COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Revane
          v. Homersham,

2006
          BCCA 8

Date: 20060110

Docket: CA032998

Between:

Paul
    Scott Revane

Appellant

(
Plaintiff
)

And

Larry
    Douglas Homersham

Respondent

(
Defendant
)

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Mr. Justice Hall

The
          Honourable Mr. Justice Mackenzie

Appellant
          appearing on his own behalf

M.M.
          Skorah

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

December 12, 2005

Place
          and Date of Judgment:

Vancouver, British Columbia

January 10, 2006

Written
          Reasons by
:

The
          Honourable Mr. Justice Mackenzie

Concurred
          in by:

The
          Honourable Chief Justice Finch

The
          Honourable Mr. Justice Hall

Reasons for Judgment of the Honourable Mr. Justice Mackenzie:

[1]

The appellant appeals a judgment dismissing his action for damages
    for personal injuries under R. 19(24) of the
Rules of Court
.
    The issue involves the jurisdiction to revisit a final judgment for damages
    for personal injuries in a new action arising out of the same tort on the
    ground of fresh evidence.  The appellant contends that the new evidence substantiates
    a back injury not apparent on the evidence available at the time of the first
    trial.  The chambers judge concluded that the earlier judgment was final and
    barred any further claim.

Facts

[2]

The appellant was injured in a motor vehicle accident on 20 October
    1985.  He commenced an action in 1986 and the defendant admitted liability.
    Damages were assessed by Cowan J. in 1988.  Noting the absence of any physical
    or neurological evidence that supported the appellants complaints, he found
    that they were subjective.  He concluded that the appellant had suffered a
    moderate whiplash injury and awarded $20,000 in non-pecuniary damages and
    $24,000 for past wage loss.  He dismissed the claim for future wage loss and
    expenses.  The appellant did not appeal that judgment.

[3]

On 5 December 2001 Dr. Stewart Cameron, a neurosurgeon, performed a
    micro-surgical discectomy which disclosed a large extruded disc fragment affecting
    the lumbar 4 vertebra root of the appellant's back.  This surgery followed
    CT scans of the area in March 1992 and November 2001.

[4]

The 1992 CT scan had disclosed a disc bulge at the L4-5 level.  This
    bulge led to the extruded disc that required surgery in 2001.  Following that
    surgery, Dr. Cameron for the first time gave a medical opinion that the disc
    bulge was probably precipitated by the 1985 accident.

[5]

The appellant commenced the present action in 2002.  He acknowledged
    the earlier action in his statement of claim and relied on the new evidence
    to support the claim for additional damages.  The chambers judge concluded
    that the 1989 judgment was a final disposition of all damage claims arising
    from the 1985 accident and dismissed the action, relying on
Tsaoussis
    (Litigation Guardian of) v. Baetz
(1998), 41 O.R. (3d) 257 (C.A.).

Analysis

[6]

The rule that a final judgment bars a second claim is characterized
    as cause of action estoppel: see
Henderson v. Henderson
(1843),
    3 Hare 100 at 114-15.  Another way of expressing this rule is that all claims
    by one plaintiff for personal injuries and property damage arising out of
    the same tort must be advanced in a single action: see
Cahoon v. Franks
,
[1967] S.C.R. 455.  This presents a much more stringent bar than would be
    faced by an application to admit fresh evidence while an appeal is pending
    in the original action.  There the test for admissibility is stated in the
    well known case of
Palmer v. The Queen
, [1980] 1 S.C.R. 759.
    This avenue was not available to the appellant.  The thirteen years that elapsed
    between the original trial and the present claim would preclude any attempt
    to reopen the 1989 judgment by an application to extend the time to appeal.

[7]

The appellant submits that the chambers judge erred in concluding that
    the disposition of the first action barred a second claim based on newly discovered
    evidence.  He relies on a passage from
Royal Trust Co. v. Jones
,
    [1962] S.C.R. 132.  In that case, after reviewing several English authorities,
    Cartwright J. concluded:

An
    examination of the authorities leads me to the conclusion that it has long
    been settled in England that the proper method of impeaching a judgment of
    the High Court on the ground of fraud or of seeking to set it aside on the
    ground of subsequently discovered evidence is by action, whether or not the
    judgment which is attacked has been affirmed or otherwise dealt with by the
    Court of Appeal or other appellate tribunal.  Section 9 of the
Supreme
    Court Act
, R.S.B.C. 1936, c. 56, which was in force at the time when Manson
    J. dealt with the matter (and which is now section 9 of the R.S.B.C. 1960,
    c. 374) reads as follows:

9. The Court is and shall continue to be a Court of original jurisdiction,
    and shall have complete cognizance of all pleas whatsoever, and shall have
    jurisdiction in all cases, civil as well as criminal, arising within the Province.

There
    appears to be nothing in the statutes constituting and continuing the courts
    in British Columbia or in the Rules of Court of that Province to suggest that
    there is any difference between the law and practice on this point in British
    Columbia and in England; in my opinion they are the same.

[8]

Southin J.A. in
D.K. Investments Ltd.

v. S.W.S.
    Investments Ltd.
(1990), 44 B.C.L.R. (2d) 1 at 11-15 (C.A.), quoted
    this passage and considered several of the English cases.  She identified
    the review jurisdiction as originating in the Court of Chancery, exercised
    through a process known as a bill of review.
Blacks Law Dictionary
,
    5th ed., defines a bill of review as In equity practice, a bill, in the nature
    of a writ of error, filed to procure an examination and alteration or reversal
    of a decree made upon a former bill, which decree has been signed and enrolled.
    Thus before the Judicature Acts a bill of review was a remedial procedure
    available in the Court of Chancery in cases where equity would intervene to
    remedy an error.  This means that today, a court that reopens a settled, final
    decision is exercising its equitable jurisdiction.

[9]

Not every case has equitable elements, and the cases clearly reveal
    limits on the review jurisdiction in common law tort actions.  No case has
    come to our attention in which a final judgment in a personal injury action
    has been set aside in a subsequent action.  The cases instead emphasize the
    important principle of finality.  In
Tsaoussis
,

relied
    upon

by the chambers judge, the plaintiff was a three year old
    girl who suffered a head injury when struck by a vehicle.  Her claim for damages
    was settled two years after the accident on the basis of a medical opinion
    that the injury was minor and she should make a complete recovery.  The settlement
    was approved by the court and incorporated into a consent judgment.  Unfortunately,
    later medical evidence revealed much more serious medical problems attributable
    to the accident and a second action was commenced to set aside the settlement
    and consent judgment.  The judge at first instance upheld the second action
    but her decision was reversed on appeal.  Doherty J.A., delivering a unanimous
    judgment, said at p. 266 (footnote omitted):

I am not aware of any personal injury case
    in which a final judgment has been set aside, other than on appeal, because
    evidence developed after the judgment indicated that the award was much too
    high or much too low.  I would be surprised to find such a case as it would
    be entirely inconsistent with our system of one time lump sum awards for personal
    injuries. As assessments which ultimately prove to be inaccurate are inherent
    in that scheme, I do not see how the demonstration of that inaccuracy in a
    particular case could, standing alone, justify departure from the finality
    principle.

[10]

The historical lack of review jurisdiction in this type of case may
    be explained by the enduring principle that equity acts upon the conscience;
    cases where equity intervenes still involve fraud or some other conduct
    or result properly regarded as unconscionable, a rarity in personal injury
    cases.  Dean Langdell of Harvard Law School observed in
A Brief Survey
    of Equity Jurisdiction
(2nd ed., 1908) at p. 30:  There are two large
    and important classes of torts over which equity practically assumes no jurisdiction
    whatever, namely, torts to the person and to moveable property.

[11]

New evidence, on its own, is not enough to invoke the review jurisdiction
    of the courts.  This is reflected in the modern English rule succinctly stated
    by Lord Keith of Kinkel in
Arnold v. National Westminster Bank Plc.
,
    [1991] 2 A.C. 93 at 104:

Cause
    of action estoppel arises where the cause of action in the later proceedings
    is identical to that in the earlier proceedings, the latter having been between
    the same parties or their privies and having involved the same subject matter.
    In such a case the bar is absolute in relation to all points decided unless
    fraud or collusion is alleged, such as to justify setting aside the earlier
    judgment.  The discovery of new factual matter which could not have been found
    out by reasonable diligence for use in the earlier proceedings does not, according
    to the law of England, permit the latter to be re-opened.

In England, cause of action estoppel absolutely bars
    a new action in the absence of fraud or collusion.  Cartwright J. in
Jones
,

quoted above
,
considered that the British Columbia and English
    positions were the same, although the facts of
Jones
were within
    the exception and cause of action estoppel did not bar a fresh action in that
    instance.

[12]

In my view, the bald proposition that a final judgment may be set aside
    on the ground of fraud or
subsequently discovered evidence
 must
    be qualified. The proposition was laid down in the context of equity and rests
    on the underlying assumption that the new evidence discloses conduct or a
    result that equity regards as unconscionable.  But in cases which do not fall
    within equitable jurisdiction, all of the authorities are consistent with
    the stringent application of cause of action estoppel.

[13]

Jones
,

on which the appellant relies,

is an illustration of the exception for fraud or collusion recognized
    by the English rule.  It involved the construction of a codicil, historically
    within Chancery jurisdiction, and the Supreme Court of Canada allowed a third
    action to contest issues of unconscionability.  Discussing
Jones
in
D.K. Investments
, Southin J.A. observed at p. 10 that it
    was unclear whether the foundation of the Supreme Courts judgment was undue
    influence or duress.  In either case, the conduct alleged was sufficiently
    akin to fraud to come within the exception.

[14]

D.K. Investments
itself similarly involved evidence with an
    equitable taint, albeit in reverse of the usual situation: the case involved
    new evidence to undo a finding of fraud at the first trial rather than to
    expose a fraud. The facts involved a failed real estate transaction.  The
    issue at the first trial turned on whether the plaintiff purchaser had removed
    a subject clause that otherwise would have required the return of its deposit
    when the transaction collapsed. The defendant relied on a document removing
    the subject clause signed on behalf of the purchaser.  The purchaser tendered
    a letter to the real estate agent, setting out conditions for the delivery
    of the document removing the subject, which were not fulfilled.  The trial
    judge concluded that the letter was a fake, concocted later, and he granted
    judgment in favour of the defendant vendor.  Technical expert evidence obtained
    later from comparison of certain marks on the copy of the impugned letter
    with another unimpeachable document photocopied from the same copier proved
    that the letter entered on the first trial could only have been made at the
    time claimed by the purchaser and was therefore genuine.  On this new evidence,
    the Court of Appeal ordered a new trial in a second action to undo the erroneous
    finding of implicit fraud and forgery underpinning the original judgment.
    Southin J.A. observed that the first trial effectively found the principal
    of the plaintiff company to be a forger and the new trial was ordered to permit
    a hearing of the new evidence that could restore his honour.

[15]

Here the appellant contends that the adverse comments on his credibility
    in the 1988 judgment are in the same category.  I cannot agree.  The findings
    of credibility resulting from a weighing of the evidence are an unavoidable
    part of any trial where essential facts are in dispute.  Judges do the best
    they can to decide such issues fairly but the process is imperfect when the
    evidence is contradictory and the truth elusive.  Adverse findings of credibility
    in that context do not carry the same stigma as a finding of fraud or other
    conduct that offends the conscience.  The findings of the original trial judge
    do not reflect on the appellants reputation; they simply conclude that the
    appellant was unable to provide the court with medical evidence that, on the
    balance of probabilities, was sufficient to support his complaints.  Furthermore,
    as the chambers judge noted, there is no criticism of the conduct of the defence.

[16]

The authorities emphasize the importance of final judgments.  Southin
    J.A. in
D.K. Investments
at p. 20 referred to the profoundly
    important principle that it is in the interest of the community (and of the
    litigants) that there be an end to litigation.  Doherty J.A. in
Tsaoussis
at pp. 264-65 was equally emphatic:

Finality
    is an important feature of our justice system, both to the parties involved
    in any specific litigation and on an institutional level to the community
    at large. For the parties, it is an economic and psychological necessity.
    For the community, it places some limitation on the economic burden each legal
    dispute imposes on the system and it gives decisions produced by the system
    an authority which they could not hope to have if they were subject to constant
    reassessment and variation: J.I. Jacob,
The Fabric of English Civil Justice
,
    Hamlyn Lectures 1987, at pp. 23-24.

The
    parties and the community require that there be a definite and discernible
    end to legal disputes. There must be a point at which the parties can proceed
    on the basis that the matter has been decided and their respective rights
    and obligations have been finally determined. Without a discernible end point,
    the parties cannot get on with the rest of their lives secure in the knowledge
    that the issue has finally been determined, but must suffer the considerable
    economic and psychological burden of indeterminate proceedings in which their
    respective rights and obligations are revisited and reviewed as circumstances
    change. Under our system for the adjudication of personal injury claims, that
    end point occurs when a final judgment has been entered and has either not
    been appealed, or all appeals have been exhausted.

[17]

These passages confirm that cause of action estoppel is not merely
    a technical rule resting on expediency and arcane legal history.  It goes
    to the heart of a system of civil justice that strives for the truth of the
    matter but recognizes that perfection is an unattainable goal and finality
    is a practical necessity.

[18]

I would dismiss the appeal.

The Honourable Mr. Justice Mackenzie

I AGREE:

The Honourable Chief Justice Finch

I AGREE:

The Honourable Mr. Justice Hall


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

The
          Owners, Strata Plan LMS 1378 v. Chu,

2006
          BCCA 10

Date: 20060111

Docket: CA033622

Between:

The Owners, Strata Plan LMS 1378

Respondent

(
Petitioner
)

And

Jenfeng Peter Chu

Applicant

(
Respondent
)

Before:

The
          Honourable Mr. Justice Lowry

(In
          Chambers)

Jenfeng
          Peter Chu

Appearing in person

V.
          P. Franco

Counsel for the Respondent

Place and Date of Hearing:

Vancouver, British Columbia

January 4, 2006

Place
          and Date of Judgment:

Vancouver, British Columbia

January 11, 2006

Reasons
    for Judgment of the Honourable Mr. Justice Lowry:

[1]

The applicant, Jenfeng Peter Chu, seeks various forms of relief to
    facilitate a proposed appeal of the order of Mr. Justice Drost made 19 August
    2005 in favour of the Owners, Strata Plan LMS 1378 (the "Owners")
    of which strata plan the applicant owns a unit.  On hearing the Owners' petition,
    the judge ordered that the applicants unit be sold and that the petitioner
    have conduct of the sale to enforce a statutory lien filed in respect of monthly
    fees and special levies totalling $10,981.14 which the applicant refused to
    pay from December 2004 onwards.  The judge granted a redemption period of
    30 days.

[2]

The applicant now seeks an extension of time to appeal, directions
    as to whether leave to appeal is required, and, if it is, an order granting
    leave, a stay of the judges order, and an order granting him indigent status.
    The applicant does not appear to have given notice with respect to making
    application for leave to appeal or for a stay of proceedings.

[3]

The applicant describes himself as a 53 year old unemployed immigrant
    having an income of only $300 a month from an undisclosed source.  The affidavit
    he has filed in support of his claim to indigent status indicates monthly
    expenses of $5,500 but gives no indication as to his source of funds to meet
    them.  He speaks about savings but his assets are stated only as "$N/A".
    The applicant purchased the strata lot in 2001 for $268,800 and there is presently
    no mortgage registered against the property.  The applicant has never lived
    in the suite.  He says that he lives in Taiwan most of the time where he cares
    for his ailing parents.  Since purchasing the strata lot unit, he has travelled
    to Vancouver perhaps twice a year at a cost of about $1,200 per round trip.
    He says that he has been living with a friend in Vancouver for the past seven
    months and that his sister has been caring for his parents.  His strata lot
    unit is presently for sale.  The asking price is $569,000.

[4]

One consideration that is germane to all of the relief the applicant
    now seeks is whether the proposed appeal has merit.  On the material before
    me, and the submissions made, I have difficulty seeing any reason to expect
    that any aspect of the appeal would succeed.

[5]

The applicant contends that the judge erred in determining that the
    Owners were entitled to the relief they were granted on the basis that his
    unit is a residential strata lot.  It is, however, defined as such by the
    governing legislation which, it appears to me, the applicant does not properly
    understand.  He contends that the Owners' failure to retain and produce voting
    ballots defeats their ability to prove there were quorums at various meetings
    where decisions were taken that bear on the fees and levies that he has been
    held to owe.  But the Owners adduced evidence upon which the judge was entitled
    to rely, particularly in the absence of any contradictory evidence, which
    established the quorum at each of the meetings that are of consequence.  The
    applicant insists that the lien the Owners seek to enforce is illegal because,
    as filed, it wrongly included amounts for fines the Owners sought to impose,
    but the Owners conceded they were not entitled to a lien for fines and the
    judgment they obtained limits them to enforcing their lien only to the extent
    of the fees and special levies that totalled $10,981.14.

[6]

The applicant contends that the judge erred in fixing a redemption
    period of only 30 days, but he said nothing about that when he was before
    the judge and, because of the events that have now intervened, the point is
    academic.  More than four months have elapsed since the order was made and
    the unit has not yet been sold.  The applicant maintains that the judge erred
    in awarding costs against him.  He advances two reasons.  He first says that,
    on a preliminary application, the judge presiding foreclosed an award of costs
    because he said there would be no order for costs.  But that judge can only
    have meant that there would be no order in respect of that application.  The
    applicant then says that, because the amount involved was well below the small
    claims limit of the Provincial Court, no award of costs on the Supreme Court
    tariff should have been made.  But the Provincial Court appears to be without
    jurisdiction to entertain a petition and grant the relief sought by the Owners.

[7]

Further grounds of appeal are raised in the material the applicant
    has filed, but the applicant has not referenced nor sought to develop them
    on these applications and, as I understand them, none appears to hold any
    prospect of supporting a successful appeal.

[8]

There can be no doubt that the applicant made it quite clear from the
    time the order was made that he intended to take steps to have it set aside.
    He asked the judge if he could appeal and was told that he could.  However,
    instead of following that course, he made application in the Supreme Court
    to have the order set aside.  Difficulties in obtaining a transcript of the
    judges reasons resulted in the hearing of the application being adjourned
    on each of several occasions until it was finally dismissed on 28 November
    2005.  In the interim, the applicant was told by no less than four judges
    that the Supreme Court did not have jurisdiction to set aside the order and
    that his remedy lay in an appeal to this Court.  But the applicant waited
    until 21 December 2005 to file a Notice of Appeal and a Notice of Application
    for Leave to Appeal.

[9]

On 16 September, the applicant appeared before Wong J. who warned him
    that he should be appealing the order.  The application was adjourned to 30 September
    and the order for sale was stayed until the application was heard.  On 30 September,
    the applicant appeared before Hood J. who further adjourned the matter and
    warned the applicant again that his application was ill-founded and that the
    proper process was to appeal the order.  On 7 October, the applicant appeared
    before Stromberg-Stein J. who adjourned the application generally and told
    him that the court did not have jurisdiction to hear it.  She told him he
    should be launching an appeal.  Finally, on 28 November, the applicant appeared
    before Gerow J. who dismissed the application and informed the applicant that
    the proper course was to appeal the order.

[10]

The applicant did not misunderstand the procedure that was available
    to him.  He does not appear to dispute what he was told by the several judges
    in the Supreme Court and he acknowledges that he pursued an application in
    that court to have the order set aside, rather than appealing, because he
    determined that the court fees involved in doing so were about one-third of
    the fees payable to initiate an appeal.  I do not consider it can be said
    that the applicant has established that he had an intention to appeal to this
    Court until 21 December, some three weeks after his ill-founded application
    was dismissed.  Between the time the order was made in August and dismissed
    in November, he put the Owners to considerable expense in having to repeatedly
    appear at the various hearings of the application during which time they were
    precluded from proceeding to have the strata lot unit sold to enforce their
    lien.

[11]

The absence of an intention to appeal to this Court within the time
    prescribed, coupled with the absence of any apparent merit in the proposed
    appeal, substantially defeats the application for an extension of time.  The
    Owners were made aware of the applicants intention to launch the proposed
    appeal in the latter part of December and, apart from the not inconsequential
    intervening three-month delay in the proceedings and the expense associated
    with the hearing of the Supreme Court application, they have not been prejudiced.
    Nonetheless, it is my view that it would not be in the interests of justice
    to grant the extension sought in this case.  The applicants resistance to
    the fees and levies he has been held to owe appears to me to be based on little
    more than his unwillingness to accept that they are expenses which as an owner
    he must pay regardless of the fact that he does not live in the suite.

[12]

The application to extend the time in which to appeal the order is
    accordingly dismissed.  It is, in the result, unnecessary to give directions
    as to whether leave to appeal is required or to determine whether the applicant
    is entitled to an order granting him indigent status.  It is also unnecessary
    to consider whether leave to appeal should be granted or a stay of the order
    imposed.

The Honourable Mr. Justice Lowry


COURT OF APPEAL FOR
BRITISH COLUMBIA

Citation:

Duncan
          v. Sherman,

2006
          BCCA 14

Date: 20060112

Docket: CA033034

Between:

Wayne
    Duncan

Respondent

(Petitioner)

And

Dawn
    Sherman

Appellant

(Respondent)

And

Wayne
    Osborne (
aka
Wayne Robinson)

Appellant

(Respondent)

Before:

The
          Honourable Mr. Justice Donald

The
          Honourable Madam Justice Newbury

The
          Honourable Madam Justice Levine

Wayne
          and Dawn Osborne

Appearing In Person

P.W.
          Avis

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver, British Columbia

December 15, 2005

Place
          and Date of Judgment:

Vancouver, British Columbia

January 12, 2006

Written
          Reasons by
:

The
          Honourable Madam Justice Levine

Concurred
          in by:

The
          Honourable Mr. Justice Donald

The
          Honourable Madam Justice Newbury

Reasons for Judgment of the Honourable Madam Justice
    Levine:

[1]

This appeal
    concerns a dispute about the use of an easement.

[2]

The appellants
    purchased their property, referred to as Lot A, from the respondent. The
    respondent created Lot A when he subdivided a larger parcel, retaining Lot
    B for himself. At the time of subdivision, the respondent created an easement
    over Lot
A
, in favour of the owner of Lot B. The
    easement provided for access to Lot B, in these terms:

1.

GRANT OF EASEMENT OVER LOT A

1.1

The Lot A Owner, as the registered owner
    of Lot A, grants to the Lot B Owner, as the registered owner of Lot B, for
    the benefit of and to be appurtenant to Lot B, for the use and enjoyment of
    the Lot B Owner at any time and from time to time, the non-exclusive right,
    liberty and easement to enter on, go across, pass and
repass
over and through, with or without motor vehicles, the Lot A Easement Area
    for the purposes of obtaining access to and egress from Lot B.

[3]

The boundary
    between Lots A and B, and the easement, extend west to east, following an
    existing road. Lot A is situated to the north of and above Lot B. It looks
    over Lot B and the road.

The appellants
    evidence was that when they purchased the property, they were concerned about
    the use of the easement by the respondent and preserving their view. They
    say that, through their common real estate agent, they negotiated the access
    to the easement and the manner in which it would be fenced.

[4]

The contract
    of purchase and sale of Lot
A
included an Addendum,
    prepared by the real estate agent. The Addendum consisted of a copy of the
    Reference Plan of the Easement as registered in the Land Title Office, on
    which certain handwritten markings had been made.

[5]

A copy of
    the Addendum is attached.

The numbers
    1, 2, 3, 4 were not on the Addendum included in the contract of purchase
    and sale; they were added by the appellants for the purposes of reference
    at the hearing of the appeal. The numbers provide convenient markers to describe
    the context of the dispute.

[6]

The important
    handwritten markings on the Addendum are the following:

at
the top of the document:

Addendum
     Page 6 to contract between Wayne Duncan (seller) and Dawn Sherman (buyer)
    dated January 20, 2004

below
the drawing of the easement:

Buyer
    and seller agree to a 50%/50% sharing of the costs of fencing from Spider
    Lake Road to the line jog (as indicated) by the ponds with post and wire fencing
    with 2 gates (as indicated).
Fencing to be constructed on
    the south side (Lot B side) of the existing driveway.

along
the path of the easement:

at
the west:
    an arrow and the note gate (approx.). (The number 1 is at an existing
    access to Lot B. The appellants wanted the existing access moved to the location
    indicated by the arrow, which I will refer to as gate 1 for the purposes
    of these reasons for judgment.)

at
number 3,
    about four-fifths of the way between the western and eastern boundaries of
    the easement: an arrow and the note gate (approx.) (referred to as gate
    3 for these purposes).

at
number 4,
    the eastern boundary of the easement: an arrow and the note end of jointly
    paid fencing, followed by an asterisk. Below that note
is
another asterisk, and the note: Fencing = 6 high deer
    and rabbit wire fencing.

[7]

The issue
    on the appeal is the proper interpretation and application of the Addendum.

The respondent took the view, which was accepted by the chambers judge,
    that the Addendum was an agreement for sharing the cost of fencing the boundary
    of the easement.

The appellants say that the Addendum also
    limited the respondent to two access points (at gates 1 and 3) from Lot B
    to the easement (and the road) and specified the type of fence that the respondent
    could build.

[8]

The dispute
    arose when the respondent built an eight-foot high solid cedar fence along
    the southern boundary of the easement, extending from about halfway between
    the western and eastern ends of the easement to the eastern end. The fence
    included gate 3. This is not in dispute. At the western end of the fence (number
    2 on the attached Addendum), however, the respondent built an entrance (referred
    to for these purposes as gate 2) for a circular driveway. The appellants
    object to the solid cedar fence and to gate 2, maintaining that neither is
    provided for in the Addendum.

[9]

After some
    verbal exchanges between the parties concerning the location of gate 2, the
    appellants blocked the respondents access to his property at gate 2 by digging
    a trench and parking a tractor there. Respondents counsel wrote to the appellants
    stating that: Our client has the right to enter on to the easement area at
    any point along the easement area where his property line interfaces with
    the easement area. The appellants replied, stating their disagreement with
    that interpretation of the easement and that the respondent was entitled
    to reasonable access, and claiming that the Addendum provided for fence
    construction and gate placements.

[10]

The respondent
    filed a petition in Supreme Court, claiming the following relief:

1.

The Petitioner has the unrestricted right
    of access at any time to come and go, with or without motor vehicle, over
    any part of the Lot A easement area as described in that certain easement
    agreement registered in the Land Title Office at Victoria on the 31st day
    of January, 2002 under no: ET011673; (the "Easement")

2.

For a declaration that the Petitioner
    is entitled to enter on the easement area from the lands described as Lot
    B, Block 360, Newcastle District, Plan VIP73306, hereinafter referred to as
    "Lot B" at all points along the common boundary between Lot B and
    the Easement;

3.

It is unlawful for the Respondents to
    restrict, limit or otherwise interfere with the Petitioner's access to the
    easement area at any point along the common boundary between Lot B and the
    Easement;

[11]

The chambers
    judge referred to
Lewis v.
Wakeling
(1923), 54 O.L.R. 647 (Ont. C.A.), cited by the appellants for the principle
    that a grantee of an easement could not expect to have the right [of] access
    along the whole unfenced line, as was sought in that case, but only that he
    might have reasonable access to his property, and to
Dainow
v.
Tait
, 2003 BCSC 1040, for that view,
    in a more contemporary context.

Interpreting
    the Addendum as providing only for sharing the cost of the fencing, the chambers
    judge concluded that [t]he creation of the two accesses to Lot B over some
    236 metres of the easement areadoes not constitute an unreasonable use of
    the easement rights.

The chambers judge granted the relief sought
    in the petition.

[12]

The respondent
    concedes that the relief sought and granted by the chambers judge is overly
    broad.

It goes far beyond what the
    chambers judge found was reasonable access to the easement.

For that reason alone, the appeal must be allowed
    and the order varied.

[13]

The crux of
    the appeal, however, is the interpretation of the Addendum. In my opinion,
    the Addendum was not only an agreement for the shared cost of fencing the
    easement. The notations of gate locations and the type of fence to be constructed
    are as much a part of the content of the Addendum, and therefore of the contract
    of purchase and sale of which it formed a part, as are the terms relating
    to sharing the cost of fencing.

[14]

A contract
    is to be interpreted by giving effect to all of its words: see
Marquest
Industries Ltd. v. Willows Poultry
    Farms Ltd.
(1968), 1 D.L.R. (3d) 513 at 517-518, 527 (B.C.C.A.), and
Langley Lo-Cost Builders v. 474835 B.C. Ltd.
(2000), 76 B.C.L.R.
    (3d) 278, 2000 BCCA 365 at
paras
. 39-41. In
Langley
,
McEachern
C.J.B.C (as he then was) summarized the
    canons of construction of commercial agreements, quoting from
Marquest
, as follows:

[39]

Probably the leading case
    in this province is
Marquest
Industries Ltd. v. Willows Poultry Farms Ltd.
(1968), 1 D.L.R. (3d)
    513 (B.C.C.A.) at 517-518, where Bull J.A. wrote:

The
    primary rule of construction has been expressed by the maxim,
ut

res

magis

valeat

quam

pereat
or as paraphrased in English, "a
    deed shall never be void where the words may be applied to any extent to make
    it good". The maxim has been basic to such authoritative decisions as
Scammell
v.
Ouston
,
    [1941] 1 All E.R. 14;

Wells v.
    Blain
, [1927] 1 D.L.R. 687, [1927] 1 W.W.R. 223;
Ottawa Electric
    Co. v. St. Jacques
(1902), 31 S.C.R. 636, as well as many others,
    which establish that every effort should be made by a Court to find a meaning,
    looking at substance and not mere form, and that difficulties in interpretation
    do not make a clause bad as not being capable of interpretation, so long as
    a definite meaning can properly be extracted.

In other words, every clause in a contract must, if possible, be
    given effect to
. Also, as stated as early as 1868 in
Gwyn
v.
Neath
Canal Navigation Co.
(1868), L.R.
    3 Ex. 209, that if the real intentions of the parties can be collected from
    the language within the four corners of the instrument, the Court must give
    effect to such intentions by supplying anything necessarily to be inferred
    and rejecting whatever is repugnant to such real intentions so ascertained.

[40]

It must be mentioned, however,
    that at p. 527 Bull J.A. limited the generality of the above dictum when he
    said:

...
if
I can possibly derive a sensible meaning from
    the clause I must do so
.

At the
    same time I must not develop from the words of the clause (read in their context)
    any conception more elaborate than they express or fairly imply; nor must
    I develop something which is at variance with any of the language of the clause.

As Denning, L.J., said in
Anglo-Saxon Petroleum Co. Ltd. v.
Adamastos
Shipping Co. Ltd.
, [1957] 2 Q.B. 233 at p. 269:

If
    we reject the contradictions, inconsistencies and incongruities, and put something
    in their stead, we shall be making for the parties a contract which we may
    think is reasonable but to which they have never subscribed, because it would
    bear no relation to the written words.

In
    the same case in the House of Lords, [1959] A.C. 133, Viscount
Simonds
said at p. 158:

No
    doubt there are rules or canons of construction applicable to careless and
    slovenly, as to other, documents.

I
    have tried to apply them, resolute, on the one hand,
to construe commercial
    agreements broadly and not to be astute to find defects in them or reject
    them as meaningless
and, on the other, not to make a contract for the
    parties which they have not thought fit to make for themselves.

Nor have I forgotten that it is only by sufficiently
    clear words that an exception to an obligation (whether arising at common
    law or under the contract itself) can be established:

More
    than one of the learned Lords there referred to this language of Lord Wright
    in
Hillas
& Co. Ltd. v.
    Arcos Ltd.
(1932), 147 L.T. 503 at p. 514:

That
    maxim, however, does not mean that the court is to make a contract for the
    parties, or to go outside the words they have used, except in so far as there
    are appropriate implications of law, as for instance, the implication of what
    is just and reasonable to be ascertained by the court as matter of machinery
    where the contractual intention is clear but the contract is silent on some
    detail.

[41]

I think what Bull J.A.
    said, as last quoted above, fairly represents what the Supreme Court of Canada
    said in
Murphy v.
McSorley
, [1929]
    4 D.L.R. 247.

Thus, I must be careful
    not to add anything that cannot fairly be inferred from the words of the May
    agreement but at the same time,
I must try to give commercial validity
    to a business arrangement if it is fair and reasonable to do so upon the application
    of the rules relating to the construction of agreements
.

[My underlining.]

[15]

In this case,
    if the notations on the Addendum of the gate placements and type of fence
    are not given effect, the Addendum is robbed of any substantive meaning.

As noted by the chambers judge, s. 3 of the
Trespass Act
,
    R.S.B.C. 1996, c. 462, provides for the equal sharing of the cost of fencing
    boundaries in any event. The Addendum was not required for that purpose.

It would not give effect to the parties intentions to interpret the
    Addendum in a manner that ignores some of the words used.

[16]

The respondent
    does not dispute that the Addendum was included in the contract of purchase
    and sale, but takes the position that the Addendum has no contractual effect
    because he did not communicate directly with either of the appellants.

That argument may be easily dealt with, again
    by quoting from
Langley
, at
paras
.
    18-20:

[18]

One of the leading cases is
Smith v.
    Hughes
(1871), L.R. 6 Q.B. 597 at 607, where Blackburn J. wrote:

If
    whatever a man's real intention may be, he so conducts himself that a reasonable
    man would believe that he was assenting to the terms proposed by the other
    part, and that other party upon that belief enters into the contract with
    him, the man thus conducting himself would be equally bound as if he had intended
    to agree to the other party's terms.

[19]

This dictum is often quoted as authority
    for the proposition succinctly stated by
McLachlin
J. (now C.J.C) in
Osorio v. Cardona
(1984), 15 D.L.R. (4th)
    619 that, "The test for intention to create legal relations is objective."  It
    is stated in S.M.
Waddams
,
The
Law of Contracts, 4th ed.
(Toronto: Canada Law Book Inc., 1999), at
    106 that "it is not what the signer inwardly intends but what he appears
    to a reasonable
promisee
to do that is relevant."

[20]

There is very little authority
about
the basis upon which intention to contract should be
    found.  In
Tilden Rent-A-Car Co. v.
Clendenning
(1978), 83 D.L.R. (3d) 400 (Ont. C.A.), it was suggested at 405, that a person
    "who attaches his signature to the contract intends by doing so to acknowledge
    his acquiescence to its terms, and that the other party entered into the contract
    upon that belief."  In A.G. Guest, ed.,
Chitty on Contracts,
    27th ed.
(London: Sweet and Maxwell, 1994), it is noted at 152 that
    in normal commercial transactions, where the intention to be contractually
    bound is at issue, the onus of proving that such an intention did not exist
    "is on the party who asserts that no legal effect is intended, and the
    onus is a heavy one":
Edwards v. Skyways Ltd.
,
    [1964] 1 W.L.R. 349.  Those, however, were cases where the form
    of the documentation was clearly contractual.

[17]

Thus, on the
    proper interpretation of the Addendum, the respondent agreed to access the
    easement from two locations along its length.

The entrance to his circular driveway at gate
    2 was not provided for, and it would be contrary to the agreement between
    the parties to allow him to maintain it. Further, as a matter of law, as noted
    by the chambers judge,
Lewis v.
Wakeling
(in which the Ontario Court of Appeal relied on the principles articulated
    by the English Court of Appeal in
Pettey
v. Parsons
, [1914] 2 Ch. 653), is authority for the principle that
    a grantee of an easement is entitled to reasonable access to his property,
    not access along the whole unfenced line.

The Addendum provided for reasonable access, and there is no reason
    not to enforce the agreement. The respondent is not entitled to access to
    the easement at gate 2.

[18]

In their counter-petition,
    the appellants sought an order that the fence constructed by the respondent
    be modified or rebuilt to conform to the terms of the Addendum. Despite the
    clear intentions of the parties that the fence be of wire and not solid wood,
    an order requiring that it be rebuilt would impose an unreasonable burden
    on the respondent and probably further exacerbate the tensions between the
    parties. The existing fence was built at considerable expense to the respondent;
    an expense not shared by the appellants. While the fence does not comply with
    the specifications set out in the Addendum, in the circumstances I would allow
    it to remain, but would order that any further fencing built by the respondent
    comply with the terms of the Addendum.

[19]

The appellants
    also seek the return of the sum of $13,500, which they say are extra moneys
    they paid for the Addendum. This is, in essence, a claim for damages or diminution
    of their property value because of the failure of the respondent to adhere
    to the terms of the Addendum. They provide no evidence, however, that the
    value of their property has been affected by the construction of the cedar
    fence. I would make no order in this regard.

[20]

Lastly, the
    appellants seek orders that it is unlawful for the respondent to wander,
    park, and/or unload from any portion of the easement area and declaring that
    the respondent must keep the easement area reasonably clean and free from
    waste, refuse, rubbish, garbage, dirt, and other objectionable material such
    as snow. These claims were made in the appellants submissions in chambers,
    but were not made in their counter-petition and for that reason were not dealt
    with by the chambers judge. This Court is not in a position to deal with them
    at this stage of the proceedings. The chambers judge observed however, and
    I agree, that snow removal would be part of the [respondents] obligations
    under the easement. At the hearing of the appeal, respondents counsel acknowledged
    his clients responsibility for snow removal.

[21]

The location
    of gate 1 was not addressed either in chambers or on the appeal.

[22]

In the result,
    I would allow the appeal, set aside the order appealed from, and order that
    the respondent comply with the Addendum to the extent that no gate or driveway
    access to the easement may be created at the location referred to in these
    reasons for judgment as gate 2 and any future fencing along the easement must
    conform to the specifications set out in the Addendum.

[23]

The appellants
    are entitled to their costs of the appeal and of the chambers hearing in Supreme
    Court.

The
    Honourable Madam Justice Levine

I
    AGREE:

The Honourable Mr. Justice Donald

I
    AGREE:

The
    Honourable Madam Justice Newbury

ADDENDUM


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Stasiewski
          v. Stasiewski,

2006
          BCCA 53

Date: 20060112

Docket: CA033272

Between:

Deborah
    Anne Stasiewski

Appellant

(
Plaintiff
)

And

Thomas
    Joseph Stasiewski

Respondent

(
Defendant
)

Before:

The
          Honourable Madam Justice Saunders

(In
          Chambers)

Oral Reasons for Judgment

J.A.Rose,
          Q.C.

Counsel for the Appellant

L.
          Wold

Counsel for the Respondent

Place
          and Date:

Vancouver, British Columbia

12 January 2006

[1]

SAUNDERS, J.A.
:  This is an application for an order for
    leave to amend a notice of appeal, for leave to appeal an order made by the
    trial judge staying portions of the judgment on terms, and for a stay, pending
    determination of this appeal, of orders relating to sale of the matrimonial
    home.  The order in issue is the order of Mr. Justice Pitfield made on
    the 15
th
December 2005, which in turn relates to his order
    of the 27
th
July 2005, insofar as those orders permit the
    sale of the matrimonial home to a third party, or permit Mr. Stasiewski
    to purchase Ms. Stasiewskis interest in it.

[2]

The order made on 15 December 2005 is in three parts.  First,
    Ms. Stasiewski may purchase from Mr. Stasiewski a one-half interest
    in the matrimonial home predicated on a purchase price for the entire property
    of $675,000, through the devices of an irrevocable offer to be made by this
    Friday, 13 January 2006, and the deposit of some $60,789 as security
    for costs of the trial, to be released upon the completion of the sale.  Second,
    failing an offer from Ms. Stasiewski by this Friday, Mr. Stasiewski
    may purchase her interest in the property upon making an irrevocable offer
    to Ms. Stasiewski by Friday, 20 January 2006, to purchase her one-half
    interest in the property.  Third, failing an offer by Ms. Stasiewski,
    the property may be offered for sale to the public.

[3]

The parties separated in 2004 after a marriage of about 20 years.
    Mr. Stasiewski is employed as a tax auditor.  Ms. Stasiewski was
    formerly employed by the same employer, but has suffered from a malady contracted
    at work and currently receives Workers Compensation benefits in compensation
    for her disability which has left her unable to resume employment.  Both parties
    have superannuation plans arising from their employment.  At trial, the proper
    characterization of those Workers Compensation benefits was an issue, as
    was the question of equalization of the parties superannuation plans.  Further,
    Ms. Stasiewski claimed reapportionment of the matrimonial home.

[4]

Mr. Justice Pitfield, in his oral reasons delivered July 27, 2005,
    considering the Workers Compensation benefits that Ms. Stasiewski receives,
    ordered Mr. Stasiewskis superannuation plan reapportioned entirely to
    him, and her plan entirely to her, with the result that Mr. Stasiewskis
    superannuation plan is greater than that of Ms. Stasiewski, but she receives
    Workers Compensation benefits.  On the issue of the house, Mr. Justice Pitfield
    declined to reapportion the property, with the result that the parties retained
    their presumptive one-half interest.  However, he provided 45 days in
    which Ms. Stasiewski could offer to purchase Mr. Stasiewskis interest
    in the home premised on the purchase price of $640,000, the value he found
    the property had at the time of the trial.  He made no order of costs.

[5]

The parties communicated through counsel after the reasons for judgment
    were delivered, and Ms. Stasiewski made an offer dated 18 August
    2005 to purchase, but did not address the issue of costs.  Her offer, apparently,
    was not accepted on the basis that, [a]ny agreement had to take into consideration
    these amounts, with these amounts referring to costs.  On 9 September
    2005, the trial judge ordered costs in favour of Mr. Stasiewski.  The
    quantum of costs was not settled until later in 2005, by which time Ms. Stasiewski
    had new counsel, who has had carriage of the appeal and the stay applications.
    Indeed, at the time of the order of costs, the trial judge recognized that
    Ms. Stasiewski may be in the process of changing counsel, although it
    appears that counsel had not had the opportunity to make submissions to the
    trial judge.  The amount agreed now for the costs is $54,000.

[6]

In his reasons for judgment delivered in July 2005, the trial judge
    said this concerning the opportunity to purchase:

.
    . . I am going to order that the plaintiff shall have 45 days within
    which to conclude a binding, unconditional agreement for the purchase of the
    defendants interest in the property, failing which the property shall be
    sold.

[7]

Clearly no binding unconditional agreement for the purchase of the
    defendants interest in the property within the meaning of that passage was
    concluded, leading to the application by Ms. Stasiewski for a stay.
    I do not have a copy of the December 15, 2005 reasons for judgment making
    the stay order, but a draft of the order is before me.  The parties agree
    that a partial stay was ordered in the terms I have outlined, but changing
    the value of the house from the amount of $640,000 found to be its value at
    trial, to $675,000.  The result is an increase in the purchase price for Ms.
    Stasiewski of Mr. Stasiewskis interest by one-half of that amount, $17,500.
    Further, the trial judge required the posting of security for costs in the
    amount of $60,789 (that amount is now agreed at the $54,000), to be paid out
    upon completion of the sale.

[8]

The primary jurisdiction to order a stay of an order made under the
Family Relations Act,
R.S.B.C. 1996, c. 128, is in the
    trial court.  Section 14 of that Act provides:

14.
    Despite any other enactment, if an order made under this Act is appealed,
    unless the court that made it otherwise orders, the order remains in full
    force and effect until the determination of the appeal.

[9]

In
Bennett v. Bennett
,

2002 BCCA 580, Mr.
    Justice Donald considered that section in the context of an application for
    leave to appeal a decision refusing a stay of proceedings pending an appeal
    of an order distributing family assets on an equal basis, and an order staying
    a refusal to grant a stay until the main appeal was decided.  In the course
    of dismissing the application, he said:

[12]
    I do not rest my decision on jurisdiction because there may arise a case in
    which this Court will have to act on an obviously wrong exercise of the Supreme
    Court's stay jurisdiction.  This is not such a case.  Here Mr. Justice Wilson
    gave careful consideration to the matter and concluded that he should not
    interfere with the liquidation of the assets.  With the benefit of hearing
    eight days of trial he was well placed to decide that the parties could not
    afford to hold on to the assets pending the appeal because their creditors
    were closing in.  Since the
Act
gives exclusive jurisdiction
    to the Supreme Court in this area, I do not think the legislature's intention
    should be finessed by means of an appeal of this kind.  No extraordinary circumstances
    or egregious error have been shown to override the trial judge's decision
    to refuse a stay.

[10]

The unusual framing of Ms. Stasiewskis application today to include
    a request for an order for leave to appeal the stay, and for an order amending
    the notice of appeal to include that issue is directed to the sliver of jurisdiction
    that exists in this Court in respect to staying orders made under the
Family
    Relations Act
which is discussed in
Bennett v. Bennett
.
    The real object of Ms. Stasiewskis application, however, is a stay in
    respect of the sale of the matrimonial home.

[11]

Notwithstanding the able submissions of Mr. Rose on behalf of
    Ms. Stasiewski, I am not persuaded that this is one of those cases described
    by Mr. Justice Donald as extraordinary, or demonstrating egregious error.

[12]

The parties treated the situation before Mr. Justice Pitfield in December
    2005 as one in which no binding agreement had been made, and I do not understand
    Ms. Stasiewski to contend that she did that which she was required to
    do under the terms of the July 2005 order to buy-out Mr. Stasiewski.
    That being so, and apart from the question of the order as it relates to the
    costs, I am of the view that the decision of December 15, in setting
    out terms by which the parties could buy each other out failing which the
    property could be sold to a third party, was within the discretion given to
    the trial judge by s. 14.  That discretion included the discretion to
    refuse a complete stay, or to impose terms.

[13]

Mr. Justice Donald referred to exceptional circumstances, or egregious
    error as a basis for this Court to impose its own stay.  Not having the reasons
    for judgment of December 2005, I am unable to conclude that an error of principle
    or law in the exercise of discretion (apart from the matter of costs to which
    I will come), is present so as to justify an order from this Court in terms
    different from the existing order of the Supreme Court of British Columbia.
    As to the circumstances, Ms. Stasiewski refers to the disruptive effect
    that either Mr. Stasiewskis or a third partys purchase of the property
    will have upon her and her son, now in Grade 12, if they are required
    to move from their present home.  This is a serious consequence, and no doubt
    it was the reason Mr. Justice Pitfield first provided 45 days to enable
    her to buy-out Mr. Stasiewski.  It also is reflected in the first opportunity
    to purchase provided in the December 2005 order falling to Ms. Stasiewski.
    By itself, however, it is not, in my view, an exceptional circumstance that
    should be reflected in a stay from this Court.  Indeed, the weight accorded
    this consideration is the sort that one would expect from a trial judge, who
    has the best view of the circumstances after having dealt with the evidence
    adduced before him.

[14]

Ms. Stasiewski says that the increase in the purchase price from
    one based upon the value of $640,000 to one based upon the value of $675,000,
    along with the requirement that costs be paid as the price of purchasing Mr. Stasiewskis
    interest, justifies my interference in this issue.  The increase in price,
    however, reflects the increased value of the property were the parties to
    sell it to a third party.  Given that the original 45 days has passed
    after which the property could be sold, and that there was evidence before
    Mr. Justice Pitfield as to the present market value of the property,
    I consider that imposition of that term does no more than put Mr. Stasiewski
    in the position he would be in were the property sold to a stranger, and thus
    does not demonstrate a circumstance of error which justifies a stay from this
    Court.

[15]

I am of a different view, however, on the costs aspect of the partial
    stay.  I do not consider the order for costs to be one made under the
Family
    Relations Act
.  Rather, it was an order made under the
Rules of
    Court
, including the Rule relating to costs consequent upon offers to
    settle, a rule from which Mr. Stasiewski has benefited.   As I do not
    see the costs order as within s. 14, I consider that I have the capacity
    to order a stay of execution of the order for costs, in the terms I consider
    appropriate.

[16]

The question is, then, whether I should order a stay of execution of
    the order as it relates to the costs.  First, I would observe (as I have said
    already) that the amount agreed by the parties to be owing for costs is $54,000.
    Apart from that modification, in my view the present order should be modified
    in this fashion.  While recognizing the trial judges intention that the amount
    of costs be secured as they would be from the proceeds of sale of the property
    to a third party, the aspect of payment out upon completion does not further
    that objective.  In the circumstances, and given the progress made by the
    parties towards scheduling the appeal and the nature of the issues raised,
    any sum posted as security for costs should await payment out upon determination
    of the appeal, and I would so order.

[17]

I recognize Ms. Stasiewskis desire to maintain the status quo
    pending the appeal.   However, the legislature has said expressly that such
    issues are to be determined by the trial judge who had the advantage of seeing
    the parties, and who understands more completely than can a judge in this
    Court in chambers, the effect of an order staying any part of the judgment
    upon the balance struck by the overall order, and upon the parties.

[18]

Ms. Stasiewski also seeks an order permitting her to amend her
    notice of appeal and for leave to appeal the terms of the partial stay.  I
    do not have sufficient material before me on which to find that an appeal
    of the stay order has sufficient merit to justify an order for leave to appeal.
    Accordingly, I would not make either of those orders at this time, but I would
    reserve to Ms. Stasiewski her right to renew those applications if, upon
    receipt of the reasons for judgment, she desires to pursue those issues on
    appeal.  Those aspects of the application are, therefore, adjourned.

[19]

On the application for a stay, the application is allowed only to the
    extent I have indicated in respect of the costs, that is, in the event Ms. Stasiewski
    desires to purchase the property within the terms of the stay now in existence,
    the sum, which is the amount agreed by counsel of $54,000, shall be posted
    as security for costs, as may be agreed by counsel or failing agreement, in
    court, to be paid out upon determination of the appeal.

The Honourable Madam Justice Saunders


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Bhatti,

2006
          BCCA 16

Date: 20060113

Docket: CA031790

Between:

Regina

Appellant

And

Suraj
    Singh Bhatti also known as Paul Bhatti

Respondent

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Madam Justice Newbury

The
          Honourable Mr. Justice Hall

G.D.
          McKinnon, Q.C.

Counsel for the Appellant

M.
          Peters

Appearing as
Amicus Curiae

Place
          and Date of Hearing:

Vancouver, British Columbia

16 December 2005

Place
          and Date of Judgment:

Vancouver, British Columbia

13 January 2006

Written
          Reasons by
:

The
          Honourable Mr. Justice Hall

Concurred
          in by:

The
          Honourable Chief Justice Finch

The
          Honourable Madam Justice Newbury

Reasons for Judgment of the Honourable Mr. Justice Hall:

[1]

This is an appeal by the Crown from an order for costs made against
    it by Allan J. on 15 March 2004.  The appeal is brought pursuant
    to s. 676.1 of the
Criminal Code
, which provides that a
    party who is ordered to pay costs may, with leave, appeal from such an order.
    The appellant Crown argues that the learned trial judge ought not to have
    made the order having regard to the circumstances of the case.

[2]

I think it useful to set out some background of the matter in order
    to explain what had occurred in this case prior to February 2004 when the
    mistrial occurred from which the costs order resulted.

[3]

When this case came to trial in January 2004, the factual events underlying
    it were nearly six years old.  The respondent, Suraj Singh Bhatti ("Bhatti"),
    and a man named Rajinder Kumar Benji ("Benji") were both charged
    with kidnapping one Michael Singh on 6 March 1998.  Benji was also charged
    with first degree murder of Mr. Singh and the respondent, Bhatti, faced
    a charge of manslaughter, as having been allegedly involved to a lesser degree
    in the homicide.

[4]

In the course of ruling on an adjournment application in 2003, Allan J.
    set out a brief history of the events in this case as it had progressed through
    the courts.  She said:

[16]      I propose to outline the chronology of events in this case to
    demonstrate the excessive delay that has been occasioned by Benji through
    his counsel.  March 6th, 1998 is the date of the alleged offences of
    kidnapping and first degree murder for Benji, and manslaughter for Bhatti.
    On September 17th,1998, charges were laid against both accused.  On September 21,
    1999, Benji's preliminary inquiry commenced.  Bhatti has never had a preliminary
    inquiry.  On December 10th, 1999, Benji was ordered to stand trial.
    The preliminary inquiry was apparently delayed because of difficulties between
    Benji and his lawyer, Mr. Butcher.

[17]      On December 23rd, 1999, a direct indictment was filed,
    charging both Benji and Bhatti.  On January 12th, 2000, the first trial
    date was fixed for both accused for June 16th to July 14th, 2000.
    On May 5th, 2000, the trial date was adjourned because Mr. Rankin,
    Benji's second lawyer, had been discharged and his new lawyer, Mr. Leask,
    was unavailable.

[18]      On Mary 14th, 2000, the second trial date was fixed for
    January 5th to February 16th, 2001.  On July 27th, 2000, Mr. Leask's
    application to quash the direct indictment was dismissed by Mr. Justice Oppal.
    On January 8th, 2001, the Court of Appeal allowed the appeal from Mr.
    Justice Oppal's ruling and quashed the direct indictment.

[19]      On January 17th, 2001, Mr. Leask applied to adjourn
    the January 5th, 2001, trial date, and Bhatti's counsel, Mr. Klein,
    who was new to the file, consented.  On February 20th, 2001, Mr. Leask
    applied to quash the committal of Benji for trial.  Madam Justice Bennett
    subsequently dismissed that application.

[20]      On April 4th, 2001, the third trial date was fixed for
    March 11th to April 12th, 2002.  On January 15th, 2002, the
    Supreme Court of Canada reversed the Court of Appeal and upheld the direct
    indictment against Benji.

[21]      On February 1, 2002, the March 2002 trial date was adjourned
    because of Mr. Klein's unavailability.  Mr. Leask indicated that
    he was also unavailable.  A fourth trial date was scheduled with
voir dires
to start on September 18th, 2002, for five weeks, with the trial to commence
    January 6th, 2003, for four weeks.

. . .

[23]      On October 23rd, 2002, both the
voir dires
and the
    trial were adjourned due to Mr. Leask's unavailability.  A fifth trial
    date was scheduled for September 2nd, 2003, for six weeks.

[5]

Due to difficulties with counsel for Benji, this scheduled trial date
    was not met and ultimately the case proceeded against Bhatti alone in January
    2004.

[6]

After jury selection on 7 January 2004, the trial began on 19 January
    2004.  In a discussion between Crown and defence counsel on 12 January,
    a time between jury selection and the start of the trial, Mr. Klein advised
    the Crown of an alibi defence to be advanced on behalf of Bhatti.  During
    most of the duration of the proceedings, Mr. Proulx, an experienced Crown
    counsel, was acting for the Crown.  He was at intervals assisted by Ms. Hulko,
    a Crown counsel with a somewhat lesser level of experience.

[7]

The respondent had, over the lengthy course of proceedings, two counsel.
    His latter counsel, who was trial counsel, was Mr. Klein.  The co-accused,
    Benji, had been represented by five counsel at various stages.  Benji appears
    to have manifested a propensity to disagree with and discharge his counsel.
     Ultimately he was without counsel in January 2004 and because of his bizarre
    behaviour at that time the judge remanded him for a forensic assessment.
    This had the
de facto
result that Bhatti's trial proceeded without
    Benji.  Although the Crown had always been adamant that it was the type of
    case where both accused should be tried together and numerous severance applications
    brought on behalf of both accused had been unsuccessful, in the result, the
    trial in January and February 2004 involved only Bhatti.

[8]

It had been noted by Crown counsel in a discussion with the trial judge
    on 9 September 2003, at a time when Mr. Chaggar was acting for Benji,
    that there had been considerable disclosure problems created by the multiplicity
    of defence counsel for Benji.  At that stage, counsel for the Crown said that
    he was in the process of reproducing the entire Crown file for then counsel
    Mr. Chaggar, even though he had already disclosed a large volume of material
    to previous counsel.  Mr. Klein, who represented the respondent Bhatti
    for about two years, noted at the time of the costs hearing on 9 February
    2004, that with the exception of the non-disclosure of certain taxicab records
    that resulted in a mistrial and the costs order, Crown counsel had, in his
    view, fully complied with all disclosure obligations over the course of proceedings.

[9]

In this case, the Crown alleged that Benji and Bhatti, the respondent,
    had kidnapped and killed Singh, who was said to be indebted by reason of a
    criminal enterprise.  Singh had not paid the alleged debt.  The Crown had
    evidence of conversations with a third party that appeared to place Benji
    and Bhatti together in the company of Singh around 4:00 p.m. on the afternoon
    of March 6, 1998, the date of the alleged homicide.  It was, of course,
    vital to his defence for Bhatti to establish an alibi which placed him somewhere
    else than with Benji and Singh around 4:00 p.m. on the date of the homicide.

[10]

After being advised of the possible alibi defence on 12 January
    2004, counsel for the Crown took steps to have the matter investigated.  An
    investigator discovered certain taxicab records from 1998 that had a tendency
    to contradict the proposition that Bhatti had been with a cabdriver relative,
    one Mr. Cheema, at around 4:00 p.m. on the date in question.  These
    records were not disclosed to the defence in a timely way and it was only
    after the respondent gave evidence in chief that his counsel became aware
    of the existence of these records.  There was thus a failure of disclosure
    on the part of the Crown.  It emerged during the costs proceeding on 9 February
    2004, after a mistrial had been declared, that apparently Mr. Proulx
    thought his junior, Ms. Hulko, had made disclosure to the defence of
    these records.  Given the rather tangled history of these proceedings and
    the many changes of counsel, such a mix up might be more explicable in this
    case than would be so in other cases.

[11]

In any event, the trial judge did not take the view that the failure
    of disclosure constituted wilful action on the part of the Crown.  She did
    observe that she viewed it as a fairly egregious example of negligent conduct
    by Crown counsel in failing to ensure that proper disclosure was made to defence
    counsel.  The judge adjourned the case from 6 February, when the records
    came to light, until 9 February.  On that date, defence counsel for Bhatti
    successfully applied for a mistrial.  The trial judge at this time suggested
    to defence counsel he might consider applying for costs and she directed that
    a hearing on that matter should proceed that afternoon at 3:00 p.m.:

THE COURT:

I am going to declare a mistrial.

MR. PROULX:

Very well, My Lady.

THE COURT:

It's a very, very unfortunate result, a very unfortunate
          result.  And what I'm going to do is I'm, first of all, going to ask
          your friend if he's aware of the cases on where costs can be ordered
          in such a case?

MR. KLEIN:

I'm not, My Lady, no.

THE COURT:

Well, I believe there is and you may want to look at
          that.

MR. KLEIN:

I will look at those, yes.

[12]

Mr. Klein concluded his submission at the costs hearing by saying,
    "it simply boils down to that a mistake was made and the ramifications
    are significant, and is there a remedy for that?"

[13]

Counsel for the Crown did not give evidence at the costs hearing, but
    he stated that his action was inadvertent and not wilful.  The judge appears
    to have accepted that statement of Crown counsel.  Just prior to speaking
    to the jury about the mistrial order, she observed to Crown counsel, I dont
    think it was a calculated scheme, so I will be careful to indicate that it
    wasnt a calculated scheme on your part.

[14]

In her reasons for judgment delivered about five weeks later, the judge
    stated that the Crown had been negligent and that the failure to disclose
    the existence of the records was a serious breach of the Crown's disclosure
    obligations.  She said this in the course of her reasons:

[36]      By January 26, when the Crown received the trip sheets
    and computer print outs, it was well aware that the accused was relying on
    an alibi defence.  It had instigated a further police investigation, as a
    result of which a police officer had been dispatched to Yellow Cab to probe
    Mr. Bhatti's alibi.  The information received from Yellow Cab went to
    the heart of the accused's defence.  The Crown's preoccupation with the pressures
    of a difficult and challenging prosecution does not justify its negligence.
    Disclosure was crucial in light of the critical importance of that information,
    and the late date at which it was received.  I would characterize the Crown's
    actions as a "curious and conscious indifference to the Crown's duty
    to be fair".  Disclosure should have been automatic and mistakes made
    within the Crown office are not an adequate excuse.

. . .

[43]      The Crown failed to make full disclosure to the defence.  That
    non-disclosure struck at the heart of the accused's defence and impaired his
    right to make full answer and defence.  Although the non-disclosure did not
    arise through wilful misconduct, the Crown's conduct constitutes an unacceptable
    departure from the disclosure procedures reasonably expected of the Crown.
    The Crown's explanation for the non-disclosure is unsatisfactory.  The accused
    suffered a compensable loss as a result of the mistrial.  The appropriate
    remedy is an award of the costs thrown away to compensate him.

Although the trial judge was able to determine in her
    reasons delivered 15 March 2004, that costs ought to be awarded against
    the Crown, she was unable to decide on quantum at that stage and left it to
    counsel to arrange a convenient date to make further submissions with regard
    to that issue.  Counsel for the appellant submitted in argument that perhaps
    the judge was overly concerned with possible compensation of the respondent
    for monies expended for no purpose as a result of the mistrial.  There is
    some support for that submission in the concluding sentences of para. 43,
supra
.

[15]

On 28 October 2004, counsel for the Crown, who had not been trial
    counsel, and Mr. Klein appeared before the trial judge.  The Crown put
    the matter before the judge with the agreement of Mr. Klein to ask for
    "some direction or clarification from your Ladyship with respect to the
    judgment on costs dated March 15, 2004".  Crown counsel asked the
    judge to clarify whether the order was made under s. 24(1) of the
Charter
or under the court's inherent jurisdiction to control its own process.  Counsel
    also raised the issue as to whether the order for costs included costs of
    the trial, as well as the mistrial application.  It was the Crown's position
    that before making submissions on the quantum of costs, some guidance was
    sought so that counsel would "know how to proceed".

[16]

The judge suggested that it would be up to counsel to decide what the
    quantum of costs should be after doing further research on the subject.  Ultimately,
    the quantum issue faded into insignificance because the Crown stayed proceedings
    against Bhatti and there was thereafter no real issue as to trial costs thrown
    away.

[17]

After some further discussion with counsel about the quantum and the
    issue of the basis for the order, either pursuant to inherent jurisdiction
    or pursuant to s. 24(1) of the
Charter
, the trial judge
    indicated that she considered she had been operating under her inherent jurisdiction.

THE COURT:

Well, I mean, my preliminary thought would certainly
          be that I was operating under my inherent jurisdiction, unless I have
          said something in my judgment, which I haven't recently reread, and
          -- or unless I relied on cases that were specifically -- but I would
          have thought that you'd have to make an application really invoking
          the
Charter
for me to make an order.

MR. KLEIN:

Yes.

THE COURT:

So I would, I think, feel comfortable in
          saying that the order was made under my inherent jurisdiction.

[18]

Counsel were again before the judge on 1 April 2005.  By that
    time, the Crown had entered a stay of proceedings against the respondent,
    Bhatti, and the judge observed that it was probable that there were no trial
    costs thrown away because the respondent had a trial and, in the end, "no
    matter how circuitously, he got a result, and a favourable result, I might
    add".  Counsel and the judge had a discussion about the standard to be
    applied when a court was considering an award of costs against the Crown.
    In the course of his submissions, Mr. Klein said this:

MR. KLEIN:

I don't think Your Ladyship found anything wilful
          on the part of Mr. -- in fact, my recollection is to the contrary.
          It was just inadvertent on his part and that we all accept that.  In
          this particular case there's a distinction because it was marked for
          disclosure and there was a conscious decision not to disclose it

because they didn't think it was relevant or whatever
          their mindset was.  So it's distinguishable.

So when I'm going through these case authorities,
          I -- after speaking with my friend, I concur that the inherent jurisdiction
          is a different standard than a
Charter
jurisdiction, and
          if we're operating under the inherent jurisdiction, I concur, as well,
          that it's costs thrown away, and it also has to be wilful misconduct,
          which hasn't been found in this particular case.  If it's under a
Charter
jurisdiction, then it appears to me that the costs are --

THE COURT:

Well, they have a punitive aspect.

MR. KLEIN:

They have a punitive element to it.

THE COURT:

Yes.

MR. KLEIN:

So, and then it wouldn't matter.  Where
          this case falls, I -- to be absolutely honest, I can't tell you where
          this case falls,

Ultimately, the judge decided that the mistrial application
    being half a day and the costs application being half a day, the appropriate
    sum to award for a day was $1,250, plus tax, which came out to something just
    over $1,400.  Since it was known at that time that an appeal had been taken,
    counsel for the respondent noted that he was going to take no steps to collect
    pending the resolution of the appeal proceeding.

[19]

There appears to be a clear distinction in the cases between situations
    where the court is ordering costs pursuant to its inherent jurisdiction to
    control its own officers and its own process, and cases where a remedy is
    being granted by a court under s. 24(1) of the
Charter
.
    The cases indicate that there are a range of remedies available to an accused
    person under s. 24(1) of the
Charter
, including adjournment,
    an award of costs and, the most drastic remedy, the ordering of a judicial
    stay of proceedings.

[20]

Consequent upon a mistrial, courts have on occasion ordered costs against
    the Crown as a compensatory remedy under a costs thrown away analysis.  That
    was the rationale for an award of costs in the case of
R. v. McKillip
,
    [1996] O.J. No. 2757 (QL); 8 O.T.C. 378, (Ct. J. (Gen. Div.)).  In that
    case, there had been two trial proceedings.  Ultimately, after the second
    trial proceeding, the accused was acquitted. The nature of the difficulty
    in that case is set out in the following passage:

[2]
    The mistrial resulted from the crown attorney's failure to disclose 26 pages
    of material, the results of an investigation by a police officer into matters
    raised by the defence approximately one year before the trial.  At
    a pre-trial hearing defence counsel revealed to the crown attorney three possible
    elements of the accused's defence.  He asked for disclosure of any
    material relating to these points. The crown attorney asked the officer to
    look into the matters. He did so and reported back about three months later,
    noting in his transmittal letter that the material was compiled for "...
    disclosure to defence council [
sic
] Mr. Barrie ... '  In
    a note to the crown attorney, his secretary asked whether the material should
    be disclosed.  He replied "Not Necc. just file w/brief .."  The
    material came to light at the conclusion of the cross-examination of the complainant,
    about a week into the trial.  The accused's counsel successfully
    argued the undisclosed material was essential to the conduct of the defence.  He
    convinced me he would have structured his cross-examination differently had
    the undisclosed material been available to him.  In my reasons for
    ordering a new trial I said:

I
          reserve my decision on the issue of costs until the conclusion of the
          new trial.  I will examine the extent to which the defence
          conducts itself differently during the second trial, and I will hear
          argument on the question of costs at that time and not now.

[21]

O'Connor J. ultimately made an order for costs in the amount of
    $7,500 to compensate the accused for legal expenses incurred up to the time
    of the mistrial order and to show disapproval of the conduct which resulted
    in prejudice to the accused.  O'Connor J. said this in the course of
    his reasons:

[10]      Here, where the investigation into the areas covered in the
    26 pages was instigated by the Defence request and the report was prepared
    for "disclosure to defence council Mr. Barrie" it is difficult
    to characterize the failure to pass on the report to the Defence as anything
    but "... a marked and unacceptable departure from the usual and reasonable
    standards of prosecution", as those standards respecting disclosure are
    defined in the cases noted.
Further the failure was not inadvertent.  The
    crown attorney read the report and made a conscious decision to not disclose
    it but to simply file it
.

[Emphasis added.]

That case manifests a species of intentional action by
    a Crown prosecutor that is very different from what occurred in the case at
    bar.

[22]

The Ontario Court of Appeal noted in the case of
R. v. Pawlowski
(1993), 12 O.R. (3d) 709; [1993] O.J. No. 554 (QL), that superior courts
    possess an inherent jurisdiction to award costs against the Crown in a criminal
    case.  It is a power that was exercised only rarely and before the advent
    of s. 24(1) of the
Charter
was utilized only where there
    had been serious misconduct on the part of the Crown.

[23]

Such jurisdiction had also been referred to in a pre-
Charter
case,
Attorney-General of Quebec v. Cronier
(1981), 63 C.C.C.
    (2d) 437; 23 C.R. (3d) 97 (Que. C.A.), a decision of Madam Justice L'Heureux-Dubé
    when she was on the Quebec Court of Appeal.  She said at p. 11:

A superior Court has the power to maintain its authority
    and to control its procedure so as to put justice in order and efficiently.
    That this implies sometimes ordering one of the parties and even lawyers to
    pay the costs of a proceeding in cases of the abuse or of the frivolity of
    proceedings, of misconduct or dishonesty or of taken for some other ulterior
    motive, is a recognized principle.  But the conditions for the exercise of
    this inherent power must exist.

According to the authorities, the criteria which applies
    in this matter can be equated to those which apply in contempt of Court situations,
    namely, this characteristic of gravity equivalent to "misconduct"
    and "dishonesty".

[24]

In the case of
R. v. Ryan (C.B.)
(2001), 198 N.S.R. (2d)
    106; 2001 NSCA 149, the Nova Scotia Court of Appeal set aside an award of
    costs made by a trial judge, observing that there was no basis to make such
    award in the case, either under the inherent jurisdiction of the court or
    under the
Charter
.  In the course of giving judgment, Oland J.A.,
    observed:

[11]       The inherent jurisdiction of the superior courts to award
    costs against the Crown in a criminal case is to be exercised only where there
    was serious misconduct on the part of the prosecution:  see
R.
    v. Pawlowski (M.)
, [1993] O.J. No. 554, 61 O.A.C. 276 (C.A.) (application
    for leave to appeal to the Supreme Court of Canada dismissed).  Generally
    a criminal defendant is not entitled to costs unless there is something "remarkable"
    or "unique" about the case or something "oppressive" or
    "improper" about the conduct of the prosecution:
R.
    v. Pottier (D.W.)
, [1999] N.S.J. No. 95, [1999] N.S.R. (2d) Uned.
    29 (C.A.) at s. 7

[25]

In the case at bar, the trial judge referred to the conduct of Crown
    counsel as "a curious and conscious indifference to the Crown's duty
    to be fair".  That comment appears to originate from a judgment of Richard J.
    of the Northwest Territories Supreme Court in the case of
R. v. Dostaler
(1994), 91 C.C.C. (3d) 444; [1994] N.W.T.R. 246 (S.C.).  In that case, the
    accused had been charged with possession of narcotics for the purpose of trafficking.
    Defence counsel had given notice to the Crown that at trial he wished to contest
    the validity of a search warrant issued by the justice of the peace and he
    specifically requested full disclosure of any notes made by the investigating
    officer.  There existed on the file notes made by the investigating officer
    on the evening he obtained the search warrant.  These notes indicated that
    he had prepared a 3‑page information to obtain a warrant, but one of
    the pages of the document was missing when it was presented to the justice
    of the peace.  Copies of these notes were not provided to defence counsel
    prior to trial, nor was their existence disclosed until they came to light
    upon the third day of the trial.  This discovery occurred after a
voir
    dire
had been held to determine the validity of the search warrant and
    the search warrant had been found, on the
voir dire
, to have been validly
    issued.  When their existence became known, the court took a serious view
    of the matter and declared a mistrial.  Richard J. said at 446:

The Crown's conduct in failing to disclose this important
    information until after the ruling on the
voir dire
was more than inadvertence

it was a curious and conscious indifference to the Crown's duty to be
    fair
.  It was a clear departure from the normal standards of prosecution,
    particularly in view of the specific request for disclosure and the subject-matter
    of the
voir dire
.

[Emphasis added.]

The language of a clear departure from the normal standards
    of prosecution appears to have been picked up by OConnor J. two years
    later in the decision of
McKillip
, supra
, a case that
    involved more than mere inadvertence.

[26]

Richard J. concluded that this was a case in which it was appropriate
    to award costs.  He said:

This is, in my respectful view, one of those clear cases
    where the court should exercise its discretion to award costs against the
    Crown.  The following factors, in particular, require it:

(a)
           there was a serious interference with the accused's right to fundamental
    justice;

(b)
           the Crown and police conduct amounted to more than mere inadvertence;

(c)
           the court ought to demonstrate its disapproval of this Crown and police
    conduct;

(d)
           the accused has a clear compensatory need. I therefore grant the accused
    a further remedy under s. 24(1) of the
Charter
by awarding costs
    against the Crown in the amount of the accused's actual transportation costs
    to and from the place of trial, and thrown away counsel fees calculated on
    a solicitor-and- client basis.

If
    counsel are unable to agree on quantum, they can speak to me in chambers by
    appointment.  Order accordingly.

The case at bar presents, in my opinion, a very different
    factual situation from that disclosed in cases such as
Dostaler
and
McKillip
.

[27]

In the case of
R. v. Robinson
(1999), 142 C.C.C. (3d)
    303; 1999 ABCA 367, McFadyen J.A. stated that costs should not be routinely
    awarded against the Crown.  She noted that something more than a
bona fide
disagreement as to the applicable law or a technical, unintended or innocent
    breach, whether clearly established or not, is required.  In that case, the
    conduct of trial counsel for the Crown had been characterized by the judge
    who granted costs as "intransigent" and as "thwarting"
    disclosure.  The award of costs was upheld by the Court of Appeal because
    it was not demonstrated that the trial judge had committed any palpable and
    overriding error in making an award of costs in the circumstances of that
    case.

[28]

In the case of
R. v. 974649 Ontario Inc.
, [2001]
    3 S.C.R. 575; 2001 SCC 81, a case that primarily dealt with the power of a
    justice proceeding under the
Provincial Offences Act
of Ontario
    to award costs, the Chief Justice, giving judgment for the Court, noted that
    the Crown is not to be held to a standard of perfection and that costs awards
    should not flow from every failure to disclose in a timely fashion.  She said,
    at p. 618, "the developing jurisprudence uniformly restricts such
    awards, at a minimum, to circumstances of a marked and unacceptable departure
    from the reasonable standards expected of the prosecution."

[29]

In
R. v. Sweeney
(2003), 179 C.C.C. (3d) 225; 2003 MBCA
    127, a case in which a judge had ordered costs as a result of a finding of
    non-disclosure on the part of the Crown, the Manitoba Court of Appeal allowed
    an appeal from the award of costs.  Philp J.A. said this:

[62]      Assuming that the information Ms. Cameron had received
    in her telephone conversations with the Jakemans met the
Stinchcombe
threshold of relevance with respect to the Sweeney prosecution, her failure
    to pass that information on to Mr. Morrison was, in my view, a mistake,
    an unintended, innocent and inadvertent one, and perhaps even a careless one.
     It did not, however, amount to a marked and unacceptable departure from the
    reasonable standards expected of the prosecution.

[63]      The finding of the trial judge is one of fact, but it is so
    clearly wrong as to justify appellate interference.

[30]

In my opinion, the procedure adopted in the present case concerning
    the issue of whether or not costs should be awarded against the Crown was
    unfortunate.  Counsel for the Crown and defence were required on the day of
    the declaration of mistrial, with virtually no interval between the declaration
    of mistrial and the costs hearing, to advance submissions as to whether an
    award of costs was warranted in the circumstances of this case.  Mr. Klein
    on a later occasion noted that because of the celerity of the proceedings,
    he had never directed his mind to the precise basis that existed in law for
    any costs order he might seek.  Given the severe time constraints, neither
    counsel had much opportunity to marshal and comment upon relevant authority.
    It seems to me that it would usually, as a minimum, be appropriate for a trial
    court to afford an interval of some days before counsel and the court should
    be required to address such an issue.  That would afford a decent interval
    for the facts to be properly appraised and for the relevant authorities to
    be collected.  I venture also to suggest that it would be usually a wise practice
    to have counsel other than Crown counsel who conducted the trial speak to
    such a matter since it is the conduct of trial counsel that is being examined.
    In this Court, we would, I think, be most reluctant to have counsel conduct
    an appeal if his or her conduct at trial is in issue, (for instance, if an
    issue was taken concerning the propriety of a jury address), and I do not
    see why any different practice should exist in this type of situation in a
    trial court.

[31]

The reasoning of the trial judge here appears to reflect a basic inconsistency.
    From observations made before and during the hearing, the judge appeared to
    treat the failure of disclosure of material by Crown counsel as an inadvertent
    one.  I also note that in her reasons at para. 30 she refers to the conduct
    as "an error" and states at para. 43 that "the non-disclosure
    did not arise through wilful misconduct".  She also noted in reasons
    delivered on the mistrial application that there was nothing deliberate in
    the failure of disclosure.  At para. 36, she observed that "mistakes
    made within the Crown office are not an adequate excuse".  However, just
    prior to the utilization of this phraseology she characterizes the actions
    of the Crown as "a curious and conscious indifference to the Crown's
    duty to be fair", language adopted from the judgment of Richard J.
    in
Dostaler
,
supra
.  As I think has been demonstrated
    from the reference above to the situation in
Dostaler
, that
    case was an example of conscious non-disclosure by the prosecution authorities.
    I find it impossible to reconcile these various references, some of which
    appear to be references to inadvertent conduct and others to wilful conduct
    on the part of Crown counsel.  The judge was understandably concerned with
    the result of a mistrial in a case that had been grievously delayed, but I
    consider she may have been overly concerned with the financial burden accruing
    to the accused as a result of the mistrial.  Ultimately, as events transpired,
    because the Crown stayed the prosecution against the respondent, there was
    no real financial loss to the respondent.

[32]

In my view, it was incorrect for the judge to characterize the Crown's
    non-disclosure as "unacceptable negligence" and as a "curious
    and conscious indifference to the Crown's duty to be fair."  There is
    nothing in the record to support such findings.

[33]

There was similarly no reason to characterize the Crown's explanation
    for the non-disclosure as "unsatisfactory."  Mr. Proulx accepted
    responsibility for the mistake.  He attempted to show why an isolated and
    accidental non-disclosure in proceedings that went on for almost six years
    did not justify an award of costs against the Crown.  By awarding costs against
    the Crown for a single and innocent act of non-disclosure, the trial judge
    effectively held Crown counsel to a standard of perfection.

[34]

Additionally, there is a problem of analysis present in this case in
    that the judge seemed to be of the view that the order was made pursuant to
    her inherent jurisdiction, but the criterion of serious misconduct on the
    part of counsel that would afford the foundation for any order pursuant to
    this class of jurisdiction was clearly absent.  The authorities, including
Pawlowski
, supra
, afford no support for an order being
    made under that head of jurisdiction on the facts of this case.

[35]

Whether or not, in the circumstances of this case, it could have been
    thought appropriate for any award of costs to be made under s. 24(1)
    of the
Charter
is a nice question.  I rather doubt that I would
    have considered it an appropriate case for an award having regard to the comments
    of the Chief Justice in
R. v. 974649 Ontario Inc.
,
supra
,
    and what was said by McFadyen J.A. in
Robinson
,
supra
.
    The factual circumstances where such awards were made in several of the cases
    cited by counsel for the appellant and counsel appearing as
amicus curiae
appear to disclose more blameworthy circumstances than the present case.
    While there appears to have been a degree of oblivion exhibited here on the
    part of counsel for the Crown, it is very difficult to discern any conscious
    obstruction.  I need however reach no final conclusion on this issue since
    it does not appear that the judge was here expressly asked for a
Charter
remedy, nor, apparently, did she consider she was being asked to give such
    a remedy.

[36]

Counsel appearing as
amicus curiae
has suggested that the two
    heads of jurisdiction allowing a court to award costs against the Crown, inherent
    jurisdiction and as a form of
Charter
relief, could perhaps
    be usefully merged, but I am reluctant to adopt such a suggestion.  It seems
    to me that the two tests or standards are well-known and workable in practice
    and I consider the two possible heads that exist to found jurisdiction for
    a costs order should be kept distinct.

[37]

The above-noted errors in approach that occurred in this case, coupled
    with the unsatisfactory nature of the original hearing in February 2004, in
    my opinion lead to the result that this appeal ought to be allowed and the
    order for costs should be set aside.  I would so order.

The
    Honourable Mr. Justice Hall

I
    Agree:

The
    Honourable Chief Justice Finch

I
    Agree:

The
    Honourable Madam Justice Newbury