proper inferences to be drawn for those drawn by the trial judge.

[30]

Accordingly, I would
reject the appellant's submission that the trial judge erred by misapplying the
test for credibility, misapprehending the evidence, and failing to explain her
verdict.

[31]

I turn to the
submission that the verdict is unreasonable or unsupported by the evidence.
The burden on the appellant under s. 686(1)(a)(i) of the
Code
is
to satisfy us that the verdict is one that a properly instructed jury acting
judicially could not reasonably have rendered.  In making this determination,
we must re-examine and, to some extent at least, re-weigh and consider the
effect of the evidence.  Having performed that exercise, I am not persuaded
that the trial judge's finding of guilt is unreasonable.

[32]

It must be remembered
that the appeal is from the conviction and not from the reasons for
conviction.  There was before the trial judge evidence that the appellant
pushed Sidhu to the ground and that he later kicked Sidhu.  There was also
evidence that he admitted as much to his foster father.  The trial judge was
entitled to accept this evidence, whether she explained why expressly or not.

[33]

Viewing the evidence as
a whole, I am satisfied that the trial judge's conclusion that the appellant
was a party to the aggravated assault of Mr. Sidhu was well-grounded in the
evidence.

[34]

Accordingly, I would
dismiss the appeal.

[35]

DONALD J.A.:
Mr. Sicotte has said all that could be said
for the appellant in this case but for the reasons given by Mr. Justice Smith,
I too would dismiss the appeal.

[36]

LEVINE J.A.:
And

I agree with both of my
colleagues.

[37]

DONALD J.A.:
The appeal is dismissed.

The Honourable Mr. Justice Smith


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

Dos
                Santos v. Sun Life Assurance Co. of Canada,

2005 BCCA
            4

Date: 20050107

Docket: CA31237

Between:

Jose Vasco
      Dos Santos, committee of the person and estate of Rita Maria Baptista Valoma
      Dos Santos and the said

Jose Vasco
      Dos Santos

Plaintiff

(
Appellant
)

And

Sun Life
      Assurance Company of Canada

Defendant

(
Respondent
)

Before:

The Honourable
            Chief Justice Finch

The Honourable
            Madam Justice Huddart

The Honourable
            Mr. Justice Low

W.B. McAllister,
            Q.C.

J.A. Adelaar

Counsel for the Appellant

O. Samuel

Counsel for the Respondent

Place and
            Date of Hearing:

Vancouver, British Columbia

November 26, 2004

Place and
            Date of Judgment:

Vancouver, British Columbia

January 7, 2005

Written
              Reasons by
:

The Honourable
            Chief Justice Finch

Concurred
              in by:

The Honourable
            Madam Justice Huddart

The Honourable
            Mr. Justice Low

Reasons for Judgment of the Honourable Chief Justice
        Finch:

I. INTRODUCTION

[1]

The
      plaintiff appeals from the order of Mr. Justice Powers pronounced 9 September
      2003 requiring the plaintiff to produce documents providing details of
      a mediated settlement the plaintiff agreed to on his wifes behalf in litigation
      arising from a motor vehicle accident in which the wife was seriously injured.

[2]

The
      plaintiffs claim against Sun Life arises under a policy of long-term disability
      coverage under which the wife had benefits for loss of income.  The policy
      was a group policy obtained by the wifes employer, the Government of Canada.

[3]

The
      long-term disability policy has a subrogation clause as follows:

Subrogation

In order to determine
      whether the cause or circumstances giving rise or contributing to any claim
      under this policy would also give rise to a cause of action against a person,
      partnership, corporation or other entity (the Third Party), Sun Life
      may require any Employee to provide a written statement as to the cause
      or circumstances giving rise or contributing to any such claim. Sun Life
      may suspend payment of benefits or further benefits to an Employee who
      refuses to provide such a statement.

Where benefits under
      this policy have been paid or may be payable to an Employee and the Employee
      has a right of action against a Third Party for recovery of loss of income
      which otherwise would have been earned by the Employee during the whole
      or any part of the period that benefits are paid, or may be payable, to
      the Employee under this policy,

1.    any amount recovered
      by the Employee from the Third Party (including general damages, damages
      for loss of income, interest and legal costs, whether recovered through
      settlement or trial), less the Employees legal costs expended for such
      recovery, shall be deemed to be the Employees Net Recovery from the Third
      Party;

2.    the Employee
      shall pay to Sun Life an amount equal to 75% of his/her Net Recovery from
      the Third Party (to a maximum of the amounts paid to the Employee under
      this policy), such percentage of his/her Net Recovery to be held in trust
      by the Employee for Sun Life until payment is made to Sun Life;

3.    in the event
      that any benefits not paid to the Employee under this policy are subsequently
      determined to have been payable, Sun Life shall be entitled to set off
      against its liability for such benefits the amount the Employee would have
      been obliged to pay pursuant to subparagraph 2. hereof if such benefits
      had been paid to the Employee before the Employee obtained his/her recovery
      from the Third Party; and

4.    the Employee
      shall provide Sun Life, free of charge:

A.    prompt
      notice of the commencement of any legal proceedings against a Third Party;

B.    such reports
      as Sun Life may reasonably require from time to time concerning the status
      of legal proceedings and/or settlement negotiations with the Third Party;

C.    copies
      of such documents in the Employees possession or control that relate to
      his/her right of action against the Third Party as Sun Life may reasonably
      require from time to time; and

D.    prompt
      notice of the conclusion of any settlement or judicial disposition of his/her
      right of action against the Third Party.

Sun Life may require
      the Employee to sign an acknowledgement that he/she is bound by this provision.
      Sun life may withhold or discontinue benefits upon any refusal by the Employee
      to honour any terms of this provision.

[4]

This
      clause appears to provide that if disability is caused by the negligence
      of a third party, 75% of the employees net recovery for loss of income
      in any action commenced as a result of the third partys negligence must
      be repaid to Sun Life to the extent of the benefits paid or payable in
      the future under the insurance policy.  If the employee does not repay
      benefits as required by the subrogation clause, Sun Life is entitled to
      withhold future benefits.

[5]

Mr.
      Dos Santos signed a two page Subrogation Acknowledgement quoting the
      subrogation clause and stating:

I understand that
      the above-quoted provision is a term of the Sun Life group insurance policy
      12500 (the Policy) under which I have claimed long term disability benefits.
      I understand that I am bound by the above quoted provision if I accept
      or have already accepted benefits under the policy. I also understand that
      any payments to me by Sun Life under the Policy in the past and/or the
      future have been or will be made in reliance upon the provision itself
      and/or this acknowledgement. I confirm that I was provided with a copy
      of this Subrogation Acknowledgement and that I had sufficient opportunity
      to review it and to seek legal advice prior to signing it.

[6]

In
      the third party litigation, following a four day trial, the third party
      driver was held 100% at fault.  Damages were then mediated between the
      plaintiff and I.C.B.C., the third partys insurer.  A global settlement
      was reached in the sum of $900,000 plus disbursements.  The court order
      approving this settlement specified terms allocating $39,559.29 to Sun
      Life for disability payments received by the plaintiff on his wifes behalf,
      and $308,750 to the plaintiffs lawyer in payment of legal fees inclusive
      of disbursements and applicable taxes.

[7]

Sun
      Life says it is entitled to see the documents underlying the mediated settlement
      so that it can tell what sum was paid in respect of lost income, past and
      future.

[8]

The
      plaintiff says the documents relating to the mediation and the settlement
      are privileged under the blanket privilege recognized by the B.C. Court
      of Appeal in
Middlekamp et al v. Fraser Valley Real Estate Board
      et al
(1992), 71 B.C.L.R. (2d) 276 (C.A.), or through solicitors
      brief (litigation) privilege.  The defendant says the documents are excepted
      from the privilege as necessary to the proper disposition of the dispute
      between the plaintiff and Sun Life.  The defendant also argues that the
      plaintiff waived any privilege that may have existed over the settlement
      documents.

[9]

Master
      Groves in chambers held on 26 June 2003 that Sun Life was
only
entitled
      to know what the settlement was, and how the settlement was broken down
      amongst the various heads of damage.  He held Sun Life was not entitled
      to production of all the supporting documents it claimed a right to see.

[10]

Mr.
      Justice Powers reversed the Masters order.  His order directs the plaintiff
      to produce all the documents Sun Life sought including:

Economic and actuarial
      evidence relied on to quantify the wifes pecuniary losses;

Experts reports;

Settlement offers
      made by either party; and

Mediation summaries
      and notes made by both the plaintiff and his counsel.

[11]

The
      plaintiff now asks this Court to overturn that order on the ground that
      the documents sought are privileged.

II. ISSUES

[12]

At
      the hearing, counsel for the plaintiff abandoned a claim of privilege under
      the
Notice to Mediate Regulations
.  The remaining issues
      on appeal are therefore whether the documents relating to the mediation
      process are privileged either:

1.    Under the blanket privilege protecting settlement
      negotiations; or

2.    By solicitors brief (litigation) privilege.

[13]

If
      either privilege applies, then the further issue is whether the documents
      fall within an exception to privilege.

III. SETTLEMENT PRIVILEGE

[14]

In
Middelkamp
,
supra,
Chief
      Justice McEachern for four of five members of the Court said:

[18]  Considering
      the enormous scope of production which is required by our almost slavish
      adherence to the Peruvian Guano principle, the questionable relevance and
      value of documents prepared for the settlement of disputes, and the public
      interest, I find myself in agreement with the House of Lords that
the
      public interest in the settlement of disputes generally requires "without
      prejudice" documents or communications created for, or communicated
      in the course of, settlement negotiations to be privileged.  I would classify
      this as a "blanket, prima facie, common law, or "class" privilege
because
      it arises from settlement negotiations and protects the class of communications
      exchanged in the course of that worthwhile endeavour.

[19]  In my judgment
      this privilege protects documents and communications created for such purposes
      both from production to other parties to the negotiations and to strangers,
      and extends as well to admissibility, and whether or not a settlement is
      reached. This is because, as I have said, a party communicating a proposal
      related to settlement, or responding to one, usually has no control over
      what the other side may do with such documents.
Without such protection,
      the public interest in encouraging settlements will not be served
.

[20]
I recognize
        that there must be exceptions to this general rule.
An obvious exception
        would be where the parties to a settlement agree that evidence will be
        furnished in connection with the litigation in which the application
        is made.
In such cases, the public interest in the proper disposition
        of
litigation assumes paramountcy and opposite parties are entitled
        to know about any arrangements which are made about evidence.  Other
        exceptions could arise out of such matters as fraud, or where production
        may be required to meet a defence of laches, want of notice, passage
        of a limitation period or other similar matters which might displace
        the privilege.  As we did not have argument on these matters I prefer
        to say nothing further about them.

[emphasis
      added]

[15]

In
B.C.
          Childrens Hospital v. Air Products Canada
(2003), 11 B.C.L.R.
          (4
th
) 28, 2003 BCCA 177, leave to appeal to S.C.C. granted,
          [2003] S.C.C.A. No. 240 (Q.L.), this Court held that a final settlement
          agreement was covered under the
Middelkamp
blanket protection
          for settlement communications (para. 32).  In contrast, the Manitoba
          and Alberta Courts of Appeal have both endorsed a distinction between
          final settlement agreements and communications leading up to settlement.  The
          latter are privileged, the former are not:
Hudson Bay Mining
          and Smelting Co. v. Fluor Daniel Wright
(1997), 120 Man. R.
          (2d) 214 (Q.B.), affd (1998), 131 Man. R. (2d) 133 (C.A.), and cited
          with approval in
Amoco Canada Petroleum Co. v. Propak Systems
          Ltd
(2001), 281 A.R. 185, 2001 ABCA 110 at para. 40.

[16]

In
      any event, the nature of the settlement agreement at bar is such that it
      cannot be disentangled from the other settlement communications.  The Memorandum
      of Settlement states the global amount agreed to and little more.  The
      real agreement between the settling parties may have been oral, or may
      have resulted from the culmination of previous written communications.  Privilege
      attaches to those communications.  The main issue then is whether an exception
      to or a waiver of privilege can be established in this case.

1. Exception to Blanket Privilege

[17]

In
Middelkamp
,
supra,
Chief
      Justice McEachern said there must be exceptions to the blanket privilege
      for settlement communications.  Notably, he referred to the proper disposition
      of litigation (para. 20).

[18]

In
      my view,
Middelkamp
did not close the door on what might
      constitute a valid exception to the blanket privilege (see reviews of types
      of exceptions to the rule in
Berry v. Cypost Corp
. (2003),
      43 C.P.C. (5
th
) 275, 2003 BCSC 1827, and
Unilever plc
      v. The Proctor & Gamble Co.
, [2000] 1 W.L.R. 2436 (C.A.)).

[19]

However,
      the test for discharging the burden to establish an exception should not
      be set too low.  The public policy behind settlement privilege is a compelling
      one.  It is so compelling that even threats arising in the context of settlement
      negotiations may not justify an exception:
Unilever
,
supra
at
      p. 2449-2450.

[20]

To
      establish an exception in this case, the defendant must show that a competing
      public interest outweighs the public interest in encouraging settlement.  An
      exception should only be found where the documents sought are both
relevant
,
      and
necessary in the circumstances of the case
to achieve either
      the agreement of the parties to the settlement, or another compelling or
      overriding interest of justice.

a. Relevance

[21]

Some
      authorities appear to find exceptions to settlement privilege on the basis
      of relevance alone (see
Hudson Bay Mining and Smelting Co
.,
supra
).  However,
      mere relevance does not provide a sufficiently high threshold to displace
      the compelling public policy underlying settlement privilege.  As indicated
      by Chief Justice McEachern in
Middlelkamp
,
supra,
through
      his reference to our almost slavish adherence to the Peruvian Guano principle,
      the threshold for relevance on discovery is a low one indeed.

[22]

The
      plaintiff bears the onus of proving his case at trial:
Sun Life Assurance
      Co. of Canada v. Solypa
(2001), 96 B.C.L.R. (3d) 179, 2001 BCSC
      1346.  Thus, he says if he can prove his case without relying on the disputed
      documents, they are irrelevant and cannot be excepted from privilege.

[23]

The
      defendant contends that the onus on the plaintiff at trial is to provide
      a breakdown of the global settlement amount in order to show the Court
      what amount was paid in the settlement for future income loss, and relies
      on its common law subrogation rights to defend against the claim.  In short,
      the defendant says the documents are relevant to both what the plaintiff
      must prove, and the defendants possible defences.

[24]

I
      am inclined to agree with the chambers judge who said:

[40] I should also
      say that the Plaintiffs suggestion that the settlement may not have included
      anything for future income loss is also unsupportable. Mrs. Dos Santos
      was employed full-time at the time of her injury in the motor vehicle accident.
      She was not responsible for her injuries in any way. There is nothing before
      me to indicate that there was any difficulty in proving what her wage loss
      might have been. There is no reason to believe that any settlement would
      have been reached without some allotment for future wage loss.

[41] The plaintiff
      suggested that it is not possible to determine what portion of a global
      settlement might have related a [sic] future loss of income. The global
      settlement figure was not simply pulled from the air. It is reasonable
      to assume that it was arrived at after careful consideration and negotiation
      between the parties. It is also reasonable to assume that the negotiations
      would have included explanations of each partys position and how the settlement
      figure was arrived at including what it consisted of. The
Solypa
case
      referred to in para. 22 makes it clear that the onus will be on the Plaintiff
      in this case to demonstrate how the lump sum was established.

[25]

The
      plaintiff has clearly put into issue the subrogation rights of the defendant
      under the disability policy (see Statement of Claim, A.B. p. 22).  Any
      documents that quantify or estimate Mrs. Dos Santos future income loss
      are relevant to the resolution of the claim.

[26]

I
      therefore conclude that the documents sought are relevant.

b. Necessary in the Circumstances of the
        Case

[27]

The
      defendant says an exception to settlement privilege is necessary to prevent
      injustice through excessive compensation to the plaintiff.  The defendant
      says the blanket privilege is displaced because the public interest in
      the proper disposition of the case outweighs the public interest in encouraging
      settlement, and relies in particular on the following cases.

[28]

In
Ruloff
          v. Rockshore

(1981) Ltd.,
2004 BCSC 751, Chamberlist
          J. found an exception to settlement privilege where the plaintiff would
          otherwise be muzzled in her attempts to justify her position taken
          in the petition or to adequately defend by evidence available to her
          (para. 32).

[29]

In
Pete
          v. Lanouette
, 2002 BCSC 75, the defendant sought details of
          a settlement concerning another accident involving the same plaintiff.  Bishop
          J. found an exception to settlement privilege because there was a

real possibility
      that without the disclosure of the settlement documents and the information
      requested, the plaintiff could be compensated again for injuries for which
      she has already received compensation (para. 30).

[30]

In
Confederation
          Life Insurance Co. v. Juginovic
(1996), 48 C.P.C. (3d) 60 (B.C.S.C.-Ch.),
          the insurer said the insured may have received more than 100% compensation
          for his loss of income due to settlement with I.C.B.C. and receipt
          of insurance benefits.  Master Barber ordered I.C.B.C. to disclose
          parts of its settlement file on the basis that there was no prejudice
          to either party to the settlement negotiations since all matters between
          them were settled, and I.C.B.C. knew of the subrogation agreement between
          the insured and the insurer.  In light of these circumstances, there
          is no public policy argument that can be sustained to prevent production
          of some documents in ICBCs file that are relevant in this case (para.
          27).

[31]

In
Gnitrow
          Ltd. v. Cape plc
, [2000] 3 All E.R. 763 (C.A.), Pill L.J. ordered
          disclosure of parts of a settlement agreement, between the plaintiffs
          insurer and a potential defendant, to the non-settling defendant.  The
          damages sought by the plaintiff were reimbursement for monies it had
          paid in compensation to its employees who suffered from asbestosis.  Pill
          L.J. said:

The relevance
in the present action of the agreement between
      the claimant and Newalls [the potential defendant]
is in the fact that
      the claimant is not permitted to recover more than it has paid to its employees.
      To ensure that there is no excess recovery, it is necessary to know what
      contribution Newalls has made to the relevant sums.
Disclosure is appropriate
      for that reason. It is also information relevant to Cape [the non-settling
      defendant] making a realistic Pt 36 payment and responding realistically
      to a Pt 36 offer from the claimant. That accords with the overriding objective
      of enabling the court to deal with the case justly.  (p. 767)

[emphasis
      added]

[32]

This
      Court distinguished
Gnitrow
, supra,
in
B.C.
      Childrens Hospital
, supra
, in which the remaining defendants
      in a multi-party action for conspiracy to fix gas prices, brought an action
      seeking disclosure of the settlement agreements between the plaintiff hospitals
      and the settling defendants.  Mr. Justice Hall said:

[30]  I consider
      that the Gnitrow case is distinguishable on its facts from the case at
      bar because a relevant and distinguishing circumstance there was a relationship
      between what the claimant had paid its employees and the amount it would
      be permitted to recover from the defendant.

[33]

I
      agree with the defendant and the chambers judge (para. 34) that this distinction
      cannot be drawn in the case at bar.  There was no potential for double
      recovery in
B.C. Childrens Hospital
since the plaintiffs
      in that case were suing the remaining defendants only for damages arising
      from their dealings with those defendants.  In the case at bar, there
      is a clear relationship between the sums the plaintiff seeks from the defendant
      and the sums the plaintiff may have already received in settlement with
      I.C.B.C.
Gnitrow
remains a persuasive judgment.

[34]

These
      cases demonstrate that significant weight should be given to the just disposition
      of pending litigation in determining whether the documents sought come
      within an exception to settlement privilege.  However, none of those cases
      are binding on this Court, and none are factually on all fours.  In particular,
      none discuss the effect of court approval of a settlement agreement.

[35]

The
      plaintiff says that excessive compensation could not happen here because
      the settlement in question was court-approved and the court would not unjustly
      enrich the plaintiff.  An exception, he says, is unnecessary in the circumstances.

[36]

To
      accept that argument one would have to be satisfied that the court approving
      the settlement had full knowledge of the subrogation agreement and the
      rights claimed by Sun Life.  The order approving the settlement allocates
      $39,559.29 to Sun Life for disability payments received by the Committee
      on behalf of the plaintiff.  However, it would not be proper to speculate
      as to what the court must have known in making that allocation.  There
      are no reasons accompanying that order; the defendant was not a party to
      nor represented in that settlement; and the affidavits on which the settlement
      approval was based were not provided to this Court.

[37]

In
      these circumstances, I agree with the defendant that the only way to establish
      objectively what the plaintiff has actually received in compensation for
      lost earnings is to recognize an exception for these documents that would
      otherwise have been protected by settlement privilege.  Both the
relevance
and
necessity
of
      the documents therefore militate in favour of recognizing an exception.

[38]

I
      have also considered whether recognizing an exception in this case would
      place a chill on settlement negotiations.  I do not believe it would.  As
      in other cases where settlement agreements may have a direct effect on
      the rights and responsibilities of third parties, the parties to that agreement
      must be mindful that the confidential nature of their agreement will not
      be upheld so far as it affects those other parties.  For example, in
B.C.
      Childrens Hospital
,
supra
, where non-settling defendants
      may have been affected by the settlement agreement between the other defendants
      and the plaintiffs (due to rules around the release of joint tortfeasors),
      Mr. Justice Hall upheld an order that anything in the settlement communications
      construed as a release, covenant not to sue, or reservation of rights be
      produced.  (See also discussion of secret settlements by the Ontario
      Court of Appeal in
Martin v. Listowell Memorial Hospital
(2000),
      51 O.R. (3d) 384 at 402-03.)

[39]

The
      chambers judge did not err in holding there was no settlement privilege
      over the sought documents.  An exception to privilege exists in this case.

[40]

I
      would not give effect to this ground of appeal.

2. Waiver

[41]

It
      is unnecessary to determine whether the plaintiff waived settlement privilege.

III. SOLICITORS BRIEF (LITIGATION) PRIVILEGE

[42]

The
      plaintiff submits in the alternative that the chambers judge erred in failing
      to find that litigation privilege protects the settlement documents.  Neither
      the written nor oral arguments on this point were extensive.

[43]

Two
      factual determinations must be made to assess whether litigation privilege
      attaches to a document:

(a) Was litigation in reasonable prospect
      at the time the document was produced, and

(b) If so, what was the dominant purpose
      for its production? (
Hamalainen v. Sippola
(1991), 62 B.C.L.R.
      (2d) 254 (C.A.) at para. 18.)

[44]

Since
      litigation privilege is not a blanket privilege, privilege is determined
      on a document by document basis.  In the case at bar, different types of
      documents were ordered produced: evidence to quantify pecuniary loss, expert
      reports, settlement offers, and mediation summaries and notes.

[45]

This
      ground of appeal cannot succeed in relation to the settlement offers and
      mediation summaries/notes.  Holding these documents to be protected by
      litigation privilege would be inconsistent with settlement privilege.  Protecting
      settlement offers and mediation notes/summaries under litigation privilege
      would emasculate and subsume settlement privilege.  Settlement privilege
      is premised on the special policy consideration of encouraging parties
      to settle.  The same cannot be said of litigation privilege.  It is important
      to keep the two privileges distinct.

[46]

Furthermore,
      the test for litigation privilege is difficult to apply to settlement offers
      and mediation notes/summaries.  At different times during settlement negotiations
      the prospects of resolving the dispute without litigation may seem more
      or less likely.  As well, it is difficult to see how the dominant purpose
      of these documents could be other than furtherance of a settlement, and
      specifically the avoidance of further litigation.

[47]

As
      a result, I do not consider the settlement offers or mediation notes/summaries
      to be protected by litigation privilege.

[48]

However,
      the same analysis may not apply to expert reports and economic and actuarial
      evidence relied on to quantify Mrs. Dos Santos pecuniary loss.  Some of
      these documents could attract litigation privilege if shown they were made
      for the dominant purpose of litigation.

[49]

However,
      that dominant purpose has not been established in this case.  The evidence
      shows only that these documents were used in the course of settlement negotiations.  We
      do not know at what point in the information gathering process this material
      was created.  It appears the issue of litigation privilege was not argued
      before the chambers judge, and this Court has no evidence before it on
      this issue.  There is an insufficient evidentiary basis to establish litigation
      privilege in this case: see
Hanaleinen
,
supra,
at
      paras. 25-27.

[50]

As
      a result, I am unable to conclude that litigation privilege protects the
      documents in this case.

[51]

I
      would not give effect to this ground of appeal.

V. DISPOSITION

[52]

Accordingly,
      I would dismiss the appeal.

The Honourable
Chief
      Justice Finch

I Agree:

The Honourable
Madam Justice Huddart

I Agree:

The Honourable
Mr. Justice Low


COURT OF
APPEAL FOR BRITISH COLUMBIA

Citation:

Ezer v.
  Yorkton Securities Inc.,

2005 BCCA 22

Date: 20050107

Docket: CA031804; CA031805

Between:

Adam J.
Ezer

Appellant

(
Plaintiff
)

And

Yorkton
Securities Inc. and Daniel Danzig

Respondents

(
Defendants
)

Before:

The Honourable Mr.
  Justice Donald

The Honourable Madam
  Justice Levine

The Honourable Mr.
  Justice Smith

Oral Reasons for Judgment

A.J. Ezer

Appearing in person

H.R. Anderson

Counsel for the Respondents

Place and Date:

Vancouver, British Columbia

January 7, 2005

[1]

LEVINE J.A.:
Adam Ezer appeals from the order of Goepel
J. made April 14, 2004 staying his actions against Yorkton Securities Inc. ("Yorkton")
and Daniel Danzig.  The chambers judge found that the "exclusive
jurisdiction clause" in an Account Agreement entered into between Mr. Ezer
and Yorkton was enforceable and Ontario was the proper forum for the
proceedings, including those against Mr. Danzig personally.

[2]

The reasons for
judgment of the chambers judge may be found at 2004 BCSC 487.

Background

[3]

Mr. Ezer, now a law
student, was employed in the brokerage industry between 1992 and 2000, when he
was ages 17 to 25.  In 2000, he owned shares in 2dobiz.com Inc., a Nevada
corporation which carried on business in Vancouver.  The sale of the shares was
restricted.

[4]

A mutual acquaintance
introduced Mr. Ezer to Mr. Danzig.  Mr. Danzig was an experienced broker
employed by Yorkton in Toronto.  He was registered under the securities
legislation of Ontario, but was not registered under the B.C.
Securities
Act
, R.S.B.C. 1996, c. 418.  Mr. Ezer contacted Mr. Danzig to open an
account.  Mr. Ezer signed the New Client Application Form in Vancouver and
forwarded it to Toronto, where, the chambers judge found, it was accepted by
Yorkton.  The contract contained the following terms:

2.         That this agreement and every transaction
carried out for the account of the Client is subject exclusively to the laws
and regulations of the Province of Canada in which the Yorkton accepts this
agreement

3.         Any disputes arising between Yorkton and
the Client shall be exclusively within the jurisdiction of the Courts of the
Province in which Yorkton accepts this agreement.

[5]

Mr. Ezer alleges that
Mr. Danzig prematurely filed certain forms with the U.S. Securities and
Exchange Commission regarding the proposed sale of the shares of 2dobiz.com and
subsequently took other steps regarding the sale of the shares too late, all of
which, Mr. Ezer claims, resulted in a loss to him.  In December 2002, Mr. Ezer
brought an action in B.C. Supreme Court claiming damages for negligence and
breach of contract.  He amended the writ of summons to bring the action under
the
Class Proceedings Act
, R.S.B.C. 1996, c. 50.  In June 2003,
Mr. Ezer commenced a second action in B.C. Supreme Court, claiming essentially
the same relief on the same facts as claimed in the first action.

[6]

Yorkton and Mr. Danzig
applied to stay both actions, relying on the "exclusive jurisdiction
clause" in the Account Agreement.

Decision of the Chambers Judge

[7]

In staying the actions,
the chambers judge found:

(a)        The Account Agreement was valid despite the
fact that Mr. Danzig was not registered as a "salesperson" under the
B.C.
Securities Act
.  He commented that "it is far from
clear" that the
Act
applied to Mr. Danzig (citing
Pearson
v. Boliden Ltd.
(2002), 7 B.C.L.R. (4
th
) 245 (C.A.)), but upheld in any event, the fact that
Mr. Danzig was not registered did not render the contract illegal or
unenforceable (citing
Davidson & Co. v. McLeery
(1970), 14
D.L.R. (3d) 756 (B.C.C.A.) ("
Davidson
")).

(b)        This Court interpreted the same exclusive
jurisdiction clause in
Scalas Fashions Ltd. v. Yorkton Securities Inc.
(2003), 17 B.C.L.R. (4th) 6 (C.A.) ("
Scalas
"), and
found it to be enforceable.  The chambers judge held
Scalas
to be
indistinguishable.

(c)        Ontario is the more appropriate forum.  The
chambers judge noted the following:

           Mr.
Ezer's brokerage account was opened in Toronto.

           Yorkton
accepted the account agreement in Toronto.

           The
Account Agreement states that it is subject to the law of the place where it
was accepted, in this case Ontario.

           The
Notice of Proposed Sale Documents were forwarded to the SEC from Toronto.

           Yorkton
and Mr. Danzig received and acted on Mr. Ezer's orders in Toronto.  Mr. Ezer
was in Australia when he gave those instructions.

           Yorkton
does not have employees or carry on operations in British Columbia.

           Most
of Yorkton's potential witnesses reside in Toronto and none of them reside in
Vancouver.

(d)        Mr. Ezer had the burden to show
"strong cause" why a stay should not be granted.  Mr. Ezer's medical
reasons and differences between Ontario and B.C. class legislation with regard
to costs were not sufficient to override the exclusive jurisdiction clause.

(e)        The chambers judge awarded Yorkton one set
of costs for the stay applications.

Grounds of Appeal

[8]

Mr. Ezer raises the
following grounds of appeal:

(a)        The chambers judge erred in failing to find
the contract void because Mr. Danzig was not registered in B.C.

(b)        The application for certification of the class
action should have been heard before the chambers judge considered the stay
applications.

(c)        The chambers judge erred in staying the
action against Mr. Danzig, who was not a party to the Account Agreement.

(d)        The chambers judge erred in finding that
Mr. Ezer had not shown "strong cause" for not enforcing the exclusive
jurisdiction clause.

(e)        The chambers judge erred in failing to find
that Yorkton had attorned to the jurisdiction by bringing its application for a
stay, filing extensive materials in support and filing statements of defence
denying jurisdiction.

(f)         The chambers judge erred in failing to
impose any conditions on the stays.

(g)        The chambers judge erred in awarding costs
of the stay applications to Yorkton and Mr. Danzig.

Analysis

Validity of the Account Agreement

[9]

Mr. Ezer's principal
argument on appeal is that the Account Agreement is invalid because Mr. Danzig
breached s. 34 of the B.C.
Securities Act
by carrying on a
"trade" while he was not registered under the
Act
.

[10]

It is a nice question
whether Mr. Danzig was required to be registered under the B.C.
Act
.
 In
Pearson v. Boliden Ltd.
,
supra
, Newbury J.A. for the
Court discussed the scope of provincial securities legislation.  After
considering other authorities, she concluded (at para. 62), citing
Pezim
v. British Columbia (Superintendent of Brokers)
, [1994] 2 S.C.R. 557 at
589, that "
the 'primary
aim' of the provincial
Securities Acts
is the protection of the
public from acts or conduct  particularly the solicitation of trades and the sale
of securities  taking place within the respective provinces
".  She noted, however, (at para. 65)
that the broad definition of "trade" in most of the provincial Acts
means that an underwriter or dealer in one province, who solicits business in
another province, may be subject to both Acts.

[11]

I do not find it
necessary to decide for the purposes of these appeals whether Mr. Danzig's
activities on Mr. Ezer's account, which on the evidence were carried on solely
in Ontario, required him to be registered in B.C.

[12]

The contract containing
the exclusive jurisdiction clause was between Mr. Ezer and Yorkton.  At all
material times, Yorkton was registered under the B.C.
Securities Act
as a dealer, although it had no employees in B.C.  Mr. Danzig's status as the
salesperson handling Mr. Ezer's account is a collateral matter insofar as the
question of jurisdiction is concerned.

[13]

In
Davidson
,
this Court held that a contract between a broker and a client was enforceable,
despite the fact that an unlicensed sales trainee conducted trades in the
account.  The Court held that the unlicensed person was not a party to the
contract and his status was a collateral fact not affecting the validity of the
contract.  The Court upheld the decision of the Supreme Court judge granting judgment
to Davidson for the balance owing on the account between it and the client.

[14]

The same reasoning
applies here, with the additional point to be made that the applications and
appeals do not concern a claim made under the contract relating to Mr. Danzig's
activities, but the preliminary matter of the interpretation of the exclusive
jurisdiction clause in the contract.

[15]

Insofar as the
interpretation of the exclusive jurisdiction clause is concerned, this case is
indistinguishable from
Scalas
, in which the same clause was found
to be enforceable.  Mr. Ezer attempts to distinguish
Scalas
on
the basis that the status of the salesperson was not raised, but as I have
said, the status of Mr. Danzig does not affect the enforceability of the
clause.

[16]

I would dismiss this
ground of appeal.

The Certification Application

[17]

Mr. Ezer claims,
relying on
MacKinnon v. National Money Mart Co.
, 2004 BCCA 473
("
MacKinnon
"), that the chambers judge should have
heard the application for certification of the class proceeding before deciding
the stay applications.

[18]

The issue in
MacKinnon
was whether an arbitration clause in the contract was "inoperative"
in the face of a class proceeding.  This Court found that there was a conflict
between s. 15 of the
Commercial Arbitration Act
, R.S.B.C. 1996,
c. 55, and s. 4 of the
Class Proceedings Act
.  The conflict could
only be resolved by determining whether the class proceeding met the
requirements for certification, including determining that a class proceeding
"would be the fair and preferable procedure for the fair and efficient
resolution of the common issues".  This could only be determined after
considering the application for certification.

[19]

There is no such
statutory conflict in this case.  The question is whether the jurisdiction in
which the action may be brought is determined by the contract between the
parties.  If the exclusive jurisdiction clause is enforceable, Mr. Ezer cannot
bring any action against Yorkton in B.C., including a class proceeding, and
there is no action to be certified.  The issues of whether a class proceeding
is the fair and preferable procedure or there are common issues do not arise.

[20]

The chambers judge
clearly recognized this when he pointed out that other members of the purported
class who are not subject to an exclusive jurisdiction clause may commence
class action proceedings against Yorkton in B.C.

[21]

I would dismiss this
ground of appeal.

The Action Against Mr. Danzig

[22]

Mr. Ezer says that Mr.
Danzig cannot rely on the exclusive jurisdiction clause, as he was not a party
to the Account Agreement.  Mr. Ezer argues that his action against Mr. Danzig
in B.C. should not be stayed, because he does not intend to commence
proceedings against either Yorkton or Mr. Danzig in Ontario.

[23]

This Court considered a
similar argument in
B.C. Rail Partnership v. Standard Car Truck Co.
(2003),
188 B.C.A.C. 149, 2003 BCCA 597.  In that case, B.C. Rail Partnership sued
Greenbrier, with whom it had entered into a lease containing an exclusive
jurisdiction clause, and Trenton and a third party, who were not parties to the
lease.  Greenbrier and Trenton applied for a stay of the action in B.C.,
relying on the exclusive jurisdiction clause.  This Court granted the stay of
the action against both Greenbrier and Trenton, on the basis that B.C. Rail had
sued all three defendants in a single action and had not indicated that it
wished to sue any of them separately.

[24]

While Mr. Ezer suggests
that he may wish to sue Mr. Danzig separately in B.C., in my opinion it would
be unjust and impractical not to stay the action against Mr. Danzig.  The
claims against Mr. Danzig turn on the same facts as the claims against Yorkton.
 Allowing Mr. Ezer to sue Mr. Danzig in B.C. while requiring that he sue
Yorkton in Ontario risks duplicitous proceedings and inconsistent results.  Mr.
Ezer's protestations that he does not intend to commence proceedings in Ontario
cannot be relied on while he seeks conditions on the stays that would relate to
such proceedings.

[25]

I would dismiss this
ground of appeal.

"Strong Cause"

[26]

Mr. Ezer does not take
issue with the application by the chambers judge of the "strong
cause" test for determining whether the actions should be stayed.  The
burden was on Mr. Ezer to show "strong cause" why the exclusive
jurisdiction clause should not be enforced:
Sarabia v. Oceanic Mindoro
(The)
(1996), 26 B.C.L.R. (3d) 143 (C.A.);
Scalas
at
para. 44;
Z.I. Pompey Industrie v. ECU-Line N.V.
, [2003] 1 S.C.R.
450
,
2003 SCC 27 at para. 21.

[27]

Mr. Ezer claims,
however, that the chambers judge made numerous errors of fact in concluding
that Ontario was the more convenient forum for the litigation.

[28]

In my opinion, the
chambers judge considered the relevant factors and the evidence supported his
factual findings and conclusions.  Mr. Ezer has not shown that the chambers
judge made any error of law or any overriding or palpable error of fact.

[29]

I would dismiss this
ground of appeal.

Attornment to the Jurisdiction

[30]

Mr. Ezer claims that
Yorkton and Mr. Danzig attorned to the jurisdiction of B.C. by filing
statements of defence and materials in support of their applications for a stay
of the actions that addressed the merits of his claims.

[31]

Yorkton denies that it
put the merits of Mr. Ezer's claims before the B.C. Courts in any way, and
relies on Rule 14(6.4) of the
Rules of Court
.  It acknowledges
that it did not meet the 30-day time limit following the filing of an
appearance for bringing its stay applications under Rule 14(6.4), and asks for
an extension of time if it is necessary.

[32]

Rules 14(6) and (6.4)
provide:

Disputed jurisdiction

(6)
A party who has been served with an originating process
in a proceeding, whether served with the originating process in that proceeding
in or outside of British Columbia, may, after entering an appearance
,

(a)        apply
to strike out a pleading or to dismiss or stay the proceeding on the ground
that the originating process or other pleading does not allege facts that, if
true, would establish that the court has jurisdiction over that party in
respect of the claim made against that party in the proceeding,

(b)
apply
to
dismiss or
stay the proceeding on the ground that the court does not
have jurisdiction over that party in respect of the claim made against that
party in the proceeding
,
or

(c)
allege
in a pleading that the court does not have jurisdiction over that party in
respect of the claim made against that party in the proceeding
.

. . .

Party does not submit to jurisdiction

(6.4)
If, within 30 days after entering an appearance in a
proceeding, a party of record delivers a notice of motion under subrule (6)
(a)
or
(b)
or (6.2) to the other parties of record
or files a pleading
referred to in subrule (6) (c)
,

(a)
the
party does not submit to the jurisdiction of the court in relation to the
proceeding merely by filing or delivering any or all of the following
:

(i)
the
appearance
;

(ii)
a
pleading under subrule (6)(c)
;

(iii)
a
notice of motion and supporting affidavits under subrule (6)
(a) or
(b)
,
and

(b)        until
the court has decided the application or the issue raised by the pleading, the
party may, without submitting to the jurisdiction of the court,

(i)         apply
for, enforce or obey an order of the court, and

(ii)         defend
the action on its merits.

[Underlining added.]

[33]

Yorkton and Mr. Danzig
filed appearances in the actions on June 13 and June 18, 2003.  Rule 14(6.4)
became effective July 1, 2003.  Yorkton and Mr. Danzig filed Statements of
Defence in both actions, denying the jurisdiction of the B.C. Supreme Court, on
August 7, 2003.  They filed their applications for a stay in both actions on
August 5, 2003.

[34]

The affidavits filed by
Yorkton and Mr. Danzig in support of their stay applications do not put the
merits of the actions before the Courts.  In a subsequent affidavit which Mr.
Ezer sought to file on the appeals as fresh evidence, Mr. Danzig denied the
allegations made by Mr. Ezer and stated they are false.  These statements were
made in the context of opposing Mr. Ezer's application to delay the hearing of
the appeals.

[35]

I do not consider that
the affidavits or other materials filed by Yorkton and Mr. Danzig on their
applications contesting jurisdiction or in response to Mr. Ezer's applications
offended the principle that a party contesting the jurisdiction of the Court
must limit its submissions to that issue: see
Mid-Ohio Imported Car Co. v.
Tri-K Investments Ltd.
(1995), 13 B.C.L.R. (3d) 41 at para. 15.

[36]

But for the late filing
of their applications for a stay, Yorkton and Mr. Danzig complied with Rule
14(6.4).  I would extend the time for filing their applications under that
Rule.

[37]

I would dismiss this
ground of appeal.

Conditions

[38]

Mr. Ezer claims that
the chambers judge should have imposed conditions on the stays of his actions.  In
his oral submissions on the appeals, he sought two conditions: that Yorkton and
Mr. Danzig will not seek security for costs if he sues them in Ontario, and if
he proceeds expeditiously in Ontario and is denied access to those courts, he
can apply to the B.C. Courts to end the stay.

[39]

Mr. Ezer claims that he
sought conditions from the chambers judge, which Yorkton denies.  Mr. Ezer
filed as fresh evidence on the appeals a copy of his written submissions made
to the chambers judge, in which he summarizes the conditions imposed by the
Court in
Crockett v. Society of Lloyd's
(2000), 189 Nfld. &
P.E.I.R. 129, 2000 PESCTD 42.  He did not expressly seek such conditions in the
written submissions.

[40]

Whether or not Mr. Ezer
sought conditions from the chambers judge, the chambers judge made no error in
refusing to impose conditions on the stays.  The effect of the stays is that
the B.C. Courts do not have jurisdiction over Mr. Ezer's actions; thus, there
is no jurisdiction to impose conditions attempting to govern how the actions
proceed in Ontario.

[41]

Furthermore, the
conditions Mr. Ezer seeks are not appropriate.  Mr. Ezer has brought numerous
applications in relation to these proceedings in addition to the appeals,
resulting in significant costs to all parties.  I would not deny the
respondents the opportunity to apply for security for costs if he commenced
actions in Ontario.  Nor would I protect Mr. Ezer from the effect of any
limitations periods in Ontario: he has known since, at the latest, the summer
of 2003, of the existence of the exclusive jurisdiction clause and the position
of the respondents with respect to it.  He initially indicated to them that he
intended to commence proceedings in Ontario.  I am not satisfied that he was
previously unable to do so.

[42]

I would dismiss this
ground of appeal.

Costs

[43]

The chambers judge
awarded Yorkton and Mr. Danzig one set of costs on their applications.  Mr. Ezer,
relying on
Scalas
, seeks an order that Yorkton pay his costs of
the stay applications.

[44]

In
Scalas
,
this Court required Yorkton to pay
Scalas
costs of both the
appeal and the Supreme Court hearing although it was successful on its appeal
of the chambers judge's refusal to grant a stay.  The reason for awarding costs
against Yorkton was that it did not produce a copy of the Account Agreement
until after the litigation had been commenced in B.C.

[45]

In this case, the
chambers judge noted that Mr. Ezer had the Account Agreement well before the
stay applications were heard, although it was in dispute whether he had it or
knew of the exclusive jurisdiction clause before he started the litigation.  It
is clear that Mr. Ezer was aware of the exclusive jurisdiction clause and
Yorkton and Mr. Danzig's positions with respect to it well before many of the
costs of these applications, including the appeals, were incurred.  The
chambers judge made no error in awarding the costs of the applications to
Yorkton and Mr. Danzig, and was more than fair to Mr. Ezer when he limited the
award to one set of costs.

[46]

I would dismiss this
ground of appeal.

Conclusion

[47]

I would dismiss Mr.
Ezer's appeal and affirm the order of the chambers judge.

Fresh Evidence

[48]

Mr. Ezer applied to
adduce fresh evidence on the appeals, and filed an affidavit containing the
fresh evidence.  As is customary in this Court, the affidavit was received and
the determination of whether the fresh evidence would be admitted was reserved
until judgment was given on the appeals.

[49]

I have referred to
portions of the fresh evidence in my reasons for judgment: Mr. Ezer's written
submissions to the chambers judge and Mr. Danzig's affidavit in response to Mr.
Ezer's application to delay the hearing of the appeals.  To that extent, I
would admit the fresh evidence.  I would not admit the balance of the fresh
evidence as I do not find it relevant to the questions decided on the appeals.

Applications for Review of Orders of Chambers Judges

[50]

Mr. Ezer brought
several applications in this Court concerning the timing of the hearing of the
appeals and other matters.  He applied for review of the orders made by Hall
J.A., made November 26, 2004, and Mackenzie J.A. made December 23, 2004.

[51]

The substance of Mr.
Ezer's application for review of the order of Hall J.A. was dealt with at the
hearing of the appeals.  Mr. Ezer's objections to certain portions of the
respondents' factum was found to be irrelevant.  His application to admit fresh
evidence was heard and I have dealt with it above.  The application to vary
Hall J.A.'s order is dismissed.

[52]

Mackenzie J.A. refused
to adjourn the hearing of the appeals.  Since the appeals were heard and
judgment has been given, Mr. Ezer's application to vary Mackenzie J.A.'s order
is moot and is dismissed.

Costs of the Appeals

[53]

Yorkton and Mr. Danzig
are entitled to the costs of the appeals and the applications to vary the
orders of the chambers judges.

[54]

Their counsel has
requested that we receive submissions on their claims for increased or special
costs.  If counsel wish to make such submissions, we will receive them in
writing.

[55]

DONALD J.A.:
I agree.

[56]

SMITH J.A.:
I agree.

[57]

DONALD J.A.:
The appellant's applications are
dismissed.  The appeal is dismissed with costs to the respondents.

The Honourable Madam Justice Levine


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

R.
                v. Wattley,

2005 BCCA
            6

Date: 20050107

Docket: CA31998

Between:

Regina

Respondent

And

James Edward
      Wattley

Appellant

Before:

The Honourable
            Chief Justice Finch

(In Chambers)

D.M. Turko

Counsel for the Appellant

F.G. Tischler

Counsel for the Respondent

Written
            Submissions of the

Appellant
            Dated:

Written
            Submissions of the

Respondent
            Dated:

December 17, 2004

December 24, 2004

Place and
            Date of Judgment:

Vancouver, British Columbia

January 7, 2005

Reasons for Judgment of the Honourable Chief Justice
        Finch:

[1]

The
      appellant applies under Section 680(1) of the
Criminal Code
for
      a direction that the order of Mr. Justice Smith in chambers, pronounced
      20 September 2004 refusing the appellant bail pending appeal, be reviewed
      by a division of this Court.

[2]

The
      learned chambers judge refused bail on the basis that the appellant failed
      to show that his detention was not necessary in the public interest (s.679(3)(c)).  He
      considered that the risk to society if the appellant were to be released
      outweighed the possibility that the appellants appeal against conviction
      might succeed.  That judgment was based essentially on the appellants
      criminal record which includes a number of convictions for assault.

[3]

On
      this application, the appellant has filed an affidavit deposing that one
      of the convictions recorded in the material before the learned chambers
      judge was in error.  The Crown does not dispute this contention, but says
      that the deletion of the conviction erroneously noted in the record could
      have had no effect on the disposition of the application for bail.  I agree.

[4]

As
      noted by Crown counsel in his submission, apart from the erroneous handwritten
      entry, there are 18 convictions including one for the offence under appeal.  Ten
      of those convictions are for offences of violence, including four convictions
      for assault causing bodily harm and four convictions for robbery.  Apart
      from the handwritten entry, the most recent convictions for offences of
      violence from 1999 to the present time, all involve significant jail sentences
      ranging from 6 months to 32 months.  As the chambers judge noted in his
      reasons, two-thirds of the offences recorded were committed by the appellant
      while serving a community based sentence for a previous offence.

[5]

In
      my view, consideration of the appellants record, leaving aside the erroneous
      handwritten entry, would lead inevitably to the conclusion arrived at by
      the chambers judge.

[6]

The
      appellant advances a second point.  Counsel argues that the appellants
      factum is now filed.  It was not before the chambers judge.  Counsel says
      it shows stronger grounds of appeal than those set out in the notice of
      appeal, thus tipping the scales in favour of reviewability.

[7]

In
      my view, this submission is untenable.  The application under s.680(1)
      is a review of the chamber judges decision, not an application
de novo
.  Moreover,
      a comparison of the grounds of appeal set out in the notice of appeal,
      with the issues described in the factum, show that they are virtually identical.

[8]

In
      my view, applying the low threshold test set out in
R. v. Gill
,
      [2001] B.C.J. No. 1993 (Q.L.) (B.C.C.A.) and
R. v. Kim
, [2002]
      B.C.J. No. 327 (Q.L.), 2002 BCCA 120, there is no reasonable prospect that
      a division of this Court would reverse the decision of the chambers judge
      refusing bail.

[9]

The
      application under s.680(1) is dismissed.

The Honourable
Chief
      Justice Finch

Corrigendum: Finch,
          C.J.B.C.
7
          January, 2005

In paragraph 8,
      lines 4 and 5 have been changed to read:

-  reasonable prospect that a division of this Court
      would reverse the decision of the chambers judge refusing bail.


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

Life
                Investors Insurance Co. of America v. TIS Management Ltd.,

2005 BCCA
            11

Date: 20050110

Docket: CA031236

Between:

Life Investors Insurance Company of America,
CRC Creditor Resources Canadian Dealer Network Inc.,
Top Insurance Agency Ltd.,
Creditor Resources Inc.

Respondents

(
Plaintiffs/

Defendants
        by Counterclaim
)

And

TIS Management Ltd.

Appellant

(
Defendant/
Plaintiff by Counterclaim
)

Before:

The Honourable
            Mr. Justice Lowry

(In Chambers)

P. J. Sullivan

Counsel for the Appellant

M. Gianacopoulos
            and

J. L. Zacharias

Counsel for the Respondents

Place and Date of Hearing:

Vancouver, British Columbia

December 22, 2004

Place and
            Date of Judgment:

Vancouver, British Columbia

January 10, 2005

Reasons for Judgment of the Honourable Mr. Justice Lowry:

[1]

The
      respondents, referred to as "Life Investors", apply for security
      in the amount of $14,000 for the costs of this appeal.  The application
      is opposed on the ground that the appellant, TIS Management Ltd. ("TIS"),
      has no assets.  The company maintains that it is accordingly unable to
      post security and that a requirement that it do so will preclude the further
      prosecution of the appeal.

[2]

The
      application was initiated over a year ago.  There was then a question as
      to whether the company was in fact without assets.  I adjourned the matter
      to permit TIS to adduce better evidence in that regard.  It is now, for
      present purposes, accepted that the company has, in fact, no assets.  However,
      the appeal is being funded by its shareholders, Donald Remenda and his
      wife Jennifer Scott, who say that their cash resources are largely exhausted
      but who own four residential properties, the unencumbered value of which
      exceeds $1.0 million.

[3]

The
      issue is whether, in the circumstances, TIS, being the corporate vehicle
      for the operation of a family business, should be required to post security
      for costs when the security would, in fact, have to be posted by its principals.

[4]

Life
      Investors is a large group of insurers having substantial assets.  TIS
      was its agent.  A dispute arose that resulted in Life Investors terminating
      the agency agreement and commencing this action for a declaration that
      it was entitled to do so.  It sought an award of damages against TIS and
      against its principals personally.  TIS counterclaimed for withheld commissions
      alleged to exceed $3.0 million.  The case turned in large measure on the
      interpretation of the agency agreement.  Life Investors prevailed.  It
      was awarded damages of more than $250,000 and costs.  The action against
      Mr. Remenda and Ms. Scott and the counterclaim against Life Investors were
      dismissed.  There would appear to be little prospect of Life Investors
      recovering the damages and costs it has been awarded.

[5]

Section
      24 of the
Court of Appeal Act
, R.S.B.C. 1996, c. 77
      provides:

(1)   A
      justice may order that an appellant pay to or deposit with the registrar
      security for costs in an amount and in a form determined by the justice.

(2)   A
      justice may dismiss as abandoned the appeal of an appellant who fails to
      comply with an order made under subsection (1).

[6]

Security
      for costs of an appeal should be ordered unless the appellant shows that
      it should not be ordered:
WHA 820 Holdings Ltd. v. Daymax Management
      Inc.
, 2004 BCCA 414 ¶ 19, citing
Milina v. Bartsch
(1985),
      5 C.P.C. (2d) 124 (B.C.C.A.).  The primary consideration is the financial
      position of the appellant.  If the appellant's financial position is so
      weak that an order requiring it to post security would preclude it from
      prosecuting the appeal, the court will be slow to order it to do so in
      the absence of the appeal being frivolous.  Conversely, if the appellant's
      financial position is sufficiently strong that security is unnecessary,
      requiring that security be posted may not be appropriate.

[7]

TIS
      opposes this application solely on the ground that an order requiring it
      to post security for costs will preclude it from prosecuting the appeal
      because the company has no assets.  TIS maintains that the fact that its
      principals, who have an interest in the outcome, could post security for
      costs does not mean that the company can do so.

[8]

There
      do not appear to be any decisions of this Court that bear directly on the
      issue.
Fat Mel's Restaurant Ltd. v. Canadian Northern Shield Insurance
      Co.
(1993), 76 B.C.L.R. (2d) 231 (C.A.), and the authorities cited
      therein at paras. 28-29, provide some support for Life Insurers' contention
      that the ability of a company's principals to post security is a consideration
      in determining whether a company, having no independent means of posting
      security, should be ordered to do so.  The case was concerned with an application
      for security for costs of a trial under s. 229 of the
Company Act
,
      R.S.B.C. 1979, c. 59 where different considerations arise.  However, this
      Court took the view that the principals of the company were pursuing the
      action through the company and ordered it to post security for the costs
      of the trial.

[9]

In
      reversing a recorder's dismissal of an application for security for the
      costs of a trial under similar legislation in
Keary Developments
      Ltd. v. Tarmac Construction Ltd.
, [1995] 3 All E.R. 534, the English
      Court of Appeal took much the same view as was taken by this Court in
Fat
      Mel's.
At page 540, it was said:

However, the court should consider not only whether the plaintiff
      company can provide security out of its own resources to continue the litigation,
      but also whether it can raise the amount needed from its directors, shareholders
      or other backers or interested persons.  As this is likely to be peculiarly
      within the knowledge of the plaintiff company, it is for the plaintiff
      to satisfy the court that it would be prevented by an order for security
      from continuing the litigation [authority cited].

[10]

In
      principle, I see no reason why the same cannot be said with respect to
      an application for security for costs of an appeal under s. 24 of the
Court
      of Appeal Act.
TIS cannot be heard to say that it will be precluded
      from further prosecuting its appeal if required to post $14,000 in security
      for Life Investors' costs because the amount needed can, it would appear,
      be easily raised by the company's principals who are funding the appeal
      and who stand to benefit from its success.

[11]

It
      seems to me that, at least where an impecunious appellant is the corporate
      vehicle for the operation of a family business, and an appeal is taken
      for the benefit of the two shareholders who are funding the litigation,
      the fact that the company is without an independent means of posting security
      should not, without more, defeat the application.

[12]

TIS
      will accordingly be required to post security for Life Investors' costs
      of the appeal in the amount of $14,000 by depositing that amount with the
      Registrar of the Court within 30 days or in a manner agreeable to Life
      Investors.

The Honourable Mr. Justice Lowry