COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

Lau v. Rai,

2010 BCCA 26

Date: 20100120

Docket:
CA035667

Between:

Yen Ping Lau

Appellant

(
Plaintiff
)

And

Gurnek Rai and Manjit Rai

Respondents

(
Defendants
)

Before:

The Honourable Mr. Justice Lowry

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Neilson

On appeal from:  Supreme Court of British Columbia, December 3, 2007

(
Lau v. Rai
, 2007 BCSC 1746, Vancouver Registry No. S042178)

Acting on his own behalf:

Y.P.
  Lau

Counsel for the Respondents:

A.J.
  Roberts

Place and Date of Hearing:

Vancouver,
  British Columbia

December 7, 2009

Place and Date of Judgment:

Vancouver
, British Columbia

January
  20, 2010

Written Reasons by
:

The Honourable Mr. Justice Frankel

Concurred in by:

The Honourable Mr. Justice Lowry

The Honourable Madam Justice Neilson

Reasons for
Judgment of the Honourable Mr. Justice Frankel:

Introduction

[1]

This litigation involves an action in trespass
between owners of two neighbouring residential properties.  Yen Ping Lau
purchased his home in 1994.  Gurnek Rai and Manjit Rai purchased the vacant lot
next door in 2002.  The Rai property is lower than the Lau property.  Excavation
work on the Rai property removed lateral support for the Lau property.  This
caused a portion of the Lau property to collapse, resulting in damage to some
of Mr. Laus flowerbeds and a portion of his fence.  To address this
problem, the Rais built a retaining wall abutting the line between the two
properties.  A large quantity of gravel was permanently placed behind the wall,
on the Lau property.  Mr. Lau sued, seeking general, special, punitive,
and aggravated damages.

[2]

Following a trial, Mr. Justice Powers of
the Supreme Court of British Columbia found that Mr. and Mrs. Rai had
trespassed on Mr. Laus property.  He awarded Mr. Lau $7,243.12 to
restore his property to its original condition, and a further $2,000.00 as
aggravated damages.  However, the trial judge declined to award punitive
damages.  His reasons for judgment are indexed as 2007 BCSC 1746.

[3]

Mr. Lau contends that the trial judge made
a number of errors in fact and in law, and made an inadequate damages award.  Mr. Laus
key assertion is that the trial judge should have found that Mr. and Mrs. Rai
committed a pre-planned intentional trespass on his property in order to
maximize the footprint of the house they were building.  Mr. Lau is firmly
of the belief that this is what occurred and that, because of this, he is
entitled to significant punitive damages.  To support his case, Mr. Lau
seeks to file, as fresh evidence, the affidavit of his son, to which is
attached the report of a geotechnical engineer.

[4]

The determination of this appeal is hampered by
the fact that Mr. Lau did not file a complete transcript of the evidence
at trial.  He filed only the evidence given by three defence witnesses:  two
geotechnical engineers and the operator of the excavation equipment.  In
addition, the last 50 pages of his appeal book consist of documents that were
not before the trial judge and are, therefore, not properly before this Court.

[5]

For the reasons that follow, I would dismiss
this appeal.

Factual
Background

[6]

Mr. Laus property is located at 6708 Mason
Court, Burnaby, British Columbia.  Mr. and Mrs. Rais property is
located at 7922 Mayfield Street.  The Rais plans called for their house to be
constructed five feet from the property line, the closest allowed by building
by-laws.

[7]

In mid-May 2003, excavation began on the Rai
property.  As a portion of the bank created by the excavation at the property
line between the Rai and Lau properties was saturated with water and appeared
ready to give way, it became apparent that some form of retaining wall was needed.

[8]

On Friday, May 23, 2003, Mr. Rai retained Paullus
Yeung, a geotechnical engineer.  Mr. Yeung attended at the building site that
afternoon, and met with Mr. Rai and his structural engineer, Cesar
Parayno.  After examining the site, Mr. Yeung prepared a Field Inspection
Report recommending that a two lock-block high retaining wall back-filled with
drain rock (i.e., gravel) be used to prevent further subsidence.  He also prepared
a sketch indicating that both the lock-blocks and gravel were to be placed entirely
on the Rai property.  That same day, the Rais asked Mr. Lau for permission
to remove a portion of his fence to facilitate construction of the retaining
wall.  Mr. Lau refused.

[9]

Excavation relating to the installation of the
retaining wall took place on Saturday, May 24, 2003.  This caused a 16-foot
section of Mr. Laus fence to fall.  When Mr. Lau learned of this, he
and his family became very upset.  They believed the fence had been pulled down
deliberately.  The trial judge, however, accepted the excavator operators
evidence that he did not intentionally tear down any portion of the fence.  On
that day, Mr. Rai told Mr. Lau that he would pay for any damage to
his property, and would restore it to its original condition.

[10]

Mr. Lau confronted the workers and demanded
that they stop.  A heated argument developed between members of the Lau and Rai
families.  Eventually, the police were called.  No further work took place that
day, or on the following day.

[11]

On Monday, May 26, 2003, Burnaby building
inspectors visited the Rai property and attempted, unsuccessfully, to mediate
the dispute.  Mr. Rai again said that he would pay for any damages to the Lau
property and restore it to its original condition.  Mr. Lau doubted Mr. and
Mrs. Rais sincerity.

[12]

Mr. Yeung returned to the building site on
the morning of May 26, 2003.  He found that the excavation and the retaining
wall practically were completed.  The retaining wall that had been installed
was four lock-blocks high.  Mr. Yeung prepared another Field Inspection
Report together with a sketch showing the lock-blocks abutting the line
between the two properties and back-filled with gravel.  The gravel was entirely
on the Lau property.  Because Mr. Yeung did not want to be involved in the
dispute between Mr. and Mrs. Rai and Mr. Lau, he resigned from
any further involvement in the project.  Mr. Rai then retained another
geotechnical engineer, Edward C.C. Yip.  Mr. Yip first visited the building
site on Wednesday, May 28, 2003.

[13]

The retaining wall was completed on May 28,
2003.  It is approximately ten feet high and 40 feet long.  It is back-filled
with approximately 1260 cubic feet (i.e., 60 tons) of gravel.  During
construction of the wall, approximately 42 feet of Mr. Laus fence was damaged,
and a considerable amount of soil was removed from his property.  A number of
his flower beds and rose bushes were also destroyed.

[14]

Mr. Yip provided Mr. Rai with a report
containing a number of recommendations with respect to the construction of the
residence on his property.  That report deals with the retaining wall as a
completed installation.

Trial
Judges Decision

[15]

As mentioned above, the trial judge found that
the removal of the first section of fence that was damaged was not deliberate.
He also found that it was not the Rais intention at the outset to encroach on Mr. Laus
property, and that when subsidence occurred during the initial stages of the
excavation, building a retaining wall was a reasonable and acceptable way of
addressing the problem.  In this connection he noted that there was a danger
of further subsidence if there were heavy rains.

[16]

In finding that Mr. and Mrs. Rai
trespassed, the trial judge said:

[20]      I find
that the defendants have commit[ted] trespass on the plaintiffs property.
Actionable trespass occurs when a party enters onto lands without the
permission of the occupier.  (Linden, Allen M.,
Canadian Tort Law
7th
ed. (Toronto:  Butterworths, 2001) at 639.)  It does not depend upon fault,
negligence or consequential damage.  (Klar, Linden et al.
Remedies in Tort
at 23-11.)  The defendants acknowledge that they committed trespass on the
plaintiffs property when their actions resulted in the subsidence of the
plaintiffs property and subsequent encroachment in order to build a retaining
wall.

[17]

The trial judge then assessed damages.  He held
that Mr. Lau was entitled to recover the costs of restoring his property to
its original condition.  With respect to the fence, the trial judge held that
the entire 92 feet along the property line should be replaced and painted, not
just the 42 feet that had been damaged.  However, he denied compensation for an
additional 50-foot section of undamaged side-fencing.  He also made an award
for the cost of replacing the top soil that had been removed, and for
replanting rose bushes and other plants.  Based on the estimates before him,
the trial judge assessed compensatory damages at $7,243.12.  In arriving at
this figure, the trial judge rejected Mr. Laus contention that general
damages should be assessed at approximately $50,000.00.  Mr. Lau had
arrived at this figure based on his estimate that the excavator had trespassed
on his property approximately 256 times to either remove earth or deposit
gravel, and that he should receive $200.00 for each time.

[18]

The trial judge also held that Mr. Lau was
entitled to aggravated damages to reflect the upset and distress he suffered as
a result of the damage to and encroachment onto his property.  Those damages
were assessed at $2,000.00.

Grounds
of Appeal

[19]

There is a lack of precision in how Mr. Lau
has stated his grounds.  On the basis of his factum and his oral submissions, I
take his grounds to be that the trial judge erred in:

(a)      not finding that it was the Rais intention from the outset
to trespass on his property;

(b)      not finding that the removal of the fence was deliberate;

(c)      not finding that the deposit of 60 tons of gravel on his
property constitutes a continuing trespass;

(d)      misapprehending certain evidence;

(e)      disallowing certain questions in his cross-examination of Mr. Yeung
and Mr. Yip;

(f)       failing to take into account that construction of the
retaining wall continued after he had refused to permit any further
encroachment onto his property;

(g)      calculating the cost of restoring his property; and

(h)      failing
to award punitive damages.

[20]

In Part 4 of his factumnature of order soughtMr. Lau
seeks an increase in compensatory damages to $27,948.56, and $30,000.00 in
punitive damages.  The compensatory damages include the cost of removing the
gravel and a charge relating to the use of his property from May 2003, until
the removal of the gravel.

Analysis

Fresh
Evidence

[21]

Mr. Lau seeks to tender the affidavit of
his son, Eric Lau.  That affidavit contains a detailed recitation of the
construction of the retaining wall and the dispute that arose between the two
families, all from Eric Laus perspective.  It also contains references to
aspects of the trial, including the testimony of witnesses, and rulings made by
the trial judge.

[22]

Attached as an exhibit to the affidavit is a
report prepared by Sean Riley, a geotechnical engineer.  That report is dated
November 6, 2009, i.e., one month before the hearing of this appeal.  Mr. Riley
takes issue with the efficacy of the lock-block retaining wall that was
installed.  He also opines that, over time, the earth underneath the Lau
property could migrate into the void spaces in the gravel, resulting in
settlement or collapse of a portion of that property.  He suggests steps that
could have been taken during the construction of the retaining wall to prevent
this migration.

[23]

Eric Laus account of what occurred in 2003 and
at the trial is clearly not fresh evidence.  All of this is part of the trial
record that Mr. Lau has chosen not to file.

[24]

Mr. Lau says that he retained Mr. Riley
prior to the trial, with a view to calling him as a witness.  He further
says that, because he did not have a written report from Mr. Riley, the
trial judge, on two occasions, refused to permit Mr. Riley to testify.  Mr. Lau
has not included those rulings in his material.

[25]

It would appear that the trial judges rulings
are grounded in Rule 40A of the
Rules of Court
, B.C. Reg. 221/90, which
deals with Evidence of Experts.  In particular, Rule 40A(3) requires that,
before a party can call an expert witness, a written statement setting out the
experts opinion must be served on the opposing party 60 days before the expert
testifies.

[26]

Mr. Rileys report is not fresh evidence.
It is, in written form, the very evidence Mr. Lau unsuccessfully attempted
to call at trial.  That evidence cannot now be received unless Mr. Lau
establishes that the trial judge erred in not permitting Mr. Riley to
testify.  Mr. Lau has neither provided those rulings, nor challenged their
correctness.

[27]

I would refuse the application to admit Eric
Laus affidavit on this appeal.

Challenges
to Findings of Fact / Misapprehension of Evidence

[28]

A substantial portion of Mr. Laus factum
and his oral submissions are directed at challenging findings of fact made by
the trial judge.  For example, Mr. Lau contends, as he did at trial, that
his fence was intentionally pulled down, and that the Rais intention from the
outset was to encroach on his property, because it was less expensive to build a
lock-block retaining wall than to use other means to provide lateral support
along their shared property line.

[29]

The limits on appellate review of findings of fact are
well known.  Recently, in
Manjit International Development Ltd. v. Ng
,
2009 BCCA 429, Mr. Justice Tysoe said this:

[10]      The role of this Court is not to
retry the case.  This Court is a court of review and of error correction.  It
does not receive evidence or hear witnesses.  That is the role of the trial
court.  Consequently, this Court will not interfere with findings of fact by a
trial judge, absent palpable and overriding error plainly seen:
Housen v.
Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235.  As stated by the majority in
that case:

[22]
[Although] it is open to an appellate court to find that an inference of fact
made by the trial judge is clearly wrong, we would add the caution that where
evidence exists to support this inference, an appellate court will be hard
pressed to find a palpable and overriding error.  As stated above, trial courts
are in an advantageous position when it comes to assessing and weighing vast
quantities of evidence.  In making a factual inference, the trial judge must
sift through the relevant facts, decide on their weight, and draw a factual
conclusion.  Thus, where evidence exists which supports this conclusion,
interference with this conclusion entails interference with the weight assigned
by the trial judge to the pieces of evidence.

[11]      That is the same standard of
review applicable to a trial judges findings of fact based on the credibility
of a witness.  In
Lu v. Mao
, 2007 BCCA 609, Madam Justice Saunders
stated as follows:

[12]       this
Court does not interfere lightly with findings of credibility.  It is the trial
judge who is in the best position to assess credibility.  Only if the
assessment of credibility is based upon a significant misapprehension of
evidence or displays an error in principle will this Court interfere.

Hence, this
Court cannot interfere with the trial judges findings on credibility and
findings of fact unless it is demonstrated that she made an obvious error that
affected the outcome of the decision.

[30]

The trial judge had before him a great deal of conflicting evidence.  He
analyzed that evidence, assessed the credibility of the witnesses, and made
findings of fact.  Given that Mr. Lau has not provided all of the evidence
that was before the trial judge, it is not possible for this Court to generally
reconsider those findings.  It is, however, possible to consider Mr. Laus
contention that the trial judge misapprehended one piece of evidence.

[31]

At paragraph 11 of his reasons, the trial judge states
that the plan approved by the Rais engineer was to place lock-blocks near the
bank with gravel filling the space behind the blocks.  The trial judge then
refers to Mr. and Mrs. Rai having testified that when they began to
remove the soil for this purpose, the bank gave way and some soil from Mr. Laus
property caved in, causing the fence to fall.  The Rais further testified that
they moved quickly to put the lock-blocks in place to prevent further
subsidence.

[32]

Mr. Lau submits that in paragraph 13 of his
reasons, the trial judge made an error with respect to the order in which
events occurred:

[13]
The defendants did retain an
engineer to give them advice as to how to proceed once the subsidence occurred.
The engineer recommended the placement of the lock blocks and gravel backing.  The
engineer noted that the soil was of fairly high moisture content where it had
subsided and was concerned that the retaining wall be put into place as soon as
possible.
This resulted in the blocks being placed closer to the plaintiffs
property line or just on the plaintiffs property line than originally
anticipated.
I am not satisfied that the defendants proceeded in this
fashion intentionally for the purposes of making it easier to construct their
house within 5 feet of the property line.  The placing of gravel behind the
lock blocks has aided in the drainage of any moisture that may accumulate
against the retaining wall from the plaintiffs property as well as any seepage
that may have passed through the defendants property from other locations.

[Emphasis
added.]

[33]

It is clear that the trial judges reference to
an engineer is to Mr. Yeung.  Mr. Lau contends that in this
paragraph the trial judge erroneously refers to Mr. Yeung as having
recommended the retaining wall be placed right at the property line, with the
gravel on the Lau property.

[34]

Mr. Yeungs evidence is that he was
consulted before any significant subsidence occurred.  When he first visited
the building site on May 23, 2003, he was advised by Mr. Rai and Mr. Parayno
that they had encountered some soft ground and were concerned about the
stability of the excavation.  Mr. Yeung testified that when he looked at
the bank it appeared to be stable, but when he examined it more closely, he
found a layer of sand with groundwater in it.  Based on this observation, he
recommended the erection of a lock-block retaining wall with gravel filling the
space behind the wall.  Mr. Yeung prepared a sketch showing both the wall
and the gravel on the Rais side of the property line.  When Mr. Yeung
returned on Monday, May 26, 2003, he found that the retaining wall had been
placed at the property line, with the gravel on the Lau property.  How and why
the wall came to be in that location is not discussed in the transcripts filed
on this appeal.

[35]

I do not agree that paragraph 13 evinces a
misapprehension of the evidence.  The trial judge is not saying that the
retaining wall was built in the location recommended by Mr. Yeung.  What
the judge is saying is that the unstable soil conditions noted by Mr. Yeung
resulted in the wall being placed closer to the property line than originally
anticipated, which I take to be a reference to Mr. Yeungs recommended
location.  In other words, the trial judge found that circumstances
necessitated the wall being built closer to the Lau property than Mr. Yeung
had recommended because of what occurred on Saturday, May 24, 2003.  As the
judge stated in paragraph 19 of his reasons, [t]he subsidence of soil occurred
on [Mr. Laus] side of the property line and required that the loose soil
be removed and the gap between the lock block and the remaining soil be back
filled with gravel.

Disallowance
of Questions In Cross-Examination

[36]

Mr. and Mrs. Rai called both Mr. Yeung
and Mr. Yip as witnesses.  Mr. Lau attempted to cross-examine them
with a view to establishing that alternative methods of supporting the bank
created by the excavation could have been used, and that the Rais chose the
least expensive method.  It would appear that Mr. Lau sought to elicit
that evidence to support his contention that it was always the Rais intention
to trespass on his property.

[37]

In response to the first questions asked of him
in-chief, Mr. Yeung said that he is a professional engineer, specializing
in geotechnical engineering.  He then answered questions designed to bring out
what he had done on his two visits to the building site.  During Mr. Yeungs
examination in-chief his two Field Inspection Reports and sketches were
marked as exhibits.  Those reports are written on the letterhead of a
geotechnical engineering firm.  As for Mr. Yip, the first question asked
of him in-chief elicited that he is a geotechnical engineer.  During his
examination in-chief, Mr. Yip referred to two reports he had written setting
out his observations and recommendations. One report includes a sketch of the
building site and retaining wall.  Those reports had previously been marked as
exhibits.  Both are written on the letterhead of a geotechnical engineering
firm and bear Mr. Yips seal as a professional engineer.

[38]

During Mr. Laus cross-examination of Mr. Yeung,
counsel for Mr. and Mrs. Rai objected to the witness being asked
hypothetical questions regarding alternate methods that could have been used to
shore up the bank.  Counsel submitted that Mr. Yeung had been called as a
lay witness to testify as to what he heard, what he said, what he did, and
that it was improper for Mr. Lau to attempt to elicit expert opinion
evidence from him, as no notice had been given.  Although not specifically
mentioned, it is apparent that counsel was referring to the notice requirements
in Rule 40A.  In sustaining that objection, the trial judge stated:

I will not allow
this line of questioning.  It is trying to put in expert opinion evidence when
there has been no notice given, and it would be unfair and contrary to the
rules of court if I allowed that to occur.

[39]

The same objection was raised during Mr. Yips
cross-examination.  Once again, Mr. and Mrs. Rais counsel successfully
argued that Mr. Laus questions should be limited to what was done,
said, or heard by Mr. Yip, and could not extend to matters involving Mr. Yips
professional opinion.

[40]

Mr. Laus complaint regarding the
restrictions placed on his cross-examination of Mr. Yeung and Mr. Yip
raises the issue of whether, and if so to what extent, the requirements of Rule
40A apply when one party seeks to elicit an opinion that is within the
expertise of a witness called by the other party, when that opinion did not
form part of the witnesss evidence in-chief.  However, I do not propose to deal
with this issue for two reasons.

[41]

The first reason is that neither party addressed
the interpretation and application of Rule 40A in their respective arguments.
The second is that I am unable to see how Mr. Laus case could have been
improved had he obtained the sought-after opinions.  Even if both Mr. Yeung
and Mr. Yip had testified that there were more costly alternative methods
of addressing the subsidence problem that did not involve encroaching on Mr. Laus
property, that evidence would not have advanced Mr. Laus position that Mr. and
Mrs. Rai always intended to encroach.  It is clear that Mr. Yeung was
consulted shortly after the first subsidence occurred, and that he recommended
constructing the retaining wall on the Rais side of the property line.  There
is nothing to suggest this was not a reasonable way of dealing with the problem
that had arisen.  There is also nothing in the limited transcripts that have
been filed that supports Mr. Laus contention that the final placement of
the wall was premeditated on the part of the Rais.

Assessment
of Damages

[42]

Mr. Lau submits that damages awarded do not
adequately compensate him.  He further submits that the trial judge erred in not
awarding punitive damages.

[43]

With respect to the cost of replacing and
painting his fence, Mr. Lau says that the trial judge erred in not
including the 50-foot section of side-fencing that is continuous with, and
perpendicular to, the fence that separates his property from the Rais.  In
deciding not to include that section, the trial judge stated that it had not
[been] affected.  As it has not been shown that the judge erred in that
finding, there is no basis on which to increase this aspect of the award.

[44]

As he did at trial, Mr. Lau argued that he
should be awarded damages for each time the excavator encroached on his
property to either remove soil, or to deposit gravel.  There is no merit in that
argument.  I agree with the trial judge that what occurred is essentially one
trespass.

[45]

Mr. Lau next submits that he is entitled to
compensation based on the fact that the gravel placed behind the retaining wall
remains on his property.  He says that the gravel should be removed and that
the trial judge erred in not addressing this question.

[46]

That the trial judge did not address the removal
of the gravel is explained by the fact that he was not asked to consider this
question.  There is nothing in Mr. Laus statement of claim (prepared by a
solicitor) seeking removal of the gravel.  Further, there is nothing in that
portion of the trial record that has been filed indicating that this point was
taken before the trial judge.

[47]

While it is true that the gravel remains behind
the retaining wall, there is no evidence that its presence has, or will have,
any detrimental effect on Mr. Laus property.  The trial judge awarded
compensatory damages based on the cost of restoring Mr. Laus property to
its original state.  That award includes the cost of new fencing and the cost
of replacing the top soil and plants that were removed.  There is nothing to
indicate that the condition of Mr. Laus property is now different from
what it would have been had the area behind the wall been returned to its
original state by putting in the same substances removed during the excavation,
i.e., layers of topsoil, fill, silt, and sand.  The case at bar is, therefore,
unlike
Epstein v. Cressey Development Corp.
(1992), 65 B.C.L.R. (2d) 52
(C.A.), where the plaintiff was awarded damages as compensation for the decrease
in the value of her property caused by a continuing trespass, i.e., remnants
from improperly installed anchor rods that had been removed remained beneath
the surface of her property.  Rather, it is comparable to
Vancouver Block
Ltd. v. Empire Realty Company Ltd.
(19 June 1979), No. CA780018 (B.C.C.A.),
wherein a compensatory damages award for a continuing trespass was set aside
because anchor rods left beneath the surface of the plaintiff property had no affect
on the use or value of that property.

[48]

Mr. Lau submits that he is entitled to
punitive damages because Mr. and Mrs. Rais conduct was arrogant and
high-handed.  That description is, however, not supported by the trial judges
findings.  The trial judge found Mr. and Mrs. Rai to be credible
witnesses.  More specifically, in declining to award punitive damages, the
judge said:

[28]      I do
not award anything for punitive damages.  I accept that the defendants were
acting reasonably when they immediately offered to be responsible for restoring
the plaintiffs property to its original condition.  They provided a letter of
apology which was delivered through city hall, who was also trying to mediate
this dispute.  I am satisfied that they were willing to pay reasonable
compensation to restore the plaintiffs property to its original condition.  The
parties may have disagreed as to what was reasonable, but I am satisfied the
defendants were genuine in their efforts to try and resolve the dispute.  I am
also satisfied that the defendants did not simply ignore the plaintiffs wishes
and encroach on their property in order to save money or to allow them to
improve their view from their home by building closer to the plaintiffs
property.

[49]

As recently discussed in
Bowen Contracting
Ltd. v. B.C. Log Spill Recovery Co-operative Assn.
, 2009 BCCA 457, not
every act of trespass warrants an award of punitive damages.  What is required before
such an award can be made is extreme or exceptional conduct deserving of
punishment and disapprobation.  No such conduct was proven in the case at bar
and Mr. Lau has not been able to show that the trial judge erred in coming
to the conclusions he did.

Conclusion

[50]

I would dismiss this appeal.

The Honourable Mr. Justice Frankel

I agree:

The Honourable
Mr. Justice Lowry

I agree:

The
Honourable Madam Justice Neilson


COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

Marchen v. Dams Ford Lincoln Sales
  Ltd.,

2010 BCCA 29

Date: 20100120

Docket:
CA036991

Between:

Tyler Marchen

Respondent

(
Plaintiff
)

And

Dams Ford Lincoln Sales Ltd.

Appellant

(
Defendant
)

Before:

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Chiasson

The Honourable Mr. Justice Groberman

On
appeal from the Supreme Court of British Columbia, March 26, 2009 (
Marchen
v. Dams Ford Lincoln Sales Ltd.
, 2009 BCSC 400, S053163)

Counsel for the Appellant:

R.D.
  Lee & M.B. Gehlen

Counsel for the Respondent:

A.C.
  Kempf & U. Gabie

Place and Date of Hearing:

Vancouver
, British Columbia

December 3, 2009

Place and Date of Judgment:

Vancouver
, British Columbia

January
  20, 2010

Written Reasons by
:

The Honourable Mr. Justice Chiasson

Concurred in by:

The Honourable Madam Justice Saunders
The Honourable Mr. Justice Groberman

Reasons for
Judgment of the Honourable Mr. Justice Chiasson:

Introduction

[1]

This case concerns the assessment of damages for
wrongful dismissal in a contract which expressly limits an employers
obligation to employ to the availability of work, whether so-called
consequential damages are available to a wrongfully dismissed employee and the
relationship between an award of punitive damages and special costs.

[2]

Mr. Marchen entered into an Apprenticeship
Agreement (the Agreement) with the appellant, which was terminated
wrongfully.  He was unable to find another sponsor and did not complete his
apprenticeship.  The judge awarded Mr. Marchen damages for wrongful dismissal and
consequential damages based on his loss of training and loss of the status of
journeyman.  He also awarded punitive damages and special costs on the basis
that shortly after the termination the appellant gave an incorrect explanation
for the termination and advanced that explanation unsuccessfully at trial.

[3]

In the result, the judge awarded Mr. Marchen:  $18,151.73
damages for wrongful termination; $25,000 for consequential damages; $2,036
special damages; $100,000 punitive damages; special costs.  His reasons are
indexed at 2009 BCSC 400.  The appellant appeals contending the
Agreement was terminable on reasonable notice and challenges the awards of
damages for termination, consequential damages, punitive damages and special
costs.

[4]

For the reasons that follow I would, set aside
the award of punitive damages and the award for damages for wrongful
termination and would remit the matter to the Supreme Court to determine the
amount payable to Mr. Marchen in lieu of notice. Otherwise I would affirm the
order of the trial judge.

Background

[5]

On November 13, 2002 the parties entered into the Agreement.  It provided for Mr. Marchen to apprentice in the appellants
body shop.

[6]

Mr. Marchens brother, Anthony, worked in the
parts department of the appellant.  In the summer of 2004, after failing to
return to work after a scheduled vacation, Anthony confessed to stealing parts
to support a drug habit.  He no longer was employed by the appellant.  In
November 2004 the R.C.M.P. advised the appellant that Anthony was to be arrested
for violating his parole arising out of a conviction for the possession of a
stolen motor vehicle.  The president of the appellant, Mr. Dams, was shocked
because he understood Anthony had no previous difficulties with the law and
because the stolen vehicle had been repainted in the appellants body shop.

[7]

On January 27, 2005, Mr. Marchen was dismissed summarily and without explanation by the appellant.

[8]

Mr. Marchens father testified that on January 28, 2005 he was told by Mr. Dams that Mr. Marchen had been fired because the
criminal investigation had spread to the body shop and charges might be laid
against both Mr. Marchen and his brother.  Mr. Dams denied this conversation.
The judge accepted the evidence of Mr. Marchens father.

[9]

On February 8, 2005, the General Service Manager of the appellant advised a federal government employee that Mr. Marchen
had been terminated due to a police matter.  The employee contacted Mr. Marchen
who denied the allegation.  He subsequently was approved for unemployment
insurance.

[10]

On June 16, 2005, shortly after this action was initiated, Mr. Dams called the government employee and advised her that the
criminal investigation involved Mr. Marchens brother and that Mr. Marchen was
terminated because the appellant was downsizing its body shop operation.  At
trial, the appellant advanced this as the reason for the termination.  The
judge concluded it was not the reason and that Mr. Marchen had been terminated
because he was suspected of criminal activity.

[11]

Mr. Marchen took fairly extensive steps to
obtain another sponsor so he could complete his apprenticeship, but was
unsuccessful.

Trial judgment

[12]

The Agreement was made pursuant to the
Industry
Training and Apprenticeship Act
, S.B.C. 1997, c. 50 (the
Act
).

[13]

The judge addressed the terms of the Agreement
in paras. 7 and 8:

[7]        The term of the Apprenticeship
Agreement was from November 13, 2002 to November 12, 2006. Its provisions included:

1.         The
EMPLOYER agrees:

(a)        to
receive the Apprentice/Trainee for the period stated herein and to teach
efficiently the trade or occupation specified in this Agreement; and

(b)        to
fulfill the other obligations of an Employer as set out in Schedule A.

2.         The APPRENTICE/TRAINEE agrees:

(a)        to
place himself/herself as an apprentice/trainee in the trade/occupation listed
in this application/agreement for the period of time as stated below;

(b)        to
complete the prescribed hours of technical training;

(c)        to
share school and examination results with the Employer;

3.         The EMPLOYER and
APPRENTICE/TRAINEE further agree:

(d)        that
the term of this agreement may be extended at the sole discretion of the
Industry Training and Apprenticeship Commission for a period of not more than
13 months, upon written notification to the parties.

[8]        Schedule A of the
Apprenticeship Agreement includes the following provisions:

3.         Every
Employer shall:

(c)        Keep
each Apprentice/Trainee employed so long as work is available for the
Apprentice/Trainee;

(g)        Notify
the CEO and obtain the approval of the Industry Training and Apprenticeship
Commission before making any change affecting the Industry Training and
Apprenticeship Agreement;

(h)        Notify
the CEO immediately of any difficulty that occurs which could interfere with
the fulfillment of the terms of the Industry Training and Apprenticeship
Agreement; and

(i)         Notify
the CEO in writing immediately when, for any reason, an Apprentice/Trainee is
laid off or terminated from employment.

4.         Every
Apprentice/Trainee shall:

(a)        Render
faithful, honest, and diligent service to the Employer during the period of
apprenticeship;

5.         (a)        The
period of apprenticeship shall be as set out in the Industry Training and
Apprenticeship Agreement.

[14]

The Agreement also states a Start Date of November 13, 2002 and an Anticipated Completion Date of November 12, 2006.

[15]

The
Act
provides for the registration of apprenticeship
agreements and states in s. 15(6):  [a] party to a registeredapprenticeship
agreement may terminate it without the consent of the other parties.  The
Agreement was registered.  The CEO (Chief Executive Officer of the Industry
Training and Apprenticeship Commission) was not notified by either party when
Mr. Marchens employment was terminated.

[16]

The judge reviewed Mr. Marchens extensive
efforts to find a sponsor and his job history, concluding in para. 44:

[44]      Since
leaving Dams, Tyler has been unable to find a new apprenticeship sponsor.  He
has not been credited with any on-the-job training credits.  While it is
possible that he may, through a statutory declaration, earn some credits for
the hours he has worked in recent years, such credits must be approved by a new
sponsor.

[17]

In paras. 4547 the judge summarized the
evidence and positions of the parties:

[45]      Mr. Dams, Mr. Penner and Mr.
Delion all testified.  All acknowledged that Tyler was a good employee.  All
denied that Tyler was dismissed because of the criminal activities of his brother.
Their evidence was that Tyler was let go because the dealership had decided to
downsize its body shop operations in order to increase its capacity to repair
commercial trucks.

[46]      Tyler submits that the
Apprenticeship Agreement was a four-year fixed term contract and he is entitled
to damages based on the difference between what he has earned subsequent to
termination of his employment and what he would have earned if he had completed
the apprenticeship.  He also seeks moral damages arising from the way in which
he was terminated and consequential damages arising from the premature
termination of the Apprenticeship Agreement.  In addition, he seeks punitive
damages.  He submits that subsequent to his termination Dams has acted in a
reprehensible manner that departs to a marked degree from the ordinary
standards of decent behaviour.

[47]      Dams
submits that Tylers employment was terminated because of a lack of work
arising from the decision to downsize the body shop.  Pursuant to the
Apprenticeship Agreement, an employer is only obligated to continue an
apprentices employment if there is available work.  Alternatively, it submits
that the Apprenticeship Agreement was terminable on reasonable notice.  It
relies on s. 15(6) of the
Act
in support of this submission.  It
submits that reasonable notice would be six to eight weeks.  Dams submits that
consequential damages are not recoverable at law and that the method of
termination does not give rise to moral damages.  Finally, Dams says that in
the circumstances of this case, there are no grounds to award punitive damages.

[18]

The judge observed that the evidence indicates
that the body shop was ultimately downsized but stated the evidence did not
establish this was the reason for Mr. Marchens termination.  He concluded in
paras. 56 and 57:

[56]      I find that Tylers termination
arose from Mr. Dams unfounded suspicion that Tyler was somehow involved in his
brothers activity.  There was no evidence whatsoever to support that
suspicion.  The evidence is that Tyler at all times was a loyal and faithful
employee.

[57]      I
reject and do not believe the evidence of Mr. Dams, Mr. Penner and
Mr. Delion that Tyler was terminated because of the decision to downsize
the body shop.  That evidence is inconsistent with the facts as I have found
above based on the evidence which I do accept.

[19]

The judge began his analysis of damages by
considering whether the Agreement was for a fixed term.  It was his view that
the provision permitting termination by either party without the consent of the
other did not allow termination on reasonable notice.  He found the Agreement
to be for a fixed term: that the appellant agreed to employ [Mr. Marchen] for
the period set out in the contract so long as work was available.

[20]

In para. 61, the judge concluded Mr. Marchen was
entitled to damages based on the amounts he would have received to the end of
the fixed term less money he actually earned subsequent to his termination.
This resulted in an award for lost wages of $18,151.73.

[21]

The judge then turned to moral damages and the
comments of the Court in
Honda Canada Inc. v. Keays
, 2008 SCC 39, [2008]
2 S.C.R. 362, stating in para. 63:

[63]       The
Court concluded that damages resulting from the manner of dismissal are
available only if they result from circumstances in which the employer engages
in conduct during the course of dismissal that is unfair or in bad faith.  The
Court emphasized that the normal distress and hurt feelings resulting from
dismissal are not in themselves compensable.

[22]

In para. 66, the judge concluded:

[66]      When
[the appellant] terminated [Mr. Marchen] it had an honest, albeit mistaken,
belief that he may possibly have been involved in some criminal activity.  While
that belief did not justify his dismissal, I find, given that belief that [the
appellants] conduct at the time of termination was not unfair, unfaithful,
misleading or unduly insensitive.  There is no evidence that [Mr. Marchen]
suffered emotional distress in excess of the normal distress and hurt feelings
that result from any dismissal.

[23]

The claim for moral damages was dismissed.

[24]

The judge began his consideration of
consequential damages by referring to
Fidler v. Sun Life Assurance Co. of
Canada
, 2006 SCC 30, [2006] 2 S.C.R. 3, which confirmed the applicability
of the rule in
Hadley v. Baxendale
(1854), 9 Exch. 341, 156 E.R. 145
(Eng. Ex. Div.).  He then turned in para. 68 to
Addis v. Gramophone Co.
,
[1909] A.C. 488 (H.L.), which articulated the general rule governing damages in
a wrongful dismissal action:

[68]
Damages allocated in such actions are confined to the loss suffered as a result
of the employers failure to give proper notice.  No damages are available to
the employee for the actual loss of his or her job, pain and distress that may
have been suffered as a consequence of being terminated or for the loss he or
she may sustain because of the fact that having been dismissed of itself makes
it more difficult to obtain fresh employment.

[25]

In para. 69 the judge stated that
Dunk v.
George Waller & Son
, [1970] 2 All E.R. 630 (C.A.), recognized
apprenticeship contracts as an exception to the
Addis
principle:

[69]
Dunk v. George Waller & Son
,
[1970] 2 All E.R. 630 (C.A.) recognized an exception to this general rule in
regard to apprenticeship contracts.  At 634, Widgery L.J. described a
contract of apprenticeship as follows:

A
contract of apprenticeship is significantly different from an ordinary contract
of service if one has to consider damages for breach of the contract by an
employer.  A contract of apprenticeship secures three things for the
apprentice:  it secures him, first, a money payment during the period of
apprenticeship, secondly, that he shall be instructed and trained and thus
acquire skills which would be of value to him for the rest of his life, and,
thirdly, it gives him status, because the evidence in this case made it quite
clear that once a young man, as here, completes his apprenticeship and can show
by certificate that he has completed his time with a well-known employer, this
gets him off to a good start in the labour market and gives him a status the
loss of which may be of considerable damage to him.

Lord Denning noted at 633:

The very object of an apprenticeship
agreement is to enable the apprentice to fit himself to get better employment.
If his apprenticeship is wrongly determined, so that he does not get the
benefit of the training for which he stipulated, then it is a head of damage
for which he may recover.

[26]

The judge continued in paras. 70 and 71:

[70]      Those comments are consistent with
the principles set out in
Hadley
.  The wrongful termination of the
Apprenticeship Agreement has significantly set back Tylers career.  Instead of
learning his trade at a well-established dealership, he has been forced to
scramble to find employment.  His wages remain well below what he would have
earned as a journeyman.  In spite of his best efforts, he has been unable to
find a new sponsor to complete his apprenticeship.  He has not had the benefit
of the training for which he contracted.  The termination of the Apprenticeship
Agreement has dimmed his future prospects.

[71]      I find
in the circumstances of this case that Tyler is entitled to damages in respect
of the loss of training and loss of status which has resulted.  Such an award
cannot be calculated with any precision.  I award $25,000 for this loss.

[27]

Mr. Marchen was awarded $2,036 as special
damages, which were his relocation expenses to find work.  At the hearing of
the appeal, the appellant advised it took no exception to this award.

[28]

The basis on which the judge awarded punitive
damages was stated by him in paras. 7678:

[76]      In this case, the claim for
punitive damages arises not from Tylers dismissal but Dams attempt throughout
this litigation to cover up the real reason for his dismissal.  If Dams had
been able to establish that Tyler was dismissed for a lack of work, Tylers
claim would have been dismissed, as lack of work was a proper ground to
terminate the contract.

[77]      Dams attempt to justify Tylers
dismissal on the ground of downsizing was a planned and deliberate attempt to
mislead this court as to its true motives.  Its conduct persisted over a
lengthy period of time.  The misconduct commenced shortly after the issuance of
the writ when Mr. Dams contacted Ms. Mahovlich to rewrite the reasons given for
Tylers termination.

[78]      I find
that Dams actions are reprehensible and a substantial departure from the
conduct and practices reasonably to be expected from an employer such as the
defendant.  It breached its obligation to Tyler to act fairly and in good
faith.  It is particularly reprehensible that Dams acted in this manner in
regard to a young apprentice whom it wrongfully terminated from his first
full-time job because of unfounded suspicions.  Tyler was a hard working, loyal
employee.  He deserved better.  While I have found that method of termination
did not warrant moral damages, I find that Dams attempt to cover up the true
reasons for the termination merit an award of punitive damages.

[29]

He held that the appellants conduct was
planned and deliberate and intended to mislead the court.  The motive was to
keep [Mr. Marchen] from receiving damages to which he was entitled.  The
conduct began within days of the commencement of the litigation.....

[30]

The judge addressed special costs in para. 81:

[81]      Dams
attempt to mislead the court as to the true reasons for termination is
reprehensible conduct deserving of rebuke:
Garcia v. Crestbrook Forest
Industries Ltd. (No. 2)
(1994), 119 D.L.R. (4th) 740 (B.C.C.A.).  The
plaintiff is entitled to special costs.

Positions of the parties

[31]

The appellant asserts in its factum that the
judge erred:

1.         in
law, when he construed the
Act
as not permitting termination of Mr.
Marchen on reasonable notice; accordingly, the awards of damages for wrongful
dismissal and consequential damages cannot be sustained;

2.         in principle, awarding punitive
damages;

3.         in
principle, awarding special costs.

[32]

The respondent supports the conclusions of the
trial judge.

Discussion

Wrongful dismissal

[33]

Although it specifies an approximate term, in my
view, it is not helpful to characterize the Agreement as a fixed term contract
because there are a number of variables.  It specifies a starting date and an
anticipated end date.  The uncertainty flows from the nature of an
apprenticeship, which is a period of educational training and experience
tailored somewhat to individual participants.  In addition, by the terms of the
agreement the employment can end before the conclusion of the apprenticeship if
work is not available.

[34]

In para. 7, the trial judge stated the term of
the agreement was from November 13, 2002 to November 12, 2006.  This appears
to have been carried forward as the period of the fixed term as expressed in
para. 60:  [the appellant] agreed to employ [Mr. Marchen]
for the period
set out in the contract
so long as work was available (emphasis added).

[35]

The judge continued:

If [the appellant] had terminated [Mr.
Marchen] because of a lack of work, the termination would not have given rise
to a claim for breach of contract.  Clause 3(c) is clearly intended to
encourage employers to hire apprentices without fear that they may be liable
for damages if they no longer have work available.

[61]      In
this case, however, the termination did not arise from a lack of work but from
unfounded suspicions concerning [Mr. Marchens] conduct.  In the
circumstances, [he] is entitled to damages based on the amounts he would have
received to the end of the fixed term less the money he actually earned
subsequent to his termination.

[36]

In my view, the judge erred in this analysis
because, subject to the availability of work, the contract was for a period of
training, experience and education resulting in journeyman status; the dates
expressed in the contract were approximate only.  They could not define a fixed
term, but more importantly, as the judge noted, the obligation of the appellant
was conditioned on the availability of work.  The fact that Mr. Marchen was not
terminated because work was not available does not change this.  By focusing on
whether the contract was for a fixed term and so concluding, the judge does not
appear to have considered whether there was work available through to November
2006.

[37]

The duration of the agreement was approximately
four years or as long as work was available.  That is, the minimum period was
the availability of work; the maximum was the completion of the required
educational training and experience.

[38]

Generally, termination of a non-fixed term
employment contract is not unlawful.  The actionable wrong is the failure to
give proper notice, which is an implied term of an employment contract (
Vorvis
v. Insurance Corporation of British Columbia
, [1989] 1 S.C.R. 1085;
Machtinger
v. HOJ Industries Ltd.
, [1992] 1 S.C.R. 986).

[39]

Section 15(6) of the
Act
allowed the
parties to terminate the Agreement without the consent of the other, but
termination must be consistent with the provisions, expressed or implied, of
the employment contract.  The section may be recognition that many
apprenticeships take place under collective agreements which usually constrain
termination.  In the non-unionized employment context, the provision confirms
the common law right to terminate a non-fixed term contract, but it does not
obviate the need to give reasonable notice.

[40]

I observe that the present provision replaced
previous legislation that provided an apprenticeship agreement could be
terminated only by mutual agreement and with the approval of the Provincial
Apprenticeship Committee or for cause (
Apprenticeship and Tradesmens
Qualification Act
, R.S.B.C. 1960, c.13, s. 15).

[41]

I do not agree with the judges position that if
there were no work available for Mr. Marchen his termination necessarily would
not have been a breach of contract.  In my view, the question would remain
whether or to what extent he was entitled to reasonable notice.  Clearly
relevant to that inquiry would be the fact the parties agreed Dams did not have
to employ Mr. Marchen if no work was available.  In assessing what notice, if
any to which Mr. Marchen was entitled the court must take into account all of
the circumstances of the relationship.

[42]

Mr. Marchen was terminated in January 2005.  The
anticipated end of the Agreement was November 2006.  The appellant contends six
weeks notice is sufficient.  The respondent asserts reasonable notice would be
to the end of the term, that is, to November 12, 2006; approximately 22 months.

[43]

The Supreme Court of Canada addressed
determining an appropriate period of notice in
Honda
:

[28]      In determining what constitutes reasonable notice
of termination, the courts have generally applied the principles articulated by
McRuer C.J.H.C. in
Bardal
, at p. 145:

There can be no catalogue laid down as to what is reasonable
notice in particular classes of cases.  The reasonableness of the notice must
be decided with reference to each particular case, having regard to the
character of the employment, the length of service of the servant, the age of
the servant and the availability of similar employment, having regard to the
experience, training and qualifications of the servant.

[29]      These
four factors were adopted by this Court in
Machtinger v. HOJ Industries Ltd.
, [1992] 1
S.C.R. 986.  They can only be determined on a case-by-case basis.

[44]

The judge concluded in para. 49 that the
evidence indicates that the body shop was ultimately downsized, but he made no
finding of fact when this occurred.

[45]

The appellant could have given Mr. Marchen
notice it was downsizing the body shop and there would be no work for him at a
certain date in the future.  It did not do so.  Mr. Marchen was not entitled to
employment beyond the date when there was no work for him, but we do not know when
that was, although the evidence suggest it was the autumn of 2005 or later.

[46]

Although the appellants General Service Manager
testified he believed the truck shop took over body shop bays in March 2005,
other evidence placed the event in the fall of 2005.  Reviewing this evidence
as a whole it appears that the truck shop made some use of body shop bays in
March 2005, but the actual surrender of the bays took place sometime later.

[47]

There also was evidence the appellant hired a
journeyman to work in the body shop after the termination of Mr. Marchen.
There was evidence this person could do work that Mr. Marchen could not do, but
there is little to establish whether Mr. Marchen could do work done by the new
journeyman.  The judge did not address this issue.

[48]

In this case, Mr. Marchen was not terminated
because work was not available.  He was terminated because Dams incorrectly
suspected him of criminal conduct. Because the judge did not consider the
implication of the parties agreement Dams did not have to employ Mr. Marchen
if work no longer were available, made no finding of fact when work no longer
was available and did not consider what would be reasonable notice in the
circumstances of this case, I would remit this matter to the Supreme Court to
determine the pay in lieu of notice to which Mr. Marchen is entitled.

Consequential damages

[49]

The claim for consequential damages arose out
of Mr. Marchens inability to find a sponsor to complete his apprenticeship.
The appellant contends the apprenticeship could have been completed without a
sponsor and referred to a form entitled Prior Work-based Training Credit
Application, Motor Vehicle Body Repairs.  Mr. Marchen testified he had never
seen the document.  His conduct was consistent with this assertion.  When
seeking employment after his termination he looked for employers who would be
prepared to sponsor him and on occasion pressed them to do so.

[50]

The judge awarded Mr. Marchen $25,000
consequential damages in respect of the loss of training and loss of status
which has resulted from his termination.  The judge observed such an award
could not be calculated with any precision.

[51]

The starting point in considering whether this award
is sustainable is the decision of the Supreme Court of Canada in
Honda
.
The Court there began its analysis as follows:

[50]      An action for wrongful dismissal
is based on an implied obligation in the employment contract to give reasonable
notice of an intention to terminate the relationship in the absence of just
cause. Thus, if an employer fails to provide reasonable notice of termination,
the employee can bring an action for breach of the implied term (
Wallace
,
at para. 115). The general rule, which stems from the British case of
Addis
v. Gramaphone Co.
, [1909] A.C. 488 (H.L.), is that damages allocated in
such actions are confined to the loss suffered as a result of the employer's
failure to give proper notice and that no damages are available to the employee
for the actual loss of his or her job and/or pain and distress that may have
been suffered as a consequence of being terminated. This Court affirmed this
rule in
Peso Silver Mines Ltd. (N.P.L.) v. Cropper
, [1966] S.C.R. 673,
at p. 684:

[T]he damages
cannot be increased by reason of the circumstances of dismissal whether in
respect of the [employee's] wounded feelings or the prejudicial effect upon his
reputation and chances of finding other employment.

[51]

Later
in
Vorvis v. Insurance Corp. of British Columbia
, [1989] 1 S.C.R. 1085,
McIntyre J. stated at p. 1103:

I would
conclude that while aggravated damages may be awarded in actions for breach of
contract in appropriate cases, this is not a case where they should be given.
The rule long established in the
Addis
and
Peso Silver Mines
cases has generally been applied to deny such damages, and the
employer/employee relationship (in the absence of collective agreements which
involve consideration of the modern labour law régime) has always been one
where either party could terminate the contract of employment by due notice,
and therefore the only damage which could arise would result from a failure to
give such notice.

[52]

The judge in this case concluded damages for
loss of training and loss of status could be awarded following
Dunk
as
consistent with
Hadley v. Baxendale
.

[53]

I would not adopt
Dunk
as part of the law
of Canada.  It has been referred to a number of times in this country, but not
followed.  The English system of apprenticeship is not necessarily consistent
with Canadian practice.  I do find some support for the judges approach in the
Supreme Courts consideration of
Hadley v. Baxendale
in
Honda
.

[54]

Honda
was a
wrongful dismissal case.  As part of its analysis whether the conduct of the
employer could attract damages absent an independent cause of action, the Court
referred to and quoted from its previous decision in
Fidler
.

[55]

Fidler
concerned
the denial by the defendant of long term disability benefits.  The plaintiff
sought damages for mental distress.  The Court summarized its conclusion in
para. 2:

[2]
Since mental distress of the kind experienced by Ms. Fidler
was reasonably within the contemplation of the parties when they entered into
the contract of disability insurance, we see no reason to deny her compensation
for the damages for mental distress directly flowing from the breach. However,
the trial judge's finding that Sun Life did not act in bad faith should not be
interfered with and precludes an award of punitive damages. Accordingly, we
reverse the Court of Appeal's order as to punitive damages and restore the
award made by the trial judge.

[56]

The Court explained its conclusion in para. 44:

[44]
We conclude that damages for mental distress for breach of
contract may, in appropriate cases, be awarded as an application of the
principle in
Hadley v. Baxendale
: see
Vorvis
.  The court should ask what did the contract
promise? and provide compensation for those promises.  The aim of compensatory
damages is to restore the wronged party to the position he or she would have
been in had the contract not been broken.  As the Privy Council stated in
Wertheim v. Chicoutimi Pulp Co.
, [1911] A.C. 301, at p.
307: the party complaining should, so far as it can be done by money, be placed
in the same position as he would have been in if the contract had been
performed.  The measure of these damages is, of course, subject to remoteness
principles.  There is no reason why this should not include damages for mental
distress, where such damages were in the reasonable contemplation of the
parties at the time the contract was made.  This conclusion follows from the
basic principle of compensatory contractual damages: that the parties are to be
restored to the position they contracted for, whether tangible or intangible.
The laws task is simply to provide the benefits contracted for, whatever their
nature, if they were in the reasonable contemplation of the parties.

[57]

In
Honda
, the Court concluded damages
could be awarded arising out of an employers conduct at the time of dismissal
regardless of the existence of a separate cause of action, stating in para. 59:

[59]
To be perfectly clear, I will conclude this analysis of our
jurisprudence by saying that there is no reason to retain the distinction
between true aggravated damages resulting from a separate cause of action and
moral damages resulting from conduct in the manner of termination.  Damages
attributable to conduct in the manner of dismissal are always to be awarded
under the
Hadley
principle.  Moreover, in cases
where damages are awarded, no extension of the notice period is to be used to
determine the proper amount to be paid.  The amount is to be fixed according to
the same principles and in the same way as in all other cases dealing with
moral damages.  Thus, if the employee can prove that the manner of dismissal
caused mental distress that was in the contemplation of the parties, those
damages will be awarded not through an arbitrary extension of the notice
period, but through an award that reflects the actual damages.

[58]

In my view, the Court in
Honda
broke away
from the strictures of
Addis
and the jurisprudence that limited damages
in wrongful dismissal cases solely to the period of notice.  There is
recognition that some employment contracts involve more than the provision of
services for remuneration and that damages flowing from a wrongful dismissal
may take that fact into account.

[59]

The journey began with
Vorvis
with the
Courts recognition that aggravated damages could be awarded.  In
Wallace v.
United Grain Growers Ltd.,
[1997] 3 S.C.R. 701 at para. 95, the Court held
that employers have an obligation of good faith and fair dealing in the manner
of dismissal, which led to an extension of the period of notice.  The Court in
Fidler
concluded damages for mental distress were recoverable if such
damages were in the reasonable contemplation of the parties at the time they
entered into the contract.  In
Honda
the Court extended this conclusion
into the employment relationship.  The Court rejected the need for a separate
actionable wrong and stated damages should not be dealt with through an
extension of the notice period, but through an award of monetary damages.

[60]

Returning to the root of contract damages, the
question becomes: what was in the reasonable contemplation of the parties at
the time they entered into the contract?  As stated in
Fidler
,

the
task of the court is to ask what did the contract promise and what was in the
reasonable contemplation of the parties if what was promised was not provided?

[61]

In this case, the Agreement contemplated the
completion of an apprenticeship and the conferring on Mr. Marchen of the status
of journeyman.  The appellant was obliged to teach efficiently the trade or
occupation and to [p]rovide adequate training...in all branches of the trade
so far as the facilities and the scope of the business will permit.  Mr.
Marchen was to work and to take courses to become a qualified journeyman.

[62]

It is clear that subsequent to his dismissal,
Mr. Marchen was not paid at the journeymens level.  He would not have been
entitled to that amount before the end of 2006, but, in my view, the clear
objective of the Agreement and the clear anticipation of the parties was that
he would earn a journeymans wage after that date.  It also was the clear
objective of the Agreement and the clear anticipation of the parties that Mr.
Marchen would have the status of journeyman.

[63]

The importance of that status was illustrated by
the appellants evidence concerning its hiring of an employee in the body shop
after Mr. Marchen was terminated, despite downsizing the operation.  He was
retained because he was a journeyman and was described as much more valuable to
the appellant because of that training and status.

[64]

I view the apprenticeship contract as somewhat
unique, but I would not uphold the judges award of consequential damages on
that basis alone.  In my view, it is supportable on first principles, on
Hadley
v. Baxendale
.  The special circumstances under which this contract was made
were known to the appellant. It was in the reasonable contemplation of the
parties that Mr. Marchens loss of the opportunity to earn a journeymans wage
and a loss of the status of journeyman would result from the appellants breach
of contract; the loss of the education and steps to qualification he would have
enjoyed had he been employed to the time work became unavailable made it more
difficult to complete the apprenticeship successfully.  On the facts as found
by the trial judge, Mr. Marchen was not able to secure a further apprenticeship
that would have allowed him to become a journeyman. On the evidence, it is
likely downsizing did not occur until late autumn 2005, which would have entitled
Mr. Marchen to at least 10 months additional employment and training as an
apprentice.

[65]

In the circumstances of this case, I would
sustain the judges award of damages in the amount of $25,000.

Punitive damages

[66]

Punitive damages are awarded to express
approbation and to punish in circumstances where the global amount of damages
awarded, including aggravated damages in appropriate circumstances, is
insufficient (
Whiten v. Pilot Insurance Co.
, 2002 SCC 18, [2002] 1
S.C.R. 595 at para. 94;
B.P.B. v. M.M.B.
, 2009 BCCA 365 at para. 59).
The trial judge was well aware of this, but, in my view, he erred making such
an award in this case.

[67]

In breach of contract cases, punitive damages
flow out of egregious conduct of a defendant at the time of the breach.  In
this case, when dismissing the claim for moral damages, the judge held that the
appellants conduct at the time of termination was not unfair, unfaithful,
misleading or unduly insensitive.  He also held that Mr. Marchen did not
suffer undue distress.  On these findings of fact, punitive damages are not available.

[68]

I would set aside the award of punitive damages.

Special costs

[69]

The judge conflated the analysis of punitive
damages and costs.  Punitive damages are a remedy for breach of contract that
reflects the conduct of a party at the time of the breach.  Costs reflect the
results and conduct of parties leading to and in the course of litigation.
They are not a remedy for breach of contract.

[70]

Although the judge conflated the analysis
damages and costs analysis, he made findings of fact relevant to and supportive
of his award of special costs. They can be summarized as concluding that very
shortly after this action was commenced, the appellant began to lay the
groundwork for a defence that was based on facts it knew to be untrue: that Mr.
Marchen was terminated as a result of downsizing the body shop operations.  It
persisted with this defence throughout the trial and it was rejected by the
trial judge.  He concluded the appellants conduct was planned and deliberate
and intended to mislead the court.

[71]

The appellant contends it is condemned for
pursuing a defence it was entitled to pursue and that an award of special costs
has a chilling effect on the ability of defendants to advance legitimate
defences that ultimately are rejected.

[72]

In my view, the appellants concern is
misplaced.  There is no question a defendant is entitled to advance defences in
good faith.

[73]

In this case, the judges conclusions go far
beyond merely rejecting a defence.  Looking at the evidence overall, he
concluded the appellant sought to mislead the court and to drive Mr. Marchen
from the judgment seat.  No palpable and overriding error has been shown in the
judges findings of fact.  They are based on his appreciation of the evidence.
There is no basis in principle on which this Court could interfere.

[74]

I would sustain the judges award of special
costs.

Conclusion

[75]

I would allow this appeal to the extent of
setting aside the order for payment of $18,151.73 as damages for wrongful
termination, would remit this matter to the Supreme Court to determine the
amount payable to Mr. Marchen in lieu of notice and would set aside the award
of punitive damages.  In all other respects, I would affirm the order of the
trial judge.

The
Honourable Mr. Justice Chiasson

I agree:

The Honourable Madam
Justice Saunders

I agree:

The Honourable Mr. Justice Groberman


COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Carpenter,

2010 BCCA 27

Date: 20100120

Docket:
CA036162

Between:

Regina

Respondent

And

Michael Wayne Carpenter

Appellant

RESTRICTION ON PUBLICATION:  An order has been
made in this case directing that the identity of the complainants and any
information that could disclose the identity of the complainants should not be
published in any document or broadcast in any way pursuant to s. 486.4(2)
of the
Criminal Code
.

Before:

The Honourable Madam
  Justice Ryan

The Honourable Mr. Justice Hall

The Honourable Madam Justice Garson

On appeal from the Supreme Court of British Columbia, November 29,
2006,

(
R. v. Carpenter
,
2006 BCSC 1936,
78175-3)

Counsel for the Appellant:

D.
  Layton

Counsel for the Crown Respondent:

M.
  Mereigh

Place and Date of Hearing:

Vancouver,
  British Columbia

November 3, 2009

Place and Date of Judgment:

Vancouver
, British Columbia

January
  20, 2010

Written Reasons by
:

The Honourable Mr. Justice Hall

Concurred in by:

The Honourable Madam Justice Ryan

The Honourable Madam Justice Garson

Reasons for
Judgment of the Honourable Mr. Justice Hall:

[1]

Michael Wayne Carpenter appeals against
convictions for sexual assault and confinement of two women on separate dates
in July and September, 2005.  He was found guilty after a jury trial on 29
November 2006.  After taking into consideration two years of prior custody, he
was sentenced by Silverman J. on 31 August 2007 to a global sentence of
eight years of additional imprisonment.  Because there was some delay in the
appointment of counsel, the notice of appeal was not filed in time.  The Crown
takes no objection to an extension of time and I would grant an order extending
the time for filing the notice of appeal.

[2]

The two complainants were both young women engaged
in cleaning hotel rooms at the times of the respective assaults.  Although both
complainants had a very limited opportunity to observe their assailant, both
observed him to be either naked, or semi-naked from the waist down, as he was
leaving the respective rooms in the hotels where the assaults occurred.  Both
women had been vacuuming when they were assaulted from behind without warning.
Each of the victims had something described as a pillowcase or pillowcase
protector pulled over her face which obviated her ability to observe the
assailant.  Both women were jabbed with an item, possibly a pen, and told to
cooperate with the assailant.  The victims were pushed to the floor or a bed
and a sexual assault was perpetrated upon them by their assailant.  Fortunately,
both were able to make a sufficient commotion to soon scare off the assailant.

[3]

The victim of the July assault, Ms. V.,
could not identify anyone from a set of photographs shown to her by police and
no forensic evidence was developed at the scene of the assault.  All she had
seen was a man exiting the room pulling up his trousers as he left.  Ms. B.,
the victim of the September assault, also had a very limited opportunity to
observe her assailant because a pillowcase or pillowcase protector was thrown
over her head.  All she noted out of the corner of her eye as the person
entered the room from behind her was that the individual appeared to be wearing
nothing below the waist.  A pen found on the floor at the scene of the
September assault yielded a DNA match to the appellant.  Fingerprint evidence linked
to the appellant was also discovered on a doorknob at this hotel room.

[4]

Soon after the September incident, the appellant
was arrested and charged with the sexual assaults of Ms. V. and Ms. B.
and, as well, with the sexual assault of a female in her early teens who had
been assaulted in somewhat similar circumstances in March 2005.  In the March
case, the complainant could not identify the assailant because she too had had
a pillowcase placed over her head.  Ultimately, the trial judge was persuaded
that he ought to sever this count from the other two counts because of possible
prejudice to the appellant.

[5]

The appellant advanced three grounds of appeal.
It was submitted the trial judge erred in ruling the similar fact evidence was
admissible absent some evidentiary link between the appellant and both
incidents.  In the July incident, there was nothing aside from the similar act September
evidence that linked the appellant to this assault.  The appellant also submits
that because the similar fact evidence regarding the September incident bears
the entire weight of proving identity concerning the July incident, the trial
judge erred in not using a criminal standard of proof in deciding whether to permit
this evidence to go before the jury.  Additionally, it was submitted that the
verdict of the jury convicting the appellant of the July incident was
unreasonable as the only evidence connecting the appellant to this assault was the
September incident.

[6]

The learned trial judge allowed the evidence of
both incidents to be placed before the jury.  He said this at para. 53 of
his reasons:

On a review of the cases, I am
satisfied that there does not have to be any independent evidence linking the
accused and the offence in question so long as there are two preconditions
present, and they are as follows:

1.         a
likelihood that the offence in question and the similar fact incident sought to
be relied on in support of the offence in question, were committed by the same
person.  I have already made that determination.

2.         that
there be an evidentiary link between the accused and the similar fact evidence
sought to be relied upon.

If both of those
factors are present, there does not have to be a link between the accused and
the offence which is sought to be supported by the similar fact evidence.

[7]

The judge instructed the jury that they could
only convict the appellant of the September incident, where DNA evidence and
fingerprint evidence existed, if they were convinced beyond a reasonable doubt
that the appellant had assaulted Ms. B. in the hotel room on that
occasion.  They were not to consider any of the circumstances of the July
assault in their consideration of this incident of assault in September.  He
instructed them that if they were so satisfied, the jury would have to go on to
consider whether or not they were satisfied beyond a reasonable doubt that the
individual who committed the September assault was the same individual who had committed
the July assault.  Thereafter, they would have to go on to consider whether
they were convinced beyond a reasonable doubt that the appellant was the person
who assaulted Ms. V. in July.  As I understand it, it was not argued before
the trial judge that he ought to be convinced beyond a reasonable doubt that
the same assailant committed the offences before admitting the similar act evidence.
It seemed then to have been accepted at trial that the test for determining the
admissibility of this evidence was to be on a balance of probabilities standard.

[8]

In ruling on the admissibility of this evidence,
the learned trial judge referred to the leading case on the use of similar act
evidence to prove identity,
R. v. Arp
, [1998] 3 S.C.R. 339, 129 C.C.C.
(3d) 321.  In
Arp
, the question was whether or not similar act evidence
was admissible to prove that the appellant, Arp, killed two young women who
died in the Prince George area.  There was some evidence linking the appellant
to the first victim, who was probably murdered, and significant evidence
linking him to victim number two who was proven to have been murdered.
Ultimately, the similar act evidence concerning the second victim was allowed
to be considered by the jury on the issue of whether or not the appellant was
guilty of killing both women.  The convictions were sustained on appeal.  In
the course of holding that the similar act evidence was properly admitted, Cory J.,
speaking for the Court, said this at para. 48:

...  Where the
fact in issue is the identity of the perpetrator of the crime, then in the
usual course of events the trial judge must assess the degree of similarity
demonstrated by the manner in which the acts in question were committed to
determine whether it is
likely
the same person committed the alleged
similar acts.  Once it is determined on a balance of probabilities that the
same person committed the alleged similar acts, the similar fact evidence may
be admitted to prove that the accused committed the offence or offences in
question.

[9]

He went on to say at para. 50:

In summary, in considering the
admissibility of similar fact evidence, the basic rule is that the trial judge
must first determine whether the probative value of the evidence outweighs its prejudicial
effect.  In most cases where similar fact evidence is adduced to prove identity
it might be helpful for the trial judge to consider the following suggestions
in deciding whether to admit the evidence:

(1)        Generally
where similar fact evidence is adduced to prove identity a high degree of
similarity between the acts is required in order to ensure that the similar
fact evidence has the requisite probative value of outweighing its prejudicial
effect to be admissible.  The similarity between the acts may consist of a
unique trademark or signature on a series of significant similarities.

(2)        In
assessing the similarity of the acts, the trial judge should only consider the
manner in which the acts were committed and not the evidence as to the accuseds
involvement in each act.

(3)        There
may well be exceptions but as a general rule if there is such a degree of
similarity between the acts that it is likely that they were committed by the
same person then the similar fact evidence will ordinarily have sufficient
probative force to outweigh its prejudicial effect and may be admitted.

(4)        The jury
will then be able to consider all the evidence related to the alleged similar
acts in determining the accuseds guilt for any one act.

Once again these
are put forward not as rigid rules but simply as suggestions that may assist
trial judges in their approach to similar fact evidence.

[10]

This Court pointed out in
R. v. Brisbin
(1995),
101 C.C.C. (3d) 334, 64 B.C.A.C. 54, and in
R. v. Bush
, 2001 BCCA 447,
159 C.C.C. (3d) 161, that similar act evidence is a species of circumstantial
evidence.  The Court said this in
Brisbin
, a case in which similar act
evidence was used to prove the identity of the appellant as an arsonist, about
the test for admissibility of similar act evidence:

[32]      ...  The more striking the
similarities the more probative the evidence will be.  In a paper prepared for
the 1994 Federation of Law Societies National Criminal Program, Marc Rosenberg
analyzed the issue in this way:

It is, of course, impossible to
generalize as to the degree of similarity which makes the evidence probative of
the issue.  Whether one uses Wigmore's notion of common features or the
concept of striking similarity [or startlingly similar]
what is really
being sought is some cluster of features which makes mere coincidence so
unlikely as to give the evidence real probative value
.  Since what is
involved is the concept of a system or design, there will usually be some nexus
between the acts in time and in place.  The cluster of similar features should,
on the whole be distinctive.   (Emphasis added.)

[33]      In my
view, counsel for the appellant cannot be said to be wrong when he submits that
where the only evidence of identity offered by the Crown is similar fact
evidence the similarities ought to be strikingly similar.  But, as Mr. Rosenberg
makes the point, to say that the evidence must be strikingly similar is really
just to underline the necessity that the evidence possess real probative value
in light of the purpose for which the evidence will be used.  The prejudice
inherent in similar fact evidence is significant.  There is always a serious
risk that the trier of fact will over-estimate the value of the evidence.  At
the end of the day the probative value of the similar fact evidence must
outweigh its prejudicial value and to do so the evidence of similarity must be
powerful.

[11]

In the present case, the essence of the
appellants argument is that as the only way to connect him to the July offence
is through evidence from the September assault, such evidence should not be
admissible as similar fact evidence unless the trial judge is satisfied beyond
a reasonable doubt that the same individual committed both crimes.  Though
usually questions of admissibility are determined on a balance of
probabilities, there are exceptions where the trial judge must be satisfied of
certain pre-conditions to admissibility beyond a reasonable doubt.  One such
exception is that the voluntariness of a statement must be proven beyond a
reasonable doubt before it is placed before a jury.  Counsel for the appellant
relied on this language found in the judgment of Cory J. in
Arp
:

70        ...  The general principles
enunciated in these cases indicate that the jury should determine, on a balance
of the probabilities, whether the similarities between the acts establish that
the two counts were committed by the same person.  If that threshold is met,
the jury can then consider all the evidence relating to the similar acts in
determining whether, beyond a reasonable doubt, the accused is guilty.

71        However,
the general rule that preliminary findings of fact may be determined on a
balance of probabilities is departed from in those certainly rare occasions
when admission of the evidence may itself have a conclusive effect with respect
to guilt.  For example, where the Crown adduces a statement of the accused made
to a person in authority, the trial judge must be satisfied beyond a reasonable
doubt of the voluntariness of the statement.  That evidence may of itself, if
accepted as true, provide conclusive proof of guilt.  Since doubt about the
statements voluntariness also casts doubt on its reliability, proof beyond a
reasonable doubt is warranted.  See
Ward v. The Queen
, [1979] 2 S.C.R.
30.  If this were not the rule, the jury would be permitted to rely on evidence
which it could accept as extremely cogent even though the inherent reliability
of that evidence was in doubt.

[12]

Counsel for the appellant also referred to comments
made by the Supreme Court of Canada in
R. v. H.(L.T.)
, 2008 SCC 49,
[2008] 2 S.C.R. 739, a recent case concerned with the
Charter
rights of
an accused young offender.  The issue in that case was whether as a
pre-condition for admissibility the Crown had to prove beyond a reasonable
doubt not only the voluntariness of a statement but also that the police had
made an explanation to the young person of his rights.   Fish J., writing
for the majority, referred to the passage above from the judgment of Cory J.
in
Arp
.  I note that the case of
H.(L.T.)
involved the
admissibility of a statement, the sort of situation referred to by Cory J.
in para. 71 of his reasons in
Arp
.  In
Arp
, Cory J.
went on to say:

72        Similar fact evidence, on the
other hand, as circumstantial evidence, must be characterized differently,
since, by its nature, it does not carry the potential to be conclusive of
guilt.  It is just one item of evidence to be considered as part of the Crowns
overall case.  Its probative value lies in its ability to support, through the
improbability of coincidence, other inculpatory evidence.  As with all
circumstantial evidence, the jury will decide what weight to attribute to it.
The mere fact that in a particular case, similar fact evidence might be
assigned a high degree of weight by the trier is entirely different from the
concept that, by its very nature, the evidence has the potential to be decisive
of guilt.

73        As the
intervener the Attorney General for Ontario concedes, it is, of course,
conceivable for a single item of circumstantial evidence to be the only
evidence of an essential element of the offence in a given case.  The criminal
standard of proof would have to be applied in those circumstances in order to
ensure compliance with the requirement that every essential element in a
criminal prosecution must be proven beyond a reasonable doubt.  Thus where the
Crowns case on the issue of identity is based entirely on the underlying unity
between the similar acts, it follows that the standard of proof beyond a
reasonable doubt will govern the jurys determination whether one person must
have committed both acts.

[13]

Counsel for the appellant suggested in argument
that there seemed to be some difference between the test being enunciated by
Cory J. in the earlier passage in his reasons and this later passage in
his reasons.  It seems to me that this difference is perfectly explicable along
these lines:  in the later passage in his reasons in
Arp
, Cory J.
was dealing with the methodology by which a jury ought to be instructed to deal
with the issue.  He was not there dealing with the question of admissibility, a
question for the trial judge to decide in a case held with a jury.  I see no
inconsistency in the two passages.  The passages are simply dealing with
different subject matters at different stages of a trial.  I observe that the
judgment in
H.(L.T.)
is entirely consistent with the remarks of Cory J.
in
Arp
concerning the test for admissibility of statements since this
was essentially what was at issue in the case of
H.(L.T.)
.

[14]

In the instant case, the evidence about the
September assault on Ms. B. was, having regard to the striking similarity in
the incidents, very powerful circumstantial evidence that the September
assailant was the person who assaulted Ms. V. in July.  But this sort of
evidence is of a different genus from evidence such as a statement.  Similar
act evidence is circumstantial evidence, whereas a statement is an admission
which, if accepted, is conclusive evidence of guilt.  Circumstantial evidence
will have greater or lesser weight depending on the view the jury takes of it
and is thus subject to a different threshold for admissibility, as was explained
by Cory J. in
Arp
.

[15]

It was submitted that a charge to a jury in a
case like the instant one is so complicated that it could be impossible for a
jury to properly appreciate its task.  I do not consider that to be the situation
in the present case.  Here, in my view, the charge to the jury was quite
straightforward.  The jury had to be satisfied beyond a reasonable doubt that
the appellant was the assailant in the September incident before they could
convict the appellant of that offence and they were so instructed.  The jury
was correctly instructed not to consider evidence about the July incident in
making this determination.  There seems nothing difficult about that.  If the
jury concluded beyond a reasonable doubt that both incidents were committed by
the same person, then they could use evidence of the September incident to
conclude beyond a reasonable doubt the guilt of the appellant on the July
incident.  That is entirely consistent with what Cory J. articulated in
R.
v. Arp
.  I do not regard this reasoning path or process to be particularly
difficult or convoluted.

[16]

This was a case in which there were a number of
striking similarities between the incidents.  The judge enunciated several of
these in his reasons:

[37]      The two which continue to have
striking similarities with each other when the details are considered are the
Coast incident and the Days Inn incident.  Some of the detailed similarities
between these two are as follows:

1.         The
victims were both young women in their twenties;

2.         They
were both working as housekeepers/chambermaids at the time of the incidents;

3.         They
were both working on the second floor of their respective hotels where guest
rooms are located;

4.         They
were actually working at the time in a guest room, each in their own hotel,
cleaning it up after the guest has left for the day;

5.         Their supply
cart was in the hallway outside the room they were working in;

6.         The door
to the room that they were in was left unlocked;

7.         They had
both finished the entirety of their cleaning routine in the room they were in
except for the chore that they always left to the last, which was vacuuming;

8.         They
were both engaged at the time the assault commenced in that final chore of
vacuuming the rug with an operating, noisy vacuum cleaner at the time;

9.         They
were both attacked from behind;

10.       There was
a pillowcase or something similar placed over their heads at the commencement
of the attack;

11.       Pillowcases
were items that were visible and accessible to anybody walking by the cart in
the hallway outside;

12.       The pants
of the assailant were either down at the ankles or completely off;

13.       They were
both sexually assaulted with touching and attempts to touch them in a sexual
way;

14.       They were
both threatened that they would be stabbed or cut if they resisted or made
noise;

15.       They both
had an object held against a part of their body, a different part for each,
consistent with the threat that they would be stabbed or cut;

16.       The
assailant ran out and fled after the victim resisted and after he, the
assailant, unsuccessfully attempted to overcome that resistance;

17.       The
entirety of the assault occurred within the same room that the victim was in
when the assault started.

The striking similarities pointed to an
unlikelihood of coincidence  see
R. v. Handy
, 2002 SCC 56, [2002] 2
S.C.R. 908, at paras. 41-42.

[17]

The trial judge did not in my opinion err in his
approach to admissibility.  Having found a very high degree of similarity
between the circumstances of the two incidents, the judge then correctly
instructed the jury on the approach it was required to take concerning proof of
the two incidents.  For the reasons I have enunciated, I would not accede to
the heads of argument advanced on behalf of the appellant concerning
admissibility and the instructions about the use of the evidence by the jury.

[18]

As regards the argument that the verdict of
guilty registered on the July incident was unreasonable as it rested wholly on
similar act evidence from the September incident, I am of the view that the
similarities were indeed striking.  This evidence in my opinion affords a
proper basis for the guilty verdict of the jury.  Applying the standard
adverted to in the cases of
R. v. Biniaris
, 2000 SCC 15, [2001] 1 S.C.R.
381, and
R. v. Yebes
, [1987] 2 S.C.R. 168, 43 D.L.R. (4th) 424, I am not
of the view that the verdict of guilt on the July offence was unreasonable.  I
would dismiss this appeal from conviction.

The Honourable Mr. Justice Hall

I agree:

The Honourable
Madam Justice Ryan

I agree:

The
Honourable Madam Justice Garson


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Riach,

2010 BCCA 38

Date: 20100120

Docket:
CA034846

Between:

Regina

Respondent

And

Harvey
Riach

Appellant

Before:

The Honourable Chief Justice Finch

The Honourable Madam Justice Prowse

The Honourable Madam Justice D. Smith

On
appeal from: Provincial Court of British Columbia, September 22, 2006,
(
R. v. Riach
, Vancouver Registry 173632-1-D)

Oral Reasons for Judgment

Counsel for the Appellant:

P.D.
  Angly

Counsel for the (Crown) Respondent:

A.
  Budlovsky, Q.C.

Place and Date of Hearing:

Vancouver,
  British Columbia

January
  20, 2010

Place and Date of Judgment:

Vancouver,
  British Columbia

January
  20, 2010

[1]

FINCH C.J.B.C.
: Mr.
Riach applies for leave to appeal, and if leave is granted, appeals from a
sentence of eight years imprisonment imposed in Provincial Court on 22
September 2006 on one count of aggravated assault. In the circumstances of this
case, the Crown agrees with the submission of appellants counsel, which is
that the sentence should be reduced by giving credit for time served in custody
before trial, on a two-for-one basis.

[2]

At trial, the appellant was convicted on one
count of robbery and one count of aggravated assault. The trial judge imposed a
sentence of 12 years for the robbery conviction, but gave the appellant credit
for 18 months in recognition of the 9 months he had served in pre-trial custody.
The net sentence for the robbery was therefore 10 1/2 years. For the aggravated
assault conviction, the judge imposed a sentence of eight years imprisonment
concurrent.

[3]

The appellant appealed his convicted to this
Court. On 10 October 2009, the Court allowed the appeal against the robbery
conviction, and ordered that conviction be set aside, and an acquittal entered.
The appeal against the conviction for aggravated assault was dismissed: See
2009 BCCA 442.

[4]

The two charges arose from one incident on 30
December 2005 when the appellant stabbed one of two victims whom he was
evidently trying to rob. This Court held that the evidence could not support
the robbery charge, because there was no evidence of an assault on the person
alleged to have been robbed. In imposing the global sentence of 10 1/2 years,
it is clear that the judge intended to give the appellant credit for time
served. The result of the successful appeal against the robbery conviction is
that the appellant is left with an eight year sentence for the aggravated
assault, against which no credit for pre-trial custody has been given.

[5]

It is not contended that the eight year sentence
for the aggravated assault was unfit. However, the appellant submits, and the
Crown agrees, that the eight year sentence should be reduced by 18 months to
give credit for the time served in pre-trial custody.

[6]

I would grant leave to appeal and would allow
the appeal by reducing the eight year sentence to one of 6 1/2 years.

[7]

PROWSE J.A.
: I
agree.

[8]

D. SMITH J.A.
: I
agree.

[9]

FINCH C.J.B.C.
:
So ordered.

The Honourable Chief Justice Finch


COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

Kerr v. Baranow,

2010 BCCA 32

Date: 20100121

Docket:
CA035724

Between:

Margaret Patricia Kerr

Respondent

(
Plaintiff
)

And

Nelson Dennis Baranow

Appellant

(
Defendant
)

Before:

The Honourable Madam Justice Levine

The Honourable Mr. Justice Tysoe

The Honourable Madam Justice D. Smith

Supplementary
Reasons to: Court of Appeal for British Columbia, March 13, 2009
(
Kerr v. Baranow
, 2009 BCCA 111)

Counsel for the Appellant:

S.
  Label

Counsel for the Respondent:

A.
  Petronio

Place and Date of Hearing:

Vancouver,
  British Columbia

January 8, 2009

Place and Date of Judgment:

Vancouver
, British Columbia

March
  13, 2009

Written Submissions received:

July
  17 and July 29, 2009

Date of Supplementary Judgment:

January
  21, 2010

Supplementary Reasons by
:

The Honourable Madam Justice D. Smith

Concurred in by:

The Honourable Madam Justice Levine
The Honourable Mr. Justice Tysoe

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

[1]

The appellant seeks an order for costs of the
appeal and, as a result of its disposition, an order for costs in the court
below.

[2]

The action was commenced by the respondent following
the break-down of the parties long-term common law relationship. The
respondent sought a declaration of a resulting trust in real property owned by
the appellant, or in the alternative a monetary award for unjust enrichment as a
result of her direct and indirect contributions during the relationship. The
respondent also sought an award of spousal support.

[3]

The appellant opposed all of the respondents claims
and counterclaimed for a monetary award for unjust enrichment, or alternatively
a declaration of trust in the assets held by the respondent, as a result of his
direct and indirect contributions during the relationship.

[4]

The trial judge granted the respondent a
declaration of resulting trust in a one-third interest in the real property
owned by the appellant and awarded her a monetary sum for the value of that
interest. He also awarded the respondent indefinite monthly spousal support,
retroactive to the date upon which the action was commenced, even though the
respondent had not requested retroactive spousal support to that date and had
made no application for interim spousal support.

[5]

The appellants counterclaim was not addressed
in the entered order from the trial court.

[6]

On appeal this Court: (i) dismissed the
respondents application to adduce fresh evidence; (ii) allowed the appeal from
the declaration of resulting trust, or in the alternative constructive trust, and
the attendant monetary award for the respondents trust interest; (iii)
remitted the appellants claim for unjust enrichment back to the lower court
for determination; (iv) dismissed the appellants appeal from the award of spousal
support but allowed the appeal from the retroactive aspect of the award. This
last order was based on a ground of appeal that was framed in the alternative;
namely, if the entitlement and amount of the spousal support award was not in
error, then in the alternative the retroactive aspect of the award was in
error.

[7]

The general rule is that costs follow the event.
Section 23 of the
Court of Appeal Act,
R.S.B.C. 1996, c. 77 (the
Act
)
provides:

Unless the court
or a justice otherwise orders, the party who is successful on an appeal is
entitled to costs of the appeal including the costs of all applications made in
the appeal.

[8]

In my view, the appellant was substantially successful
in the appeal and therefore is entitled to his costs pursuant to s. 23 of the
Act.

[9]

The appellant also seeks an order for costs in
the court below. Given the disposition of the appeal, I am not persuaded the
appellant can be said to have achieved the same degree of success on the claims
before the trial court. While he has succeeded in having the respondents trust
claims dismissed, the respondent succeeded on her claim for spousal support,
which the appellant opposed at trial and which was upheld on appeal.

[10]

In view of the parties divided success on their
respective claims advanced at the trial of the action, I would order that each
bear their own costs in the court below.

The Honourable Madam Justice D. Smith

I AGREE:

The Honourable
Madam Justice Levine

I AGREE:

The
Honourable Mr. Justice Tysoe