op ONPOINT LEGAL RESEARCH TAK E F IVE Prepare to Win. BRITISH COLUMBIA EDITION September 2019 2019 CanLIIDocs 2610
INSIDE THIS ISSUE:
Featured Cases:
P2 Civil Practice and Procedure; Property; Public; Torts; Municipal ~ With Counsel Comments
P7 Constitutional; Family; Human Rights ~ With Counsel Comments
P13 Civil Practice and Procedure; Class and Representative Proceedings; Representative or Class Proceedings under Class Proceedings Legislation; Orders, Awards and Related Procedures; Appeals
P19 Alternative Dispute Resolution; Appeal from Arbitration Awards; Question of Law
P22 Civil Practice and Procedure; Family; Property 604.879.4280 | [email protected]
Santics v. Vancouver (City) Animal Control Officer, 2019 BCCA 294 Areas of Law: Civil Practice and Procedure; Property; Public; Torts; Municipal ~The BC Provincial Court does not have the power under the “dangerous dog” provisions of the Vancouver Charter or identical provisions in the Community Charter to make conditional orders once a dog has been found to be a dangerous dog~
CLICK HERE TO ACCESS THE JUDGMENT
he Appellant, Susan Santics, owned a four-year old Australian cattle dog Tthat seriously injured a stranger in an unprovoked attack in a public park in the City of Vancouver. A Provincial Court judge granted the Respondent City of Vancouver’s application for a declaration that the dog was a “dangerous 2019 CanLIIDocs 2610 dog” under s. 324.1 of the Vancouver Charter, S.B.C. 1953, c. 55, and, having concluded that no reasonable alternatives were presented for the dog’s rehabilitation, held there was no choice but to order that the dog be destroyed. The destruction order was stayed to allow Ms. Santics time to appeal. A judge of the BC Supreme Court dismissed her appeal. Ms. Santics then brought a motion for leave to appeal the destruction order and for a stay of the order pending determination of the appeal to the Court of Appeal. The Court of Appeal granted Ms. Santics’ application and also granted leave to intervene to a number of intervenors.
LITIGATING OUTSIDE
THE BOX. Suite 300 – 1168 Hamilton Street, Vancouver, BC V6B 2S2 T 604 687 7007
TVSBARRISTERS.COM
2 OnPoint Legal Research | Take Five PB 604.879.4280 | [email protected]
Santics v. Vancouver (City) Animal Control Officer, (cont.)
APPELLATE DECISION
he appeal was dismissed. The Court observed it was its first opportunity to Tsubstantively address the dangerous dog provisions of the Vancouver Charter and the identical provisions in the Community Charter, S.B.C. 2003, c. 26. The issues on appeal were 1) whether s. 324.1 of the Vancouver Charter confers jurisdiction on the Provincial Court to make conditional orders falling short of the destruction of a dangerous dog. If so 2) the legal threshold for ordering the destruction of a dog that satisfies the statutory definition of a “dangerous dog” 2019 CanLIIDocs 2610 under s. 324.1 of the Vancouver Charter 3) who bears the onus of establishing the presence or absence of viable alternative measures to the destruction of a dog 3) what principles guide a Provincial Court judge’s discretion in crafting a remedy short of destruction 4) whether the Provincial Court has the authority to not order destruction where the dog in question satisfies the statutory definition of “dangerous dog”. The Court held that so far as Ms. Santics’ dog was concerned, the chambers judge committed no reviewable error in dismissing the appeal from the Provincial Court’s order that the dog be destroyed. However, contrary to the reasoning in Re Capital Regional District, 2006 BCSC 1282, which had been the leading authority on the Provincial Court’s power to make conditional orders, once the Provincial Court has found that a dog is
September 2019 3 PB 604.879.4280 | [email protected]
Santics v. Vancouver (City) Animal Control Officer, (cont.)
likely to kill or seriously injure within the meaning of the Vancouver Charter or the Community Charter, it does not have the jurisdiction to make orders – conditional or otherwise – save for that the dog in question be destroyed. However, there may be circumstances in which a dog that satisfies the statutory definition of “dangerous dog” nonetheless does not pose an unacceptable risk to the public, in which event the Provincial Court must dismiss the destruction application and release the dog to its owner. While there may well be good policy
reasons for recognizing conditional orders in certain situations, as legislation in 2019 CanLIIDocs 2610 some Canadian provinces has done, it is for the Legislature and not the Court to determine the framework that ought to apply in British Columbia. Animal control officers continue to have the discretion to craft particular remedies with the dog’s owner rather than applying for a destruction order, including entering into agreements with the owner for rehabilitation plans, neutering, adoption and the like. The animal control officer’s application for a destruction order is usually a matter of last resort after other less draconian measures have been attempted and, in the opinion of that officer, been unsuccessful.
4 OnPoint Legal Research | Take Five PB 604.879.4280 | [email protected] COUNSEL COMMENTS
Santics v. Vancouver (City) Animal Control Officer, 2019 BCCA 294
Counsel Comments provided by Victoria Shroff, Counsel for the Appellant
to demonstrate to the court, with clear acted as co-counsel for the 2019 CanLIIDocs 2610 appellant with David Wu evidence, that what they are wanting to of Arvay Finlay take is absolutely necessary. and“I Amber Prince of Atira The bar the government must Women’s Resource Society meet, should understandably on a high profile case Santics be high.” We argued that the v. Vancouver (City) Animal threshold when the destruction Control Officer, that will of a sentient being, a dog, is at likely go down historically as stake, the bar should be very one of the important animal high. We argued that there law cases out of B.C. and should be no doubt that a dog specifically about “dangerous Victoria Shroff who is ordered to be destroyed dogs”, ever heard at B.C.’s should be beyond hope of highest court. The issue on appeal was rehabilitation, based on expert evidence the legal test applicable to destruction such as that tendered by an expert orders for dangerous dog applications veterinarian. As Prince said, “ I’d like to in B.C. The case is about Access to think our views on animals in Canada Justice for Animals and the full power have evolved to place where we don’t of the State against Punky the young, just kill dogs unless the State provides small Australian cattle dog at the heart sufficient evidence that a dog is beyond of this case. Punky has been on dog redemption.” death row for over 2 years for biting a person in a Vancouver off-leash park. Susan Santics, our client, was self Punky is Canada’s every dog. Wu represented at trial. Punky was not summed up our case by saying that successful at trial nor on his appeals, whenever the State wants to take away however the August 2019 BC Court of property, “...it is on the government Appeal decision has ramifications for dog
September 2019 5 PB 604.879.4280 | [email protected] COUNSEL COMMENTS
Santics v. Vancouver (City) Animal Control Officer, (cont.)
owners not just in BC, but nationally. I’ve been practicing animal law for 20 years in Vancouver at Shroff & Associates and I also teach animal law at UBC’s Allard School of Law (with Prince) and I have not seen a case like this one. Since losing the appeal on August 9, 2019 we applied for a stay of ‘execution’ while we seek leave to appeal to the Supreme Court of Canada. Our application was opposed by the Respondent. We
argued in Court and ultimately, prevailed on the application. Our client was granted 2019 CanLIIDocs 2610 a stay on August 23, 2019, the very day that Punky was going to be destroyed. Our team prepared the written argument and I spoke to the application on August 22, 2019 in the BC Court of Appeal. I stated that there’s an arguable issue of law which would qualify for leave to appeal to the SCC. One of the points we argued was that destruction of a dog is completely irreversible. I read in powerful quotes from dissenting justices from other Appeal Courts throughout Canada to demonstrate that animals matter, including Justice Hoeg’s memorable statement in Baker v. Harmina, 2018 NLCA 15, “But dogs are more than just animate. People form strong emotional relationships with their dogs and it cannot be seriously argued otherwise.” Destruction of a dog should only be done in highly limited circumstances and never in the absence of a cogent factual and evidentiary matrix firmly underlying the case. The rights of animals, animal welfare and social justice are at the center of this important animal law case. The Santics case has garnered a ton of media attention coast to coast for the reason that animals matter beyond simple property rights. I posit that we are in a transformed legal environment where animals matter to Canadians. The fact that Punky’s animal law case has come so far through the legal system and is now taking a run at the Supreme Court of Canada, demonstrates that people are willing to fight for the lives of their dogs.”
6 OnPoint Legal Research | Take Five PB 604.879.4280 | [email protected]
A.B. v. C.D., 2019 BCCA 297 Areas of Law: Constitutional; Family; Human Rights ~The Attorney General of British Columbia has the right under s. 204 of the Family Law Act to be added as a party in an appeal under the Family Law Act even where he has not participated in the trial~
CLICK HERE TO ACCESS THE JUDGMENT
he Respondent A.B., a On the question of A.B.’s informed Ttransgender youth, brought a consent under s. 17 of the Infants Act,
family law action seeking to be found R.S.B.C. 1996, c. 223, the Court 2019 CanLIIDocs 2610 competent to consent to and proceed concluded that the consent form with hormone treatment for his signed by A.B. and the evidence gender dysphoria. In February 2019, of his doctors were sufficient to the Appellant C.D. – A.B.’s father establish that A.B. was aware of and – filed a petition seeking injunctive understood the nature, consequences, relief to prevent the Respondent’s foreseeable benefits and foreseeable doctors and counselors from providing risks of the hormone treatment. A.B. with advice or treatment. The His consent was therefore informed BC Supreme Court authorized and met the requirements of that the treatment and dismissed the section. After the release of the BC Appellant’s injunction application. Supreme Court judge’s reasons, A.B. The Court concluded that, pursuant brought an application to restrain the to s. 37 of the Family Law Act, S. Appellant from publishing, speaking, B.C. 2011, c. 25, it was in the best or giving interviews about the case interests of A.B. to proceed with or about A.B.’s personal and medical hormone treatment without delay information. He also sought an order based on the “totality of the medical to restrain the Appellant from sharing evidence regarding A.B.’s medical related documents or information needs” and because his mother, the with other persons, including media Respondent E.F., and a doctor had and social media organizations, who expressed the view that further delay might publish that information. In in hormone treatment could result the Appellant’s response, he raised in A.B. attempting suicide again. his freedom of expression rights as
September 2019 7 PB 604.879.4280 | [email protected]
A.B. v. C.D., (cont.)
protected by s. 2(b) of the Canadian Charter of Rights and Freedoms. A different judge of the BC Supreme Court granted a protection order pursuant to s. 183 of the Family Law Act. On the first branch of test for issuing an order, the judge concluded that A.B. was an at-risk family member based on his age, dependency on both of his parents, his love for the Appellant, his discomfort with his physical body, his risk of suicide, and his exposure to bullying and harassment. On the second branch of the test, she found the Appellant was likely to commit acts
of family violence against A.B. because of, among other things, interviews the 2019 CanLIIDocs 2610 Appellant had done with the media. The Appellant appealed both judges’ orders, alleging both procedural and substantive errors. Seven organizations and one individual applied for leave to intervene in the appeal. The Attorney General of British Columbia in a separate application pursuant to s. 204 of the Family Law Act sought an order that he could intervene as of right in the appeal.
Built on Trust, Backed by Results
Jeff Davis has been entrusted with the investment portfolios of legal professionals in OB Model Portfolio vs S&P/TSX Total Return Index British Columbia and Alberta for almost 20 years. Attuned to your needs, he understands that the demands of being a successful lawyer often result in a lack of time to manage your own investments.
At Odlum Brown, Jeff develops investment strategies that are conflict-free andfocused on Jeff Davis, creating and preserving the wealth and legacy B.Comm, CIM of his clients. For over two decades, the results Vice President, Director, Portfolio of the highly-regarded Odlum Brown Model Manager Portfolio have been a testament to the quality of *Compound annual returns are from inception December 15, 1994 to September 15, 2019. The Odlum Brown Model Portfolio is a our advice. hypothetical all-equity portfolio that was established by the Odlum Brown Equity Research Department on December 15, 1994 with a hypothetical investment of $250,000. It showcases how we believe individual security recommendations may be used within the context of a client portfolio. The Model also provides a basis with which to measure the quality of our advice and the effectiveness of Let us make a case for adding value to your our disciplined investment strategy. Trades are made using the closing price on the day a change is announced. Performance figures do not include any allowance for fees. Past performance is not indicative of future performance. portfolio. Contact Jeff today at 604-844-5404 or toll-free at 1-888-886-3586. Visit odlumbrown.com/jdavis for more information. Member-Canadian Investor Protection Fund
8 OnPoint Legal Research | Take Five PB 604.879.4280 | [email protected]
A.B. v. C.D., (cont.)
APPELLATE DECISION
he applications were granted, in some cases on terms, except the application Tof the individual proposed intervenor and the application of one of the organizations. The Court found the Attorney General had the right to party status pursuant to s. 204 of the Family Law Act. The matter was one of first impression. The Court agreed with the Attorney General that s. 204 of the Family Law Act gave him the right to intervene in a proceeding under that legislation and that the proceedings below were proceedings under the Family 2019 CanLIIDocs 2610 Law Act within the meaning of s. 204(1). Accordingly, the Attorney General had the right under s. 204(1) to intervene in the Supreme Court and make submissions respecting any matter arising in that proceeding that affected the public interest. Had the Attorney General done so, pursuant to s. 204(3) of the Family Law Act he would have become a party to that proceeding and would have had an absolute right as a party to participate in the appeal. The question
AFTER 30 YEARS IN PRINT WE’RE TURNING THE PAGE
BC LEGAL DIRECTORY
Discover your profile at bclegaldirectory.org
September 2019 9 PB 604.879.4280 | [email protected]
A.B. v. C.D., (cont.)
was whether that right extended to the right to intervene in an appeal in the Court of Appeal when he had not done so in the court below. In other words, the question was whether an appeal to the Court of Appeal is a “proceeding” under s. 204 of the Family Law Act in which the Attorney General may intervene as of right. The purpose of s. 204(1) is to allow the Attorney General to intervene in cases under the Family Law Act respecting matters that affect the public interest. The public interest is greater on appeal than at trial. An appeal creates law that binds the whole province. While the Family Law Act is generally concerned 2019 CanLIIDocs 2610 with private disputes, a Family Law Act case can raise issues of general public importance. In many cases, the Attorney General would only learn of cases that warrant intervention when the trial reasons are released. An interpretation of s. 204(1) that would allow the Attorney General to intervene as of right only at the trial level would not be consistent with the purpose of the legislation. Given the language of s. 204(1), it was for the Attorney General, not the Court, to determine the issues on which he will make submissions, so long as the issue is “arising in the proceeding”. Pursuant to s. 204(3) of the Family Law Act, the Attorney General becomes a party to the proceeding and has all the rights of a party in the appeal. The style of cause would be amended to include the Attorney General as a respondent on appeal. As a party, the Attorney General was entitled to file a factum, make oral submissions at the hearing, and receive copies of the factums, appeal record, transcripts, appeal books, and books of authorities. The Court of Appeal also granted intervenor status to the following proposed intervenors for specific issues on appeal and on specific terms: the Provincial Health Services Authority, the West Coast Legal Education and Action Fund, the Canadian Professional Association for Transgender Health, the Egale Canada Human Rights Trust, the Association for Reformed Political Action Canada, and the Justice Centre for Constitutional Freedoms. However, it dismissed the applications of QMUNITY BC’s Queer Resources Centre Society and Karen Litzcke. The Court discussed the leading authorities on applications for leave to intervene.
10 OnPoint Legal Research | Take Five PB 604.879.4280 | [email protected] COUNSEL COMMENTS
A.B. v. C.D., 2019 BCCA 297
Counsel Comments provided by Jasmeet Wahid and Jessica Lithwick, Counsel for the Respondent Mother E.F.
his is a chambers decision As is clear, that submission was only “Tregarding an appeal that was partially successful. 2019 CanLIIDocs 2610 heard on an urgent basis. In the end, seven The hearing interveners and the took place on Attorney General September 3 of BC were given to 5, 2019 and leave to provide judgment is submissions on reserved. specified issues to the division Before Justice Jasmeet Wahid Jessica Lithwick hearing the appeal, Goepel, the in addition to submissions from A.B. (the son) and the three parties. Each intervenor E.F. (the mother, whom we represented) filed factums addressing their specified were that the entire appeal was private issues to assist the panel hearing the and the chambers judges’ discretionary main appeal. Many of the interveners orders did not raise issues of broader were not permitted to address all of the import because they turned on the issues identified in their applications as particular facts before the Court below. appropriate for non-party submissions. Our position was that the fact that A.B. is transgender does not mean that For legal history buffs, this was the he is developing a special area of the first time in a family law case that the law – he is just another minor seeking Attorney General of BC intervened medical care and protection from family and was added as a party in the Court violence. of Appeal. For those who are curious,
September 2019 11 PB 604.879.4280 | [email protected] COUNSEL COMMENTS
A.B. v. C.D., (cont.)
Section 204 of the Family Law Act was relied on in the AG’s ultimately successful application.
Interestingly, only the PHSA and ARPA were given leave to make oral submissions at the hearing. This ruling was made by the division after receipt of the factums and before the hearing. It was delivered to the parties and interveners in writing.” 2019 CanLIIDocs 2610
12 OnPoint Legal Research | Take Five PB 604.879.4280 | [email protected]
Coburn and Watson’s Metropolitan Home v. Home Depot of Canada Inc., 2019 BCCA 308 Areas of Law: Civil Practice and Procedure; Class and Representative Proceedings; Representative or Class Proceedings under Class Proceedings Legislation; Orders, Awards and Related Procedures; Appeals ~The Court of Appeal does not have the jurisdiction to hear an appeal by a class member who is not a representative plaintiff from an order of the BC Supreme Court approving a settlement of a class action~
CLICK HERE TO ACCESS THE JUDGMENT
he Applicants Home Depot had been granted an audience at the Tof Canada Inc. and Wal-Mart settlement approval hearing in BC 2019 CanLIIDocs 2610 Canada Corp. were members Supreme Court to make submissions of the plaintiff class in a class opposing the approval. They did so action that alleged defendants in their capacity as members of the including MasterCard International plaintiff class and following a court Incorporated, Visa Canada order giving notice of the proposed Corporation, and the National settlement. The Applicants had no Bank of Canada Inc. had conspired other status at the hearing and did to fix and inflate fees charged to not apply for any other status, if such them to accept credit cards as an option was available to them. The payment. Neither Applicant was BC Supreme Court approved the the representative plaintiff in the settlement. The Applicants brought class action. The BC Supreme Court an application for leave to appeal approved a settlement, which included that order. They both objected to the a total payment of $39 million by settlement with MasterCard and Visa MasterCard and Visa together, $6 and Wal-Mart also objected to the million by the National Bank, and a settlement with the National Bank. comprehensive release. The Applicants
APPELLATE DECISION
he Court of Appeal, which treated the Applicants’ audience before the Court Tas an application by a non-party for the right to appeal under s. 9(3) of the Court of Appeal Act, R.S.B.C. 1996, c. 77 dismissed the application and quashed the appeal. A chambers justice had referred two questions to a division of the Court: 1) whether an appeal lies from a settlement order made under the Class
September 2019 13 PB 604.879.4280 | [email protected]
Coburn and Watson’s Metropolitan Home v. Home Depot of Canada Inc., (cont.)
Proceedings Act, R.S.B.C. 1996, c. 50 and 2) if so, whether such an appeal may be properly brought by a member of the plaintiff class, with or without being added as a party to the action. The Court observed that, perhaps surprisingly, there was no binding authority on the preliminary question it needed to decide: whether a class member who is not a representative plaintiff has a right to appeal an order approving a settlement. Although the justice in chambers referred two questions to the division, in the end, the Court only decided the second issue because in 2019 CanLIIDocs 2610
14 OnPoint Legal Research | Take Five PB 604.879.4280 | [email protected]
Coburn and Watson’s Metropolitan Home v. Home Depot of Canada Inc., (cont.)
the circumstances the appeal was not an attempted appeal by a party from an order approving or rejecting settlement and the considerations applicable to the appeal rights of parties are different from those that apply to class members. The Court preferred to focus its analysis on the narrow issue before it. The Court observed that because it is a statutory court, its jurisdiction to entertain an appeal must be rooted in statute. A right of appeal may be found in either the Court of Appeal Act or the Class Proceedings Act. The Court of Appeal held it did not have 2019 CanLIIDocs 2610 the jurisdiction to hear an appeal by a class member from an order approving a settlement under either statutory provision. Neither conferred statutory rights of appeal on class members who objected to an order approving settlement. Section 6 of the Class Proceedings Act conferred rights on parties and class members were not parties. Having an interest in the subject matter of an order and appearing and making submissions in the Court below, as both of the Applicants did, was
Ever wish you had a Gold Medalist or a former appellate law clerk to help you on a file?
September 2019 15 PB 604.879.4280 | [email protected]
Coburn and Watson’s Metropolitan Home v. Home Depot of Canada Inc., (cont.)
not, without more, sufficient to confer party status. The appeal rights of class members were addressed in the Class Proceedings Act and s. 36 of it impliedly excluded appeal rights of class members to appeal an order approving settlement. While s. 9(3) of the Court of Appeal Act conferred jurisdiction to permit an appeal by a non-party, neither Applicant demonstrated they would have been proper or necessary party to the settlement approval procedure. Furthermore, the structure of the Class Proceedings Act draws important distinctions between the status of a representative plaintiff and class members. The representative plaintiff, 2019 CanLIIDocs 2610 on certification of the proceeding by court order, is the party with authority to conduct and control the litigation on behalf of the class. Class members, subject to defined rights and protections built into the Class Proceedings Act, including the right to opt out of the proceeding, are bound by the decisions the representative plaintiff makes up to and including termination of the class proceeding by
You can.
Gold Medalists
Former Clerks
Lawyers helping lawyers for over 20 years. Experienced Litigators
www.onpointlaw.com 604.879.4280 [email protected]
16 OnPoint Legal Research | Take Five PB 604.879.4280 | [email protected]
Coburn and Watson’s Metropolitan Home v. Home Depot of Canada Inc., (cont.)
settlement or trial. Class members who do not opt out lose what has been described as “litigation autonomy”, which is the price they pay to receive the benefit from a class proceeding. Generally speaking, the interests of class members are protected by the overall supervisory jurisdiction of the court. For example, a proposed settlement requires court approval. Class proceedings involve trade-offs of benefits and burdens to create a balance between fairness and efficiency. Class members gain benefits such as access to justice, cost savings, and the ability to avoid duplicative proceedings and, in exchange, assume burdens including the 2019 CanLIIDocs 2610 loss of litigation autonomy if they do not opt out. The proposed appeal was also meritless, as the BC Supreme Court judge had applied the relevant principles to assess whether the settlements were fair and reasonable and gave sufficient weight to relevant considerations, and the decision was not clearly wrong.
September 2019 17 PB 604.879.4280 | [email protected]
+
NOW IS THE BEST TIME 2019 CanLIIDocs 2610 Last year, we reduced Regular membership fees by $100.
This year, you get complimentary access to 50+ professional development programs nationwide – with more on the way!
CBABC MEMBERSHIP OFFERS:
Stay current with professional development SKILLS programs & career support.
Connect with colleagues and gain business NETWORK referrals and opportunities.
Shape public policy and advocate for change IMPACT provincially and nationally.
JOIN NOW! Call us to learn about our special offer 604.687.3404 ext. 341 | 1.888.687.3404 ext. 341 Visit: cbabc.org/Summer19
CBA. MORE THAN A MEMBERSHIP.
18 OnPoint Legal Research | Take Five PB 604.879.4280 | [email protected]
Greata Ranch Holding Corp. v. Concord Okanagan Developments Ltd., 2019 BCCA 304 Areas of Law: Alternative Dispute Resolution; Appeal from Arbitration Awards; Question of Law ~The standard of review on the issue of whether parties to an arbitration seeking to appeal have identified an extricable question of law, as required by s. 31 of the Arbitration Act, is correctness. However, the Court will defer to a trial judge’s assessment of the importance of the result to the parties and the public, the risk of a miscarriage of justice, and whether a party should be able to raise a legal question on appeal that was not argued before the arbitrator~
CLICK HERE TO ACCESS THE JUDGMENT
reata Ranch Holding Corp. project manager took the position that 2019 CanLIIDocs 2610 Gand an affiliate and Concord Greata’s failure to pay the invoice was a Okanagan Developments Ltd. repudiation of the project management entered into an arrangement to agreement. Greata issued a notice develop a vineyard for residential and to arbitrate disputes. The limited commercial use. They entered into a partnership agreement provided that limited partnership agreement, and if certain progress was not made the partnership entered into a project by specified date, Concord could management agreement with a project terminate the limited partnership manager affiliated with Concord. agreement or lend enough funds to The project encountered difficulties, enable it to pay $6,000,000 to Greata. leading to delay in completing its Concord advanced $6,000,000, but planned phases. The project manager opinion differed about the terms and partnership were required by the on which advance was made and project management agreement to Concord demanded repayment of act diligently and reasonably to come the loan plus interest, and when the to a final agreement on a budget, loan was not repaid it issued a notice but no budget was ever adopted and to arbitrate, which was joined with the parties continued to work on the Greata’s arbitration. In the arbitrator’s development. The project manager first award, the arbitrator found the delivered an invoice to partnership for project manager had not breached project costs of $6.6 million. Greata project management agreement by took the position that the project failing to take appropriate steps to manager had breached the project pursue the project; that the invoice management agreement, and the was invalid as there had not been
September 2019 19 PB 604.879.4280 | [email protected]
Greata Ranch Holding Corp. v. Concord Okanagan Developments Ltd., (cont.) suspension or abandonment of the project when it was issued, as required by the project management agreement; and the refusal to pay the invoice did not amount to a repudiation of the contract. With the parties’ agreement, the arbitrator made a declaration dissolving the partnership, and found the project manager was entitled to project costs of $6,221,539 upon dissolution. In a second award, the arbitrator found Concord’s loan to the partnership created an interest to be accounted for when the assets of partnership were liquidated, which placed Concord behind other creditors in priority and held no interest 2019 CanLIIDocs 2610 was claimable. Greata sought to set aside the arbitration award in BC Supreme Court and both Concord and the owner sought leave to appeal the arbitrator’s awards. The chambers judge dismissed Greata’s petition in favour of the project manager, and dismissed Greata’s petition for leave to appeal on ground that it was error of law to make an award to the project manager for a claim arising upon dissolution in the absence of approved budget. A justice in chambers granted Concord leave to appeal only one question of law, whether the arbitrator erred by failing to consider relevant provisions of the Partnership Act, R.S.B.C. 1996, c. 348 when determining distribution priority of loan under the limited partnership agreement. However, the chambers judge denied Concord leave to appeal the question of whether the arbitrator erred in law in failing to enforce term of the limited partnership agreement providing the loan was made at a defined interest rate. Both Greata and Concord appealed. Not everything makes sense. Fortunately, hiring us does.
ALL OF OUR RESEARCH LAWYERS HAVE COMPLETED CLERKSHIPS OR PRACTICED AS LITIGATORS AT MAJOR FIRMS WE DRAFT FACTA, PLEADINGS, MEMORANDA WE OFFER LEGAL STRATEGY AND LITIGATION SUPPORT
op ONPOINT Lawyers helping lawyers LEGAL RESEARCH for over 20 years
www.onpointlaw.com 604.879.4280 [email protected]
20 OnPoint Legal Research | Take Five PB 604.879.4280 | [email protected]
Greata Ranch Holding Corp. v. Concord Okanagan Developments Ltd., (cont.)
APPELLATE DECISION
reata’s appeal was dismissed and Concord’s appeal was allowed. The parties Graised an issue on the standard of review of a BC Supreme Court judge’s decision on a leave application under s. 31 of the Arbitration Act, R.S.B.C. 1996, c. 55. The Court of Appeal held that the standard of review of the issue of whether a part to an arbitration has identified extricable questions of law is
correctness. However, the Court will defer to the trial judge’s assessment of the 2019 CanLIIDocs 2610 importance of the result to the parties and the public, the risk of a miscarriage of justice and whether Concord should be able to raise a legal question on appeal that was not argued before the arbitrator. When considering whether a new argument could be advanced on appeal, criteria to consider was whether the issue was question of pure law, capable of resolution on appeal; and whether any prejudice would result by hearing new argument. On the merits of the appeal, the Court held that the arbitrator did not ignore the phrase Greata identified, but rather interpreted that phrase in light of the parties’ conduct by proceeding without adopting a budget that had such a schedule. However, on Concord’s appeal, the Court of Appeal found arbitrator did not consider the potentially- relevant sections of the Partnership Act and the pleadings did not show Concord ought to have identified those sections at the arbitration. The Court also found the arbitrator had not appeared to give any effect to the words “at the Interest Rate” in the partnership agreement despite acknowledging their applicability, thus raising a potential extricable error of law. The Court of Appeal allowed the appeal only to grant leave to Concord to raise on appeal the question of whether the arbitrator erred in law by failing to consider the effect of the definition of the term “Interest Rate” in the partnership agreement and to give effect to the defined term.
September 2019 21 PB 604.879.4280 | [email protected]
Negus v. Yehia, 2019 BCCA 307 Areas of Law: Civil Practice and Procedure; Family; Property ~The trial judge conducted a thorough analysis of the evidence in contentious family law litigation and made no errors in his approach to the various issues he was required to decide regarding excluded and family property and costs~
CLICK HERE TO ACCESS THE JUDGMENT
ally Ann Negus and Sam Yehia have 60 days to purchase her interest Sbegan cohabiting in October for $9.805 million plus interest and
1993, married in August 1994, and any costs ordered in the proceedings. 2019 CanLIIDocs 2610 separated in October 2014. Following The trial judge also awarded Ms. the end of the marriage, a trial in BC Negus special costs throughout on Supreme Court decided, among other the basis that Mr. Yehia had engaged things, what was Mr. Yehia’s excluded in reprehensible conduct. He referred property and the division of family to a 2016 decision of a BC Supreme property. Mr. Yehia owned a group Court master that involved a dispute of companies that, in turn, owned between Mr. Yehia and his first and operated pubs, liquor stores, and counsel, in which the master stated hostels in Vancouver, Esquimalt, and that Mr. Yehia pursued a “litigation Nanaimo. The businesses were all war” strategy. The judge trial found located on property held by separate that Mr. Yehia continued to pursue companies that were also owned by that strategy and attempted to use his Mr. Yehia. They were all operated superior resources to wear Ms. Negus by a single company, The Cambie down. In the end, Ms. Negus was Malone’s Corporation. The trial able to purchase Mr. Yehia’s interest in judge ultimately valued the adjusted the family property by, among other total value of the family property at things, obtaining financing. In spring $19.61 million and ordered that Ms. 2019, she arranged for the company Negus purchase Mr. Yehia’s interest in that controlled the Cambie Gastown, the family property for $12 million, which the trial judge had valued at less a holdback for costs. If she was $6.75 million, to sell it to a third party unable to complete the purchase for $14.96 million. Mr. Yehia appealed within 90 days, Mr. Yehia would and Ms. Negas cross-appealed.
22 OnPoint Legal Research | Take Five PB 604.879.4280 | [email protected]
Negus v. Yehia, (cont.)
APPELLATE DECISION
he appeal and the cross-appeal were dismissed. Mr. Yehia initially raised Tseveral issues on appeal. However, on the eve of the hearing, he abandoned all grounds of appeal except his appeal from the order that Ms. Negus be given the first opportunity to purchase his interest in the family property and the order of special costs against him. He argued the judge gave no consideration that he, in the capacity as “the founder and business owner”, should be entitled
to retain the businesses and related real estate. He rested this argument on s. 2019 CanLIIDocs 2610 97 of the Family Law Act, which gives the courts broad powers to effect the division of family property, including an in specie transfer of property or a payment as compensation, as well as several authorities from the BC Courts. However, the Court of Appeal found that Mr. Yehia had not raised the issue of alleged commercial disruption and operational convenience in the court below. The Court of Appeal did not find in the circumstances that the interests of justice favoured allowing Mr. Yehia to argue on the first time on appeal that interruption to the business and business efficiency. On special costs, the Court of Appeal observed that costs orders are discretionary and attract a high degree of deference and should be set aside only where a trial judge has made an error in principle or the costs award is plainly wrong, which was not the case here. On the cross-appeal, Ms. Negus argued the trial judge committed an error in
September 2019 23 PB 604.879.4280 | [email protected]
Negus v. Yehia, (cont.) law in that he failed to take into account encumbrances on certain excluded properties totaling approximately $1.413 million which would, in effect, have reduced the value of Mr. Yehia’s excluded property to zero. In other words, the valuation should have been made on a net, as opposed to a gross, basis. The Court of Appeal dismissed the cross-appeal first because the issue was moot. Ms. Negus paid $12 million for Mr. Yehia’s interest in the family property and did not seek any reduction in the amount paid. Second, the Court disagreed that
the judge erred in law by not considering the issue from a “net” as opposed to a 2019 CanLIIDocs 2610 “gross” basis. This argument inferred that the judge was not aware of and or did not consider the two different approaches, but the judge had cited some of the authorities Ms. Negus relied on in the Court of Appeal. Overall, the Court of Appeal observed the judge had conducted a thorough analysis of the evidence and made no errors in his approach to the various issues he was required to decide.
Blair Mackay Mynett Valuations Inc. is the leading independent business valuation and litigation support practice in British Columbia. Our practice focus is on business valuations, mergers and acquisitions, economic loss claims, forensic accounting and other litigation accounting matters. We can provide your clients with the knowledge and experience they require.
Suite 700 1177 West Hastings Street Vancouver, BC, V6E 2K3 Left to Right: Telephone: 604.687.4544 Andy Shaw, Rob Mackay, Kiu Ghanavizchian, Facsimile: 604.687.4577 Andrew Mackenzie, Gary Mynett, Lucas Terpkosh, www.bmmvaluations.com Vern Blair, Jeff Matthews, Farida Sukhia
24 OnPoint Legal Research | Take Five PB 604.879.4280 | [email protected]
Who is OnPoint?
Who We Are: atch our All OnPoint research lawyers have clerked with the British Columbia Court of Appeal, the Alberta video W Court of Appeal, or the Supreme Court of Canada, to learn about or have practised as litigators with major downtown law firms. Most were the Gold Medalists of their OnPoint. graduating law classes.
What We Do: 2019 CanLIIDocs 2610 Click here. We provide the same assistance as do litigation associates at a firm. For over 20 years, we have completed a variety of projects, from complex “OnPoint has always memoranda and factums, to pleadings and written summaries of argument for use at trial. At times, we performed in a timely, also appear in court with or without our clients. effective and professional manner and has done Many of our clients consider excellent work at a using our services as reasonable price. We do equivalent to relying upon not hesitate to use their work completed by in-house services.” associates, and add a measure of profit accordingly when billing Larry Kahn, QC and their own clients. Marvin Lithwick, Kahn Zack Ehrlich Lithwick T. 604.879.4280 E. [email protected] w. www.onpointlaw.com Sarah Picciotto, B.A., LL.B. Founder
“OnPoint is my choice for legal research “All of us at Taylor Veinotte Sullivan help because I enjoy their engaged and use OnPoint’s researchers on our cases. refreshing curiosity for the task. At the OnPoint’s expertise in a wide range of same time they appreciate the need to complicated commercial litigation is be cost effective and are quick to suggest invaluable to a firm of our size and is collegial ways to share the task.” also a real costs savings to our clients.”
Dirk J. Sigalet Q.C. Carey Veinotte, Taylor Veinotte Sullivan
September 2019 25 PB