COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

McKendry v. McKendry,

2017 BCCA 48

Date: 20170130

Docket: CA43408

Between:

Jean Marie
McKendry, Alexis Elaine Kent
and Margaret Anne Collin

Respondents

(Plaintiffs)

And

John Alexander
McKendry

Appellant

(Defendant)

Before:

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Garson

The Honourable Madam Justice Dickson

On appeal from:  An
order of the Supreme Court of British Columbia, dated December 23, 2015 (
McKendry
v. McKendry
, 2015 BCSC 2433, Vancouver Docket No. S123298).

Counsel for the Appellant:

K.E. Ducey

Counsel for the Respondents:

R.D. Lee

Place and Date of Hearing:

Vancouver, British
  Columbia

November 4, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 30, 2017

Written Reasons by:

The Honourable Madam Justice Dickson

Concurred in by:

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Garson

Summary:

The appellant challenges the
judges finding that he holds beneficial title to property on a resulting trust
for his late mothers estate.  He argues the judge erred in finding that his
mother had not taken the steps necessary to perfect the inter vivos gift of the
right of survivorship.  Held: appeal allowed.  The deceased was not required to
take further steps to perfect the gift.  Legal title was transferred into joint
tenancy years earlier, and there was clear evidence of her intention to make
the gift of the right of survivorship to the beneficial interest.  The gift of
the beneficial interest was not a disposition required to be evidenced in
writing and, in any event, there was a signed written document.

Reasons for Judgment of the Honourable
Madam Justice Dickson:

Introduction

[1]

This is an appeal from a trial judgment declaring that the appellant,
John McKendry, holds real property in trust for his late mothers estate.  The respondents,
Margaret Collin, Jean McKendry and Alexis Kent, are three of the appellants four
sisters, all of whom are entitled to a share of the estate.  For clarity, I
will refer to the parties and their late mother, Mary McKendry, by first name.

[2]

The real property in question is Marys home in Vancouver.  In 2008, she
transferred legal title to the property into joint tenancy with John, although
it is clear that he was to hold the property in trust.  In 2010, Mary decided to
remove the trust conditions so that John would receive the property absolutely
on her death.  She informed her lawyer in writing accordingly.  The central
issue on appeal is whether the trial judge erred in finding that Mary was
required to execute a written deed of gift under seal for John to take beneficial
ownership when she died.

[3]

For the reasons that follow, I would allow the appeal and dismiss both
of the Respondents actions in the court below.

Background

[4]

Mary and her husband Gordon had six children: Margaret, Jean and Alexis,
a fourth daughter, Colleen, and two sons, James and John.  James died in early childhood.
The remaining five McKendry children survived both their parents.

[5]

In 1963, Mary and Gordon purchased the property, which is located on
West 48th Avenue in Vancouver.  Although it was originally held in both names,
in 2000 Gordon transferred the property into Marys name alone.  A few years
later, he died.  By 2006, John had moved into the property, where he lived with
Mary for the rest of her life.

[6]

On January 28, 2008, Mary transferred legal title to the property into
her name and Johns as joint tenants.  To do so, she signed a Form A transfer which
was registered at the Land Title Office the next day.  At the time of the transfer,
however, Mary did not intend to give the beneficial interest in the property to
John, as a gift or otherwise.  Rather, she intended to transfer legal title only,
and for John to have some ability to access the equity for investment purposes.
She also intended that John would hold the beneficial interest in trust and divide
it into three equal shares when she died: one share to go to him, one share to
Colleen, and one share to be divided equally among Margaret, Jean and Alexis.

[7]

Later in 2008, a lawyer prepared a trust declaration reflecting Marys
intentions.  The trust declaration provided that John hold the property in
trust and divide the beneficial interest upon Marys death in accordance with
her instructions.  John did not sign the trust declaration.

[8]

In February 2010, Mary consulted a new lawyer, Ms. Richter.  She
asked Ms. Richter to dissolve the trust she thought was created when the
property was transferred into joint tenancy in 2008.  She also asked Ms. Richter
to create a new trust, with John as trustee, providing that the beneficial
interest in the property would be divided into equal shares for each of her
five children upon her death.

[9]

Ms. Richter prepared a new trust declaration in accordance with
Marys instructions.  Again, John did not sign.

[10]

In April 2010 Mary contacted Ms. Richter and asked her to put the
new trust declaration on hold.

[11]

In November 2010 John dropped off a handwritten note from Mary at Ms. Richters
office.  In the note, Mary stated that she did not want a trust agreement with
respect to the property.  Instead, she wrote:

My son, John, is to have sole
possession of this house and contents.  Margaret, Jean, Alexis and Colleen will
receive their portions of my Estate (in my Last Will and Testament).  I trust
my son, John, to take care of my family if necessary.

[12]

A few days later, Mary spoke with Ms. Richter on the telephone.
She told Ms. Richter that, after much consideration, she had decided it
was simpler for her to leave the property in joint tenancy.  She also said that
she understood the property would go to John absolutely on her death and he did
not need to share it with his siblings.

[13]

On December 16, 2010, Mary met with Ms. Richter in person.  At the
meeting, she signed a will and a two-page document that Ms. Richter had
prepared.  The will appointed John and Colleen as executors and trustees of
Marys estate and divided the residue equally among Margaret, Jean, Alexis and
Colleen.  It also included a paragraph stating that the property was registered
in joint tenancy with John and he would receive it subject to the registered
mortgages.

[14]

Mary signed the two-page document on both of its pages.  The document provided:

I, Mary Alice McKendry, confirm
that I wish to cancel any trust agreements or other documents imposing an
obligation on my son to share the property I own at [W. 48th] with my other
children.  I want my home to be my sons property on my death absolutely - no
strings attached.  I have made this decision after much consideration and I
fully understand that this gives my son the majority of my assets.  My house
constitutes the majority of my assets.

[15]

Mary died on February 23, 2012.

[16]

In May 2012, Margaret, Jean and Alexis commenced the first of two actions
against John, seeking a declaration that he holds the property in trust for
Marys estate.  In March 2014, they commenced the second action, seeking variation
of Marys will.

The Trial Judgment

[17]

At trial, Margaret, Jean and Alexis contended that the January 2008 transfer
of title was gratuitous and that John held his interest in the property in
trust for Mary during her lifetime, and thereafter for her estate. John
responded that Marys intention when she transferred title in January 2008 was
to make an immediate gift of the joint tenancy interest.

[18]

The trial judge rejected Johns submission and found the evidence
demonstrated that Mary did
not
intend to transfer a beneficial interest
in the land to John when she transferred legal title to him.  Rather, she
intended to make him a legal owner of the property and to allow him to use the
equity for purposes of investment, subject to her control.  Mary considered
that a transfer of a legal interest to John would facilitate such an arrangement.

[19]

The judge went on to address Johns further submission regarding the events
of December 2010 and their legal implications.  In summary, according to John,
by December 2010 Mary clearly intended to give him a beneficial interest in the
property, including an unfettered right of survivorship upon her death.  As the
property was already held in joint tenancy and he already had the legal right
of survivorship, he submitted that no further steps were required to perfect
the
inter vivos
gift.

[20]

The judge also rejected this submission.  She found that the events of
December 2010 were not reliable evidence of Marys intention in January 2008
when she transferred the property into joint tenancy.  At best, she held, they
reflected a change in Marys intention.  For purposes of analysis she went on to
assume that, as of December 2010, Mary intended to make a gift to John of a
right of survivorship in the property.  However, she did not accept Johns
submission that nothing further was required to perfect the intended gift.

[21]

The judge noted that, pursuant to s. 59(3) of the
Law and Equity
Act
, R.S.B.C. 1996, c. 253, contracts respecting land must be in
writing to be enforceable.  Citing
Kooner v. Kooner
(1979), 100 D.L.R.
(3d) 76 (B.C.S.C.), she also noted that, to make a valid gift, a donor must
have done everything that, according to the nature of the property, was
necessary to be done to transfer the property and make the transfer binding on
the donor.  She went on to find that Marys statements in the December 2010
will and two-page document were insufficient to create any legal obligation
with respect to the right of survivorship in the property.  Rather, in her view
they were mere promises:

[140]    In my opinion, the Form A transfer, signed by Mary
on January 28, 2008, is not sufficient to perfect a gift of the survivorship
interest in W. 48th to John, because (as I have found) Mary did not intend at
that time to make such a gift to John.  Assuming that, as of December 2010,
Mary did intend to make such a gift to John, she did not take the necessary
steps to perfect the gift.  The statements in the December 2010 Will and the
December 16 Letter are insufficient to create any legal obligation; they are
(at best) mere promises to make a gift to John.  I agree with Mr. Lee
that, in order for Mary to make a valid gift to John of the survivorship
interest in W. 48th, Mary would have been required to execute a written deed of
gift under seal (obviating the need for consideration), confirming an immediate
gift of the survivorship interest in W. 48th.  Short of this, there was no
legally binding gift, and I so find.

[141]    In summary, I find that John has failed to discharge
the burden on him to show that, on January 28, 2008, Mary intended to make an
immediate gift to him of the survivorship interest in W. 48th.  If, on December
16, 2010, Mary intended to make such a gift, she failed to take the steps
necessary to make a valid, legally binding gift.

[142]    The result is the
plaintiffs are, accordingly, entitled to a declaration that John holds W. 48th
in trust for Marys estate.

Positions of the Parties

[22]

The contentious aspect of the judgment is the judges finding that an
executed deed of gift under seal was required to perfect a gift to John of the right
of survivorship in the property.

[23]

On appeal, John contends that Marys actual intention is the governing
consideration.  In his submission, that intention was clear: to give him
survivorship rights when she transferred the property into joint tenancy in January
2008.  By late 2010, he submits, Mary also intended that his survivorship
rights would be unfettered by any trust obligation and he would receive the
entire beneficial interest in the property upon her death.  However, contrary
to the judges finding, John says nothing further was required to perfect the
gift because he already held legal title.

[24]

Margaret, Jean and Alexis respond that the judges conclusions are fully
justified in law and on the evidence.  In their submission, Marys intention in
January 2008 when she transferred the property into joint tenancy governs the
outcome of the case.  At the time of the transfer, she clearly did
not
intend to gift to John a beneficial right of survivorship in the property.
Rather, she intended to retain the beneficial interest in the property for
herself and continue to deal with it as she saw fit.

[25]

According to Margaret, Jean and Alexis, if Marys intention changed in
2010, she failed to make a legally binding gift to John.  This is so, they say,
because she did not deliver the gift to him, immediately and irrevocably, by binding
means such as a deed under seal.  In consequence, in their submission, although
Mary may have wished to do so, she did not perfect the gift to John before she
died.  In consequence, he continues to hold the beneficial interest in the
property in trust for Marys estate.

Discussion

[26]

The legal principles that apply are straightforward.  A brief summary of
those principles and their application on this appeal follows below.

Joint Tenancy and the Right of Survivorship

[27]

Joint tenancy is a form of concurrent property ownership.  When the four
unities of title, interest, time and possession are present, co-owners hold an
equal interest in property as a unified whole:
Zeligs v. Janes
, 2016
BCCA 280 at para. 38.  However, parties may hold legal title to property
as joint tenants while beneficial ownership is held differently.  For example,
a mother and son may own real property as joint tenants in law while the mother
alone owns the beneficial interest.  In such circumstances, as Rothstein J.
noted in
Pecore v. Pecore
, 2007 SCC 17 at para. 4:

The beneficial owner of
property has been described as the real owner of property even though it is in
someone elses name: [citation omitted]

[28]

The principal characteristic of joint tenancy is the right of
survivorship.  When a joint tenant dies, his or her interest in property is
extinguished. If there is more than one surviving joint tenant, they continue
to hold the property as joint tenants. The last surviving joint tenant takes full
ownership of the property.

[29]

So long as the requirements of a binding gift are met, the owner of property
may, during his or her lifetime, make an immediate gift of a joint tenancy,
including the right of survivorship.  This is so regardless of whether the
donee of the gift is to hold it for the benefit of the donor while he or she is
alive.  When gifted
inter vivos
, the right of survivorship is a form of
expectancy regarding the future.  It is a right to what is left of the jointly-held
interest, if anything, when the donor dies:
Simcoff v. Simcoff
, 2009
MBCA 80 at para. 64;
Bergen v. Bergen
, 2013 BCCA 492 at para. 37;
Pecore
at paras. 45-53.

[30]

A donor may gift the right of survivorship, but continue to deal freely with
property throughout his or her lifetime.  In
Simcoff
, Steel J.A. explained
why:

64  Simply, and conceptually, the fact that a complete
gift may have been given and that this gift included a right of survivorship
does not,
prima facie
, prevent a donor from dealing with the retained
joint interest while alive. The right of survivorship is only to what is left.
Accordingly, if one joint owner drains a bank account (in the case of personal
property) or severs a joint tenancy (in the case of real property), there is
nothing in the right of survivorship itself that somehow prevents this. In
commenting on the issue of survivorship in
Pecore
, Rothstein J. wrote
(at para. 50):

Some judges have found that a gift
of survivorship cannot be
a complete and perfect
inter vivos
gift
because of the ability of the transferor to drain a joint account prior to his
or her death: see e.g. Hodgins J.A.s dissent in
Re Reid
[(1921), 64
D.L.R. 598 (Ont. C.A.)]. Like the Ontario Court of Appeal in
Re Reid
, at
p. 608, and
Edwards v. Bradley
, [[1956] O.R. 225] at p. 234, I
would reject this view.
The nature of a joint account is that the balance
will fluctuate over time. The gift in these circumstances is the transferees
survivorship interest in the account balance - whatever it may be - at the time
of the transferors death, not to any particular amount.

[Emphasis
in original.]

Gifts and Resulting Trusts

[31]

A gift is a gratuitous transfer made without consideration.  Two
requirements must be met for an
inter vivos
gift to be legally binding:
the donor must have intended to make a gift and must have delivered the subject
matter to the donee.  The intention of the donor at the time of the transfer is
the governing consideration.  In addition, the donor must have done everything
necessary, according to the nature of the property, to transfer it to the donee
and render the settlement legally binding on him or her:
Kooner
at 79-80;
Pecore
at para. 5.

[32]

A gift may be delivered in various manners.  For example, a donor may choose
to transfer property directly to a donee or a trustee, or may retain possession
and make a declaration of trust.  Once a gift is given, the donor cannot
retract it.  If it is incomplete, however, the court will not perfect a gift.  Accordingly,
where the gift rests merely in a promise or unfulfilled intention, the court
will not compel an intending donor to follow through with making the gift:
Kooner
at 79-80;
Pecore
at para. 56.

[33]

The standard for proving a gift is the usual civil standard of a balance
of probabilities:
Singh Estate v. Shandil
, 2007 BCCA 303 at paras. 24-27.

[34]

The intention of a person who transfers property gratuitously to another
is sometimes difficult to determine.  This is particularly true where the
transferor is deceased.  For this reason, common law rules have developed to
guide the courts inquiry.  In
Pecore
, the Supreme Court of Canada explained
those rules and how they apply to property held in joint tenancy.

[35]

In summary, a resulting trust arises when title to property is held in
the name of a party who gave no value for it.  In such circumstances, that
party is obliged to return the property to the original title owner unless he
or she can establish it was given as a gift.  In the case of a gratuitous
transfer, a rebuttable presumption of resulting trust applies when the transfer
is challenged.  The judge commences the inquiry with the presumption, weighs
all of the evidence, and attempts to ascertain the actual intention of the
transferor.  The governing consideration is the transferors actual intention. The
presumption of resulting trust determines the result only where there is
insufficient evidence to rebut the presumption on a balance of probabilities:
Pecore
at paras. 20, 22-25, 44;
Kerr v. Baranow
, 2011 SCC 10 at para. 18.

[36]

When legal title to property is transferred gratuitously and a resulting
trust arises, the right of survivorship is held on trust by the transferee unless
otherwise established.  In
Bergen
, Newbury J.A. explained why:

[42]       Consistent with this, the authors of
Waters
[Donovan W.M. Waters, Mark R. Gillen, & Lionel D. Smith,
Waters Law of
Trusts in Canada
, 4th ed. (Toronto: Carswell, 2012)] in the most recent
edition (post-
Pecore
) state:

If A supplies the purchase money and conveyance is taken in
the joint names of A and B, B during the joint lives will
hold his interest
for A, B will also hold his right of survivorship − again by way of
resulting trust for As estate
, because that right is merely one aspect of
Bs interest. In other words,
the starting point is that B holds all of his
interest on resulting trust for A, or As estate.
However, evidence may
show that, while A intended B to hold his interest for A during the joint
lives, it was also As intention that, should he (A) predecease, B should take
the benefit of the property.
The presumption of resulting trust would then
be partially rebutted, in relation to the situation that has arisen, so that B
would not hold his interest (now a sole interest and not a joint tenancy) on
resulting trust. He would hold it for his own benefit
. [At 405; emphasis
added.]

Transfers of Land

[37]

Academics have sometimes questioned whether the presumption of resulting
trust applies to gratuitous transfers of land, although there is authority from
this Court to support the view that it does:
Fuller v. Harper
, 2010 BCCA
421 at para. 43.  In this case, it is unnecessary to decide the issue
because there is clear evidence of Marys intentions.  Regardless, transfers of
land are subject to statute.  In particular, the
Law and Equity Act
and
the
Land Title Act
, R.S.B.C. 1996, c. 250, Part 12 both apply to transfers
of real property.  Pursuant to the
Law and Equity Act,
contracts
respecting land must be in writing to be enforceable.  Pursuant to the
Land
Title Act
, transfers of land must be in a prescribed or otherwise acceptable
form and registered against title to land.

[38]

The judge referred to s. 59(3) of the
Law and Equity Act
,
but not s. 59(1), in reaching her conclusion.  In my view, both ss. 59(1)
and (3) of the
Act
are relevant.  They provide, in part:

59 (1) In this section,
disposition
does
not include

(a) the creation, assignment or
renunciation of an interest under a trust,

(3) A contract respecting land or a disposition of land is
not enforceable unless

(a) there is, in a writing signed
by the party to be charged or by that partys agent, both an indication that it
has been made and a reasonable indication of the subject matter,

Application of Governing Principles

[39]

The parties agree, as I do, that Marys actual intention is the
governing consideration.  In the light of the evidence, the presumption of
resulting trust is not required to determine the outcome of the case. This is
so because Marys intentions in 2008 and 2010 are manifest and unambiguous.
The only real question is their legal effect.

[40]

In January 2008, when Mary gratuitously transferred legal title to the property
to John in joint tenancy, she did so with the intent that he hold the property
in trust.  The judge found that she intended to retain the entire beneficial
interest, including the right of survivorship, for herself and her estate: paras. 124-133.
Although John did not sign the trust declaration prepared by counsel, Marys intentions
were clear and unambiguous.  In consequence, while John held legal title with
Mary jointly from January 2008 onward, he held all of the beneficial interest,
including survivorship rights, in trust.

[41]

Unless something changed, upon Marys death John would have continued to
hold legal title to the property only and to hold the beneficial interest in
trust.  However, in December 2010 something did change.  As evidenced by the November
note and the two-page document prepared by her lawyer, Mary unambiguously
renounced her beneficial interest in the right of survivorship in Johns favour
should he survive her.  In doing so, she clearly intended to make an immediate
inter
vivos
gift of that incident of the joint tenancy to John.  As explained in
Simcoff
,
the gift was to whatever remained when Mary died.

[42]

Pursuant to s. 59(1) of the
Law and Equity Act
, Marys renunciation
of her beneficial interest in the right to survivorship did not amount to a disposition
of land.  Accordingly, the requirements of s. 59(3) did not apply.  In
addition, and in any event, the two-page document in which Mary renounced her
interest was a signed writing as contemplated by s. 59(3).

[43]

Given that she had previously transferred legal title to the property to
John in joint tenancy, Mary did everything necessary in December 2010 to give
her beneficial interest to John, bearing in mind the nature of that interest.  Her
intention was made manifest in the signed two-page document her lawyer prepared
and no further act of delivery was required because of the existing joint
tenancy.  In particular, nothing more would have been gained had Mary executed a
deed of gift under seal, given her clear and formally expressed intention. The
immediate
inter vivos
gift was complete and binding.  In my view, Marys
intention should prevail.

Conclusion

[44]

It follows that I conclude the judge erred in declaring John holds the
property in trust for Marys estate.  That being so, it was unnecessary to vary
Marys will.  In consequence, I would allow the appeal and dismiss both
actions.

The
Honourable Madam Justice Dickson

I AGREE:

The Honourable
Mr. Justice Groberman

I AGREE:

The Honourable
Madam Justice Garson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Hsieh v. Lui,

2017 BCCA 51

Date: 20170131

Docket: CA43084

Between:

Roque Hsiang Hwa
Hsieh

Appellant

(Claimant)

And

Christine Po Sing
Lui

Respondent

(Respondent)

And

Wai
Tsun Tom Lui in his capacity as litigation representative of
the Estate of Ting Sheung Lui, Deceased

Respondent

(Third
Party)

Before:

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Goepel

The Honourable Madam Justice Dickson

On appeal from:  An
order of the Supreme Court of British Columbia, dated August 14, 2015 (
Hsieh
v. Lui
, 2015 BCSC 1438, Vancouver Docket No. E104049).

Counsel for the Appellant:

P.R. Albi, Q.C.

S.L. Stepney

Counsel for the Respondents:

G.A. Lang

Place and Date of Hearing:

Vancouver, British
  Columbia

May 24, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 31, 2017

Written Reasons by:

The Honourable Madam Justice Dickson

Concurred in by:

The Honourable Mr. Justice Frankel

The Honourable Mr. Justice Goepel

Summary:

Mr. Hsieh appeals the
judges order respecting the quantum of spousal support based on several
alleged material errors, the validity of a mortgage in favour of the respondents
late father, and the finding that a nanny was a valid s. 7 expense under
the Guidelines.  Held: appeal allowed in part.  The judge did not err in
awarding Ms. Lui retroactive spousal support to the date of trial, failing
to consider the reapportionment of family property, determining the duration of
the award, or declining to impute income to Ms. Lui.  However, the judge
erred in calculating retroactive support based on Mr. Hsiehs 2015 income,
in finding the mortgage was valid and in holding the nanny was an appropriate
s. 7 expense.

Reasons for Judgment of the Honourable
Madam Justice Dickson:

Introduction

[1]

This appeal is primarily concerned with the determination of retroactive
and ongoing spousal support in a family law case involving a high-income
earner.  The validity of a mortgage and characterisation of a nanny expense are
also at issue.  The appellant, Roque Hsieh, appeals the trial judges final
order awarding retroactive and lump sum spousal support of $1,175,787 to the
respondent, Christine Lui, contending that she made several material errors
which resulted in an unduly high award.  He also appeals the judges order that
a mortgage Ms. Lui granted to her late father which was registered against
title to a family asset is valid and that the cost of a nanny was a s. 7
expense under the
Federal Child Support Guidelines
, SOR/97-175 [
Guidelines
].

[2]

For the reasons that follow, I would allow the appeal, in part.

Background

[3]

Mr. Hsieh is a chartered accountant.  Since the mid-1990s, he has
been employed by KPMG in Vancouver.  In 2008, he became a partner with KPMG,
specialising in tax accounting.  He was 48 years old at the time of the trial.

[4]

Ms. Lui holds a bachelor of commerce degree and worked for a few
years in the banking industry.  She left that employment, however, because
business was poor and clients were hard to find.  As a result of her familys
wealth and generosity, Ms. Lui had no financial need to earn employment
income and she has not engaged in paid work since she left her bank job in 1998.
Rather, with Mr. Hsiehs consent and approval, she has been a full-time
homemaker.  She was 46 years old at the time of the trial.

[5]

Mr. Hsieh and Ms. Lui were married on June 30, 1996.  When Ms. Lui
left her bank job, she was a senior account manager earning an annual income of
approximately $50,000.  At the time, Mr. Hsieh was a junior accountant
earning an annual income in the range of $60,000 to $70,000.

[6]

Mr. Hsieh and Ms. Lui have one child, Olivia. She was 12 years
old at the time of the trial and in Grade 7.  Since Olivias birth in 2002, Ms. Lui
has been the primary caregiving parent.  She has always been assisted by a
nanny with her caregiving and household duties.

[7]

Throughout the marriage, Ms. Luis family made significant
financial contributions to the couple, covering most of their capital costs,
providing them with a vehicle and paying for Olivias private school
education.  Amongst other things, Ms. Luis late father, Ting Sheung Lui,
gave Ms. Lui $1.1 million in 2007 with instructions to earmark the funds
for Olivias education (Olivias Education Fund).

[8]

Mr. Hsieh and Ms. Lui kept their finances separate when they
were married.  Each retained their own income and each contributed jointly to
household expenses, insofar as that was required.  Given the contributions made
by Ms. Luis family, however, there were not many expenses left for the
parties to cover.  As a result, most of their shared expenses were for meals
and entertainment.

[9]

Following a two-year period of living separate and apart in the same
house, Mr. Hsieh and Ms. Lui separated on July 1, 2010.  Thereafter, Ms. Lui
and Olivia remained in the family home and Mr. Hsieh moved into a
condominium acquired for his use by a trust.  At the time of separation, Mr. Hsiehs
annual income was approximately $400,000.

[10]

On June 30, 2011, a declaration that the parties had no reasonable
prospect of reconciliation was made under s. 57 of the
Family Relations
Act
, R.S.B.C. 1996, c. 128 [
FRA
].  Mr. Hsieh and Ms. Lui
were divorced by the January 23, 2015 order of the trial judge.  At the time of
the trial, Mr. Hsiehs annual income was in the range of $590,000 to $640,000.
Between the dates of separation and trial, Mr. Hsieh paid some child
support and no spousal support to Ms. Lui.

The Hornby Street Property

[11]

Mr. Hsieh and Ms. Lui did not cohabit before they were
married.  Immediately after they married, they moved into a condominium on
Hornby Street in Vancouver (the Hornby Street Property).  They lived together
in the Hornby Street Property until 2002, when, with Olivia, they moved into Ms. Luis
parents home.

[12]

The Hornby Street Property was purchased by Mr. Lui Sr. in 1993,
together with four other condominiums in the same building.  At the time of
purchase, he registered the Hornby Street Property in Ms. Luis name.  He
also registered another condominium in the joint names of Ms. Lui and her
sister, and the other three in the names of other family members.

[13]

The purchase of the Hornby Street Property was partially financed by an
institutional mortgage of $406,000, which was registered against title.  Mr. Lui
Sr. paid the property taxes and other payments associated with the Hornby
Street Property.  In April 1996, after considering tax and estate planning
issues, he also repaid the entire institutional mortgage debt.  As a result, on
May 2, 1996 the bank discharged the mortgage and the title became unencumbered.

[14]

On June 25, 1996, five days before she married Mr. Hsieh and at her
fathers request, Ms. Lui signed a $635,000 mortgage in favour of Mr. Lui
Sr. (the Mortgage).  The Mortgage was registered against title to the Hornby
Street Property.  At the same time, Ms. Lui signed an acknowledgment under
seal to the effect that historical advances she had received from Mr. Lui
Sr. were loans; however, she testified on discovery that her father did not, in
fact, loan any money to her between 1993 and May 1996.

[15]

Ms. Lui also testified that Mr. Lui Sr. did not advance any
money to her in relation to the Mortgage and she did not make any payments on
it.  She said that she signed the Mortgage because, without explanation, her
father asked her to do so. She acknowledged that, when she was not living
there, she received rental income from the Hornby Street Property.

[16]

According to Ms. Luis brother, Mr. Lui Sr. asked Ms. Lui
to sign the Mortgage because he was not comfortable with her holding clear
title to the Hornby Street Property given her impending marriage to Mr. Hsieh.
In a letter dated June 28, 1996 regarding the Mortgage, solicitors for Mr. Lui
Sr. wrote:

Notwithstanding the execution by
the Borrower of the Acknowledgment Agreement (enclosed), the validity of the
Mortgage could be challenged if the monies paid by you in connection with the
Borrowers purchase of the Lands in June, 1993 were to be viewed by a court as
having been intended as a gift from you to the Borrower.

[17]

The appraised value of the Hornby Street Property was $965,000 in 2014.

The Churchill Street Property

[18]

In September 2002, a house on Churchill Street in Vancouver was
purchased for approximately $1.8 million with funds provided by Ms. Luis
uncle and registered in Ms. Luis name (the Churchill Street Property).
In 2004, Mr. Hsieh, Ms. Lui and Olivia moved into the Churchill
Street Property and lived there together until Mr. Hsieh left in 2010.  As
with the Hornby Street Property, Mr. Lui Sr. paid the property taxes and
most other property-related costs.

[19]

The appraised value of the Churchill Street Property was $4.4 million in
2014.

The Trusts

[20]

Between 2005 and 2010, the families of Mr. Hsieh and Ms. Lui
set up trusts to enable their participation in an investment vehicle
established by one of Mr. Hsiehs clients (the Cutting Edge Trust).  Due
to Mr. Hsiehs position at KPMG and KPMGs independence rules, Mr. Hsieh
and Ms. Lui were unable to invest personally.  However, Ms. Luis
family set up the 106 LN Family Trust No. 1 in October 2005 (the Lui
Trust) and Mr. Hsiehs family set up the FRH Trust in September 2008 (the
Hsieh Trust).  Both trusts acquired an interest in the Cutting Edge Trust.

The Shangri-La Condo

[21]

In July 2010, the Hsieh Trust acquired the condominium in which Mr. Hsieh
has resided since the parties separated for approximately $3.1 million (the Shangri-La
Condo).  The acquisition was financed and Mr. Hsieh pays monthly carrying
costs of approximately $13,000.  These costs include a mortgage payment, strata
fees, property taxes and interest on loans.

[22]

As of the triggering date, the equity in the Shangri-La Condo was
$348,263.

Reasons for Judgment

[23]

The judge began her reasons by identifying the issues for determination
and those concerning which there was agreement.  The former included the
appropriate division of family debts and assets, the quantum of spousal support
payable to Ms. Lui, the validity of the Mortgage, and whether the cost of
a nanny is an appropriate shared expense under s. 7 of the
Guidelines
.

[24]

After reviewing some background facts, the judge dealt first with the
question of whether the cost of a nanny is an appropriate s. 7 expense.
In finding that it is, she stated:

[25]      The parties agree that, effective February 1, 2015,
agreed upon s. 7 expenses shall be shared equally.  The only area in
dispute is the expense of employing a nanny/housekeeper.  This, Mr. Hsieh
says, is an inappropriate s. 7 expense, especially as Ms. Lui is not
employed.

[26]      Based on the family
circumstances which previously included a nanny, I conclude a nanny is an
appropriate expense to which Mr. Hsieh should be required to contribute.  Mr. Hsieh
argues the tasks are more in the nature of housekeeping than child care.  I do
not accept this argument.  The multitude of activities in which Olivia
continues to participate, along with past circumstances, supports the need for
a nanny and a finding to this effect.  While Mr. Hsieh has parenting time
on the weekends, Olivias activities continue throughout the week.

[25]

The judge turned next to the central issue at trial: the identification
of family debts and assets.  She noted at the outset that the division of
property should be determined before a support claim to permit assessment of
each partys means taking into account the property division, citing this Courts
decision in
Narayan v. Narayan
, 2006 BCCA 561, in support. She went on
to find the Hsieh Trust, the Lui Trust, the units in the Cutting Edge Trust held
by the Hsieh Trust and Olivias Education Fund were not family assets, although
she considered it troubling that Mr. Hsieh had no interest in the Hsieh
Trust and the Cutting Edge Trust due to KPMGs independence rules.  The judges
findings on the nature of these assets were not challenged on appeal.

[26]

The parties agreed that the Churchill Street Property and the Hornby
Street Property were family assets.  They also agreed that the Shangri-La Condo
was not a family asset, but that the equity and carrying costs should be
considered on the reapportionment issue.

[27]

The judge rejected Mr. Hsiehs assertion that the Shangri-La Condo
was subject to a $415,000 debt to his parents.  She also found that he had
structured his financial affairs such that it would appear he has few assets
and significant debt despite his high annual income.  She noted there was only
one conventional mortgage on the Shangri-La Condo of close to $1 million, and
concluded that the remaining debt should not weigh heavily in the
reapportionment analysis.

[28]

The judge ordered an equal division of family debts and assets except
with respect to the Churchill Street Property, which she reapportioned 70 per
cent in Ms. Luis favour.  In doing so, she stated:

[123]    Ms. Lui maintains,
however, the Churchill Street Property was purchased with a gift of $1.8
million from her uncle in Hong Kong.  The home was purchased in 2002 but was
left empty from 2002 to 2004.  It was not a family asset until the parties
moved in in 2004.  Ms. Lui says, therefore, the property was a family
asset only from 2004 to 2008, when the parties lived separate and apart in
their home, or 2010, when Mr. Hsieh left the home.

[29]

The judge went on to note Ms. Luis testimony that the parties had
lived separately in the house since 2008 and her assertion that she lost
employment opportunities due to her homemaker role while Mr. Hsieh built a
highly successful career.  In explaining her decision to reapportion the
Churchill Street Property, the judge summarised and adopted Ms. Luis
position:

[126]    Ms. Lui submits that the following factors
militate in favour of a substantial reapportionment in her favour: the duration
of the separation between the parties since 2008, or alternatively, since the
date of the physical separation in 2010 (s. 65(1)(b)); the fact that the
property was 100% funded by a gift from Ms. Luis uncle (s. 65(1)(d) and
s. 65(1)(f)); the fact that the property taxes were paid by Ms. Luis
father (s. 65(1)(d)); the fact that Ms. Lui suffered an economic disadvantage
from the role she assumed in the marriage with Mr. Hsiehs agreement (s.
65(1)(f)); and finally, Ms. Luis need to become and remain economically
self-sufficient and provide a primary residence for Olivia (s. 65(1)(e)).  She
submits that the reapportionment should be in the amount of 70% of the equity
in the Churchill Street Property with a compensation payment made to Mr. Hsieh
or, depending on the division of other assets, a set-off against assets
retained by Mr. Hsieh.

[127]    I agree, for the reasons
immediately set out above.  I will, however, deal with this as part of the
overall consideration of the division of assets.

[30]

The remaining issues of relevance for present purposes were the validity
of the Mortgage and the appropriate quantum of spousal support.  In addressing
the Mortgage issue, the judge found that Mr. Lui Sr. purchased the Hornby
Street Property in Ms. Luis name financed by a $197,080.79 loan from him
to her and a mortgage of $406,000 from the Hong Kong Bank of Canada (para. 90).
She also noted that Mr. Lui Sr. repaid the Hong Kong Bank mortgage on
April 1, 1996, and that it was discharged on May 2, 1996 (para. 91).  She
noted further that Ms. Lui signed the Mortgage and sealed acknowledgment
on June 25, 1996 at her fathers request (para. 92).

[31]

Mr. Hsieh submitted that the Mortgage was a fiction intended to
protect the equity in the Hornby Street Property from a future claim by him.
After summarising his arguments the judge rejected them, agreeing instead with Ms. Lui.
In doing so, she noted that the Hornby Street Property was purchased three
years before the marriage, stated that a mortgage was always maintained on it
and interpreted Ms. Luis discovery testimony that she held the property
in trust for her father as an acknowledgment of Mr. Lui Sr.s interest in
the property.  She also noted that Mr. Hsiehs interest in the Hornby
Street Property did not arise under the
FRA
until well after the
Mortgage and sealed acknowledgment were signed in 1996.

[32]

The judge went on to find the Mortgage was valid.  She commented that Mr. Lui
Sr. conceivably took the Mortgage in return for having previously paid off
the institutional mortgage, which, she said, could amount to consideration,
although none was required in a contract under seal (paras. 99-100).  She
also noted that the
FRA
is a deferred community property regime and thus
Mr. Hsieh did not acquire an interest in the Hornby Street Property until
the triggering event on June 30, 2011.  However, she held:

[102]    As Ms. Lui says, by
this time, this was an encumbered gift.  While the initial mortgage was paid
off, that gift changed to an encumbered gift with the mortgage subsequently
placed on it at the request of Ms. Luis father.  The lawyers comments
concerning the validity of the mortgage have nothing to do with the
FRA
.
While Mr. Hsieh says an encumbered gift is inherently contradictory, I do
not agree.  The gift is simply not as large as perhaps one would wish.

[33]

The judge also agreed with Ms. Lui on the appropriate quantum of
spousal support.  She noted that entitlement on compensatory grounds was
uncontentious and the parties agreed that she should make a lump sum spousal
support order.  After summarising their competing positions and conducting her
analysis, she set retroactive and lump sum spousal support at $1,175,787: the
order Ms. Lui sought based on DivorceMate calculations she presented.  In
particular, the $1,175,787 order represented the mid-range lump sum payment for
a 10.5 year period indicated by the
Spousal Support Advisory Guidelines
[
SSAG
]
with child formula.  This was based on Mr. Hsiehs 2015
Guidelines
income of $647,000 and Ms. Luis
Guidelines
income of $36,000.

[34]

In reaching her decision, the judge noted that the parties separated in
2010 and Ms. Lui received no spousal support following the separation (paras. 129,132).
She also made findings regarding Mr. Hsiehs
Guidelines
income for
each year after separation, and referenced the objectives of spousal support
and the necessary factors for consideration.  The judge rejected Mr. Hsiehs
request that she impute income to Ms. Lui based on her previous level of
employment income and a proposed asset division, stating:

[142]    I do not find it reasonable to impute annual income
of $118,000 to Ms. Lui.  Ms. Lui ceased working in the bank in 1998
with the consent and approval of her husband. Since then, she has been
exclusively responsible for child care and household management, while Mr. Hsieh
has developed a very successful career.  Indeed, Mr. Hsieh may have
enjoyed career success without those responsibilities.  His
Guidelines
income has averaged $560,000 in the last three years.  There is no basis to
impute a higher income of Ms. Lui in the circumstances of this case at
this particular time.  Utilizing a previous salary may be helpful, but it is
evident circumstances have changed, including the health of Ms. Lui.  In
2007, Ms. Lui suffered from a serious ailment, had heart surgery, and took
some time to recover.  This is significant and should not be disregarded in
considering the appropriate lump sum.

[143]    Further, I note Mr. Hsieh agreed he would have
been both a trustee and beneficiary of the FRH Trust, if not for the
independence rules of KPMG.  In that case, it is likely those assets may well
have been family assets which Ms. Lui is not now able to claim and has
been disadvantaged as a result.

[150]    I conclude as follows:

14.  There will be an order for retroactive and lump sum
spousal support to Ms. Lui, pursuant to the
Spousal Support Advisory
Guidelines
in the mid-range, namely $1,175,787.

Issues on Appeal

[35]

Mr. Hsieh contends that the judge made several material errors in
determining the retroactive and lump sum spousal support award.  In particular,
he says she erred in awarding any retroactive support for the period up to the
trial date and, in any event, in calculating it based on the parties 2015
incomes.  He also says she erred in calculating the award based on a 14-year marriage
after finding that the parties separated in 2008, failing to impute income to Ms. Lui
and failing to account for the Churchill Street Property reapportionment in her
spousal support analysis.  He contends further that she erred in finding the
Mortgage was valid and in finding the cost of a nanny to be an appropriate
s. 7 expense under the
Guidelines
.

[36]

Ms. Lui responds that the spousal support award was based on an
individualized, fact-specific analysis which was justifiable on the law and the
evidence.  Accordingly, the judges spousal support award is entitled to
deference on appeal.  The same is true, she says, of the judges conclusion
that the Mortgage is valid and that the cost of a nanny is an appropriate
s. 7 expense.

[37]

The issues that emerge for determination are:

a)

Did the judge
err in making her award for retroactive and lump sum spousal support and, if
so, how and with what effect?

b)

Did the judge
err in finding the Mortgage was valid?

c)

Did the
judge err in finding the cost of a nanny is an appropriately shared s. 7
expense?

Discussion

Standard of Review

[38]

The standard of appellate review in family law matters is highly
deferential.  An appellant must show that there was a material error, a serious
misapprehension of the evidence, or an error in law for an appeal court to
intervene.  This high standard recognises the discretionary nature of the trial
judges task and the benefits of having heard directly from the parties.  It
also promotes finality and limits expense in family law litigation:
McKenzie
v. Perestrelo
, 2014 BCCA 161 at paras. 23-24, citing
Hickey v.
Hickey
, [1999] 2 S.C.R. 518 at para. 12 and
Van de Perre. v.
Edwards
, 2001 SCC 60 at paras. 14-15.

Did the judge err in making her award for retroactive and lump sum spousal
support and, if so, how and with what effect?

[39]

Mr. Hsieh submits that the judge found the parties separated in
2008, not 2010 as was admitted in the pleadings.  He grounds this submission in
her statements in paragraphs 123 and 126 quoted above regarding reapportionment
of the Churchill Street Property.  He goes on to submit that she reapportioned
the Churchill Street Property based on her finding of a 2008 separation but
awarded spousal support on the basis of a 2010 separation, thus unfairly
prolonging the duration period used for calculating spousal support under the
SSAG
.
In addition, and in any event, he submits that the appropriate quantum of
retroactive spousal support for the period between separation and trial should
be $0 as Ms. Lui had exclusive use of the Churchill Street Property and,
unlike him, did not incur debt to maintain her standard of living.  Further,
and importantly, the judge erroneously used his 2015
Guidelines
income
of $647,000 to calculate retroactive spousal support for the preceding 4.5
years in which he actually earned considerably less.

[40]

Mr. Hsieh also submits that the judge erred in failing to consider
the Churchill Street Property reapportionment in her spousal support analysis.
Had she done so, he says, she would have reduced the quantum significantly to
avoid double recovery, given the overlapping objectives of the two awards.  In
addition, she erred in failing to impute income to Ms. Lui, who is
well-educated and obliged to make reasonable efforts to become self-sufficient,
but chooses not to seek gainful employment.  All things considered, in his
submission, an appropriate lump sum spousal support award for the remaining
period of entitlement would be approximately $344,000.

[41]

I would not accede to any of these submissions but one.

[42]

As is apparent from paragraphs 123 and 126 of her reasons, the judge did
not base her reapportionment analysis on a definitive finding as to the
separation date, nor did she find that the parties separated in 2008 for any
other purpose.  Rather, she reapportioned the Churchill Street Property 70 per
cent in Ms. Luis favour because her uncle gifted it to her, her father
paid the taxes, she was economically disadvantaged by the marriage, she needed
to become self-sufficient and she needed to provide a primary residence for
Olivia.  These were all relevant considerations under s. 65 of the
FRA
,
which applied to the claim for reapportionment.  When summarising the
background facts the judge did say the parties separated in 2008, but also
noted that Mr. Hsieh left the family home in 2010 (para. 7).  As was
appropriate, she based her retroactive and lump sum spousal support analysis on
the admitted date of separation: July 1, 2010.

[43]

It is also apparent from the reasons, read as a whole, that the judge
was alive to the need to consider the reapportionment in making her spousal
support award, and that she did so.  For example, she cited this Courts
decision in
Narayan
in support of the proposition that a property
division claim should be determined before a spousal support claim to enable a
proper assessment of the parties means (para. 27).  She went on to
analyse the two claims in the proper order and referred repeatedly to the
parties means, Ms. Luis limited need and her retention of the Churchill
Street Property in the spousal support analysis (paras. 128-143).  She
also noted that Ms. Luis entitlement to support is compensatory, and
emphasized this Courts reminder in
Chutter v. Chutter
, 2008 BCCA 507, that
marriage is a joint endeavour and the longer it lasts, the stronger the
presumption of equal standards of living on dissolution (paras. 128, 140,
142).

[44]

Spousal support under the
Divorce Act
, R.S.C. 1985, c. 3
(2nd Supp.) [
DA
] is governed by s. 15.2.  The general objective of the
DA
with respect to compensatory support is to ensure that spouses are
compensated for economic hardship or disadvantages experienced as a result of a
marriage or its breakdown:
Hathaway v. Hathaway
, 2014 BCCA 310 at para. 52.
The objectives of spousal support under s. 15.2 of the
DA
and
property division under s. 65 of the
FRA
overlap with respect to
economic self-sufficiency, thus posing a risk of double recovery where awards
are made under both sections.  However, it does not necessarily follow that entitlement
to spousal support will be diminished or extinguished by reason of a property
reapportionment, particularly where, as here, its conceptual basis is
predominantly compensatory:
Hathaway
at para. 71, citing
Bodine-Shah
v. Shah
, 2014 BCCA 191 at paras. 70-71.

[45]

The overall goal of an award in family law proceedings is to achieve an
equitable sharing of the consequences of marriage and its breakdown.  An
equitable division may be achieved by awarding spousal and child support, by dividing
property and assets, or by a combination of both:
Bodine-Shah
at para. 70.
Each inquiry will be highly fact-specific:
Hathaway
at para. 72.

[46]

In my view, the judge engaged in the necessary fact-specific inquiry and
accounted for the Churchill Street Property reapportionment in making her
spousal support award.  I see no material error in law, principle or fact in
the judges decision on this point.

[47]

Further, I see no error in the judges decision not to impute income to Ms. Lui
for the period during which spousal support is payable.  A spouse is not
obliged to become self-sufficient following a marriage breakdown; rather, a
spouse is obliged to make reasonable efforts to achieve self-sufficiency.  If
such efforts are not made, a judge may reduce the amount of spousal support
awarded by imputing income to the unreasonably under-employed spouse:
Rogers
v. Rogers
, 1999 BCCA 238 at paras. 44-47, citing
Moge v. Moge
,
[1992] 3 S.C.R. 813.  A decision on whether to impute income is highly
discretionary and, as such, entitled to considerable appellate deference:
Marquez
v. Zapiola
, 2013 BCCA 433 at para. 36.

[48]

When a judge decides whether to impute income, the spouses capacity to
earn income given his or her age, education, health, work history, work
availability and retraining prospects should be considered.  The test for
imputing income for intentional under-employment or unemployment is one of
reasonableness, having regard to these factors:
Marquez
at para. 37.
The judge undertook the necessary exercise, and fully reviewed Ms. Luis
background and circumstances.  She decided not to impute income to Ms. Lui
largely because she had been out of the workforce for 17 years and primarily responsible
for child care since Olivias birth (para. 142).  Her primary caregiving
responsibilities are ongoing.  In these circumstances, I see no basis upon
which the judges discretionary decision not to impute income to Ms. Lui
should be disturbed.

[49]

However, in my view the judge did err in awarding retroactive spousal
support based on Mr. Hsiehs current annual income.  Insofar as possible,
retroactive support is to be determined based on actual income earned in each
year for which it is due:
Tedham v. Tedham
, 2003 BCCA 600 at paras. 58,
71;
Cornelissen v. Cornelissen,
2003 BCCA 666 at paras. 35-42.
Although I do not accept that the judge erred in awarding spousal support for
the pre-trial period, given that entitlement was compensatory and the parties
post-separation incomes differed significantly, I agree that she calculated the
retroactive portion of the spousal support award on an erroneous basis.

[50]

As previously noted, the judge made findings as to Mr. Hsiehs
Guidelines
income in each year following the parties 2010 separation (para. 132).
She also described the $1,175,787 award as an order for retroactive and lump
sum spousal support (para. 150).  However, she relied on
SSAG
calculations
provided by Ms. Lui which produced the mid-range $1,175,787 figure awarded
based on attributing income of $647,000 to Mr. Hsieh and income of $36,000
to Ms. Lui for the entire 10.5-year duration period (the midpoint for a
14-year marriage).  In other words, the judge based both the 4.5-year
retroactive portion of the spousal support award and the remaining 6-year
future portion on the parties current
Guidelines
incomes.  In my view,
this was clearly wrong.

[51]

The parties asked the judge to make a lump sum award, and thus to
hypothesize regarding their likely future incomes.  Given that invitation and
the evidence concerning Mr. Hsiehs positive professional trajectory, it
was reasonable for her to use the $647,000 figure to determine the future
portion of the spousal support award, i.e., for the years 2015 to 2021 (paras. 134-135).
However, it was unnecessary to hypothesize regarding past income and, as this Court
held in
Tedham
, it was incumbent on the judge to award retroactive
spousal support based on the parties actual incomes.  Accordingly, in my view
the retroactive portion of the spousal support award must be recalculated on
this basis for each year from July 1, 2010 to 2014 and reduced to the
cumulative extent of the difference.

Did the judge err in finding the Mortgage was valid?

[52]

Mr. Hsieh submits the judge erred in finding the Mortgage was valid
because, he says, a mortgage charge cannot exist where, as here, it does not
secure a debt.  He also submits that the Hornby Street Property could not be
transformed into an encumbered gift in June 1996, as the judge held, because
it had previously been fully gifted to Ms. Lui.  In support of his
submission, he emphasizes the constituent elements of a mortgage and a gift and
relates them to the evidence.  He further emphasizes errors on the evidence the
judge made and relied upon in finding the Mortgage valid.  For example, she
stated that a mortgage was always maintained on the Hornby Street Property,
which is inaccurate, and suggested that the participation of Mr. Lui Sr.s
estate in the litigation evidenced an obligation on Ms. Luis part under
the Mortgage, which it does not (paras. 96, 99).

[53]

In my view, Mr. Hsieh is correct.

[54]

A mortgage is an interest in property conferred by a borrower on a
lender to provide a fall-back if repayment obligations are not met: Bruce Ziff,
Principles of Property Law
, 6th ed. (Toronto: Carswell, 2014) at 437;
see also
Duncalm Resort Inc. v. Rendezvous Lodge Ltd.
(1998), 52
B.C.L.R. (3d) 64 (C.A.);
Chan v. Chan
, [1993] B.C.J. No. 442 (S.C.).
In Walter M. Traub,
Falconbridge on Mortgages
, 5th ed. (Toronto: Thomson
Reuters Canada Limited, 2003) (loose-leaf updated 2016, release 22) at para. 1:40,
a mortgage is described as:

a conveyance of land as a
security for the payment of a debt or the discharge of some other obligation
for which it is given, the security being redeemable on the payment or
discharge of such debt or obligation.

[55]

Modern mortgages do not usually take effect by way of a land
conveyance.  Rather, they operate by way of security as a charge against title:
Zeligs Estate v. Janes
, 2016 BCCA 280 at 58;
Land Title Act
,
R.S.B.C. 1995, c. 250, s. 231.

[56]

A gift is a gratuitous transfer of property for which the donor expects
no remuneration.  By its nature, once a gift is given it cannot be revoked by
the donor:
V.J.F. v. S.K.W.
, 2016 BCCA 186 at para. 49.  The key
factor for consideration in identifying a gift is the actual intention of the
donor when the interest in the property is transferred:
Beaverstock v.
Beaverstock
, 2011 BCCA 413 at para. 9, citing
Pecore v. Pecore
,
2007 SCC 17.  A note signed after a gift was given cannot convert that which
was a gift into a loan or another form of disposition:
Phillips v. Phillips
,
2008 BCSC 1233 at para. 35, per Savage J., as he then was, citing
Locke
v. Locke
, 2000 BCSC 1300 at para. 25;
Cabezas v. Maxim
, 2016
BCCA 82 at paras 34, 41.

[57]

Ms. Luis unequivocal testimony was that Mr. Lui Sr. did not
loan any money to her between 1993, when the Hornby Street Property was
purchased, and May 2, 1996, when the institutional mortgage was discharged.  In
other words, despite the reference to historical advances in the signed
acknowledgment, in fact, there were none.  Nor did Mr. Lui Sr. advance any
money to Ms. Lui in relation to the Mortgage after it was executed or
require her to make any Mortgage payments.  Although the judge considered it conceivable
that Ms. Lui granted the Mortgage to Mr. Lui Sr. in exchange for his
previously repayment of the institutional mortgage (para. 99), she made no
finding in this regard and there was no such evidence.  The judge did not make
a finding as to Mr. Lui Sr.s actual intention when he acquired the Hornby
Street Property and registered title in Ms. Luis name or when he cleared
title by repaying the institutional mortgage on April 1, 1996.

[58]

According to Ms. Luis brother, Mr. Lui Sr. asked Ms. Lui
to grant the Mortgage on June 25, 1996 because he was not comfortable with
her holding clear title given her impending marriage, not because the Mortgage
secured repayment of a debt or other obligation.  In addition, after she
granted the Mortgage, it was Ms. Lui, not her father, who either received
the rental income or lived in the Hornby Street Property.  Further, Mr. Lui
Sr.s estate was added as a party to the litigation because the Mortgage was
being challenged, not as evidence of its validity.

[59]

Given all of the foregoing, in my view the judges implicit finding that
the Mortgage secured repayment of a debt or obligation was based on a
misapprehension of the evidence.  It was plain on the uncontroverted evidence
that it did not do so.  Accordingly, the judge erred in finding that the
Mortgage was a valid charge on the Hornby Street Property.  As it did not
secure repayment of a debt or obligation, it was not a valid mortgage.

[60]

In addition, although the judge did not expressly find that Mr. Lui
Sr. intended to transfer the beneficial interest in the Hornby Street Property
to Ms. Lui gratuitously, she did refer to the property as a gift, albeit
later encumbered by a Mortgage.  To the extent the judge implicitly concluded
that Mr. Lui Sr. intended to gift the equity in the Hornby Street Property
to Ms. Lui when he repaid the institutional mortgage, I consider her
statement at para. 102 to the effect that the gift changed to an
encumbered gift to be an error in law.  Once he gave it to Ms. Lui, Mr. Lui
Sr. could not revoke his gift of unencumbered title.

Did the judge err in finding the cost of a nanny is an appropriately shared
s. 7 expense?

[61]

Mr. Hsieh submits that the judge erred further in finding the cost
of a nanny is an appropriately shared expense under s. 7 of the
Guidelines
in the circumstances.  In support of his submission, he emphasizes the language
of s. 7(1)(a), which applies only to child care expenses incurred as a
result of the custodial parents employment, illness, disability or education
or training for employment.  Given that Ms. Lui is healthy, unemployed
and has no plans to study or become gainfully employed, he says there is no need
to incur a nanny expense on any of the enumerated bases.  Accordingly, he
contends, the judge erred in making the award under s. 7 of the
Guidelines
.

[62]

Ms. Lui responds that the s. 7 award is discretionary and entitled
to appellate deference.  In support of her submission, she emphasizes the fact
that Mr. Hsieh is a high-income earner and that s. 15.1(5) of the
DA
permits the court to depart from the applicable
Guidelines
where special
provisions are made for a childs benefit and application of the
Guidelines
would be inequitable.

[63]

I do not accept Ms. Luis submission.  The judge did not purport to
depart from the applicable
Guidelines
pursuant to s. 15.1(5) of the
DA
.  Rather, she found that the cost of a nanny is an appropriately
shared expense under s. 7 of the
Guidelines
.  In my view, she erred
in so finding.

[64]

Section 7 of the
Guidelines
provides:

7
(1) In a child support
order the court may, on either spouses request, provide for an amount to cover
all or any portion of the following expenses, which expenses may be estimated,
taking into account the necessity of the expense in relation to the childs
best interests and the reasonableness of the expense in relation to the means
of the spouses and those of the child and to the familys spending pattern prior
to the separation:

(a)
child care expenses incurred as a result of the custodial parents
employment, illness, disability or education or training for employment;

(b)
that portion of the medical and dental insurance premiums attributable
to the child;

(c)
health-related expenses that exceed insurance reimbursement by at least
$100 annually, including orthodontic treatment, professional counselling
provided by a psychologist, social worker, psychiatrist or any other person,
physiotherapy, occupational therapy, speech therapy and prescription drugs,
hearing aids, glasses and contact lenses;

(d)
extraordinary expenses for primary or secondary school education or for
any other educational programs that meet the childs particular needs;

(e)
expenses for post-secondary education; and

(f)
extraordinary
expenses for extracurricular activities.

[65]

An order for contribution to special and extraordinary s. 7
expenses is discretionary.  The court may order payment of an enumerated
expense taking into account its necessity relative to the childs best
interests and the reasonableness of the expense relative to the means of the
spouses and the familys pre-separation spending pattern:
Bodine-Shah
at
para. 66.  In cases involving high-income earners, expenses that may not be
considered reasonable for many people may, in context, be reasonable, so long
as the award does not enter the realm of wealth transfer rather than support:
Francis
v. Baker
, [1999] 3 S.C.R. 250;
Sirdevan v. Sirdevan
, 2010 ONSC 2375.

[66]

The judge considered it reasonable for Mr. Hsieh to share in the cost
of a nanny/housekeeper because the family circumstances previously included a
nanny and Olivia continued to engage in a multitude of activities.  In reaching
this conclusion, she rejected Mr. Hsiehs contention that the nannys
tasks were more in the nature of housekeeping than child care, but made no specific
findings as to the breakdown of her duties.  In particular, the judge made no
findings as to which of Olivias extracurricular activities involve the nannys
services or the nature of her current child care duties.  Nor did she identify
the subsection of s. 7 she considered applicable or the extent, if any, to
which Mr. Hsieh contributed to the nanny expense prior to the parties separation
(paras. 25-26).

[67]

In my view, the evidence does not support the conclusion that the cost
of the nanny/housekeeper is an expense within s. 7 of the
Guidelines
.
There was simply no evidence that Ms. Lui incurs the nanny expense for
child care purposes
as a result
of her
employment,
illness, disability or education or training for employment (s. 7(1)(a)).  In
particular, as Mr. Hsieh points out, there was no evidence that Ms. Lui
suffers from an illness or disability and she does not work outside the home so
does not require child care for purposes of employment.  Nor can the
nanny/housekeepers services be characterized as extraordinary expenses for
extracurricular activities (s. 7(1)(f)).  In the circumstances, despite the
fact that Mr. Hsieh is a high-income earner and Ms. Lui was assisted by
a nanny prior to separation, in my view the judge erred in
awarding the
nanny cost as a shared expense under s. 7 of the
Guidelines
.

Conclusion

[68]

I would allow the appeal, in part, and vary the order below as follows:

1.

the
retroactive portion of the spousal support award in paragraph 12 of the order
is to be recalculated based on the parties
Guidelines
incomes for each
year from July 1, 2010 to 2014 and reduced to the cumulative extent of the
difference;

2.

Mr. Hsieh
shall be compensated by Ms. Lui for his 50 per cent interest in the Hornby
Street Property on the basis that the Mortgage referenced in paragraph 16 of
the order is not valid; and

3.

The cost
of Olivias nanny is not a special and extraordinary expense to be shared and
paragraph 9 of the order is accordingly deleted.

[69]

Mr. Hsieh was substantially successful on the appeal and is thus
entitled to costs.

The
Honourable Madam Justice Dickson

I AGREE:

The Honourable
Mr. Justice Frankel

I AGREE:

The Honourable
Mr. Justice Goepel


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Northern Thunderbird Air Inc. v. British Columbia
  (Workers Compensation Appeal Tribunal),

2017 BCCA 60

Date: 20170201

Docket: CA43818

Between:

Northern
Thunderbird Air Inc.

Appellant

(Petitioner)

And

Workers Compensation Appeal Tribunal,
Ruben Cohen, Carolyn Cross, Kelly Jablonski, Jeffrey McCord, Cameron Sobolik
and Troy Zanatta

Respondents

(Respondents)

Before:

The Honourable Chief Justice Bauman

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Fitch

On appeal from: an order
of the Supreme Court of British Columbia, dated
July 4, 2016 (
Northern Thunderbird Air Inc. v. British Columbia (Workers
Compensation Appeal Tribunal
, 2016 BCSC 1216,
Vancouver Registry No. S153073)

Oral Reasons for Judgment

Counsel for the Appellant:

G.L.O. Wells, Q.C.
  and R. Moyse

Counsel for the Respondent, Workers Compensation Appeal
  Tribunal

M. Bennett

Counsel for the Respondents: R. Cohen, K. Jablonski, J.
  McCord, Cameron Sobolik and T. Zanatta

S. Matthews, Q.C. and
  M.L. Segal

Counsel for the Respondent, C. Cross

W. Simek

Place and Date of Hearing:

Vancouver, British
  Columbia

February 1, 2017

Place and Date of Judgment:

Vancouver, British
  Columbia

February 1, 2017

Summary:

Appeal from an order dismissing
Northern Thunderbird Airs petition for judicial review of the Workers
Compensation Appeal Tribunals decision that the individual respondents
injuries did not arise out of and in the course of their employment. The
respondents were travelling to a CEO peer-advisory group retreat when their flight
crash-landed. Held: appeal dismissed; the tribunals decision was not patently
unreasonable. The WCAT clearly laid out the route to its decision, there was
evidence before it to support the findings it made and its decision cannot be
said to be
openly,
clearly, evidently unreasonable.

[1]

WILLCOCK J.A.
: This is an appeal from the July 4, 2016 judgment
of Madam Justice Baker dismissing the petition brought by Northern Thunderbird
Air Inc. for an order pursuant to the
Judicial Review Procedure Act
,
R.S.B.C. 1996, c. 241, setting aside the decision of the Workers Compensation
Appeal Tribunal (WCAT) and an order remitting the matter to WCAT for
reconsideration.

[2]

The history of the proceedings is summarized in the judgment as follows:

[1]        On October 27, 2011, an airplane owned and
operated by the Petitioner crash-landed on Russ Baker Way in Richmond, B.C.,
having departed from the Vancouver Airport South Terminal on a charter flight
heading to Kelowna Airport.

[2]        The Respondents Cohen, Cross, Jablonski, McCord,
Sobolik and Zanatta (the individual Respondents) were all passengers on the
plane at the time of the crash. The Individual Respondents, other than Ms. Cross,
commenced one action in this court against the Petitioner seeking to recover
damages. Ms. Cross commenced a separate action in this court. In their
civil actions, the Individual Respondents allege that they suffered injuries
and losses as a result of the accident; and that the accident was caused by the
negligence of the Petitioner and/or its employees.

[3]        The Individual Respondents were flying to Kelowna
on route to the Sparkling Hills Resort located near Vernon. They were
travelling to the resort to attend an annual retreat organized by a corporation
called TEC (The Executive Committee) Canada Ltd. (TEC). The Individual
Respondents were members of a small sub-group of TEC that has been described by
the Petitioner as a CEO peer-advisory group known as TEC 335.

[4]        The Petitioner and the Individual Respondents
applied to WCAT pursuant to s. 257 of the
Workers Compensation Act
, R.S.B.C. 1996, c. 492

(the
Act
) for a determination as
to whether the Individual Respondents injuries arose out of and in the course
of employment within the scope of Part 1 of the
Act
.

[6]        The parties provided WCAT with written submissions
and adduced evidence in support of their respective positions, including
extensive excerpts from transcripts of examinations for discovery of the
Individual Respondents conducted in the two civil actions. The Petitioner also
filed a report prepared by Jim Donihee. Mr. Donihee retired as a Colonel
from the Canadian Armed Forces in the fall of 2000 and then embarked on a
career in the oil and gas industry. He became involved with TEC in 2006 and
served as a TEC Chair from 2010 to 2012.

[7]        On February 18, 2015. a one-person panel of WCAT
issued a single decision in WCAT-2015-00533 and WCAT-2-15-00534 (the WCAT
decision). WCAT concluded that the Individual Respondents, with the exception
of Ms. Cross, were workers. WCAT concluded that it was not necessary to
determine whether Ms. Cross was a worker, but presumed she was for the
purposes of determining whether her injuries arose out of and in the course of
her employment.

[8]        WCAT concluded that the injuries sustained by the
Individual Respondents, including Ms. Cross,
did not arise out of and
in the course of their employment
. As a result of this conclusion, the
Individual Respondents are not precluded from proceeding with their civil
actions against the Petitioner.

[Emphasis added.]

The Decision Appealed From

[3]

The decision of the WCAT was made under s. 257 of the
Workers
Compensation Act
, R.S.B.C. 1996, c. 492

(the
Act
),
which authorizes the WCAT, when an action has been commenced based on a
personal injury, to determine whether
the injury arose out
of, and in the course of, the workers employment. The decision can be found at
WCAT-2015-00533 and WCAT-2-15-00534.

[4]

Herb Morton, Vice Chair, sitting as the WCAT, concluded at para. 10 that
the facts were generally not in dispute. The applications involved questions of
mixed fact, law, and policy, and did not involve any significant issue of
credibility. The applications were therefore considered on the basis of the
written evidence, including both affidavits and transcripts of examinations for
discovery, and submissions, without an oral hearing.

[5]

The application was considered in light of Worksafe policies in effect
at the time of the accident
on
October 27, 2011. These included Items #C3-14.00 and
#C3-21.00 in the
Worksafe
Rehabilitation Services and Claims
Manual, Volume II
.
The
latter describes a policy for attendance at educational or training courses in
the following terms:

Compensation
coverage does not generally extend to injuries or death that occur during
educational or training courses. Such courses are generally for the workers
own benefit, and are not considered to have sufficient employment connection as
to be compensable.

However, some
types of educational or training courses may be sufficiently connected to the
workers employment as to be considered part of that employment. Consideration
is then given to the factors in Item C3-14.00 and any other relevant factors
not listed in policy, and the evidence is weighed to determine whether the injury
or death arose out of and in the course of the employment.

Factors that may weigh in favour of coverage for injuries or
death sustained during educational or training courses include whether the
education or training:

·

took place on the employers premises;

·

was for the benefit of the employers business;

·

was undertaken at the direction of the employer;

·

involved using equipment supplied by the employer;

·

was during a time period for which the worker was being paid;

·

was paid for by the employer; or

·

was considered by the employer to be part of the workers job.

No single factor is
determinative. In marginal cases, it is impossible to do better than weigh the
employment features of the education or training against the personal features
to reach a conclusion as to whether the test of employment connection has been
met.

[6]

The WCAT review of Worksafe policies and its prior decisions
demonstrates keen awareness of the issues with respect to treatment of job
training and educational programs. WCAT noted, for example, that a distinction has
been drawn between things workers must do to become and continue to be
qualified to perform a particular job and the things they must do as part of the
job. The WCAT, cited a prior policy manual as an appropriate description of
continuing norms at para. 102:

Generally speaking, only the
latter activities are covered. A person may, for example, need to spend some
time in an educational or training institute to obtain or maintain the
qualifications necessary for a particular job, but that person is not normally
covered while attending that institution.

[7]

Further, WCAT noted that Worksafe has addressed specific courses,
adopting a policy, for example, that compensation coverage does not extend to
injuries occurring in first aid courses taken off the employers premises and
outside work hours, even though the worker may receive additional pay for a
first aid ticket and be reimbursed the course fees by the employer.

[8]

After reviewing the evidence in the light of those policies, the WCAT
found the following enumerated criteria were not determinative:

a)

TEC meetings were generally held away from the employers premises;

b)

The
plaintiffs
membership in TEC was intended to be at least indirectly for the
employers benefit as well as having an aspect of personal development;

c)

Employers did not provide instruction to the
plaintiffs
to
participate in TEC (or attend the retreat);

d)

Equipment was not Supplied by the Employer;

e)

Payment of TEC dues by the employer could be viewed as comparable
to an employee using a gym membership paid for by the employer;

f)

The
employees
(apart from Cross) were paid annual salaries, their attendance at TEC
activities on weekdays occurred during a time period for which they were being
paid but they had flexibility in their work hours and times;

g)

The plaintiffs participation in TEC activities was not part of their
normal work activities. They kept confidential any discussions they had at TEC
meetings, and did not discuss these with their colleagues or employees.

[9]

The WCAT concluded:

[135]    While the evidence is mixed, on balance I consider
that the weight of the evidence supports a conclusion that this training is
better characterized as being for the plaintiffs own benefit in enhancing
their general knowledge, and skills in relation to their functioning as CEOs.
It assisted the members in developing their abilities to perform their roles in
a general way, which was not related to their specific industry. On a judgment basis,
I find that the personal features of the education and training were
predominant. The plaintiffs status is appropriately determined on the basis of
the general principle that compensation coverage does not generally extend to
injuries or death that occur during educational or training courses.

[136]    I find that the
plaintiffs participation in TEC was not sufficiently connected to their
employment as to be considered part of that employment. Furthermore, I do not
consider that there were additional circumstances surrounding the October 2011
retreat to connect the plaintiffs participation in that retreat to their
employment. While the travel to the retreat occurred on a Thursday, and the
first full day of events at the retreat occurred on a Friday, the second full
day of events occurred on Saturday and was followed by a half day of events on
Sunday. The retreat was thus spread over what might have been viewed as
normally being workdays and personal days.

[10]

The parties agreed on the hearing of the petition for judicial review,
as they do on this appeal, that the standard of review of the WCAT decision is
patent unreasonableness, the standard described in s. 58(2)(a) of the
Administrative
Tribunals Act
, S.B.C. 2004, c. 45:

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

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

a)

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

[11]

The chambers judge addressed the appellants argument as follows:

[29]

Condensed
to its simplest terms, the Petitioners position is that in its decision, WCAT
does not demonstrate that it adequately addressed or engaged with the evidence
favorable to the Petitioners position.

[30]

In the Petitioners
written and oral submissions, counsel argued that WCAT did not adequately
explain the basis for its determinations and decisions; or failed to deal
adequately with a critical issue, leaving its reasoning unclear.

[12]

The argument was canvassed in detail. The chambers judge held:

[33]

I am of the view that
the reasons given by WCAT in the decision under review here do allow this Court
to understand why WCAT made its decision and more than adequately permit this
Court to determine whether the conclusions reached are within the range of
acceptable outcomes.

And further:

[51]

It
is true that WCAT did not recite or set out in any detail the specific evidence
it considered in relation to the conclusions drawn in respect of each of the
nine factors but in my view, it was not necessary that it do so. Reading the
decision as a whole, including the extensive references to evidence earlier in
the decision, it is clear that WCAT understood, considered and weighed the
evidence put before it by the parties.

[53]

In
my view, paragraphs 134 to 136 set out the ratio of the WCAT decision. WCAT
acknowledged that the evidence was mixed − that there were factors
favouring the position taken by the Petitioner; and factors favouring the position
taken by the Individual Respondents. WCAT weighed the conflicting evidence and
for the reasons given, concluded that the weight of the evidence supported
a conclusion that the personal features of the Individual Respondents
participation in the education and training provided by TEC were predominant;
and that WCAT should apply the general policy that compensation coverage does
not extend to injuries that occur during educational or training courses.

[54]

In
Anderson v. British
Columbia (Workers' Compensation Appeal Tribunal)
, 2015 BCSC 1443,
Justice Fenlon heard, among other submissions, an argument that the reasons of
the Tribunal were inadequate. She concluded that there was more than enough
evidence to support the findings made by WCAT. In her conclusions, she stated:

21.
Finally I note that the issue before me on this judicial review is whether the
decision that the altercation arose out of and in the course of employment is
patently unreasonable. That is the question. The issue is not whether each fact
leading up to the conclusion is patently unreasonable:
Kovach v. BC
(Workers Compensation Board)
, [2001] 1 S.C.R. 55.

22. I have
addressed and considered each of the challenged facts on the basis of whether
it was patently unreasonable for the adjudicator to have found those three
facts. I have done so because that is how the petitioner argued the case. Nonetheless,
the analysis at the end of the day requires me to step back and consider the
overall decision that is contained in the certificate, the overall decision
that the altercation in issue arose out of and in the course of employment. That
decision is soundly and thoroughly supported on the evidentiary record and in
the reasons of the Tribunal.

[55]      While
there was evidence supporting the contrary position taken by the Petitioner, I
am of the view that there was also ample evidence supporting the conclusion
reached by WCAT. It is not the task of this Court to re-weigh the evidence. I
am also of the view that the decision sets out the path of reasoning followed
by WCAT and adequately addresses the evidence and the arguments submitted by
the Petitioner. Read as a whole, the decision demonstrates careful
consideration and weighing of the evidence; and application of the applicable
statutory provisions and policies to the facts as found.

Argument on Appeal

[13]

The grounds of appeal do not differ substantially from the argument
considered by the chambers judge. The appellant summarizes the case on appeal
as follows:

The WCAT Panel found that
participation in TEC 335 did not involve employment-related activities. That
determination: a) was fundamental to the overall decision; b) was meritless,
for being contrary to the evidence; and c) was supported only by a one-sentence
irrational explanation.

Analysis

[14]

The chambers judge
found there was evidence to support the WCAT conclusions and the decision could
not be said to be patently unreasonable. There being no issue with respect to
the correct standard of review, the
issue on appeal is whether the standard was applied correctly by the reviewing
judge. Addressing that question puts us in the position of the reviewing judge:
Henthorne v. British Columbia Ferry Services Ltd.
,
2011 BCCA 476;
Lysohirka v. British Columbia
(Workers' Compensation Board
),
2012 BCCA 457;
Vandale v. Workers Compensation
Appeal Tribunal
, 2013
BCCA 391.

[15]

Mr. Wells, for the appellant, says the finding critical to the outcome
is found at para. 125 of the WCAT decision, where the tribunal considered one
of nine non-exhaustive factors described in the
Claims Manual
: whether
the injury occurred while the worker was performing activities that were
part
of the workers job
. The WCAT found:

[125]    The plaintiffs
participation in TEC activities was not part of their normal work activities.
They kept confidential any discussions they had at TEC meetings, and did not
discuss these with their colleagues or employees. This factor does not support
a finding of employment-connectedness.

[16]

The appellant says that
finding is inconsistent with evidence the employees used their time at TEC
functions to discuss work, get input and direction on specific business issues,
learn about business plans and management structures and to think
strategically. In my view, however, the conclusion is not contrary to the
evidence but entirely consistent with the evidence set out in paras. 22-96 of
the WCAT decision. The WCAT was clearly aware of, referred to and placed some
weight upon, the fact
the
plaintiffs participated in TEC as a peer-to-peer mentoring group, with a view
to enhancing their abilities as business owners or CEOs.
It
did not overlook the evidence of the use made by the
employees of TEC training in their employment. The WCAT concluded:

[127]    Overall, the application of the factors set out in
item #C3-14.00 provides some limited evidence of employment-connectedness. The
factor which provides the strongest support for such a finding is (b),
regarding benefit to the employer.
The evidence supports a conclusion that
the plaintiffs chose to be members of TEC with a view to enhancing their
abilities as owners/CEOs (while also promoting a work/life balance)
. But
for their roles as owners/CEOs, they would not have been members of the
TEC group.[Emphasis added.]

[17]

I see no basis upon which we might conclude the WCAT was unaware of or
failed to take account of the many ways in which the claimants used TEC to
enhance their job performance or used what they learned at TEC in their employment.

[18]

I would not accede to the argument that the WCATs reasons inadequately
address the nexus between the TEC functions and the employees jobs. The
reasons cannot be said to be inadequate simply because the evidence in support
of the conclusion that participation in TEC was not a part of the respondents
normal work activities is not recited in para. 125. In my view, the WCAT has
clearly laid out the route to its decision. There is sufficient clarity of fact
finding. To use the words Mr. Moyse cited from
Newfoundland and Labrador
Nurses Union v. Newfoundland and Labrador (Treasury Board),
2011 SCC 62,
[2011] 3 S.C.R. 708 at para. 16, the reasons allow the reviewing court to
understand why the tribunal made its decision and permit the reviewing court to
determine whether the conclusion is within the range of acceptable outcomes;
the
Dunsmuir
criteria are therefore met.

[19]

The WCAT finding that participation in TEC did not involve
employment-related activities was not fundamental to the overall decision. Examination
of the nine enumerated factors was not determinative of the outcome. The WCAT
itself, at para. 128, described the result of its consideration of the factors
enumerated in the Worksafe policies as mixed. The WCAT recognized that many
of the enumerated factors had little weight in the exercise because they were
inapplicable to self-directed CEOs. Having done so, the WCAT referred to and
applied the policy (cited above at para. 5) that in marginal cases, it is
impossible to do better than weigh the employment features of the education or
training against the personal features to reach a conclusion as to whether the
test of employment connection has been met.

[20]

The decision, as the chambers judge noted, ultimately turned on the view
that personal features of the respondents participation in the education and
training provided by TEC were predominant. That view is clearly supported in
paras. 129 and 135 of the WCAT decision.

[21]

The fact referred to in para. 125 of the decision, that the respondents
did not communicate the lessons learned at TEC with their colleagues or
employees, was one indicia of the personal nature of their participation in the
TEC program.

[22]

An appeal that rests upon an assertion that the tribunals decision was
not founded upon the evidence must be considered in light of what Madam Justice
Levine said in
Speckling v. British Columbia (Workers Compensation Board)
,
2005 BCCA 80 at para. 37:

[A]
decision is not patently unreasonable because the evidence is insufficient. It
is not for the court on judicial review, or for this Court on appeal, to second
guess the conclusions drawn from the evidence considered by the Appeal Division
and substitute different findings of fact or inferences drawn from those facts.
A court on review or appeal cannot reweigh the evidence. Only if there is no
evidence to support the findings, or the decision is openly, clearly,
evidently unreasonable, can it be said to be patently unreasonable.

[23]

In
Speckling
this Court noted at para. 25 that the Board and its
employees and tribunals have day-to-day experience not only in the assessment
and review of workers claims for compensation, but also in the application of
the policy and purposes of the
Act:

The questions in issue here:
whether Mr. Specking suffered an injury in the course of his employment and
whether a decision is a medical decision, are dealt with on a regular basis
by the Board. The Court can profess no particular expertise on these questions.

[24]

The deference owed to the WCAT is restated in
British Columbia
(Workers Compensation Appeal Tribunal) v. Fraser Health Authority
, 2016
SCC 25 where Mr. Justice Brown, for the majority wrote, at para. 30:

Because a court must defer where there is
evidence
capable of supporting
(as opposed to
conclusively
demonstrating
) a finding of fact, patent unreasonableness is not
established where the reviewing court considers the evidence merely to be
insufficient (
Speckling v. Workers Compensation Board (B.C.)
, 2005 BCCA
80, 209 B.C.A.C. 86, at para. 37). Simply put, this standard precludes curial
re-weighing of evidence, or rejecting the inferences drawn by the fact-finder
from that evidence, or substituting the reviewing courts preferred inferences
for those drawn by the fact-finder.

[25]

In my opinion, there is evidence to support the findings. The decision
is not openly, clearly, evidently unreasonable. It cannot be said to be
patently unreasonable.

I would dismiss the appeal.

[26]

BAUMAN C.J.B.C.
: I agree.

[27]

FITCH J.A.
: I agree.

[28]

BAUMAN C.J.B.C.
: The appeal is dismissed.

The Honourable Mr. Justice Willcock