COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Moazami,

2020 BCCA 20

Date: 20200121

Docket: CA45510

Between:

Regina

Respondent

And

Reza Moazami

Appellant

Restriction on Publication: A
publication ban has been mandatorily imposed under s. 486.4(1), s. 486.4(2)
and s. 486.5 of the
Criminal Code
restricting the publication,
broadcasting or transmission in any way of evidence that could identify a
complainant, witness or victim (or any witness under the age of 18), referred
to in this judgment by the initials S.W., H.W., and Z.C..  This publication ban
applies indefinitely unless otherwise ordered.

Pursuant to s. 16(4) of the
Sex
Offender Information and Registration Act
, no person
shall disclose any information that is collected pursuant to an order under
SOIRA
or
the fact that information relating to a person is collected under
SOIRA
.

Before:

The Honourable Mr. Justice Frankel

(In Chambers)

On appeal from: An
order of the Supreme Court of British Columbia, dated March 7, 2018 (
R. v.
Moazami
, 2018 BCSC 1761, New Westminster No. X080594).

Acting on his own behalf:

R. Moazami

Counsel for the Respondent:

T.A. Shaw

M.G. Scott

Place and Date of Hearing:

Vancouver, British
  Columbia

January 8, 2020

Place and Date of Judgment:

Vancouver, British Columbia

January 21, 2020

Summary:

Application by M. for an
order extending the time to apply for leave to appeal the decision of a summary
conviction appeal judge refusing a lengthy extension of time to appeal a conviction
on a charge of assault with a weapon, a conviction based on a guilty plea.  M.
alleged there had been a miscarriage of justice because a police officer prevented
him from obtaining information that could have been used to challenge the
victims credibility.  Held: Application dismissed.  There was not a scintilla
of evidence to support M.s miscarriage of justice allegation.

Reasons for Judgment of the Honourable
Mr. Justice Frankel:

Introduction

[1]

Reza Moazami applies to extend the time to bring a summary conviction
application for leave to appeal to this Court under s. 839(1) of the
Criminal
Code
, R.S.C. 1985, c. C-46, relating to his convictionbased on a
guilty pleaon a charge of assault with a weapon (the assault appeal).  Mr. Moazami
seeks to appeal an order dismissing his application to extend the time to appeal
that conviction to the Supreme Court of British Columbia.  Mr. Moazami
filed his notice of appeal in the Supreme Court approximately six years and
seven months out of time.  He filed his notice of application for leave to
appeal in this Court approximately five months out of time.

[2]

For the reasons that follow, the application is dismissed.

Background

[3]

To understand this matter it is necessary to refer to two conviction
appeals Mr. Moazami currently has before this Court.  I will refer to them
as the prostitution appeal (CA43308) and the obstruction appeal (CA43857).
I have been case managing those appeals and this matter for some time.  Mr. Moazami
is represented by counsel on the prostitution and obstruction appeals; he is
self-represented on this matter.

[4]

In both the prostitution and obstruction appeals Mr. Moazami
asserts abuse of process based on the alleged misconduct of James Fisher, a
former member of the Counter-Exploitation Unit of the Vancouver Police
Department (VPD).  Mr. Fisher was involved in investigating the
prostitution and obstruction matters and testified for the Crown at both trials.
Following those trials, the VPD conducted an investigation into misconduct by Mr. Fisher
with respect to his relationships with a number of complainants and witnesses
with whom he had contact (the Fisher Investigation).  That investigation
resulted in Mr. Fisher being charged with a number of offences.
Eventually, he pleaded guilty to two counts of breach of trust, one in relation
to Z.C., and the other in relation to H.W.  He also pleaded guilty to a charge
of sexual exploitation in relation to Z.C.  H.W testified for the Crown at Mr. Moazamis
prostitution trial.  Z.C. had been a potential Crown witness with respect to
prostitution-related charges brought against another person that were resolved
by a plea.  Mr. Fisher received an aggregate sentence of 20 months
imprisonment plus two years probation, which this Court upheld:
R. v.
Fisher
, 2019 BCCA 33.

[5]

In connection with the prostitution and obstruction appeals, the Crown
has provided Mr. Moazami with disclosure from the Fisher Investigation (Fisher
Disclosure).  In the context of those appeals, Mr. Moazami applied
pursuant to s. 683(1)(a) of the
Criminal Code
, for an order
compelling the Crown to produce a complete inventory of all materials relating
to the Fisher Investigation.  A division of this Court recently dismissed that
application:
R. v. Moazami
, 2020 BCCA 3.

[6]

The assault appeal relates to an incident that occurred in the summer of
2010.  On August 21, 2010, members of the Coquitlam Detachment of the Royal
Canadian Mounted Police spoke to S.W.  An officer noticed cuts on S.W. and
asked her about them.  She said Mr. Moazami had cut her with a knife two
days earlier, during an argument.  The police took a statement from S.W. and
submitted a report to Crown counsel.  In her statement, S.W. alleged Mr. Moazami
had previously held her against will in Vancouver, hung her by her ankles from
an apartment building balcony, and choked her to the point of unconsciousness (the
balcony incident).

[7]

S.W. was one of several complainants/victims who testified for the
Crown at the trial giving rise to the prostitution appeal.  She also testified
for the Crown at the trial giving rise to the obstruction appeal.  That trial related
to steps Mr. Moazami took to tamper with S.W. as a witness in the
prostitution trial while he was subject to a court order precluding him from
communicating directly or indirectly with her.

[8]

As a result of the RCMP investigation, an information charging Mr. Moazami
with assaulting S.W. with a weapon contrary to
Criminal Code
, s. 267(a),
was sworn on August 27, 2010.  On November 1, 2010, Mr. Moazami pleaded
not guilty to that charge.  Later, a trial date of March 14, 2011, was set.

[9]

Mr. Moazami was of the view S.W. had lied to the RCMP about the
balcony incident and that the VPD was in possession of information about that
incident that could be used to challenge her credibility at the assault trial.
As a result, he filed an access request with the VPD under the
Freedom of
Information and Protection of Privacy Act
, R.S.B.C. 1996, c. 165.  Mr. Moazami
signed that request on January 1, 2011; it was received by the VPDs
Information and Privacy Unit on January 7, 2011.  The Information Requested
section of the request form reads:

I am requesting a police report
and date about an incident involving a girl attempting to commit suicide from
my balcony [address omitted] between the date of Nov/2009 to March/2010.  She
was wearing a pink jacket and police / fire department / Ambulance showed up
within 5 to 10 minutes with a female officer and manager letting the police
into the building.  My balcony faces [address omitted] so I am pretty sure they
called police as well.  Any record of this please notify me asap.  I already
contacted the fire department and the chief told me to get a [
sic
] exact
date about this report so they can release information for me and directed me
here.  Thank you for your time.

[10]

On January 13, 2011, the VPD advised Mr. Moazami by letter that:

Based on the information you
provided, we are unable to identify and/or locate the records you requested.
Please contact the Information and Privacy Unit at [telephone number omitted]
so we can assist you in making your request.

[11]

Although I gave Mr. Moazami several opportunities to file material
in support of the present application, he did not include the two documents I have
just mentioned in the material he filed.  Rather, he gave those documents to me
at the hearing.  Mr. Moazami told me he did try to follow-up on the
request by telephone but did not receive anything from the VPD.  He did not
elaborate on the nature of that follow-up.

[12]

On March 14, 2011, Mr. Moazami appeared with counsel and changed
his plea on the assault with a weapon charge to guilty.  The judge adjourned the
matter for the preparation of a pre-sentence report.

[13]

On March 17, 2011, Mr. Fisher and other members of the VPD
responded to a domestic assault call in Vancouver involving Mr. Moazami
and H.W.  Mr. Fisher arrested Mr. Moazami.  H.W. falsely identified
herself as S.W.  This event was the genesis of the VPDs investigation into Mr. Moazamis
prostitution-related activities.  The police did not learn H.W.s true identity
until several months later.

[14]

Mr. Moazamis sentencing hearing on the assault with a weapon
charge took place of May 16, 2011.  The same counsel who acted for Mr. Moazami
when he pleaded guilty represented him.  In advising the judge of the facts
underlying the offence, Crown counsel, after stating the Crown was not alleging
Mr. Moazami deliberately cut S.W., went on to say:

This is an incident that occurs
on the date set out in the Information.  Officers are called to a report of a
man with a gun at a residence on North Avenue, in Coquitlam.  That is not Mr. Moazami,
thats another fellow who came over at [S.W.]s request in the event of problems.
What had happened, [S.W.] indicated, was that there was a dispute, an argument
between her and [Mr. Moazami].  In the course of that dispute at her home,
Mr. Moazami picked up a knife, a kitchen knife, and threatened her with
it.  There was an attempt by her to move away or towards him.  She wasnt clear
and it was in the course of that altercation that she sustained the
comparatively minor injuries that she received.

[15]

S.W.s allegations with respect to the balcony incident were contained
in the pre-sentence report.  Crown counsel advised the judge that the Crown was
not relying on that that information.

[16]

Crown counsel submitted that an appropriate disposition would be to
suspend the passing of sentence and place Mr. Moazami on probation for a
couple of years on conditions.

[17]

Mr. Moazamis counsel stated that Crown counsels suggested
disposition was a joint submission.  He described what occurred as follows:

My friend has fairly
characterized it, I think, as a situation in which what does occur here is Mr. Moazami
and [S.W.], who were certainly friends, Mr. Moazami had some concerns
about Ms. [S.W.]s ongoing use of cocaine.  When he attended at the
residence, they get into an argument over that because shes been telling him
that shes quit.  When he gets there, its quite clear that thats not the
case.  They get into an argument and at some point, he comes into possession of
the knife and while in the course of arguing with her, she gets accidentally
cut, which is certainly something that Mr. Moazami is very regretful for.
I think hes expressed that in the [pre-sentence] report.  Hes also, I think,
in the report, indicated quite clearly he is more than willing to attend for
counselling as directed by the court and to take the programs that are
suggested by the probation officer.

[18]

The judge acceded to the joint submission.  He suspended the passing of
sentence and placed Mr. Moazami on probation for two years.

[19]

In the fall of 2011, Mr. Moazami was charged in a three-count
information with prostitution-related offences.  He was arrested and released
on bail.  That bail continued when a second information containing 18 counts
was laid.

[20]

On October 21, 2011, Mr. Fisher and another VPD officer interviewed
S.W. in connection with the investigation of Mr. Moazami.

[21]

On August 1, 2012, the Crown filed a 36-count direct indictment against Mr. Moazami.
A warrant for his arrest was issued but held to allow him to surrender.  However,
he was arrested on August 9, 2012, for breaching his bail conditions.  Mr. Moazami
has been in custody since then.  The obstruction of justice and breach of a
court order offences occurred while he was awaiting trial on the
prostitution-related offences.

[22]

On September 15, 2014, Justice Bruce convicted Mr. Moazami of 30
prostitution-related and sexual offences:
R. v. Moazami
, 2014 BCSC
1727.  Some of those convictions were stayed on the basis of the rule against
multiple convictions set out in
Kienapple v. The Queen
, [1975] 1 S.C.R.
729.  On November 10, 2015, Bruce J. sentenced Mr. Moazami to imprisonment
for 17 years and 339 days (i.e., 23 years less credit for pre-sentence custody):
R. v. Moazami
, 2015 BCSC 2055.

[23]

On December 9, 2015, Mr. Moazami filed the prostitution appeal,
appealing both conviction and sentence.

[24]

On February 11, 2016, Justice Bowden convicted Mr. Moazami of
obstruction of justice and breaching a court order:
R. v. Moazami
, 2016
BCSC 99.  On August 15, 2016, Bowden J. sentenced Mr. Moazami to three
years imprisonment on the obstruction charge and six months concurrent on the
breach charge.  Those sentences were consecutive to the sentences Mr. Moazami
was already serving:
R. v. Moazami
, 2016 BCSC 2137.

[25]

On August 15, 2016, Mr. Moazami filed the obstruction appeal,
appealing both conviction and sentence.

[26]

On January 19, 2018, Mr. Moazami initiated the summary conviction assault
appeal by filing a notice of appeal together with a notice of application for
extension of time to appeal in the New Westminster registry of the Supreme
Court.  In the notice of appeal, Mr. Moazami stated his grounds of appeal
as follows [verbatim]:

New evidence found due to police
misconducts, Partial disclosures provided to me breaching my s. 7
constitutional rights, Police misconducts leading to their investigations and
criminal charges.

The relief sought is:

Charge, conviction and sentence
dismissed

In the extension application, he
gave the following reason for not filing the appeal within the 30-day appeal
period:

No police misconducts or officers
criminally charged but recently new evidence exposed of police withholding
evidence from me breaching my s. 7 constitutional rights.  Officers
criminally charged and under investigation for misconducts.

[27]

Justice Verhoeven heard the extension application on March 7, 2018.  He
dismissed that application at the conclusion of the hearing:
R. v. Moazami
,
2018 BCSC 1761.  In his reasons, Verhoeven J. referred, among other things, to
the following:

·

Mr. Moazami was seeking to withdraw a guilty plea.

·

By pleading guilty, Mr. Moazami not only avoided a trial but
obtained the benefit of a lenient sentence.

·

Mr. Moazami was not alleging there were any problems with
the representation he received from defence counsel.

·

Defence counsel had not disagreed with the facts stated by Crown
counsel.

·

At the prostitution trial, Mr. Moazami denied assaulting
S.W. and testified he pleaded guilty because he did not want his mother to
learn of his prostitution-related activities; Bruce J. disbelieved that evidence.

·

Mr. Moazamis suggestion that Mr. Fisher was involved
in the assault investigation was very speculative.

·

Mr. Moazami did not have an acceptable explanation for the
massive delay.

·

An extension would prejudice the Crown, as it would be required
to reactivate the case and then, potentially, have to retry a matter involving
events that occurred eight years ago.

·

There was no discernible merit in the appeal.

Proceedings in the Court of Appeal

[28]

On August 14, 2018, Mr. Moazami filed a notice of application for
leave to appeal Verhoeven J.s order refusing an extension of time.  In that
notice, Mr. Moazami states his ground of appeal as follows [verbatim]:

Wrong law I was charged, pled out
to and sentenced to, recent new evidence discovered, fresh evidence

The relief sought is:

Stay of Proceedings / Acquittal

[29]

On September 6, 2018, Mr. Moazami filed an affidavit in which he
deposes [verbatim]:

I am seeking to appeal assault with a weapon guilty plea and
reverse guilty plea and the delay is due to

1.   Fresh
evidence revealed to me with regards to this matter from other police
investigations that supports my constitutional rights s. 7 was breached
and

2.   After obtaining transcripts I
learned wrong law was used to I plead to.

[30]

On September 7, 2018, Mr. Moazami filed a notice of application for
an extension of time to appeal.

[31]

On November 6, 2018, Mr. Moazami filed an affidavit in which he
deposes, among other things, that:

·

He is appealing based on a breach of his constitutional rights.

·

He has discovered fresh evidence and there is a possibility he
will soon review additional fresh evidence.

·

He wants to review additional Fisher Disclosure.

[32]

On August 16, 2019, Mr. Moazami filed a notice of motion seeking an
order under s. 683(1)(a) of the
Criminal Code
for the production of
documents.  The notice does not identify the documents sought with any
specificity.  However, attached to the notice is an exchange of correspondence between
Mr. Moazami and the VPD, which indicates he requested access to VPD
records relating to him from 2010 to 2019.

[33]

During case management, I indicated to the parties that I questioned
whether a single judge has jurisdiction to entertain Mr. Moazamis
application for the production of documents.  I pointed out that s. 683
confers powers on a court of appeal, as distinct from, for example, s. 679,
which confers powers on a judge of the court of appeal.  For its part, the
Crown, in a written memorandum of argument, took the position that a single
judge does have jurisdiction to determine a s. 683(1)(a) application in
the context of a summary conviction application for leave to appeal or an
application to extend the time to bring such an application.  The Crown further
submitted that I should dismiss Mr. Moazamis application on the basis
that the documents sought could not possibly assist him in establishing he
should be granted an extension of time.  In the alternative, the Crown
submitted that if a single judge does not have jurisdiction, then the matter
should not be referred to a division of the Court unless and until an extension
of time is granted.

[34]

I discussed with the parties how to deal with Mr. Moazamis
production application.  They agreed to proceed as follows.  The extension of
time application would proceed, with Mr. Moazami having an opportunity to
show the possible relevance of the documents he seeks.  If Mr. Moazami
persuaded me that the documents he seeks were possibly relevant to his summary
conviction appeal, then I would hear argument on the jurisdictional issue.  If
I were not so persuaded, then I would deal with the extension application on
its merits.

Positions of the Parties

[35]

Mr. Moazami acknowledges that he voluntarily pleaded guilty to the
assault with a weapon charge with an understanding of the consequences and that
his counsel effectively represented him.  He accepts Mr. Fisher was not
involved in the assault investigation.  His position is that he should be
permitted to pursue an appeal because Mr. Fisher prevented him from
obtaining disclosure of the balcony incident from the VPD.  He says his counsel
could have used that disclosure to cross-examine S.W.  Mr. Moazami further
says because of Mr. Fishers actions, a miscarriage of justice has
occurred.  He seeks complete disclosure concerning Mr. Fisher.

[36]

Mr. Moazami further submits that the delay in filing the summary
conviction appeal in the Supreme Court was due in part to the fact he did not
become aware of Mr. Fishers misconduct until well after the prostitution
and obstruction trials; the first of several informations charging Mr. Fisher
was sworn on December 29, 2016.  It was not until sometime later that Mr. Moazami
started to receive Fisher Disclosure.  As well, he was occupied with matters
relating to the prostitution and obstruction appeals.

[37]

Mr. Moazami says that although he filed late in this Court, part of
the delay was due to his confusion as to where to file.  It appears he first
sent his appeal material to the Supreme Court registry in Vancouver.

[38]

The Crowns position is that there is no substance to Mr. Moazamis
allegation that Mr. Fisher prevented him from obtaining disclosure of the
balcony incident.  The Crown says it is not aware of anything that indicates
any possible involvement by Mr. Fisher in the VPDs response to Mr. Moazamis
January 2011 disclosure request.  The material filed by the Crown indicates Mr. Fisher:
(a) transferred to the Counter-Exploitation Unit on January 2, 2011; (b)
first encountered Mr. Moazami on March 17, 2011; (c) became involved
in the Moazami prostitution investigation in late August 2011; (d) first met
S.W. on October 21, 2011; and (e) took over as the lead investigator in the
Moazami investigation in early 2012.  The Crown further says that if it were
aware of information that could possibly support the allegation that Mr. Fisher
interfered with Mr. Moazamis request, then it would disclose that
information pursuant to its ongoing first-party disclosure obligations.

[39]

With reference to the factors to be considered on an application for an
extension of timesee
R. v. Sidhu
, 2016 BCCA 23 at paras. 910and
on an application for leave to appealsee
R. v. Winfield
, 2009 YKCA 9 at
paras. 1214, 273 B.C.A.C. 152the Crown advances a number of arguments as
to why an extension should be refused.  In light of the fact that, as discussed
below, I find Mr. Moazamis assertion that Mr. Fisher prevented him
from obtaining disclosure of the balcony incident to be devoid of merit, there
is no need for me to rehearse or address those arguments.

Analysis

[40]

The ultimate success of Mr. Moazamis efforts to withdraw his
guilty plea on the assault with a weapon charge rests on his establishing that Mr. Fisher
(a state actor) prevented him from exercising his right to make full answer and
defence.  There is, however, not a scintilla of evidence to support Mr. Moazamis
assertion that Mr. Fisher prevented him from obtaining information with respect
to the balcony incident.

[41]

In an effort to demonstrate that his allegation against Mr. Fisher
has some merit, Mr. Moazami provided me with another document at the
hearing.  That document is a one-page report entitled Vancouver Police
Department/General Occurrence Hardcopy and is from the Fisher Disclosure Mr. Moazami
received.  The report states it was created by Mr. Fisher on February 27,
2012.

[42]

The first paragraph of the report states that during S.W.s October 21,
2011 interview, she mentioned having been arrested outside of British Columbia in
September 2009.  The next paragraph refers to a request Mr. Fisher made on
2011 02 24 for the police report of that arrest.  Mr. Moazami argues
this lends support to his assertion that Mr. Fisher was aware of both him
and S.W. in January 2011.

[43]

I do not accept Mr. Moazamis argument.  Rather, I agree with the
Crown that 2011 02 24 contains a typographical error with respect to the year.
It is evident that the report refers to what Mr. Fisher did in February
2012, not 2011, to follow-up on an interview that took place in October 2011.

[44]

I should mention Mr. Moazami provided me with the last page of another
VPD report but did not offer a cogent explanation for how it supports his
allegation against Mr. Fisher.

[45]

Mr. Moazami has failed to demonstrate there is any substance to the
allegation of miscarriage of justice that is the lynchpin of his appeal.
Accordingly, no purpose would be served by extending the time for him to seek
leave to pursue that ground of appeal in this Court.

Disposition

[46]

The application for an extension of time is dismissed.

The Honourable Mr. Justice
Frankel


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Schuppener v. Pioneer Steel Manufacturers Limited,

2020 BCCA 19

Date: 20200121

Docket: CA46037

Between:

Mark Schuppener

Respondent

(Plaintiff)

And

Pioneer Steel
Manufacturers Limited

Appellant

(Defendant)

Before:

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Fenlon

The Honourable Madam Justice DeWitt-Van Oosten

On appeal from:  An
order of the Supreme Court of British Columbia, dated
March 25, 2019 (
Schuppener v. Pioneer Steel Manufacturers Limited
,
2019 BCSC 425, Kelowna Docket S115403).

Counsel for the Appellant:

M. Nied
D. DiPardo

Counsel for the Respondent:

D.P. Yerema
C. Elkin

Place and Date of Hearing:

Vancouver, British
  Columbia

November 7, 2019

Place and Date of Judgment:

Vancouver, British
  Columbia

January 21, 2020

Written Reasons by:

The Honourable Madam Justice Fenlon

Concurred in by:

The Honourable Mr. Justice Groberman
The Honourable Madam Justice DeWitt-Van Oosten

Summary:

The respondent was injured
when a steel storage building he purchased from the appellant collapsed on him.
The chambers judge refused to stay or transfer the respondents action for
negligence and breach of contract on the basis that there was strong cause not
to enforce a forum selection clause contained in the written contract between
the parties. Held: Appeal allowed and action transferred to the Ontario
Superior Court. The judge erred in principle by characterizing ordinary considerations
as matters of public policy. The respondent did not establish strong cause for
overriding the contractual provision.

Reasons for Judgment of the
Honourable Madam Justice Fenlon:

[1]

The respondent Mark Schuppener was seriously injured when a steel
storage building he had purchased from the appellant Pioneer Steel
Manufacturers Limited (Pioneer Steel) and constructed on his Kelowna property
collapsed on him. Mr. Schuppener started an action in British Columbia
against Pioneer Steel for negligence and breach of contract. Pioneer Steel applied
for a stay of proceedings, relying on the forum selection clause in the
contract of purchase and sale which required all claims to be brought in
Ontario. The chambers judge found there were strong reasons not to enforce the
forum selection clause and refused to stay or transfer the action.

Issues on Appeal

[2]

Pioneer Steel appeals primarily on the ground that the judge erred in
his application of the strong cause analysis addressed in
Douez v. Facebook,
Inc.
, 2017 SCC 33, in particular by elevating ordinary contextual matters to
the status of public policy factors compelling enough to override the public
interest in certainty of contract.

[3]

Pioneer Steel also contends the judge erred by accepting, without
evidence, that the financial burden on Mr. Schuppener would be greater if
he was required to sue in Ontario.

[4]

If Pioneer Steel succeeds on either ground of appeal, Mr. Schuppener
seeks to uphold the order below on the basis that the judge erred in finding
the forum selection clause applied to the circumstances of this case.

[5]

I turn now to the first ground of appeal.

Did the Judge Err in His Application of the Strong Cause Test?

[6]

The test for enforcement of forum selection clauses in contracts was
settled by the Supreme Court of Canada in
Z.I. Pompey Industrie v. ECU‑Line
N.V.
, 2003 SCC 27. The inquiry proceeds in two steps. First, the court must
determine whether the forum selection clause is enforceable and applies to the
circumstances:
Pompey
at para. 39;
Preymann v. Ayus Technology
Corporation
, 2012 BCCA 30 at para. 43. The applicant seeking to
enforce the forum selection clause bears the burden of proof at this stage.
Second, the court must assess whether there are strong reasons not to give
effect to an otherwise enforceable forum selection clause:
Pompey
at paras. 19,
39. The party seeking to displace the forum selection clause bears the burden
of proof at this stage.

[7]

As set out in
Pompey
, the shifting burden of proof reflects the
foundational premise that parties who have agreed to a forum for resolving
disputes should be held to their bargain: at para. 21. Forum selection
clauses serve a valuable purpose and are generally to be encouraged because
they create certainty in commercial transactions:
Douez
at para. 24.

[8]

The judge in the present case correctly identified the two‑step
analysis to be applied (at paras. 1921). At the first stage, he
considered the wording of the clause in issue:

The parties agree that this
contract and any dispute, cause of action, and any and all claims, whatsoever
(hereinafter Claims) with respect to the supply of the steel building shall
be interpreted in accordance with the laws of Ontario, Canada. Any claims with
respect to the supply of the steel building shall be resolved in the city of
Mississauga, Province of Ontario. Any proceedings, which may be commenced
pursuant to the Claims, shall be commenced in the City of Brampton, Province of
Ontario, Canada;

He found the clause to be
enforceable and broad enough to encompass the claims raised by Mr. Schuppener
in his pleading. Turning to the second stage of the analysis, the judge said:

[45]
At this stage of
the analysis, the plaintiff must show strong reasons why the forum selection
clause should not be enforced.
In deciding how to exercise its discretion
at this stage of the analysis, the court must consider all the circumstances
including the convenience of the parties, fairness between the parties, and the
interests of justice. Moreover,
because this case involves a consumer
contract, I must consider the broader range of circumstances discussed in
Douez
,
including evidence of gross inequality of bargaining power, the nature of the
rights at stake, and any broader public policy considerations.

[Emphasis added.]

[9]

The judge began by noting that although there were witnesses in
both jurisdictions, the balance of convenience favoured British Columbia
because all of the physical evidence pertaining to the erection and collapse of
the building was located in and most easily accessed in British Columbia (at para. 47).
In assessing the interests of justice, the judge noted there were legitimate
access to justice concerns about Mr. Schuppeners ability to retain
counsel and fund a lawsuit in Ontario as opposed to British Columbia, but also
recognized that there were legitimate concerns about the ability of Pioneer
Steel, an Ontario company, to effectively carry on its business if it were
required to defend lawsuits in multiple jurisdictions. The judge also noted
that the law of Ontario was to apply to the contract (at para. 48).

[10]

Although the judge found the balance of convenience favoured British Columbia,
he acknowledged he was not conducting a
forum

non conveniens
analysis under the
Court Jurisdiction and Proceedings Transfer Act
, S.B.C.
2003, c. 28, which would have been the case in the absence of a forum
selection clause. He cited
Pompey
(at para. 21) for the proposition
that the presence of a forum selection clause warrants a different testthe
strong cause testwhich requires compelling evidence that it would be against
public policy to hold the parties to this aspect of their bargain: at para. 47.

[11]

Pioneer Steel contends the judge fell into error when he considered
whether the public policy concerns identified by the majority in
Douez
in
relation to consumer contracts arose on the facts of this case. Mr. Schuppener
submits the judge made no such error and argues that Pioneer Steel is asking
this Court to re‑weigh the factors considered by the judge at stage two
of the strong cause test. He stresses the discretionary nature of the judges decision
to override the forum selection clause, and the deferential standard of review
on appeal.

[12]

I agree that the standard of review is deferential and that this Court
cannot interfere with the judges decision unless he has made a palpable and
overriding error of fact or some extricable error in principle:
Housen v.
Nikolaisen
, 2002 SCC 33 at paras. 3637. However, with great respect
to the judge, I am of the view that he erred in principle by characterizing ordinary
considerations as matters of public policy compelling enough to justify
overriding the forum selection clause. My reasons for that view follow.

A standard form consumer contract

[13]

First, although the judge found there was no significant inequality of
bargaining power between Mr. Schuppener and Pioneer Steel, he found it
highly relevant that the forum selection clause was found in
a standard form
consumer contract
which meant that Mr. Schuppener had no ability to
negotiate the applicability or terms of the clause: at para. 50.

[14]

In my view,
Douez
does not support the proposition that inclusion
of a forum selection clause in a non‑negotiable standard form consumer
contract always raises a public policy concern sufficient to offset the public
policy interest in holding parties to the terms of their bargain. Neither
standard form contracts nor forum selection clauses raise public policy
interests
per se
. Courts generally give effect to the terms of standard
form consumer contracts absent legislative intervention:
Seidel v. Telus
Communications Inc.
, 2011 SCC 15 at para. 2. Forum selection clauses
have also been recognized as valid and beneficial:
Douez
at para. 24.
They do away with confusion about where suits are to be brought and defended,
and consumers may benefit from reduced prices if defendants can limit the
jurisdictions in which they may be sued. In
Douez
it was not the
standard form nature of the contract that was of concern, but rather the gross
inequality of bargaining power between the parties. That is not to say that the
form of the contract cannot be a contextual factor in assessing inequality of
bargaining power, but rather that the standardized form of the contract itself
does not raise a public policy concern.

[15]

Further, although the purchase of the steel building from Pioneer Steel can
be broadly characterized as a consumer contract, it is a contract far different
from the ubiquitous online consumer contract considered in
Douez
at para. 36
and described as follows:

[54]      Despite Facebooks claim otherwise, it is clear
from the evidence that
there was gross inequality of bargaining power
between the parties. Ms. Douezs claim involves an online contract of
adhesion formed between an individual and a multi‑billion dollar corporation
.
The evidence on the record is that Facebook reported almost $4.28 billion in
revenue in 2012 through advertising on its social media platform. It is in
contractual relationships with 1.8 million British Columbian residents,
approximately 40 percent of the provinces population. Ms. Douez is one of
these individuals.

[55]      Relatedly,
individual consumers in this context
are faced with little choice but to accept Facebooks terms of use.
Facebook asserts that Ms. Douez could have simply rejected Facebooks
terms. But as the academic commentary makes clear, in todays digital
marketplace, transactions between businesses and consumers are generally
covered by non‑negotiable standard form contracts presented to consumers
on a take‑it‑or‑leave‑it basis (
Pavlović
,
at p. 392).

[56]      In particular,
unlike a standard retail
transaction, there are few comparable alternatives to Facebook, a social
networking platform with extensive reach. British Columbians who wish to
participate in the many online communities that interact through Facebook must
accept that companys terms or choose not to participate in its ubiquitous
social network

[Emphasis added.]

[16]

The contract in the present case was entered into in far different
circumstances. The judge expressly found there was no significant inequality of
bargaining power between Mr. Schuppener and Pioneer Steel. Nor was the
transaction an instantaneous one. The contract went through more than one
iteration and was the product of discussions that occurred over a number of
months (at para. 40). Further, the judge found the forum selection clause
was set out in plain text on the front of the contract just above Mr. Schuppeners
signature (at para. 41) and that the terms of the contract in general were
not particularly complicated (at para. 43).

[17]

In addition, this was not a minor consumer transaction such as the one
in issue in
Douez
. In that case, Ms. Douez agreed to terms by
pressing a computer key in order to receive the benefits of the Facebook
platform at no cost to her:
Douez
at paras. 99 and 173. In the
present case, the contract was for the purchase of a large building of
commercial/industrial quality at a cost of close to $20,000. This was a
significant transaction, more akin to the purchase of a vehicle. Transactions
of that kind occur infrequently in the lifetime of the average consumer and
command heightened attention and scrutiny. In many respects, the contract in
issue falls closer to the sophisticated commercial contract end of the spectrum.

[18]

Nor was this a case like
Douez
where the consumer had no real
alternatives. Mr. Schuppener candidly acknowledged that he had
alternatives but wanted to buy Canadian and so chose to do business with
Pioneer Steel.

The claim involved more than a commercial dispute

[19]

I turn now to the second public policy factor the judge relied on to
find there were strong reasons not to enforce the forum selection clausethe
nature of Mr. Schuppeners claim. The judge stressed that the action
included damages in negligence for personal injury and was not a mere
commercial dispute over the breach of a contract (at para. 51). The
pleading stated Mr. Schuppener was knocked unconscious when the building
collapsed on him as he was following Pioneer Steels advice to shore up the roof.
The action is framed primarily in the torts of negligent manufacture and
failure to warn, and only in the alternative in breach of contract.

[20]

The judge did not elaborate on his conclusion that the hearing of a
personal injury claim in negligence or product liability in Ontario, as opposed
to British Columbia, engaged public policy interests. Indeed, he found there
was no reason to believe that the governing law in Ontario concerning issues of
contract and negligence would differ significantly from the law of British
Columbia. In contrast, in
Douez
the matter engaged a unique British
Columbia statute which had no equivalent in the other jurisdiction. Further, in
Douez
the nature of the claim was a strong reason to override the forum
selection clause because it involved the choice between a Canadian and a
foreign court and involved a quasi‑constitutional right. The court
observed that:

[58]       Canadian courts have
a greater interest in adjudicating cases impinging on constitutional and quasi‑constitutional
rights because these rights play an essential role in a free and democratic
society and embody key Canadian values.

In contrast, the present case concerns two competing Canadian
forums with roughly equivalent laws of contract, personal injury and product
liability.

Claim building was unsuitable for B.C.s climate

[21]

The third public policy interest identified by the judge as a strong
reason to override the forum selection clause related to the allegation that
Pioneer Steel sold Mr. Schuppener the building even though it knew from
previous collapses in British Columbia that the product was unsuitable for the
climatic conditions in this province. The judge reasoned that the public in
such cases has an interest in seeing the issues litigated in British Columbia where
the problem arose and the damages were suffered.

[22]

The difficulty with this approach is that there will always be a public
interest in seeing cases with facts and damages arising in a particular
province litigated in that province. That is a factor relating to convenience
and one of the circumstances to be considered in the strong cause analysis, but
it will rarely rise to the level of
a public policy concern
. In my respectful
view there is nothing unique to British Columbia about the cause of the
buildings collapse from the weight of snow that had accumulated on its roofa
climatic condition common to most of Canada in the winter months.

[23]

It is important in conducting the strong cause analysis to bear in mind
the principle that courts do not have discretion to refuse to enforce valid
contracts unless there is some paramount consideration of public policy
sufficient to override the public interest in freedom of contract:
Tercon
Contractors Ltd. v. British Columbia (Transportation and Highways)
, 2010
SCC 4 at para. 82 per Binnie J. dissenting in the result, but analytical
approach agreed to by the majority. The power to refuse enforcement on the
grounds of public policy should rarely be exercised and only in clear cases,
in which the harm to the public is substantially incontestable, and does not
depend upon the idiosyncratic inferences of a few judicial minds:
Tercon
at
para. 117.

[24]

It is helpful to consider the categories of public policy interests traditionally
held to be sufficient to override a contractual bargain. Contracts have been
struck down when found to:

(i)       be injurious to the state;

(ii)      be injurious to the justice system;

(iii)      be in restraint of trade;

(iv)     involve immorality; and

(v)      affect marriage.

Although the categories of public policy are not closed,
as is evident from
Douez
, significant judicial restraint is called for:
Niedermeyer
v.

Charlton
, 2014 BCCA 165 at para. 76.

[25]

In deciding whether strong cause to override a forum selection clause
has been established, the court is to consider all of the factors cumulatively:
Douez
at para. 50. As I earlier noted, the judge found balance of
convenience was a factor favouring British Columbia, but it is evident that the
three public policy concerns he identified were the predominant factors tipping
the balance in favour of denying a stay. In reaching his conclusion, the judge
said:

[53]      Taking all of these
factors into consideration, my conclusion is that Mr. Schuppener has shown
strong cause for declining to give effect to the forum selection clause. What
is in issue here is a forum selection clause in a consumer contract. Mr. Schuppener
claims damages not just for breach of contract, but also for negligence and
product liability, in respect of a product that was supplied to him in British
Columbia, and which he alleges was unsuitable for the climatic conditions in
his region. Much of the evidence required for Mr. Schuppener to prove his
case is located in British Columbia. In my view, it would be contrary to public
policy to deny Mr. Schuppener the opportunity to present his case in this
jurisdiction based on a forum selection clause that was part of a non‑negotiable,
standard set of fine print terms in a consumer contract.

[26]

In my view, absent the error in principle described above, the judge
could not reasonably have concluded that Mr. Schuppener had established
strong cause for overriding the contractual provision. I would therefore accede
to this ground of appeal.

[27]

Having reached that conclusion, it is not necessary to consider Pioneer
Steels second ground of appeal.

Did the Judge Err in Finding the Forum Selection Clause Applied in this
Case?

[28]

It is necessary, however, to consider Mr. Schuppeners submission
that the judges order denying a stay or transfer of the proceedings to Ontario
should nonetheless be upheld. Mr. Schuppener contends the judge erred at
stage one of the strong cause analysis and should have found that the forum
selection clause does not capture all of the claims raised against Pioneer
Steel. In addition, he says the judge should have found that Pioneer Steel is
not a party to the contract and cannot therefore rely on it. The latter
argument is based on the contract in issue being entered into by Pioneer Sales
Steel Depot Inc. (Pioneer Sales), a distributor for Pioneer Steel.

[29]

In my view, this submission can be dealt with summarily. The judge found
the wording of the forum selection clause to be broad enough to include all
claims advanced. He also found that Pioneer Sales signed the contract as agent
for Pioneer Steel, which was therefore bound by its terms and entitled to the
benefit of the forum selection clause. I agree with those conclusions and would
adopt the judges reasons for so finding.

Disposition

[30]

The appeal is allowed and the action transferred to the Ontario Superior
Court.

The
Honourable Madam Justice Fenlon

I AGREE:

The Honourable
Mr. Justice Groberman

I AGREE:

The Honourable
Madam Justice DeWitt-Van Oosten


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Storey v. Terry,

2020 BCCA 30

Date: 20200122

Docket: CA46123

Between:

Kevin Allen James Storey

Respondent

(Claimant)

And

Michelle Carla Terry

Appellant

(Respondent)

Before:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Fitch

The Honourable Mr. Justice Butler

On appeal from:  An
order of the Supreme Court of British Columbia, dated
May 1, 2019 (
Storey v. Terry
, 2019 BCSC 674, Nanaimo Docket E80768).

Oral Reasons for Judgment

The Appellant, appearing in person:

M.C. Terry

Counsel for the Respondent:

R. Yousefi

A. Ngom

Place and Date of Hearing:

Vancouver, British
  Columbia

January 20, 2020

Place and Date of Judgment:

Vancouver, British
  Columbia

January 22, 2020

Summary:

The appellant appeals a
summary trial order providing for the equal division of the parties interest
in a jointly owned home following their four and a half year marriage‑like
relationship. The appellant lived in the home after separation and paid the
mortgage, property taxes and insurance without contribution from the respondent
for approximately two years. Held: Appeal dismissed. The judge did not err in
rejecting the appellants claim for reapportionment of the family property on
the basis that her contribution to the home was greater following the
separation. Nor did the judges order effectively require the appellant to
assume a greater share of the family debt. The judge properly considered all of
the circumstances including the fact that the appellant had sole occupancy of
the family home while the respondent had to provide housing for himself.

[1]

BUTLER J.A.
: Michelle Terry appeals orders dividing property and
debt made following a summary trial application in this family proceeding. The
appellant and the respondent, Kevin Storey, lived in a marriage-like
relationship for four and a half years before separating. They had each been
previously married and for the most part kept their personal financial assets
separate after they began to cohabit. The parties jointly purchased a home (the
Merrill Lane property) in which they resided and they maintained a joint bank
account to deal with expenses relating to that home. The division of the net
equity in the Merrill Lane property was the primary issue in the court below
and is the focus of this appeal.

[2]

The respondent issued the notice of family claim in February 2017 but
the matter did not proceed to a summary trial until March 2019. In spite of
that delay, the pleadings remained somewhat unclear at the commencement of the
summary trial. In his amended notice of family claim filed in November 2018,
the respondent sought an order for an unequal division of the family property and
family debt but did not indicate what division he sought until the start of the
hearing. The amended notice of family claim sought a determination that the
assets the respondent held prior to the commencement of the relationship were
excluded property. In November 2018, he filed the notice of application for a
summary trial in which he raised for the first time a claim for occupational
rent based on the fact that the appellant continued to reside in the Merrill
Lane property after he moved out in July 2016.

[3]

By way of a counterclaim, the appellant also sought an unequal division
of family property and debt because she paid all of the expenses to maintain
the Merrill Lane property after the respondent stopped contributing to
those expenses at the end of March 2017. She also advanced a claim for excluded
property. In addition, in the materials she filed in response to the summary
trial application, she alleged for the first time that the parties had an oral
agreement to keep their own property and debt separate during their
relationship.

[4]

Following a three-day summary trial hearing, the judge ordered that the
net proceeds from the sale of the Merrill Lane property be divided equally
between the parties and that any funds remaining in their joint bank accounts
be divided equally. She found that the parties had an oral agreement to
maintain the rest of their property separate. Accordingly, she reapportioned
the remaining family assets so that each party would retain 100% of the
increase in their respective pension benefits and 100% of the increase in value
of the real property held prior to the commencement of the relationship. The
appellant was also entitled to retain 100% of the increase in the value of her
RRSP. The judge also reapportioned the family debt so that each party was
responsible for 100% of their personal debt. The judge dismissed the
respondents claim to occupational rent and the appellants claim that the
respondent should contribute to mortgage payments, property taxes and other
expenses incurred to maintain the Merrill Lane property for the period from
March 27, 2017 until the date of trial. She ordered that each party bear
their own costs.

[5]

The appellant advances various grounds of appeal directed at overturning
the judges orders in relation to the Merrill Lane property. In brief, she says
the judge erred by either failing to order an unequal division of the net
equity in that property or by failing to require the respondent to contribute
to the cost of maintaining the property from March 27, 2017 to the date of
trial. She says that the effect of the judges order is to reapportion family
debt in favour of the respondent. She also appeals the costs order. For the
reasons that follow, I am of the view that the appellant has failed to identify
any error of law or fact made by the judge and I would dismiss the appeal.

Summary Trial Decision

[6]

The reasons for judgment are indexed as:
Storey v. Terry
, 2019
BCSC 674 (the Reasons). The judge began the Reasons by noting the lack of clarity
in the pleadings and the fact that the appellants claim of an oral agreement
and the respondents claim for occupational rent were made late in the day.
Nevertheless, she was of the view that the parties had a fair opportunity to
respond to those claims. The judge agreed with the parties that the case was
suitable for determination by summary trial. She concluded that she was able to
find the facts necessary to decide the issues on a summary trial application
and that it would not be unjust to do so.

[7]

The Reasons set out the assets and debts of the parties. The judge noted
that the parties each owned a home prior to purchase of the Merrill Lane
property. They both retained those properties and rented them out during the
relationship. Those properties increased in value by a similar amount during
the parties cohabitation. She described the circumstances leading to the joint
purchase of the Merrill Lane property. The respondent refinanced the mortgage
on his existing property in order to make the down payment on the Merrill Lane
property. The total down payment was approximately $28,500. The parties agreed
that the appellants half of the down payment was to be treated as a loan from
the respondent to the appellant that she was required to repay. The respondent
maintained that the appellant failed to repay her half of the down payment and
the appellant asserted she had done so. The judge did not resolve that issue,
although she recognized that at least some repayment was made by the appellant.

[8]

The parties interest in the Merrill Lane property was their major
asset. The equity in the home at the time of trial was approximately $313,000.
The judge noted that the appellant sought reapportionment on the basis that she
had been entirely responsible for maintaining the Merrill Lane property,
including by paying the mortgage, property tax and insurance, from late March
2017 to the date of trial. The respondent sought an unequal division of that
property on the basis of his disproportionate contribution to the original
purchase price and the fact that the appellant had sole occupancy after the
date of separation.

[9]

The parties were employed as letter carriers and each had an employee
pension through the Canada Post Corporation Registered Pension Plan. The
respondent sought an order dividing the pension benefits accrued during
cohabitation at source. The appellant maintained that the parties pension
benefits were to remain their separate property pursuant to the oral agreement.
The appellants pension entitlement was significantly less than the
respondents given her much shorter period of employment. However, she made
significant contributions to an RRSP before, during and after cohabitation. She
maintained that she was entitled to retain the full amount of her RRSP as a
result of the oral agreement.

[10]

The evidence established that the respondent owed approximately $27,000
on various personal lines of credit while the appellant owed approximately
$3,000 on a line of credit. The appellant maintained that the parties agreed to
be personally responsible for their own debt while the respondent sought an
order that they were to be equally responsible for those debts.

[11]

The judge correctly set out the principles regarding the division of
family property and debt with reference to relevant provisions of the
Family
Law Act
, S.B.C. 2011, c. 25 [
FLA
]. She noted that pursuant to
s. 81 of the
FLA
, spouses have a presumptive entitlement to an
equal interest in all family property and are equally responsible for family
debt. She further noted that family property includes the amount by which the
value of excluded property increases during the period of the relationship:
s. 84(2)(g). She recognized that family debt includes financial
obligations incurred after separation for the purpose of maintaining family
property: s. 86. She referred to s. 87 of the
FLA
for the
principle that family property or debt is to be determined as of the date of
the trial and must be based on the fair market value of the property. She noted
that s. 92 permits spouses to make agreements to divide property and debt
equally or unequally or to exclude as family property or debt, property or debt
that would otherwise be included. Finally, she noted that s. 95 of the
FLA
allows the court to make an order for unequal division of family
property or debt if an equal division would be significantly unfair. She set
out the factors to be considered under s. 95(2) including that a court may
take into account the terms of an oral agreement.

[12]

Referring to the affidavit evidence provided by the parties and taking
into account their personal circumstances, the judge found that the parties had
an oral agreement in relation to assets and debts other than the Merrill Lane
property and joint bank accounts. She concluded that the parties agreed that
the property brought into the relationship, including their homes and pensions,
would remain separate. Further, she concluded that they had separate control
over discretionary spending and separate responsibility for any debt accruing as
a result of personal overspending: at paras. 5663.

[13]

The judge considered whether the family assets that were not included in
the oral agreement should be divided equally. She recognized that an unequal
division of family property should only be ordered where it would be
significantly unfair to order an equal division. Referring to
Jaszczewska v.
Kostanski
, 2016 BCCA 286, she noted that to justify an unequal division of
family property, a court must find that the unfairness is compelling or
meaningful having regard to the factors set out in s. 95(2): at paras. 6567.

[14]

The judge concluded that there were no circumstances warranting an
unequal division of the Merrill Lane property:

[70]      Because the Merrill Lane Property is to be valued
as of the date of the summary trial, the parties are presumptively entitled to
share in any post-separation increases in the value of the Property. This
entitlement exists independent of the parties' respective contributions to the
post-separation increase in value:
Jaszczewska
at para. 39. This is
not to say that post-separation contributions are irrelevant, but rather that
courts must be constrained in relying on post-separation contributions as
warranting a departure from the presumption of equal division:
Jaszczewska
at para. 41.

[71]
Jaszczewska
provides an example of
exceptional circumstances that may warrant an unequal division of family
property based on post-separation contributions. In that case, one spouse had
designed and rebuilt a new residence after separation which enhanced the value
of the property beyond market trends. The present case, by contrast, concerns
the more typical scenario in which one spouse has remained in the family home
post-separation, prompting debate as to the relative economic advantages of staying
in the home or having to find new accommodations.

[72]      I conclude that an equal division of the proceeds
of the sale of the Merrill Lane Property would not be significantly unfair to
either party. While the respondent has made a disproportionate contribution to
reducing the mortgage debt post-separation, the claimant has had to find
alternate accommodations that, for at least some portion of time, has required
him to pay rent. Also relevant to the analysis is the claimant's original
contribution to the deposit and down payment on the Merrill Lane Property
purchase.

[73]      In the circumstances, I
find that neither party has provided persuasive reasons to depart from the
presumption of equal division of the Merrill Lane Property. For the purpose of
clarity I should note that I have considered the claimant's claim for
occupational rent as relevant to the issue of whether the Merrill Lane Property
should be unequally divided. To the extent that the claimant seeks compensation
from the respondent for occupational rent as an independent claim, I dismiss
the claim.

[15]

On the issue of costs, the judge reasoned at para. 81:

[81]      Given the manner in
which this application proceeded, and the parties divided success, I consider
it appropriate to order that each party bear their own costs.

Issues on Appeal

[16]

The appellant alleges eight errors in judgment. She says the trial judge
erred in ordering each party to bear their own costs. The other alleged errors
focus on the judges decision to equally divide the equity in the Merrill Lane
property. Most of the alleged errors are based on the appellants assertion
that the judge made an order dividing family debt unequally. This assertion is
based on the appellants characterization of the payments she made to maintain
the property after the separation as family debt. She says that the judge erred
by failing to apportion those debts equally between the parties. In advancing
these arguments, the appellant says the judge made errors of law and fact.

[17]

I do not intend to separately examine each of the errors alleged but
would restate the grounds of appeal as follows:

i.

Did
the judge err in law or fact in ordering equal division of the parties equity
in the Merrill Lane property?

ii.

Did the
judge err in ordering each party to bear their own costs?

Division of Equity in the Merrill Lane Property

Standard of Review

[18]

This appeal concerns a question of reapportionment. The judge considered
the issue to be the reapportionment of the parties interest in the Merrill
Lane property. The appellant now says the case raises an issue of the
reapportionment of family debt. Whether debt or property is being considered
for reapportionment, the same standard of review applies. Reapportionment is an
exercise of a trial judges discretion taking into account the legislation and
findings of fact. An appellate court is justified in intervening in a trial
judges exercise of discretion only if the trial judge misdirects himself or
herself or is so clearly wrong as to amount to an injustice:
Hickey v.
Hickey
, [1999] 2 S.C.R. 518 at para. 12. This Court has adopted this
standard of review for questions of reapportionment under the relevant family
law legislation:
Karisik v. Chow
, 2010 BCCA 548 at para. 51.

[19]

The appellants arguments are based on the allegation that the judge
erred in her appreciation of the facts by misunderstanding or failing to
consider relevant evidence. Alternatively, she says that the judge misapplied
the law to the facts the judge found. The appropriate standard of review for
such errors is set out in
Van de Perre v. Edwards
, 2001 SCC 60
at paras. 1315. A court can only intervene if the judge erred in law or
made a material error in her appreciation of the facts. An omission is not a
material error unless
it gives rise to the
reasoned belief that the trial judge must have forgotten, ignored or
misconceived the evidence in a way that affected his conclusion. Without this
reasoned belief, the appellate court cannot reconsider the evidence.: at para. 15.

[20]

As I am of the view that the appellant
has not identified an error of law, the standard of review applicable to the
errors alleged is deferential
.

Analysis

[21]

The appellants arguments about the Merrill Lane property assume that
the judge ordered an unequal division of family debt. The judge made no such
order. The Merrill Lane property was the only significant asset to be divided
between the parties and they each sought unequal division. The judge ordered
the net proceeds of sale of the Merrill Lane property to be divided equally between
the parties. The Reasons, which responded to the arguments advanced at trial,
explain why the judge ordered an equal division of the equity in the Merrill
Lane property without any reapportionment for the appellants contribution to
the expenses of that property after separation, and without any reapportionment
to the respondent or compensation for occupational rent. While the judge did
not directly state that she was dividing the family debt in relation to the
Merrill Lane property equally, that is what she did; she deducted the
outstanding principle on the mortgage to arrive at the approximate equity in
that property. In dividing the family property as of the date of the summary
trial application, the judge followed the provisions of s. 87 of the
FLA
that require property to be valued on its fair market value as of the date of
the hearing.

[22]

The appellant argues that the effect of the order was to divide family
debt unequally. She says this is because the payments she made to the mortgage,
property taxes and insurance after the respondent stopped contributing to those
expenses were made for the purpose of maintaining that property. She stresses
that during the time she made those payments, the principal owing on the
mortgage was reduced by approximately $26,000. She says that the payments she
made, or some portion of them, are family debt because of the provisions of
s. 86(b) of the
FLA
:

86        Family debt includes all financial obligations
incurred by a spouse

...

(b) after the date of separation, if incurred for the
purpose of maintaining family property.

[23]

I disagree with the appellants characterization of the expenses
incurred after separation as family debt. Rather, the judge considered the
appellants payment of those expenses along with other circumstances relevant
to the division of the equity in the Merrill Lane property. Subsection 86(b)
does not require that all payments made to maintain property after separation
be regarded as family debt to be divided equally. As this Court recognized in
Jaszczewska
,

entitlement to an equal share of the family property exists independent of
use or contribution:

[38]       The
FLA
starts with the presumption found
in s. 81 that family property is to be equally divided. As I read s. 81,
each spouse is presumptively entitled to an undivided half interest in all
family property, regardless of their respective use or contribution.  But as I
read it, the phrase in s. 81(a) refers to the basis of entitlement to
family property. Entitlement exists independent of contribution or use, and the
extent of that entitlement on separation is defined in s. 81(b).

[39]      Also, because family
property is generally valued on the date of the hearing, the parties will
presumptively share in any post-separation increases in the value of family
property. Once again, because of s. 81, this entitlement exists
independent of the parties' respective contribution to the post-separation
increase in value.

[24]

When faced with claims for unequal division of an asset of significant
value based on alleged differences in contribution, a court must consider all
of the provisions of Part 5 of the
FLA
. That is what the judge did here.
She recognized that property and debt are presumptively to be divided equally. The
values of the property and debt are to be determined as of the date of trial
and the court can order unequal division only where it would be significantly
unfair to divide property and debt unequally. She set out and applied the test
for significant unfairness as explained in
Jaszczewska
at paras. 4143.
Any unfairness must be significant or weighty having regard to the factors set
out in s. 95(2) of the
FLA
. In order for a trial judge to
reapportion the family property or family debt, there must be something
objectively unjust, unreasonable or unfair in some important or substantial
sense:
Jaszczewska
at para. 42.

[25]

In
Jaszczewska,
this Court found it significant that the listed
factors in s. 95(2), while not exclusive, do not include contributions to
the maintenance of property. The Court explained why the circumstances in which
unequal contributions to the maintenance of property may be considered and
relied upon is to be much constrained:

[43]      The determination of whether an equal division
would be significantly unfair is also guided by a more precise identification
of relevant factors than was found in the
FRA
. Importantly, the
Legislature did not include in s. 95(2) the principle of relative
contribution found in s. 65(1)(f) of the
FRA
. Under s. 65(1)(f),
a court could consider circumstances relating to the acquisition, preservation,
maintenance, improvement or use of property. Section 95(2), by comparison, refers
rather narrowly to career contributions (95(2)(c)) and to post-separation
increases in value beyond market trends caused by one spouse (95(2)(f)). I
agree with the judge's view that if relative contribution to the acquisition,
preservation, maintenance or improvement of family property during the
relationship was intended to be a significant factor or one frequently relied
on in justifying the conclusion that the equal division of family property is
significantly unfair, the Legislature would have said so. Allowing relative
contribution to become a regular consideration in the context of s. 95
would likely create uncertainty and complexity. This would be contrary to the
legislative objectives discussed earlier that underlie the
FLA
division
of property regime.

[44]      Having said that, in enacting s. 95(2)(i) the
Legislature recognized that there may be factors other than those listed that
could ground significant unfairness. Hence, while the Legislature intended to
limit and constrain the exercise of judicial discretion to depart from equal
division, it did not provide a closed list of factors and it did not eliminate
the discretion. Accordingly, in my view, one cannot read the
FLA
as
abolishing unequal contribution as a factor that may be relevant to
reapportionment, although
the circumstances in which it may be considered
and relied on are intended to be much constrained
.

[Emphasis added.]

[26]

The judge concluded that dividing the equity in the Merrill Lane
property would not result in a situation that was unjust, unreasonable or
unfair in an important or substantial sense even though the appellant paid the
expenses for maintenance of the property and reduced the principal on the
mortgage after March 27, 2017. In doing so, she considered the fact that the
respondent had to provide for his own accommodation once he left the Merrill
Lane property. The respondents affidavit set out the steps he took to do that:
he provided various services to friends in lieu of paying rent; he worked at an
inn that gave him room and board as part of his compensation; and he ultimately
moved into his pre-owned home as a result of which he lost the rental income
that he otherwise received. The judge also took into account the benefit that
the appellant received by residing in the Merrill Lane property without paying
rent to the respondent.

[27]

In my view, the judge did not err in taking these circumstances into
account. The approach she took has been approved in this Court in
Stasiewski
v. Stasiewski
, 2007 BCCA 205, and
Shen v. Tong
, 2013 BCCA 519. The
proper approach to considering claims for occupational rent where one spouse
leaves the family property was accurately summarized by Justice Fleming in
J.D.G.
v. J.J.V.
, 2016 BCSC 2389:

[226]    At common law, a co-tenant is entitled to claim
occupation rent when he or she has been ousted from property. Absent an ouster
from the property, there is no claim. However, if the tenant in possession
seeks to recover property expenses from the departed tenant, the court retains
a discretion to set off occupation rent against the expense claim. There is no
absolute right to such a claim or set off. Occupation rent is an equitable
remedy (
L.M.R
. at paras. 27-29, 31, 32).

[227]    In
Stasiewski
the
Court of Appeal held that in family proceedings occupation rent is not a
stand-alone claim but should be considered in deciding whether to order an
unequal division of family property. In
Shen v. Tong
,
2013 BCCA 519
, Justice Smith in concurring
reasons identified the objective of an award for occupation rent as doing what
is "'just and equitable' between the parties, albeit within the parameters
of s. 65(1) of the
FRA
" (at para. 94).

[28]

The judge properly did not treat the claim for occupation rent as a
stand-alone claim but treated it as a factor to be considered because the
appellant, the tenant in possession, was seeking to recover expenses paid to
maintain the property from the respondent. It is evident from the whole of the Reasons
that she considered all of the circumstances in order to divide the equity in
the Merrill Lane property in a way that was just and equitable. She properly
considered the additional contributions made by the appellant post-separation,
the fact that the appellant was in possession of the family property and the
respondent incurred expenses or losses in order to provide housing for himself.
I see nothing wrong in principle with the approach taken by the judge and would
not interfere with her exercise of discretion. Indeed, I would agree that equal
division of the Merrill Lane property is just and equitable taking all of the
circumstances into account.

[29]

While this is a full answer to this issue, I should note that I am of
the view that there is no merit to the allegation that the judge committed
errors of fact, let alone errors that are palpable and overriding. The finding
at para. 72 that the claimant has had to find alternate accommodations
that, for at least some portion of time, has required him to pay rent was
available to the judge on the evidence of the respondent.

[30]

The appellant also says the judge erred or misunderstood the evidence by
taking into account the respondents provision of the down payment for Merrill
Lane, without a finding of fact considering this was a loan. I do not see any
error in the judges approach. She merely stated that the respondents original
contribution to the deposit and down payment on the Merrill Lane property was
relevant to the analysis, presumably because those contributions enabled the
purchase of the property which proved to be a good investment for the parties.

[31]

One of the appellants principle arguments is that the order fails to
give effect to the presumption in s. 81 that each spouse has equal
responsibility for family debt. I do not agree. The appellants arguments ask
this Court to require the respondent to reimburse her for half of the expenses
she incurred to maintain that property without having regard to the benefit she
received from residing in the property or the costs the respondent incurred
when he left. As I have indicated, the judge approached this issue correctly by
taking a holistic view of all of the circumstances relating to the use,
occupation and maintenance of the Merrill Lane property and equally dividing that
property, the value of that property, net of the mortgage, at the date of
trial.

[32]

At the hearing, the appellant argued that in order to make the payments
for the mortgage, property tax and insurance for the Merrill Lane property she
had to access her high interest savings account that held a compensation
payment she received from WorkSafe B.C. She notes that this is excluded
property and says the judges order effectively reapportioned her excluded
property in favour of the respondent. I would reject this argument. The judge
made no order reapportioning excluded property. Rather, she accepted the
appellants submission that the parties should retain their personal assets
including their savings and be responsible for their personal obligations. The
judge noted that the parties each exercised independent discretion over
allocation of their income and personal savings. The judges order allowed the
appellant to retain the full amount of the substantial increase of $160,000 in
her RRSP savings account during the course of their relationship that was
facilitated by the appellants bi-weekly contributions to those savings. The
appellants suggestion that she should be compensated in some way for the
allocations she made to savings and expenses after the parties relationship
ended is not only inconsistent with the provisions of the
FLA
, it is
contrary to her position at trial that was accepted by the trial judge.

[33]

Finally, I am of the view that there is no merit to the appellants
assertion that the judge failed to apply the proper test when considering
significant unfairness, whether of property or debt. The judge properly
considered the relevant provisions of the
FLA
and did not err in
applying the law to the facts she found.

Costs

[34]

The appellant says the judge made an error of fact by attributing the
failure to communicate equally between the [parties]. She said this was an
important factor that led the judge to order the parties to bear their own
costs.

[35]

An award of costs is discretionary and subject to limited appellate
review:
Hamilton v. Open Window Bakery Ltd.
, 2004 SCC 9 at para. 27.

An appellate court should not interfere with a discretionary award unless
satisfied the judge misdirected herself as to the law, or the decision is so
clearly wrong as to amount to an injustice:
Elsom v. Elsom
, [1989] 1
S.C.R. 1367.

[36]

The judge ordered the parties to bear their own costs because of the
manner in which the application proceeded and the divided success. While the
manner in which a summary trial application proceeds is not usually relevant to
a costs order, the judges assessment of which party was substantially
successful is highly important. The main issue to be determined was division of
the Merrill Lane property, the family asset of real substance. Each party applied
for an unequal division. The judge rejected the claims of each party for
reapportionment and ordered an equal division. The judges assessment as to the
relative success of the parties was not unreasonable.

[37]

I see no error in principle in the approach taken by the judge.
Accordingly, I would also dismiss this ground of appeal.

[38]

SAUNDERS J.A.
: I agree.

[39]

FITCH J.A.
: I agree.

[40]

SAUNDERS J.A.
: The appeal is dismissed.

The Honourable Mr. Justice Butler