September 2011 BC Take Five

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September 2011

BRITISH COLUMBIA EDITION EDITION

INSIDE THIS ISSUE:

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Featured Cases:

Substitution of Parties; FIPPA Request for Information

Security for Costs, Public-Interest Litigation

Contracts; Statutory Interpretations;

Wills; Disinheritance; Hearsay Evidence

Video Evidence; Viva Voce Evidence

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Simon Fraser University v. Noble, 2011 BCCA 334Areas of Law : Substitution of Parties; FIPPA Request for Information

Under Appeal : Justice Leask

The appellants in the first appeal were Professor David

Noble (“Nobel”) and the Canadian Association of Teachers (“CAUT”). The respondents were Simon Fraser University (“SFU”), the Information and Privacy Commissioner for British Columbia (“Commissioner”), Solstice Management Group (“Solstice”), Credo Interactive Inc. (“Credo”), and SF Univentures Corporation (“SFUV”). The appellant in the second appeal was the Commissioner and the respondents were SFU, Noble, Solstice, Credo, SFUV and CAUT. In 2004, Noble made a request to SFU pursuant to the Freedom of Information and Protection of Privacy Act (FIPPA) for documents relating to the spin-off of two SFU-related companies. SFU allowed access to some documents but withheld those that it claimed were under the control of SFUV. Upon review of the SFU decision, a delegate of the Commissioner found that the relationship between SFU and SFUV was such that the remaining documents were deemed to be

BACKGROUND

CLICK HERE TO ACCESS THE JUDGMENT

under the control of SFU and therefore subject to the FIPPA. On judicial review, the chambers judge overturned the delegate’s finding that the remaining documents were under SFU’s control. Two appeals were filed with respect to the chambers judge’s order- the first, by Noble and CAUT, and the second, by the Commissioner. However, Noble died before the appeals were heard. The CAUT and Noble’s widow, Sarah Dopp (“Dopp”), filed a motion to be substituted as an appellant in place of Noble. As Dopp did not appear to have any real interest in the documents requested, the matter was adjourned so that another substitute who shared the same interest in the documents could be found. Subsequently, CAUT and Professor Arthur Schafer (“Schafer”) applied to replace Noble as an appellant. Schafer deposed that he was a professor, that he was familiar with Noble’s work, and that he had an interest in Noble’s research, particularly on the relationship between Canadian universities and corporate sponsors of academic research.


http://www.courts.gov.bc.ca/jdb-txt/CA/11/03/2011BCCA0334.htm


September 2011

The appeals were dismissed. The Court

of Appeal found that the appeals became moot as there was no one with a sufficient interest who could be a substitute for Noble in his action to obtain the documents in question. The Court cited R. v. Smith, 2004 SCC 14, concluding that the discretion to allow substitution of a deceased appellant should be exercised only in exceptional circumstances where the death of the appellant is survived by a continuing controversy which, notwithstanding

the death of the individual most directly affected by the appeal, requires resolution in the interests of justice. The Court found that neither Dopp nor Schafer had sufficient interest in the documents to make them appropriate substitutes. It was uncertain whether Dopp would be entitled to exercise any access rights Noble might have had with respect to the documents. Also, Dopp herself did not profess any interest in the information contained in the documents. Schafer could not be a proper substitute as his claimed

interest in the documents had only recently arisen. The Court observed that Schafer’s application to replace Noble as an appellant stemmed from Schafer’s desire to have the issues on appeal litigated rather than to obtain information from the documents sought by Noble. The Court further noted that the issues under appeal would likely be resolved in due time through a similar action brought by proper parties. No order as to costs was made.


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Simon Fraser University v. Noble, (cont.)

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The appellant was the Residents and Ratepayers of Central Saanich

Society (the “Society”). The respondent was the Corporation of the District of Central Saanich (“DCS”) and Ian Vantreight (“Vantreight”). The District of Central Saanich passed a bylaw permitting Vantreight to subdivide a rural portion of his farm in Central Saanich into 57 residential lots. The Society, a non-profit organization which represents 94 Central Saanich residents, filed a petition to quash the bylaw on the ground that the proposed development was inconsistent with the Official Community Plan which designated the area as rural.

The chambers judge dismissed the petition, holding that the bylaw was not inconsistent with the Official Community Plan. The Society appealed and the respondents filed the present application for security for costs. When the application was heard, it was established that several members of the Society were landowners who own valuable properties, that the Society itself had no assets, and that legal expenses for the case were paid out of a loan made by a member to the Society. No evidence was presented to show that the Society members were unable to raise more funds to post security for costs. The Society argued that considering the public interest involved in the litigation, requiring it to post security for costs was unreasonable.

BACKGROUND

Residents and Ratepayers of Central Saanich Society v Saanich (District), 2011 BCCA 340Areas of Law : Security for Costs, Public-Interest Litigation

Under Appeal : Justice Curtis

BACKGROUND


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Residents and Ratepayers of Central Saanich Society v Saanich (cont.)

APPELLATE DECISION

The application was granted. The Court of Appeal held

that security for costs would be ordered if it would serve the interests of justice. Four factors were considered in determining whether security for costs would be required: the appellant’s financial means, the merits of the appeal, the timeliness of the application, and whether the costs would be readily recoverable. The Court found that the circumstances of the case gave rise to the presumption in favour of granting the application as the Society had no assets, the appeal appeared to be meritorious on its face, the application was made in a timely manner, and the costs of the appeal would not be readily recoverable. The Court rejected the Society’s argument that the public-interest nature of the action rebutted the presumption in favour of granting security for costs. While the Court agreed that the subject matter of the action was impressed with public interest, it did not transcend the interests of the parties. The Court considered the action as one that could be characterized as community-based and localized, and not broadly

affecting the community at large. Hence, the dispute was not found to be the kind of public-interest litigation that would merit an exception from the general rule relating to security for costs. Based on the bill of costs, the Court fixed the amount of security at $10,000, to be paid by the Society within 45 days from the date of the Court’s order. The appeal was stayed pending payment of the security.

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Silver Campsites Ltd v Pulham, 2011 BCCA 352Areas of Law : Contracts; Statutory Interpretation

Under Appeal : Justice Bracken

BACKGROUND


The appellant was Silver Campsites Ltd.

(“SCL”). The respondents were Dennis Pulham and Jacquie Pulham (the “Pulhams”), Elizabeth James (“Mrs. James”) and her son, Brian James (“Mr. James”). SCL was the owner and operator of a manufactured home park. The Pulhams were owners of a home in the park which they sold to Mrs. James and Mr. James. The Pulhams requested SCL’s consent to the assignment of the tenancy agreement as required under the Manufactured Home Park Tenancy Act. SCL refused, claiming that the home did not comply with

current electrical safety standards, that Mr. James and Mrs. James were not likely to comply with the tenancy agreement and park rules, that Mr. James might not pay rent as he had no credit history, and that Mrs. James did not intend to live in the home. SCL asserted that the park rules and regulations required that every tenant reside at the park. The Pulhams brought the matter to the Residential Tenancy Branch of the Ministry of Housing and Social Services for review. The Dispute Resolution Officer (“DRO”) ruled that SCL had no grounds to withhold its consent to the assignment of the tenancy agreement because the park’s rules and regulations did not require all tenants to be residents, and the absence of a valid electrical safety sticker was not proof of non-compliance with safety standards. While the matter was pending resolution, an electrical safety sticker was issued for the home. SCL sought judicial review of the DRO’s decision. SCL’s application was dismissed by the chambers judge. SCL appealed the dismissal, arguing substantially the same grounds it raised in its application with the chambers judge. SCL further asserted that relevant provisions of the Act supported its conclusion that a tenant in a manufactured home park must also be a resident.




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APPELLATE DECISION

Silver Campsites Ltd v Pulham, (cont.)

The appeal was dismissed. The Court

of Appeal upheld the decision of the DRO. It held that the park rules and regulations on residency were ambiguous, and that the DRO’s interpretation that not every tenant must be a resident was

reasonable. The Court refused to consider SCL’s statutory interpretation of the Act, holding that this was never argued before the DRO, and as such, could not be raised for the first time on appeal. The Court agreed with the DRO that Mr. James’s lack of credit history was not a valid ground for SCL to withhold its consent to the assignment as Mrs. James would be a co-tenant and her financial ability was undisputed. The issue regarding compliance with electrical safety standards was considered moot as a safety sticker had since been obtained for the home.


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Hall v. Hall, 2011 BCCA 354Areas of Law : Wills; Disinheritance; Hearsay Evidence

Under Appeal : Justice Wilson

BACKGROUND


The appellant was Roy Anthony Hall (“Tony”). The respondent was Paul

Stuart Hall (“Paul”) in his own capacity and as executor of the Estate of Jean Hall. Tony and Paul were the sons of Jean and Roy, who separated sometime in the mid-1990s. After the separation, Jean had a common-law relationship with Neil William (“Neil”). Tony became estranged from his mother in 1994 after a minor squabble. Except for one conversation during which Tony refused Jean’s request for assistance, they never spoke to each other again. Tony moved to Alberta without telling Jean. He did not even know that his mother was diagnosed with terminal lung cancer in December 2005. Jean died on March 1, 2007, leaving an estate worth $309,190. In her will, Jean appointed Paul as her executor and left her entire estate to Paul, or to his children if Paul predeceased her. Jean disinherited Tony, explaining that he did not want anything to do with her, that he was financially capable of looking after himself, and that it was only Paul, Paul’s family, and Neil whom she considered “her family.” In April 2007, Tony’s leg had been amputated after he suffered a work-related injury. While recuperating in the hospital, Tony attempted to reconnect with his family. It was only then that he found out about his

mother’s death. Tony commenced an action seeking variation of Jean’s will under the Wills Variation Act. During the trial, the judge dismissed Tony’s application to admit an affidavit sworn by Roy in 2008, stating Roy’s displeasure that Jean had left Paul her entire estate. Roy claimed that she had expressed her intention to divide her estate between her two sons. The trial judge refused to admit Roy’s affidavit based on the finding that it was not reliable hearsay evidence. On the other hand, the judge admitted into evidence a letter from Tony’s

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Hall v. Hall, (cont.)

former wife to Jean written in 1990 which stated that their marriage ended because Tony had beaten her. The judge admitted the letter, not for the proof of its contents but because it reflected Jean’s state of mind. The trial judge found that Jean’s reasons for leaving

her entire estate to Paul and for disinheriting Tony were warranted in light of the circumstances. The judge thus declined to vary Jean’s will and dismissed the action. Tony appealed, arguing that the trial judge erred in refusing to admit Roy’s affidavit, in admitting and relying on the letter from his ex-wife, and in finding that he was not entitled to an equal share in Jean’s estate.

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APPELLATE DECISION

Hall v. Hall, (cont.)

The appeal was dismissed. The Court of Appeal held

that the trial judge reasonably exercised his discretion when he refused to admit Roy’s affidavit as it was unreliable. The evidence revealed that Tony had assisted Roy in preparing the affidavit, and that Roy did not have legal counsel. Moreover, the declarations in the affidavit regarding Jean’s testamentary intentions pertained to her state of mind prior to her separation from Roy. The judge concluded that such intentions could have changed because of supervening events. The Court also upheld

the admission into evidence of the letter from Tony’s ex-wife to Jean. The Court agreed with the judge that the letter was significant to Jean as she had kept it for 17 years and discussed it with her granddaughter. It was reasonable for the judge to conclude that Jean’s possession of the letter reflected her state of mind when she was making her will. The Court noted that, in any event, the trial judge did not rely solely on the letter in reaching his conclusions. He upheld Jean’s will based on other factors, including Tony’s estrangement from his mother. The Court of Appeal further ruled that Jean had no legal or moral obligation to give Tony a share in her estate. Tony rejected his mother by cutting off all contact with her. His subsequent disability and unemployment could not be considered in his favour as the relevant date to determine whether Jean had made adequate provision for Tony was the date of her death. The Court allowed the respondents to recover their costs from Tony.


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Houston v. Kine, 2011 BCCA 358Areas of Law : Video Evidence; Viva Voce Evidence

Under Appeal : Justice Gropper

BACKGROUND

The appellants were Ms. Kine

and Ms.Williams. The respondent was Ms. Houston. The respondent sued the appellants for

damages resulting from injuries she sustained in a car accident in 2006. The trial, which began on October 26, 2009, was initially set for five days, but as the respondent failed to complete her case on schedule, the trial was adjourned until March 29, 2010. When the trial resumed, counsel for the defendants sought

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Houston v. Kine, (cont.)

to introduce a video tape into evidence and to call ten witnesses who were not included in the witness list filed with the court at the start of the trial. The video tape contained surveillance recording of the respondent’s demeanour and activities while she was on holidays in the Lower Mainland from October 30 to November 1, 2009, and in Mexico from November 1 to November 6, 2009. The proposed new witnesses included the investigation operatives and

other individuals who observed the respondent while she was on holidays in late October to early November 2009. The proposed video and viva voce evidence would have served to challenge the extent, severity, and duration of the injuries suffered by the respondent. The trial judge concluded that the video and the new viva voce evidence were inadmissible, and awarded the respondent a total amount of $525,415.72 in non-pecuniary damages, past wage loss, diminished earning capacity, cost of future care, and special damages. On appeal, the appellants asserted that the trial judge erred in refusing to admit the video and the viva voce evidence they proferred at the trial. They further argued that the trial judge erred in the assessment of all heads of damages except the special damages.


September 2011


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APPELLATE DECISION

Houston v. Kine, (cont.)

The appeal was allowed and a new trial was

ordered. The Court of Appeal agreed with the trial judge’s finding that admission of the videotaped evidence would prejudice the respondent as the late disclosure would impair her ability to prepare for trial and prolong the proceedings. The Court also considered the videotape inadmissible as evidence because the appellants failed to reasonably explain their failure to disclose the existence of the videos on a supplementary list of documents, as required under Rule 26(13) of the Supreme Court Rules. On the other hand, the Court disagreed with the trial judge’s rejection of the

viva voce evidence. Contrary to the trial judge’s conclusion, the admission of the viva voce evidence would not undermine her ruling regarding the inadmissibility of the video evidence, as the matter of the observers’ evidence was a separate issue. Also, the trial judge’s ruling that the names of the observers should have been included in the witness list was too restrictive as the proposed witnesses were unknown to the appellants at the early stage of the trial. Commenting on the trial judge’s view that the admission of the viva voce evidence would delay the trial, the Court emphasized the importance of determining the proceeding on its merits rather than on expediency. The Court of Appeal held that the proposed viva voce evidence was critical in determining the award of damages for future diminished earning capacity and future cost of care. As such, a new trial was necessary to allow the appellants to challenge the respondent’s physical abilities. Costs were awarded to the respondent because the appellants’ decision to withhold the existence of the video evidence was inappropriate.




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