COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Wiwchar,

2017 BCCA 9

Date: 20170110

Docket
No.: CA43128

Between:

Regina

Respondent

And

Dean Michael Wiwchar

Appellant

Before:

The Honourable Chief Justice Bauman

The Honourable Madam Justice D. Smith

The Honourable Mr. Justice Goepel

On appeal from:  An
order of the Supreme Court of British Columbia, dated
June 4, 2015 (
R. v. Wiwchar
, 2015 BCSC 973, Vancouver Docket No. 26487).

Counsel for the Appellant:

S. Buck

Counsel for the Respondent:

M. Sheardown
A. Adams

Place and Date of Hearing:

Vancouver, British
  Columbia

October 25, 2016

Place and Date of Judgment:

Vancouver, British
  Columbia

January 10, 2017

Written Reasons by:

The Honourable Madam Justice D. Smith

Concurred in by:

The Honourable Chief Justice Bauman

The Honourable Mr. Justice Goepel

Summary:

Mr. Wiwchar was
convicted of a number of firearm-related offences. At trial, the central issue
was whether he knew about the firearms, ammunition and prohibited devices, found
inside an ottoman in an apartment he and his co-accused had exclusive access to
at all material times. On appeal, Mr. Wiwchar submits the judge
misapprehended the evidence in finding that, because a bag placed inside the
ottoman during the material time contained his fingerprint, he would have known
about the contents of the ottoman. He submits that the judges misapprehension
of that evidence played an essential role in the reasoning process that led to
his convictions. He also submits the judge erred in failing to provide adequate
reasons to support his verdict. Held: appeal dismissed. The judges
interpretation of the evidence was a reasonable one that was open to him on the
wording of an admission made pursuant to s. 655 of the Criminal Code that
was also supported by photos stills. However, even if he did err as alleged,
the error was not readily obvious and, in any event, it was inconsequential to
his reasoning as the evidence overwhelmingly established that Mr. Wiwchar
and the co-accused were acting in concert with respect to the criminal
activities. Nor were the judges reasons insufficient when they are read as a
whole in the context of the evidence and the submissions at trial. There was no
miscarriage of justice and the verdict was not unreasonable.

Reasons for Judgment of the Honourable
Madam Justice D. Smith:

Overview

[1]

Following a 10-day trial, Dean Wiwchar was convicted of nine counts in
an indictment that charged him with: (1) possession of restricted,
prohibited, loaded or unloaded firearms with readily accessible ammunition, and
possession of these firearms without a licence or registration certificate, contrary
to s. 95(1) of the
Criminal Code
(the
Code
);

(2) possession
of firearms and possession of firearms without a licence or registration
certificate, contrary to s. 92(1) of the
Code
;

(3) possession
of prohibited devices, contrary to s. 92(2) of the
Code
; and (4) possession
of firearms, devices and ammunition while prohibited from so doing, contrary to
s. 117.01(1) of the
Code
. All of the firearms found to be in his
possession were operational. He appeals his convictions on counts one to five.

[2]

The offences occurred between March 24, 2012, and April 25, 2012, in two
locations: an apartment on Jervis Street in Vancouver (the Jervis Residence) and
Suite 1209 (the Suite) of a condominium tower in Surrey (the Tower). The Suite
was a safe-house that was used to store items related to criminal activity,
including weapons. Mr. Wiwchar and the co-accused, Mr. Ley, also used
the Suite as a staging location for their reconnaissance activities at a nearby
gym and to store clothing and disguises related to those activities.

[3]

Counts one to five of the indictment were related to the offences at the
Suite. During a lawful search, the police seized 14 firearms, various
prohibited devices (e.g., oversized cartridge magazines) and ammunition. Counts
six to nine of the indictment were related to similar seizures at the Jervis Residence.
Mr. Wiwchar pleaded guilty to those counts, but not guilty to counts one
to five.

[4]

The central issue at trial was whether Mr. Wiwchar knew of the firearms,
ammunition and prohibited devices that were located inside an ottoman in the Suite.
While Mr. Wiwchar admitted that he had control over the Suite, he contended
that the Crown had not established beyond a reasonable doubt that he knew the
items were being stored there.

[5]

On appeal, Mr. Wiwchar submits the judge misapprehended the
evidence in finding that he had knowledge of the firearms, ammunition and prohibited
devices, and that the judges misapprehension of that evidence played an
essential role in the reasoning process that led to his convictions on counts
one to five. He also submits the judge erred in failing to provide adequate
reasons.

[6]

For the reasons below, I am not persuaded the judge misapprehended the
evidence or that his reasons were inadequate. I would dismiss the appeal.

Background

[7]

The trial proceeded on a number of admitted facts that were entered as
evidence pursuant to s. 655 of the
Code
(the Admissions). Facts
admitted pursuant to s. 655 are deemed to be conclusively proven. The
judge also made findings of fact. The following facts, including the Admissions,
are not in dispute.

[8]

Between March 23, 2012 and April 24, 2012, Mr. Wiwchar and Mr. Ley
had exclusive access to the Suite through the use of a fob issued for the Suite.
It also provided access for the elevators to the Suite as well as the units assigned
parking stall, 269, in the underground parkade, where a Dodge Caravan was
parked and used by Mr. Wiwchar and Mr. Ley.

[9]

The police had Mr. Wiwchar under surveillance between March 24,
2012 and April 18, 2012. During that period they observed Mr. Wiwchar and Mr. Ley
going into, and leaving, the Tower on six occasions: March 28, April 7, 10, 11,
12 and 17. They also noted that Mr. Wiwchar was the predominant user of
the fob on those occasions.

[10]

On March 27, Mr. Wiwchar and his girlfriend purchased a number of clothing
and footwear items at the SportChek store at Metrotown, Burnaby.

[11]

On March 28, at 19:14 hours, Mr. Wiwchar and Mr. Ley purchased
three 2.8L bottles of bleach and Lysol wipes at the London Drugs store in Guildford
Town Centre, Surrey. Fifteen minutes later they returned to the Tower. The CCTV
monitoring system for the Tower captured each man entering the front doors carrying
multiple plastic shopping bags. Mr. Wiwchar was wearing a white jacket and
Mr. Ley a black jacket.

[12]

The photo stills showed Mr. Wiwchar carrying three larger bags of
the same size and shape and at least one smaller bag. One of the larger bags facing
the CCTV clearly displayed the rectangular black SportChek marking. The other
bags of a similar size and shape also displayed the rectangular black marking of
a SportChek bag, but the SportChek logo was not discernible on them. The CCTV
did not capture any discernible markings on the smaller bag.

[13]

The photo stills also captured Mr. Ley carrying, in one hand, several
of the larger bags with the black rectangular markings and several of the
smaller plastic bags in the other hand.

[14]

Paragraph 22(b) of the Admissions stated that on March 28, 2012, at
19:28-19:29, Mr. Wiwchar and Mr. Ley were at the Tower. Mr. Wiwchar
was wearing white, Mr. Ley black, and both were carrying multiple plastic
shopping bags from London Drugs and SportChek to the front doors. The judge
interpreted this Admission to mean that each man carried multiple shopping bags
from both London Drugs and SportChek.

[15]

On April 2, Mr. Wiwchar and his girlfriend purchased items at a
professional costume and make-up store.

[16]

On April 7, 10 and 11, Mr. Wiwchar and Mr. Ley were seen to have
entered the Tower. When they left they had changed their clothes. They then drove
the Dodge Caravan to the nearby World Gym. Over those three days, they spent a
total of 7 hours in the vicinity of the World Gym watching men, matching the description
of one that the police believed they intended kill. On each of these dates, Mr. Wiwchar
was wearing white clothing when he arrived at the Tower and black clothing when
he left for the World Gym. When he returned to the Tower, he changed back into the
white clothing.

[17]

On April 18, Mr. Wiwchar and Mr. Ley travelled to Mexico. Mr. Wiwchar
left the fob to the Tower with his girlfriend while he was away. Mr. Ley
returned from Mexico on April 27. On May 2, he retrieved the fob from Mr. Wiwchars
girlfriend and used it to access the Dodge Caravan parked in stall 269. There
was no evidence that he accessed the Suite at that time. Mr. Wiwchar
returned from Mexico on May 18. On May 23, he travelled to Toronto; he
returned to Vancouver on May 28.

[18]

On April 24, 2012 while the men were still in Mexico, the police
lawfully searched the Suite. When the search was complete, the police staged a
break in of the suite to make it appear as if there had been a forced entry.

[19]

During the search of the Suite, the police discovered the following
items inside a large ottoman in the living room:

·

a blue Roots backpack containing: ammunition inside two ziplock
bags stored in the top zipper compartment of the backpack; a latex glove; and, inside
the sleeve of the top zipper compartment, a license plate, a liquor store
plastic bag and a London Drugs plastic bag containing some ammunition;

·

a black Reebok duffle bag containing six firearms;

·

a red shoe box containing two handguns; and

·

firearms and magazines on the floor of the ottoman.

[20]

A forensic analysis of the London Drugs bag from the ottoman detected a
fingerprint on the inside of the bag that was matched to Mr. Wiwchar.

[21]

A fingerprint on the latex glove was identified as belonging to a third
party.

[22]

No fingerprints were found on the firearms, ammunition or devices inside
the large ottoman. One of the officers who had searched the items for
fingerprints testified that a common way of removing DNA from objects is to use
cleaners such as bleach.

[23]

The police search also located a small ottoman in the living room. It
contained hand-cuffs, leg-irons, two flashlights and flyers. Mr. Wiwchars
DNA was found on a water bottle in the kitchen. Mr. Leys DNA was found on
a pop bottle in the living room. Two-way radios were in open view on the TV
stand. On the floor beside the couch, were two unopened bottles of bleach; one
was inside a plastic bag. The third bottle of bleach was not found. Beside the
bottles of bleach, was a mask that Mr. Wiwchar and his girlfriend had purchased
on April 2, 2012 at the costume store. The police also found some bags in
the living room that contained disguises, including wigs, artificial moustaches
and beards, makeup applicators, liquid latex, make up and artificial facial
hair material. Six articles of clothing purchased from the Sportchek store on
March 27 were also found in the Suite. Two additional items purchased at
the SportChek store on that date were also found inside the Dodge Caravan
parked in stall 269.

Reasons for Judgment

[24]

The judge inferred that Mr. Wiwchars fingerprint, found on the
London Drugs bag inside the large ottoman at the Suite, was placed on the bag by
Mr. Wiwchar when he carried it into the Tower on March 28. The judge
also inferred that either Mr. Wiwchar or Mr. Ley placed the bag into
the ottoman when they were both in the Suite because they had exclusive access
to the Suite during the material time. The judge stated:

[59]
The evidence here is that Mr. Wiwchar was
seen carrying a number of London Drugs bags into Suite 1209 on March 28, 2012.
That evidence provides a basis for Mr. Wiwchars fingerprint to have been
placed on the bag. It is reasonable to infer that the London Drugs bag in the ottoman
was one of the bags that he brought into Suite 1209 on March 28.
As only Mr. Wiwchar
and [Mr. Ley] had access to Suite 1209 between March 23 and April 24, it
is also reasonable to infer that the London Drugs bag was placed in the Roots
bag and in the ottoman by one of them sometime on or after March 28.

[60]      There is no evidence that [Mr. Ley] had
exclusive access to Suite 1209 between March 28 and April 24. When he returned
from Mexico and went to the Surrey Tower to pick up the Dodge Caravan there is
no evidence that he went to Suite 1209. On the days when Suite 1209 was
accessed Mr. Wiwchar and [Mr. Ley] were the only persons who accessed
that apartment.

[61]      In the circumstances it is reasonable to infer that
either Mr. Wiwchar himself placed the London Drugs bag in the ottoman or
that he was present in Suite 1209 when [Mr. Ley] placed it there. In
either scenario, it is reasonable to infer that Mr. Wiwchar would then
have become aware of the guns in the ottoman.

[62]      While the fingerprints of [the third party] suggest
that he may have been aware of the contents of the ottoman, unlike Mr. Wiwchar,
he did not access Suite 1209 between March 23 and April 24. Nor, unlike Mr. Wiwchar,
does that evidence give rise to any inference as to when his prints were placed
on the latex glove.

[Emphasis added.]

[25]

The judge concluded:

[63]      Although Mr. Wiwchars
fingerprint may have been innocently placed on the bag, the presence of that
bag is highly probative of his knowledge of the firearms in the ottoman because
it is reasonable to infer that it was placed there between March 28 and April
24, when Mr. Wiwchar and [Mr. Ley] were the exclusive occupants.
While that alone may not be sufficient to conclude beyond a reasonable doubt
that Mr. Wiwchar is guilty of possessing the firearms and ammunition, in
my view, considered with all of the other evidence I am satisfied beyond a
reasonable doubt that Mr. Wiwchar had the requisite control and knowledge
of the firearms and devices in the ottoman to find him guilty of possession as
charged in counts 1 to 5 in the indictment.

Discussion

[26]

The judge inferred that: (1) Mr. Wiwchars fingerprint on the
London Drugs bag found inside the large ottoman was placed there when Mr. Wiwchar
carried the bag into the suite on March 28; and (2) that London Drugs
bag was then placed by Mr. Wiwchar or Mr. Ley in his presence inside
the ottoman on March 28, or thereafter. These were critical findings of
fact that permitted him to conclude that Mr. Wiwchar had the requisite
knowledge of the firearms, ammunition and prohibited devices inside the ottoman.

[27]

Mr. Wiwchar submits the judge: (1) misapprehended the evidence
in finding that on March 28, he carried the London Drugs bag that
contained his fingerprint into the suite; (2) failed to consider other reasonable
inferences including the possibility that Mr. Wiwchar had touched the
London Drugs bag or another London Drugs bag before March 28 and someone
else placed the bag with his fingerprint into the ottoman outside of the
March 28 to April 18 timeframe; and (3) gave insufficient reasons
for finding that, along with the fingerprint evidence, all of the other
evidence established that Mr. Wiwchar knew of the contents of the ottoman.

Misapprehension of evidence

[28]

The test for misapprehension of evidence that could affect the outcome
of a trial is a stringent one. For the Court, Mr. Justice Binnie, in
R.
v. Loher,
2004 SCC 80 described it thus:

[2]
Morrissey
[
R.
v. Morrisey
(1995), 97 C.C.C. (3d) 193 (Ont. C.A.)], it should be
emphasized, describes a stringent standard. The misapprehension of the evidence
must go to the substance rather than to the detail. It must be material rather
than peripheral to the reasoning of the trial judge. Once those hurdles are
surmounted, there is the further hurdle (the test is expressed as conjunctive
rather than disjunctive) that the errors thus identified must play an essential
part not just in the narrative of the judgment but in the reasoning process
resulting in a conviction.

[29]

Relying on
R. v. C. (R.)
(1993), 81 C.C.C. (3d) 417 (Que. C.A.)
at 420, Binnie J. further stated that an appellant will not succeed unless the
misapprehension could have affected the outcome of the trial.

[30]

Similarly, in
R. v. Sinclair,
2011 SCC 40, Mr. Justice
Lebel, for the majority, summarized the test for granting a new trial based on
a misapprehension of evidence as follows:

[53]       for an appellate
court to decide to order a new trial on the basis of a miscarriage of justice
resulting from a misapprehension of the evidence, more is need than an
apparent mistake (e.g. an error that the trial judge
may
have
committed) in the reasons. A court of appeal should not, in applying the
Loher
test, order a new trial unless the trial judge has made a real error; its
decision cannot be speculative. The plain language or the thrust of the reasons
must disclose an actual mistake. When such errors are in fact committed,
appellate courts have no difficulty in explaining why they caused the trial
judges reasoning process to be fatally flawed and where they may be found in
the reasons. In such situations, the errors are readily obvious. [Emphasis in
original.]

[31]

Mr. Wiwchar submits the judges misapprehension of the evidence
comes from his erroneous interpretation of paragraph 22(b) of the Admissions
(reproduced in para. 14 above). The Admission provides that
both
Mr. Wiwchar
and Mr. Ley walked up to the front doors of the Tower carrying multiple
plastic shopping bags from London Drugs and SportChek.

[32]

The judge interpreted the Admission as proving that each of the men was
carrying multiple plastic bags from both SportChek and London Drugs. Mr. Wiwchar
submits that the proper interpretation of the Admission is that together the
men were carrying multiple plastic bags from both SportChek and London Drugs.

[33]

In my view, the judge did not err in his interpretation of paragraph 22(b)
of the Admission. The judges interpretation of the Admission was a reasonable
one that was open to him on the wording of the Admissions and also supported by
the photo stills. However, even if he did err as alleged, the error was not
readily obvious and, in any event, it was inconsequential to his reasoning.

[34]

The bags the men were carrying came from SportChek and London Drugs some
fifteen minutes before they arrived at the Tower. Three 2.8L bottles of bleach
(the large ones) were purchased at London Drugs. There is no evidence that the
men stopped for any other purchases in that 15 minute interval. It is also clear
from the photo stills that the size and shape of the bags from each of those
merchants were different. The bags that were larger in size and shape, and
displayed a discernable black rectangle that included the SportChek logo, were
different from the smaller bags that had no discernible markings. The photo
stills showed Mr. Wiwchar carrying three of the larger SportChek bags and
one of the smaller bags, while Mr. Ley was carrying two of the larger
SportChek bags and two of the smaller bags. The only reasonable inference to be
drawn from that evidence was that the smaller bags were the London Drugs bags
and that each of the three bottles of bleach were in each of the London Drugs
bags.

[35]

However, even if the judge misapprehended the evidence in finding that Mr. Wiwchar
carried a London Drugs bag into the suite, which I do not find, the alleged
error would be immaterial as the evidence overwhelmingly established that the
two men were acting in concert and were in joint possession of the bags at the
time. Mr. Wiwchar and Mr. Ley were the only individuals with
exclusive access to the Suite between March 23 and April 18. There
was only one fob for the Suite. On each occasion they accessed the Suite, they
were together, except on May 2 (outside the relevant timeframe) when Mr. Ley
retrieved the fob from Mr. Wiwchars girlfriend but used it only to access
the Dodge Caravan. Together, Mr. Wiwchar and Mr. Ley purchased the
items at the SportChek and London Drugs stores on March 28. Together, they
came and went from the Suite to the World Gym, in the same vehicle, on six
occasions between March 28 and April 17, apparently searching for a particular
male in the vicinity of the World Gym.

[36]

Whether Mr. Wiwchar carried the London Drugs bag into the suite on
March 28, or Mr. Ley did, is insignificant, as the two were acting in
concert with respect to a joint endeavour involving criminal activities for
which the Suite was being used as a safe-house.

Inferences of fact

[37]

When assessing circumstantial evidence, inferences of fact consistent
with innocence no longer have to be drawn from proven facts. Such inferences
may be drawn from reasonable possibilities arising from the evidence or lack
of evidence that are inconsistent with guilt:
R. v. Villaroman,
2016 SCC
33 at paras. 36 and 37.

[38]

In
Villaroman
, Mr. Justice Cromwell for the Court explained
the test as follows:

[35]       In assessing circumstantial evidence, inferences
consistent with innocence do not have to arise from proven facts:
R. v.
Khela,
2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also
R. v.
Defaveri,
2014 BCCA 370, 361 B.C.A.C. 30, at para. 10;
R. v. Bui,
2014
ONCA 614, 14 C.R. (7
th
) 149, at para. 28. Requiring proven
facts to support explanations other than guilt wrongly puts an obligation on
the accused to prove facts and is contrary to the rule that whether there is a
reasonable doubt is assessed by considering all of the evidence. The issue with
respect to circumstantial evidence is the range of reasonable inferences that
can be drawn from it. If there are reasonable inferences other than guilt, the
Crowns evidence does not meet the standard of proof beyond a reasonable doubt.

[36]      I agree with the respondents position that a
reasonable doubt, or theory alternative to guilt, is not rendered speculative
by the mere fact that it arises from a lack of evidence. As stated by this
Court in [
R. v. Lifchus,
[1997] 3 S.C.R. 320] a reasonable doubt is a
doubt based on reason and common sense which must be logically based upon the
evidence
or lack of evidence
: para. 30 (emphasis added). A certain
gap in the evidence may result in inferences other than guilt. But those
inferences must be reasonable given the evidence and the absence of evidence,
assessed logically, and in light of human experience and common sense.

[37]      When assessing circumstantial evidence, the trier
of fact should consider other plausible theor[ies] and other reasonable
possibilities which are inconsistent with guilt:
R. v. Comba,
[1938]
O.R. 200 (C.A.), at pp. 205 and 211,
per
Middleton J.A., affd
[1938] S.C.R.;
R. v. Gaigent,
2013 BCCA 28, 335 B.C.A.C. 11, at para. 20;
R. v. Mitchell,
[2008] QCA 394 (AustLII), at para. 35. I agree with
the appellant that the Crown thus may need to negative these
reasonable
possibilities,
but certainly does not need to negative every possible conjecture, no matter
how irrational or fanciful, which might be consistent with the innocence of the
accused:
R. v. Bagshaw,
[1972] S.C.R. 2, at p. 8. Other plausible
theories or other reasonable possibilities must be based on logic and
experience applied to the evidence or absence of evidence, not on speculation.

[38]      Of course, the line
between a plausible theory and speculation is not always easy to draw. But
the basic question is whether the circumstantial evidence, viewed objectively
and in light of human experience, is reasonably capable of supporting an
inference other than that the accused is guilty.

[Emphasis added in original.]

[39]

The critical requirement is that the alternate theory or possibility arising
from the circumstantial evidence or lack of evidence, when viewed objectively,
is a plausible or reasonable inference, other than the accused is guilty.
In my view, the alternate inferences suggested by Mr. Wiwchar, which he
says can be drawn from the circumstantial evidence or lack of evidence, are not
plausible or reasonable when the totality of the evidence is considered.

[40]

Mr. Wiwchar submits the judge erred in failing to consider
alternate inferences from the one he drew, that either Mr. Wiwchar placed
the London Drugs bag containing his fingerprint into the ottoman himself or was
present when Mr. Ley did so after the bags came into the suite on
March 28. Mr. Wiwchar says that it was equally reasonable to infer a scenario
where the bag was placed in the ottoman by Mr. Wiwchar before March 28,
outside of the timeframe for the charges, and that someone other than himself
used the bag to package and store the ammunition in the ottoman.

[41]

This submission fails on several grounds. First, it misconstrues the
judges findings, which must be read as a whole. The judge found that it was
reasonable to infer the London Drugs bag in the ottoman was one of the bags Mr. Wiwchar
brought into the apartment on March 28. Since only Mr. Wiwchar and Mr. Ley
had access to the suite between March 23 and April 24, it was also
reasonable to infer that the London Drugs bag was placed into the ottoman on or
after March 28. In short, the judges reasoning did not depend on finding
that Mr. Wiwchars fingerprint was placed on the bag when it was carried
into the Tower on March 28.

[42]

Moreover, Mr. Wiwchars hypothetical scenarios, that someone else may
have used the London Drugs bag to package the ammunition, was properly rejected
by the judge. The evidence established that no one other than Mr. Wiwchar
and Mr. Ley had access to the suite during the material time. The lack of
evidence in support of these hypothetical scenarios does not provide a basis
for finding them to be a plausible theory or reasonable possibility;
rather, they amount to mere speculation. There was, in my view, no basis upon
which Mr. Wiwchars hypothetical scenarios could reasonably have been inferred.

[43]

In comparison, the judges inference, that Mr. Wiwchar, or Mr. Ley,
in the presence of Mr. Wiwchar, placed the London Drugs bag in the ottoman,
was reasonably grounded in the evidence. Only Mr. Wiwchar and Mr. Ley
had access to the Suite between March 23 and April 18, 2012. The Suite
was a safe-house. The activities of the two men between March 28 and
April 18 clearly established they were acting together on a joint
endeavour. On March 28, both attended at London Drugs where they purchased
items that they immediately transported back to the Tower and carried into the Suite
in London Drugs bags. There was no evidence of Mr. Wiwchar having made
purchases from London Drugs and then accessing the Suite at any other time
between March 28 and April 18. Mr. Wiwchars fingerprint was on
a London Drugs bag inside the ottoman. In these circumstances, the judges
inference that Mr. Wiwchar had knowledge of the contents of the ottoman
was the only reasonable inference to be drawn.

Insufficiency of reasons

[44]

The judge stated that
if
the fingerprint evidence alone was not
sufficient to establish Mr. Wiwchars knowledge of the contents of the
ottoman beyond a reasonable doubt, he was satisfied that based on all of the
other evidence, his requisite knowledge had been established. I am satisfied the
judges interpretation of the Admission was correct for the reasons above.
However, for the sake of completeness, I would respond to this submission as
follows.

[45]

Mr. Wiwchar submits that the trial judge failed to provide
sufficient reasons for this Court to determine how he reached a verdict of
guilty beyond a reasonable doubt, based on the fingerprint evidence and all of
the other evidence. He says it is unclear from paragraph 63 of the judges
reasons (reproduced in para. 25 above), which additional evidence the
judge relied on to tip the scales in favour of a guilty verdict. In short, he
submits the reasons do not explain why the trial judge reached his verdict nor do
they permit a meaningful appellate review.

[46]

I am unable to agree. In
Villaroman,
Cromwell J. underscored that
a trial judges reasons for judgment should not be read or analyzed as if they
were an instruction to a jury. Reasons for judgment must be read as a
whole, in the context of the evidence, the issues and the arguments at trial,
together with an appreciation of the purposes or functions for which they are
delivered.

[47]

The judges reasons are, in my view, sufficient when they are read as a
whole in the context of the evidence and submissions at trial. They explain why
Mr. Wiwchar was convicted. The extensive record, created by the 10-day
trial, permits this Court to discern what all the other evidence refers to
with sufficient certainty, as I have touched upon above, to fulfill its
appellate function. Common sense based on the undisputed facts and the absence
of any conflict in the evidence or the law dictated this verdict. As was noted
by Madam Justice Bennett in
R. v. Tahirsylaj,
2015 BCCA 7:

[41]       the judges finding
of possession is a finding of fact, and the role of this Court is not to
reweigh and reassess the evidence and come to our own independent conclusion.
Rather, our role is to determine whether the conclusion of the trial judge went
beyond the limit of reasonableness defined by the evidence.

[48]

In my view, there was no miscarriage of justice and the verdict was
reasonable based on the record. The judge did not misapprehend the evidence in
his interpretation of the Admission and the inferences he drew flowed logically
from the evidence available to him at trial. Lastly, the judges reasons in my
view adequately explained why he convicted Mr. Wiwchar.

[49]

For these reasons, I would dismiss the appeal.

The
Honourable Madam Justice D. Smith

I AGREE:

The Honourable
Chief Justice Bauman

I AGREE:

The Honourable
Mr. Justice Goepel


COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

Reimer
  v. Bischoff,

2017 BCCA 4

Date: 20170110

Docket: CA43236

Between:

Donna Reimer

Respondent

(Plaintiff)

And

Jesse Paul Bischoff

Appellant

(Defendant)

And

Helen Elaine Cheesman

Respondent

(Defendant)

Before:

The
  Honourable Mr. Justice Frankel

The
  Honourable
Mr. Justice
  Harris

The
  Honourable
Mr. Justice
  Savage

On appeal from:  An order of the Supreme Court of British
Columbia, dated
October 15, 2015 (
Reimer v. Bischoff
, 2015 BCSC 1876, Vernon Registry
50890).

Counsel for
  the Appellant:

A. Murray, Q.C.

Counsel for
  the Respondents:

K. Burnham

Place and
  Date of Hearing:

Vancouver, British Columbia

December 12, 2016

Place and
  Date of Judgment:

Vancouver, British Columbia

January 10, 2017

Written
  Reasons by:

The
  Honourable Mr. Justice Harris

Concurred
  in by:

The
  Honourable
Mr. Justice
  Frankel

The
  Honourable
Mr. Justice
  Savage

Summary:

In a motor vehicle accident trial where the sole issue
was damages, the trial judge awarded the respondent damages for jaw pain, future
cost of Botox and migraine medication, and loss of past and future income. The
appellant argues that those awards are not supported by the evidence. HELD: appeal
allowed in part. There is a thin, but sufficient evidentiary basis to support
the judges finding that the jaw pain was caused by the accident. The Botox
award is set aside as no admissible medical evidence supported that award. As
to the award for migraine medication, the judge erred in not considering his
findings that migraines from both accident and non-accident causes will
diminish over time, thus requiring additional adjustments for contingencies. However,
in the balance, this Court would not disturb the trial judges contingency
reduction for this award. The award for past and future income is reduced by
25%, as the judge erred in not accounting for how, as was the respondents
practice pre-accident, part-time workers would be hired from time to time in
any event of the accident based on fluctuations in business volume.

Reasons for Judgment of the Honourable
Mr. Justice Harris

Introduction

[1]

This is an appeal
of three components of a damages award arising out of a motor vehicle accident.
First, the appellant appeals an award for the cost of future care items for the
treatment of a temporomandibular joint (TMJ) injury on the basis that there was
no admissible evidence that the injury was caused by the motor vehicle
accident. Second, the appellant appeals an award made in respect of the future
cost of Botox treatment and migraine medications on the basis that those awards
rest on palpable and overriding errors of fact. Third, the appellant appeals
the award of past and future income loss, again alleging palpable and
overriding errors of fact.

[2]

The respondent was
injured in a motor vehicle accident on June 19, 2011. The respondent was
injured in a rear-end accident caused by the appellant. The forces involved in
the accident were significant. The respondents vehicle was a total loss. Liability
was admitted. The trial was restricted to the issue of quantum of damages.

[3]

At the time of the
accident, the respondent was 55 years old. She was self-employed. She ran
a copy franchise.

[4]

There is no
dispute that the accident caused the respondent substantial injuries. The trial
judge found that she suffered chronic dizziness and balance issues, soft tissue
injuries to her neck, shoulder and low back, jaw and ear pain and associated
headaches, aggravation of pre‑existing migraines, emotional stress and
mood disorder, symptoms of post-traumatic stress disorder, fatigue, and
cognitive deficits caused by the cumulative effect of her other injuries,
particularly a vestibular injury. The judge rejected a claim that the
respondent had suffered a mild traumatic brain injury as a result of the
accident.

[5]

Prior to the
accident, the respondents only significant health issue was a 20‑year
history of migraine headaches associated with her menstrual cycle. The
migraines usually lasted two to three days a month during which she experienced
photosensitivity, nausea and sensitivity to movement.

[6]

Insofar as the respondents
prognosis is concerned, the judge found that her TMJ injuries and remaining
soft tissue injuries would resolve with proper treatment; the psychological
difficulties including mood disorder, fatigue and migraine headaches would
improve over the long run with proper counselling and pharmacological
assistance, but the outlook was poor for balance, dizziness and memory
problems.

[7]

The trial judge
awarded the following
:

Non-pecuniary damages:

$100,000

Past Loss of Income/Loss of Capacity to Work
:

$  30,000

Future Loss of Income/Loss of
  Capital-Earning Capacity:

$  60,000

Future Care Costs:

$  84,000

Special Damages:

$    8,044

Total:

$282,044

[8]

It seems clear
from the reasons for judgment that the primary issues the judge had to grapple with
concerned the accuracy and reliability of the respondents evidence concerning
her injuries and their severity. In particular, the judge had to decide whether
the plaintiff had suffered a mild traumatic brain injury. He concluded that she
had not, based substantially on his rejection of her evidence about whether she
had lost consciousness at the time of the accident.

[9]

Given the
centrality of what were effectively the live issues at trial, it is not perhaps
surprising that the reasons for judgment are brief in respect of those
components of the damage award in issue on this appeal. I propose to refer to
those reasons in connection with each alleged ground of appeal.

[10]

Each ground of
appeal alleges, in one form or another, that the awards rest on palpable and
overriding errors of fact, principally because there was no evidence necessary
to support the award or, failing that, the judge did not assess the amount
awarded in light of applicable contingencies. It is unnecessary to rehearse in
detail the standard of review engaged by this appeal. Obviously, we apply a
deferential standard to findings of fact which are capable of being supported
by the evidence before the trial judge, considered in their totality:
Housen
v. Nikolaisen,
2002 SCC 33 at paras. 29‑37;
Friedl v. Friedl,
2009 BCCA 314, at paras. 28‑29;
Ediger v. Johnston,
2013
SCC 18 at para. 29.

Did the Judge Err in Awarding
Future Care Costs in Respect of the Respondents Jaw Injury
?

[11]

The judges
finding that the respondent suffered jaw pain is based principally on an
opinion provided by Dr. Blasberg. Here is what the judge found:

[47]      Dr. Blasberg,
an oral medical specialist, assessed the plaintiff on March 27, 2014 and
diagnosed her as suffering from a myofascial pain of her masticatory (jaw)
muscle with referral contributing to jaw pain, dental pain, ear pain, and
temple headaches.

[48]      Dr. Blasberg
also diagnosed the plaintiff as suffering from arthralgia of the right TMJ
which is characterized by pain and tenderness in the joint capsule and/or
synovial lining of the TMJ.

[49]      Dr. Blasberg
was of the view that her failure to immediately complain about specific jaw
pain is not unusual when there are injuries to the head. With proper treatment
as laid out in his report, he was of the view that There were no clinical
findings identified that would prevent Ms. Reimer from fully recovering
from these jaw conditions. While in my opinion it is more likely than not that Ms. Reimer
will fully recover, she might not, continuing to experience jaw pain, ear pain
and headache requiring self-management and professional advice and treatment.
I accept Dr. Blasbergs evidence that professional treatment would take
between 12 and 24 months.

[12]

Dr. Blasbergs
opinion that the jaw pain was caused by the accident was based principally on
his assumption, confirmed in cross-examination, that the respondent had
suffered ear and jaw pain together from almost immediately after the accident
in June 2011, until the date he examined her in 2014. Dr. Blasberg relied
on the respondents report to him that she had suffered those symptoms from
immediately after the accident. In his report he stated:

I assumed that Ms. Reimer was experiencing ear pain
and jaw pain beginning shortly after the motor vehicle accident as a result of
injury to the jaw muscles
.
She stated that jaw pain and ear pain occurred together. I assumed that the ear
pain was due to the injuries associated with the jaw muscles. There were no
clinical records reviewed that included any examination of the jaw structures
shortly after the motor vehicle accident to contradict my assumptions. Ms. Reimer
at her examination pointed to the ear, temple and jaw angle on the right as the
pain she was experiencing days after the motor vehicle accident. I assumed that
the focus of medical attention was directed toward the ear and the headaches
rather than the jaw structures. I assumed that a history of migraines, direct
trauma to the head at the time of the motor vehicle accident and a traumatic
brain injury with issues that took precedence over directing attention to jaw
structures.

[Emphasis
added.]

[13]

The trial judge
commented on the respondents evidence at para. 26:

The
plaintiff gave direct evidence concerning her temporomandibular joint (TMJ)
or jaw pain. She stated that she told Dr. Blasberg that she suffered from
right jaw pain beginning shortly after the accident on a daily/nightly basis
and this pain continued up to the present time. There is, however, no note of
jaw pain in records of the plaintiffs family doctor prior to December 2012, no
record of any dental visits until September 2012, and no report of complaints
to her dentist on eight subsequent visits between September 12 and
December 13, 2012. I accept the fact that the plaintiff does not have to
provide the same litany of complaints to every medical professional. Some
complaints are more important than others and purely because the plaintiff does
not mention these complaints on a consistent basis should not automatically
adversely affect the weight to be given to her evidence. However, here there is
no evidence of complaints for several years after the accident.

[14]

He went on to
comment on her evidence generally:

[38]      I
accept that the plaintiff has had difficulties with her memory but her memory
difficulties do not explain all the inconsistencies in her evidence and the
documentary evidence, particularly the conflict between her testimony and the
evidence of the various doctors. I am very hesitant to give a great deal of
weight to the plaintiffs evidence save and except where it has been
corroborated by other independent witnesses.

[15]

It is common
ground that the respondent did not testify at trial that she suffered right jaw
pain beginning shortly after the accident on a daily/nightly basis. It is
common ground that the judges finding in that respect is in error. She did not
testify that she suffered any jaw pain prior to the date of her examination by Dr. Blasberg.
She testified that she been referred to Dr. Blasberg in March 2014 for a stabbing
ear pain which she experienced a short while after the accident. She said
that she had told her doctor about it within the first couple of months after
the accident. She did not testify about what she told Dr. Blasberg, but
she did say that he felt different parts of the jaw, pressed in behind her ear
and when he did so she could feel the same type of pain.

[16]

Based on the
above, the appellant argues that the only evidence that the respondent suffered
ear and jaw pain
together
shortly after the accident is Dr. Blasbergs
statement in his medical opinion, which is an assumption on which the opinion
is based. The appellant argues from the proposition that an opinion must be
based on proven facts, that the fact of jaw and ear pain onset shortly after
the accident has not been proven. Accordingly, no weight can be given to the
opinion, particularly since the judge himself concluded that he could not give
a great deal of weight to the plaintiffs evidence unless it had been
corroborated. Here, there was no corroboration of any complaints to any
practitioners of jaw and ear pain for a considerable time after the accident.
Paragraph 26 quoted above suggests that the trial judge had indeed
rejected the plaintiffs evidence that she suffered jaw pain shortly after the
accident, but then relied on an opinion which rested on the unproven assumption,
or evidence that he had dismissed, in awarding damages in respect of the TMJ
injuries. In short, the judge reached a conclusion in making the award that was
inconsistent with his earlier finding, but in any event, for which there was no
admissible evidence.

[17]

The appellant also
points to a concession made by Dr. Blasberg that the respondents jaw
problem possibly (but not probably) could be related to root canal surgery done
a few months before he examined her. The respondent points out, however, that
there is evidence of the respondent suffering tenderness in her jaw before the
root canal surgery when she was examined by a Dr. Longridge in September
2013. Also, it appears that there is no other possible explanation of her jaw problem
unrelated to the accident.

[18]

The respondent
contends that the judge was entitled to rely on the opinion of Dr. Blasberg,
notwithstanding the admitted deficiencies in the evidence and the lack of
corroboration in the contemporaneous medical reports of complaints consistent
with the assumption on which the opinion rests. She points out that Dr. Blasberg
explains in the opinion why a patient may not recognize that the symptoms
relate to a jaw problem because the focus is placed elsewhere.

[19]

In my view, the
appellant proffers a strong argument that the trial judge made a palpable and
overriding error in accepting Dr. Blasbergs opinion that the accident
caused the respondents jaw problem. I agree with the general proposition that
facts constituting an assumption for an opinion must be proven, if the opinion
is to be given weight. The question here is whether there is
any
evidence capable of supporting the assumption on which the opinion rests.

[20]

I begin by observing that the judges general comment about the respondents
credibility is that he was very hesitant to give a great deal of weight to the
plaintiffs evidence save and except where it has been corroborated by other
independent witnesses. The judge does not say that he gives
no
weight
to her evidence. Moreover, the focus of his comments in para. 26 is on
whether the respondent suffered jaw pain shortly after the accident. I take his
comments to be a rejection of her evidence on that point. The question is,
then, whether that finding can be reconciled with the judges acceptance of Dr. Blasbergs
opinion.

[21]

In my opinion,
there is a basis upon which they can be reconciled. Dr. Blasberg assumes that
the respondent suffered ear pain shortly after the accident, of which there was
evidence, and further, that the ear pain could be explained by a jaw problem.
The respondent was not cross-examined on her complaints of ear pain. The
medical opinion explains how jaw pain may not be a focus of complaint, given a
constellation of other symptoms and perhaps more pressing concerns. It seems to
me that the judge accepted the general proposition, put by the doctor, that it
may be difficult for patients to distinguish a jaw issue from an ear problem,
given the locality of the pain. The unchallenged evidence that the respondent
felt the same type of pain (i.e., stabbing ear pains) when Dr. Blasberg
pressed on the relevant area in assessing jaw issues supports this view.

[22]

I take it, then,
that the trial judge must have been prepared to accept that the respondent
suffered from ear pain, and then accepted the opinion that the ear pain was
related to a jaw problem. Dr. Blasberg was not cross-examined on whether
reporting ear pain alone was a sufficient basis to ground his opinion. It is also
pertinent that the respondent did complain of ear pain some two years after the
accident to Dr. Stewart and Dr. Longridge, both of whom directed the
respondent to see a jaw or oral specialist. Dr. Stewart and Dr. Longridges
reports were before the root canal surgery, which is the only other explanation
for the jaw pain in the evidence. Given the evidence of Dr. Blasberg that a
patient may overlook jaw pain or confuse it for ear pain, combined with the
pre‑root canal surgery evidence of the respondents ear pain complaints
of a similar nature, there is just sufficient evidence for me to say that it was
open for the trial judge to accept that the jaw injury was caused by the
accident.

[23]

In my opinion, it
would clearly have been open to the trial judge to reject the claim that the
respondents jaw problem was caused by the motor vehicle accident. The opinion
might well have been rejected by the trial judge in light of his general
comments about the reliability of the respondents evidence. Nonetheless, there
was just enough evidence to support an assumption underlying the opinion, which
the judge must have considered to be a sufficient basis to accept it. As a
result, I would not accede to this ground of appeal.

Did the Judge Err in Awarding
the Cost of Future Care for Botox and Migraine Medications
?

[24]

The respondent has
a 20‑year pre‑accident history of migraine headaches, associated
with her menstrual cycle as I referred to above. The trial judges findings on
this point are the following:

[51]      It
is acknowledged that the plaintiff had low grade headaches continuously for
three months after the accident. One year post-accident she had hormone therapy
which resulted in her having migraine headaches as a result of her menstrual
cycle once every four months. She still reports, however, that she has migraine
headaches two to three times per month that are not related to her menstrual
cycle.

[52]      Dr. Dost
accepts that the accident has exacerbated the plaintiffs migraine headaches. Dr. Cameron
opined that the plaintiff is suffering from post-traumatic migraine headaches
and suggests that she also is probably suffering with intermixed
musculoskeletal headaches following this accident as a result of the head
trauma that she sustained at the time of the accident.

[53]      I
am satisfied that the plaintiff still suffers migraine headaches that were a
direct result of the accident. Although the plaintiff had a history of migraine
headaches prior to the accident, the evidence indicates that these migraines
increased in severity and frequency after the accident, and her attempts to
mitigate these migraines have not completely returned her to her pre-accident
condition.

[25]

After addressing
other claims, the judge dealt with future cost of care in one paragraph:

[109]    All
the remaining future costs of care have been recommended by medical
professionals including the occupational therapist and all in my view are
reasonable. For future costs of care I award the sum of $84,000.

[26]

Included in the
future cost of care award is $34,768.90 for Botox treatment. That award
represents 75% of the cost of for Botox treatments annually for life. The 25%
discount reflects the respondents submission that there should be an
adjustment to account for menstrual migraines, which are not related to the
accident. Also included in the award was $24,015 representing 75% of the annual
cost of migraine medications, Topiramate and Replax, over the course of the
respondents life.

[27]

I observe in
passing that the cost of future care report did not include a claim for the
cost of Botox. The claim for the cost of Botox arose during submissions at
trial.

[28]

As the trial judge
commented, the management of the respondents menstrual migraines involved
hormone treatment that reduced their frequency, but did not eliminate accident-related
migraines. Overall, the management of the respondents accident-related migraines
involves daily use of Topiramate to prevent the migraine headaches,
supplemented by Replax to mitigate the symptoms when they occur. The appellant
argues that there was no properly admissible medical evidence that these
medications were taken because of the accident, and submits that the respondent
would be taking the migraine prevention medication in any event of the
accident.

[29]

The parties do not
dispute that determining the cost of future care involves identifying medically
justified and recommended treatment responding to injury caused by an accident
that sustains or improves the mental or physical health of the plaintiff.

[30]

It is quite clear
on the record that the judge fell into error in concluding that the cost of
Botox treatment had been recommended by a medical professional. The respondent
had testified that she had in the past used Botox for cosmetic reasons, and
found that it provided relief from her migraines. The use of Botox to treat
migraine was confirmed to her by a Dr. Donat, and the respondent testified
that its use to treat migraines had been recommended to her by Dr. Donat
and Dr. Buttars. Neither of those opinions was in evidence in an
admissible form for their truth. The only admissible medical evidence
concerning Botox was an opinion that if the other preventive treatments should
become ineffective, then a trial with Botox might be recommended. There was no
evidence about the likelihood of the existing or alternative preventive
treatments, Topiramate and Replax, ceasing to be effective.

[31]

I am satisfied
that there was no medical evidence before the court capable of justifying the
cost of Botox treatment. Moreover, the possibility that Botox would be
recommended in the future was entirely speculative. In any event, the award
made for the cost of Botox treatment is a form of double recovery because it
duplicates the cost of treatment provided by the preventive and treatment
medications for which compensation had already been provided.

[32]

In my view, there
was no evidentiary foundation for the award of the future cost of Botox
treatment and no basis on which to assume, even on a discounted basis, that
treatment of the migraine headaches by using Botox would ever be medically
recommended for the respondent.

[33]

I would set aside
the award for the future cost of Botox treatment.

[34]

I turn now to
consider the award for the future cost of the preventive and treatment migraine
medications. There is no doubt that these treatments are medically justified.
Here, the appellants essential argument is that these treatments would be
needed in any event of the accident. The appellant further submits that the
award did not adjust the award for the trial judges own finding that the migraines
caused by the accident would improve over time.

[35]

On my review of
the evidence, it is clear that the respondent suffers from both menstrual and
accident-related migraines. The hormone treatment is effective in controlling
menstrual migraines for a three-month period, but accident-related migraines
occur regularly and frequently. There was no evidence that if the accident had
not happened, the hormone treatment would have been sufficient to avoid migraines
for three months at a time, with migraine medication needed only every fourth
month. The evidence is unclear whether the respondent likely would be on the
preventive medication regimen in any event of the accident, but it is clear
that she would be on that treatment to avoid or mitigate the accident-related
migraines. In these circumstances, I cannot say the judge erred in making an
award for migraine medication.

[36]

The trial judge imposed a 25% reduction to account for the fact that
some of the medication would be attributable to the prevention and treatment of
menstrual migraines. He does not consider his finding was that the respondents
accident-related migraines would improve over time. Equally, he did not factor
in a contingency to reflect the fact that the respondents menstrual migraines
would likely diminish and cease over time in light of her age. These
contingencies have opposing effects on the award; increasing the relative
frequency of accident-related migraine with menopause, but with a diminishing
frequency of accident-related migraines as the respondents health improved.
Although the judge did not factor these contingencies into the award (see,
Morlan
v. Barrett
, 2012 BCCA 66), I would not disturb it since it may be a
reasonable assumption that the positive and negative contingencies would cancel
each other out.

Did the Trial Judge Err in
his Award of Past and Future Income Loss
?

[37]

The trial judge
made an award of $30,000 for past income loss and $60,000 for loss of future
earning capacity. In reaching that conclusion, he rejected the respondents
theory of her income loss attributable to the accident. That theory rested on a
loss of gross profits for the respondents business, as well as incurring
additional labour expenses to run it.

[38]

The judge found as
a fact that the plaintiff did not lose any business as a result of the
accident. Rather, there had been a general decrease in gross revenue before the
accident, beginning in 2008. Secondly, the judge accepted that the respondent
had to work longer hours as a result of the accident to run her business, but
he provided compensation for that in his award of non‑pecuniary damages. Neither
party raised as an issue in this appeal whether it was an error to provide
compensation in that way. Thirdly, in explaining his award for future loss of
income, the trial judge defined the respondents loss to be her need for some
part-time help in order for her to continue to operate the business as she did
prior to the accident. Clearly, the judge formed the view that, because of the
accident, the respondent needed part-time help, beyond working longer hours, to
be able to operate her business.

[39]

The appellant
contends that the income loss award can only be explained on the basis that the
judge compensated for the replacement costs for the part-time employees taken
on since the accident. This seems to be a reasonable conclusion. The cost of
those employees to the end of 2014 was $26,873. Making some adjustment for the
costs incurred in 2015, of which there was no direct evidence, an award of
$30,000 is supportable on the evidence.

[40]

The problem with
this award, according to the appellant, is that apart from the first part-time
employee who was hired immediately after the accident for some months, there
was no evidence that the other part-time employees were hired because of her
injuries or to undertake particular tasks that the respondent was no longer
able to do because of the accident. In fact, the respondent ran the business
effectively on her own for close to a year after her first part-time employee
left. The appellant argues that, on the evidence, the respondent was capable of
doing all of those tasks necessary to run the business, although executing
those tasks took longer and required the respondent to work longer in the
evenings and on the weekends, matters which were compensated for in the non‑pecuniary
damages.

[41]

Moreover, the
appellant argues that, except for the immediate few months after the accident,
whether a part-time employee was engaged in the business depended on how much
work there was for the company, not on the need to have someone undertake tasks
the respondent could not do because of the accident.

[42]

In support of this
theory, the appellant points to the pre‑accident history of part-time
employment within the business. The appellant says that the record demonstrates
that when the work was there, a part-time employee was engaged. When the work
was not there, they were let go. A part-time employee was engaged in each year
between 2007 and 2010 when gross revenue ranged between approximately
$130,000-$140,000. In the second half of 2010, business slowed significantly
and at that time the part-time employee was let go because of the shortage of
work. The respondent admitted that at that time there was not enough work for
both of them. That same situation prevailed in the first part of 2011, the
respondent acknowledged, before the accident. After the accident, for some
months, she needed part-time help to run the business; a fact acknowledged by
the appellant.

[43]

After letting her
part-time employee go in late 2011, the respondent ran the business on her own.
She did so for approximately a year until she hired her son in September 2012.
The appellants theory is that as more work was available in 2012 to 2014, as
reflected by gross revenues in the range of $122,000-$125,000, so part-time
help was hired. In short, a part-time worker was hired because of increases in
the volume of business, not the accident, save for the worker hired for the
immediate months after the accident.

[44]

The respondent did
not testify that she hired part-time help to assist her in running the business
because of her injuries or because there were particular tasks she could no
longer do. Accordingly, the appellant argues that there was no evidence that
part-time help after 2011 was hired because of the accident and no evidence to
support the award. The appellant submits the evidence is only consistent with part-time
help being engaged after the accident, just as it was pre‑accident, when
there was sufficient business to demand it. In the result, the judges
conclusion that the respondent was going to need some part-time help in order
to help her continue to operate a business as she had done prior to the
accident has no evidentiary foundation. The absence of an evidentiary
foundation undermines both the past and the future award, since the future
award is calibrated to compensate for the future cost of part-time employees.

[45]

Again, there is
considerable force to the appellants argument. With the exception of the
part-time employee engaged immediately after the accident for some months,
there is no clear evidence that part-time employees were taken on to perform
the tasks that the respondent could no longer do as a result of the accident or
generally to assist her because of her injuries. Indeed, there was no clear
evidence that the respondent could not do those tasks necessary to run the
business. Certainly, because of her injuries, her capacity to perform her work
had been diminished and she struggled to perform her tasks efficiently. The
trial judge recognized as much, but compensated for the longer time it took her
to do the job in his award of non‑pecuniary damages.

[46]

It appears clear
that the trial judges estimate of the loss of earning capacity, both past and
future, is based on all of the costs of engaging part-time assistance. The
judge concluded that the respondent needed that part-time assistance to run her
business. This conclusion is distinct from his finding that it took the
respondent longer to perform her tasks. The question is whether the finding
that the respondent needed part-time help, as a result of the accident, was
open to the judge on the evidence.

[47]

The respondent had
certainly been injured in ways which compromised her ability to run her
business. The evidence certainly established that the respondent could be
confused, made mistakes, struggled to do what needed to be done, and took much
longer to do it. The respondent compensated, certainly in part, for those
challenges by working into the evenings and on weekends. The trial judge
accepted this. But recognizing that this is so does not mean that the
respondent was able to do all that she had to do, without help, simply by
working longer hours. It was, I think, open to the judge to infer from the
nature of the respondents injuries that the respondent needed some assistance
during regular hours to help her run the business effectively when her capacity
to discharge her tasks in a timely manner had been compromised because of the
accident. In my opinion, this is an inference which is supportable on the
evidence given the nature of the respondents injuries and her associated loss
of capacity (e.g., dizziness, fatigue, slowness), which affect the respondent
during both regular and non‑business hours. This inference underlies the
finding that the respondent needs some part-time help for her to continue to
operate a business as she had done before the accident.

[48]

I acknowledge that
there was little direct evidence to support the judges conclusion that
part-time assistance was required as a result of the injuries caused by the
accident. But in my opinion, what evidence there is is just sufficient to support
the inference and the finding that some part-time assistance was required as a
consequence of the injuries the respondent suffered and, accordingly, is
sufficient to withstand appellate review. It was open to the judge to find that
the respondents capacity to run her business as she had done before the
accident had been compromised by the accident and assistance was required.

[49]

The question then is
whether the judge erred in not applying some contingency to the quantum of the
award to reflect the likelihood that part-time help would be required from time
to time as the amount of work available to the business changed. The evidence
demonstrated that the employment of part-time help fluctuated with the amount
of work the business had. There is a compelling basis to infer that, quite
apart from the accident, when the work was there, such as when business is
booming, part-time help would be needed to run the business in any event of the
accident. The judge did not consider whether evidence of this contingency,
coupled with other contingencies such as age or general improvement in health
(based on his findings about the respondents prognosis) should lead to a
downward adjustment in the award. In my opinion, this was an error.

[50]

I would accede to
this ground of appeal to the extent that I would reduce both the past and
future income loss awards by 25% to reflect the contingencies described above.

Conclusion

[51]

To summarize, I
would allow the appeal only to the extent of:

a)

setting aside the award for the future
cost of Botox treatment, in the amount of $34,768.90; and

b)

reducing the awards for past and
future loss of income by 25%, in the amount of $22,500.

In total, the amount of the trial award
is reduced by $57,268.90.

[52]

In my view, the
outcome of this appeal reflects mixed success for the parties. I would order
each party to bear their own costs.

The Honourable Mr. Justice Harris

I
agree:

The Honourable Mr. Justice Frankel

I
agree:

The
Honourable Mr. Justice Savage


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Sahyoun v. Ho,

2017 BCCA 18

Date: 20170110

Docket: CA42707

Between:

Antonios Nabil
Riad Sahyoun, by his committee and father, Dr. Nabil Riad Sahyoun, Mariam Nabil
Riad Sahyoun, Bishoy Nabil Riad Sahyoun,
Mrs. Sanaa Riad Sahyoun and Dr. Nabil Riad Sahyoun

Appellants

(Plaintiffs)

And

Dr. Helena Ho, Dr.
Anton Miller, Speech and Language Pathologist Elizabeth Payne, Provincial
Health Services Authority (doing business as Sunny Hill Health Centre for
Children, formerly Sunny Hill Hospital for Children, and doing business as B.C.
Childrens Hospital), The University of British Columbia, Speech and Language
Pathologist Martha Hilliard, Vancouver Coastal Health Authority formerly
Vancouver Health Department, Her Majesty the Queen in Right of the Province of
British Columbia, as represented by the B.C. Ministry of Health, Audiologist Margaret
Hardwick, Dr. Kevin Farrell, Dr. Jean Hlady, Dr. Fred Kozak, Dr. Keith
Riding, Dr. Neil Longridge, Vancouver Coastal Health Authority (doing business
as Vancouver General Hospital), Laura Wang, Dr. Brian Westerberg, Providence
Health Care (doing business as St. Pauls Hospital), Dr. Jason Chew, Dr.
Douglas Graeb, Beverley Underhill, Dr. Jean Moore, Karen Till, Robert Pearmain,
Allan McLeod, Donald Goodridge, Carol McRae, Deceased, Kenneth Ronald Bradley
McRae, as Representative and Administrator of the Estate of the Deceased Carol
McRae, Vancouver Board of Education, formerly Vancouver School Board, Her
Majesty the Queen in Right of the Province of British Columbia, as represented
by the B.C. Ministry of Education, David Duncan, BC Legal Services Society,
Harinder Mahil, Judith Williamson, Her Majesty the Queen in Right of the
Province of British Columbia, as represented by the Attorney General of BC for
the former B.C. Council of Human Rights, Ross Dawson, Cheryl Carteri, Haris
Zakouras, Her Majesty the Queen in Right of the Province of British Columbia,
as represented by the B.C. Ministry of Children and Family Development, formerly
B.C. Ministry for Children and Families, Lorill Johl, Gateway Society: Services
for Persons with Autism, Detective Constable Ennis, Constable Schaaf, Acting
Sergeant Schilling, Constable Lemcke, Sergeant Pike, Constable Green, Vancouver
Police Department, City of Vancouver, and Her Majesty the Queen in Right of the
Province of British Columbia

Respondents

(Defendants)

Before:

The Honourable Mr. Justice Savage

(In Chambers)

On appeal from: An order
of the Supreme Court of British Columbia, dated March 12, 2015 (
Sahyoun
v. Ho
, 2015 BCSC 392, Docket S080713,
Vancouver Registry).

Oral Reasons for Judgment

Appearing on behalf of the Appellant, Antonios Nabil Riad
  Sahyoun, and on his own behalf:

Nabil Riad Sahyoun

The Appellant, appearing on her own behalf

Sanaa Riad Sahyoun

Counsel for the Health and School Respondents:

T.C. Hinkson

Counsel for Her Majesty the Queen and Provincial
  Respondents:

L. Lee

Counsel for the Respondent Physicians:

D.W. Pilley

Place and Date of Hearing:

Vancouver, British Columbia

January 10, 2017

Place and Date of Judgment:

Vancouver, British
  Columbia

January 10, 2017

Summary:

The appellants seek the
appointment of counsel to act on behalf of their son at hearing of an appeal
scheduled just over a month away. Held: application dismissed. It would not be
either useful or appropriate to make the appointment, but the applicant is at
liberty to renew his application before the division hearing the appeal.

[1]

SAVAGE J.A.
: This is an application by Dr. Nabil Riad Sahyoun to have
separate state-funded counsel appointed for Antonios Nabil Riad Sahyoun, his
son, in an appeal set to be heard on 16-17 February 2017.

[2]

The appeal was commenced 9 April 2015. The underlying facts, which I
will not repeat, are fully set out in the reasons of Voith J. below, and
concern alleged wrongdoings based on events 20-25 years ago:
Sayhoun v. Ho
,
2015 BCSC 392, at para. 2-10.

[3]

Dr. Sahyoun and Mrs. Sahyoun appeal the dismissal of their amended
notice of civil claim which was found to disclose no reasonable claim. Antonios
Nabil Riad Sahyoun appeals the dismissal of his claim for want of prosecution.

[4]

The factums before the court were all filed in 2015. The appellants
reply factum (the last factum filed) is dated 14 August 2015, and is said to be
filed on behalf of Dr. Nabil Riad Sahyoun, Antonios Nabil Riad Sahyoun and Mrs.
Sanna Riad Sayhoun.

[5]

As I understand it, the current applicant sought indigent status before
Goepel J.A., which status was refused, primarily because the appeal was bound
to fail:
Sahyoun v. Ho
, 2015 BCCA 235, at para. 14. In the course of
that judgment Goepel J.A., said that the appeal filed on behalf of Mr. Antonius
Nabil Riad Sahyoun was a nullity.

[6]

The Public Guardian and Trustee has determined that it would not act on
behalf of Antonios Nabil Riad Sahyoun: see
Sayhoun v. Ho
, 2011 BCSC 567,
para. 20. I am advised that Dr. Sayhoun has been aware that Access Pro Bono has
not been prepared to provide counsel since mid-2015.

[7]

This application comes just over a month before the scheduled hearing of
the appeal. Granting the application would probably result in an adjournment of
the appeal. In my opinion this application comes far too late in the
proceeding.

[8]

Further, I am not convinced that making such an appointment would be
either useful or appropriate. In my opinion, it would not be in the interests
of justice to make the appointment sought, or to make an order requiring
advanced costs, as was done in
L.C. v. Alberta
, 2011 ABQB 42, a case
referred to me by Dr. Sayhoun.

[9]

The application is dismissed, although the applicant is at liberty to
renew his application before the division of this Court hearing the appeal.

The
Honourable Mr. Justice Savage


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

1043325 Ontario Ltd. v. CSA Building Sciences Western
  Ltd.,

2017 BCCA 13

Date: 20170111

Docket: CA41993

Between:

1043325 Ontario
Ltd.

Appellant

(Petitioner)

And

CSA Building
Sciences Western Ltd.,
Ralph Jeck and Maria Jeck

Respondents

(Respondents)

Before:

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Groberman

The Honourable Mr. Justice Willcock

Application to re-open
the order (not yet filed) of the Court of Appeal, made for reasons dated June
15, 2016 (
1043325 Ontario Ltd. v. CSA Building Sciences Western Ltd.
, 2016
BCCA 258).

Counsel for the Appellant:

R.S. Fleming

Counsel for the Respondent:

M.B. Morgan

Place and Date of Hearing:

Vancouver, British
  Columbia

January 4, 2017

Place and Date of Judgment:

Vancouver, British
  Columbia

January 11, 2017

Written Reasons of the Court

Summary:

Application to re-open appeal
dismissed.

Written Reasons for Judgment
of the Court:

[1]

The appellant applies to re-open its appeal. The application was made
following a series of written communications between counsel and this division
of the Court dealing with various matters; but the proposed re-opening would
relate only to the position of Mrs. Jeck, a defendant in this proceeding. She
is the wife of the defendant Mr. Jeck, who was the sole director of the defendant
CSA Building Sciences Western Ltd. (CSA). He was found to have engaged in
oppressive and prejudicial conduct in causing CSA to pay to himself excessive
management fees over several years

to the exclusion of the appellant, which as the minority shareholder
could reasonably have expected to participate to some extent in CSAs financial
success. In allowing the appeal, this court determined that 44% of the excess
fees, or $249,065, should have been paid out by CSA as dividends to the
appellant.

[2]

At the close of our reasons, we requested that counsel provide written
submissions no later than June 30, 2016 as to any order they might propose as a
tax-efficient alternative to an order that Mr. Jeck simply pay $249,065 to the
appellant. Counsel have not been able to agree on any such alternative order
that this court could properly make. Thus the default order would simply
direct that Mr.

Jeck pay the full amount.

[3]

In its application, the appellant seeks an order that Mrs. Jeck be
jointly and severally liable with Mr. Jeck for the payment of the $249,065 to
the appellant.

[4]

It is certainly true that Mrs. Jeck was a defendant and that the
appellant pleaded that Mr. and Mrs. Jeck had invested and obtained profits
from the $2,069,455
that Ralph Jeck took
from [CSA] without authority
[our emphasis] and that the two had received other benefits as a result of the
oppressive conduct. A reference was made at para. 65 of the amended petition to
unjust enrichment on the part of both. The wrongful conduct, however, was the
conduct of Mr. Jeck as the majority shareholder and sole director of CSA. There
was no allegation that Mrs.

Jeck (who
apparently acted as CSAs office manager) had participated in the oppression;
nor did the trial judge, Mr. Justice Sigurdson, make any such finding. At para.
149 of his reasons, he stated:

having reviewed the evidence, I
think that the remuneration that Mr. Jeck receives should be taken to
include monies that he subsequently said should be treated as payments to
Mrs. Jeck.  I do that because I think that his initial statement of
his income in his earlier affidavit is more likely to be accurate and I was not
persuaded on the evidence that the payment by the company to Mrs. Jeck was
other than for income splitting purposes.

We read this as indicating that the judge was skeptical of
the affidavit evidence of Mr.

Jeck that he
had paid, or caused CSA to pay, to his wife some of the fees he had previously
deposed had been paid to himself. The judge resolved the doubt by simply treating
the entire amount of management fees shown in CSAs financial statements as
having been paid to Mr. Jeck. He made no finding that Mrs. Jeck had participated
in the wrongdoing, and he dismissed the action as against her. The appellant
did not apply to the trial judge to re-open this or any other aspect of the
trial judgment.

[5]

The appellants grounds of appeal were set out at para. 40 of this
courts reasons. They did not include any challenge to the trial judges
inclusion of funds allegedly paid to Mrs. Jeck, in the amount of management fees
received by her husband.

[6]

The appellant now submits that Mrs. Jeck received what funds she did
(assuming she did) without justification and that this court overlooked or
ignored that fact. When questioned as to the legal basis of the claim asserted
against Mrs.

Jeck, counsel for the appellant
suggested that because the oppression remedy is broad and in some respects similar
to that of an equitable remedy, an order of joint and several liability can and
should be made to do justice.

[7]

The fact remains, however, that no cause of action was proven against
Mrs.

Jeck. She was not a director of CSA
and no evidence was brought to our attention that she knew or should have known
that the appellants reasonable expectations were being wrongly thwarted by Mr.
Jeck. There was no evidence, and no finding, of a conspiracy among the
defendants or knowing assistance on her part that might support any kind of
claim in Equity. No tracing of funds to her from another was sought and no
fraudulent conveyance was alleged. As far as unjust enrichment is concerned, Mrs.
Jeck might well have had an argument that there was a juristic reason for any
benefit she received
 that
the
funds were a gift from her husband (albeit for tax reasons), for example, or
that CSA was remunerating her for her services. Again, however, it appears this
was not pursued at trial, or if it was, the trial judge did not find that it
had been proven.

[8]

We conclude that it is not appropriate at this stage, on the pleadings,
on the evidence, or on the findings of fact made below, to attribute Mr.

Jecks conduct to his wife or to order that she is
jointly and severally liable with him to the appellant.

[9]

Our previous comments made to counsel in writing concerning dividends or
the tax treatment thereof, and concerning the estoppel/limitation issue remain
unchanged.

[10]

In the result, we dismiss the application to re-open this matter and
urge counsel to attend to the filing of an order reflecting our reasons of June
15, 2016.

The
Honourable Madam Justice Newbury

The
Honourable Mr. Justice Groberman

The
Honourable Mr. Justice Willcock