dataset stringclasses 8
values | citation_en stringlengths 1 94 ⌀ | citation2_en stringclasses 20
values | name_en stringlengths 0 299 ⌀ | document_date_en timestamp[us, tz=UTC]date 1998-06-08 00:00:00 2026-03-27 00:00:00 ⌀ | url_en stringlengths 11 101 ⌀ | scraped_timestamp_en timestamp[us, tz=UTC]date 2022-08-18 16:36:39 2026-03-28 09:06:29 ⌀ | unofficial_text_en stringlengths 0 3.33M ⌀ | citation_fr stringlengths 6 22 ⌀ | citation2_fr stringclasses 20
values | name_fr stringlengths 0 278 ⌀ | document_date_fr timestamp[us, tz=UTC]date 1998-10-21 00:00:00 2026-03-27 00:00:00 ⌀ | url_fr stringlengths 11 95 ⌀ | scraped_timestamp_fr timestamp[us, tz=UTC]date 2022-08-25 20:37:12 2026-03-28 09:06:19 ⌀ | unofficial_text_fr stringlengths 245 1.14M ⌀ | upstream_license stringclasses 8
values |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
BCCA | 2020 BCCA 238 | British Columbia (Attorney General) v. Canadian Constitution Foundation | 2020-08-21T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/20/02/2020BCCA0238.htm | 2026-01-18T04:09:23.359000 |
2020 BCCA 238 British Columbia (Attorney General) v. Canadian Constitution Foundation
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
British Columbia (Attorney General) v. Canadian Constitution Foundation,
2020 BCCA 238
Date: 20200821
Docket: CA46296
Between:
The Attorney General of British Columbia
Respondent
(Petitioner)
And
Canadian Constitution Foundation
Appellant
(Respondent)
And
Office of the Information and Privacy Commissioner
for British Columbia
Respondent
(Respondent)
FILE SEALED IN PART
Before:
The Honourable Mr. Justice Harris
The Honourable Mr. Justice Fitch
The Honourable Mr. Justice Butler
On appeal from: An order of the Supreme Court of British Columbia, dated
July 12, 2019 (British Columbia (Attorney General) v. British Columbia (Information
and Privacy Commissioner), 2019 BCSC 1132, Vancouver Docket S1810373).
Counsel for the Appellant
(via videoconference):
J.B. Maryniuk
Counsel for the Respondent,
Attorney General of British Columbia
(via videoconference):
J.D. Hughes
M.A. Witten
Counsel for the Respondent,
Office of the Information and Privacy Commissioner for British Columbia
(via videoconference):
A.R. Hudson
Place and Date of Hearing:
Vancouver, British Columbia
June 24, 2020
Place and Date of Judgment:
Vancouver, British Columbia
August 21, 2020
Written Reasons by:
The Honourable Mr. Justice Harris
Concurred in by:
The Honourable Mr. Justice Fitch
The Honourable Mr. Justice Butler
Summary:
The appellant appeals a judgment setting aside an order requiring the Attorney General to disclose the total of legal fees and disbursements the government has spent during a defined period defending a major constitutional challenge. Held: Appeal dismissed. The judge correctly decided that the amount of legal costs is presumptively privileged, and that the presumption of privilege had not been rebutted. The judge also correctly decided that the standard of review of the administrative decision requiring disclosure is correctness.
Reasons for Judgment of the Honourable Mr. Justice Harris:
Introduction
[1] This is an appeal of an order quashing a decision of an Office of the Information and Privacy Commissioner ("OIPC") adjudicator to compel the Ministry of the Attorney General to release the amount of legal costs it has incurred, during a defined period, defending Cambie Surgeries Corporation v. British Columbia (Attorney General), Vancouver Docket No. S090663 [Cambie Surgeries]. The adjudicator determined this information was not subject to solicitor‑client privilege under s. 14 of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 [FIPPA]; the reviewing Supreme Court judge determined it was. The Canadian Constitution Foundation ("CCF") appeals, arguing the chambers judge erred in finding the record presumptively privileged, and in concluding that the presumption of privilege had not been rebutted. The appeal also raises a question of the standard of review to be applied by a court on judicial review of a decision of an OIPC adjudicator in determining whether records are protected by solicitor‑client privilege.
[2] The heart of this appeal engages the scope of solicitor‑client privilege in the context of a freedom of information request. It is important to stress that the issue must be assessed as of the end date of the ordered disclosure: January 18, 2017. Much water has flowed under the bridge since then, but to address this appeal we must focus on the circumstances as they existed at that time, without consideration of subsequent events. The parties do not disagree in broad terms about the following statement of the test by the judge, assuming that a presumption of privilege is applicable:
[51] The parties are in agreement that the presumption may be rebutted if it is established that there is no reasonable possibility that disclosure would directly or indirectly reveal privileged communications. The test for whether privileged communications could be revealed must be considered from the perspective of whether an assiduous inquirer could deduce, infer, or otherwise acquire privileged communications: [School District No. 49 (Central Coast) v. British Columbia (Information and Privacy Commissioner), 2012 BCSC 427] at paras. 58-59. As noted in [Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44] and [Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20], the standard is very strict. The privilege must be "as close to absolute as possible": Blood Tribe Department of Health at para. 9.
Background
[3] CCF is a charity that raises funds to support certain constitutional challenges to government action. It is providing financial support to the plaintiffs in Cambie Surgeries. This litigation is a Charter challenge to provisions of the Medicare Protection Act, R.S.B.C. 1996, c. 286.
[4] On January 18, 2017, CCF filed a request for information pursuant to s. 5 of FIPPA. Section 4 of FIPPA creates a limited right of access to records held by a public body:
Information rights
4 (1) A person who makes a request under section 5 has a right of access to any record in the custody or under the control of a public body, including a record containing personal information about the applicant.
(2) The right of access to a record does not extend to information excepted from disclosure under Division 2 of this Part, but if that information can reasonably be severed from a record an applicant has the right of access to the remainder of the record.
[5] The right of access created by s. 4 does not extend to information subject to solicitor‑client privilege. Solicitor‑client privileged information is exempted from disclosure under s. 14 of FIPPA:
Legal Advice
14 The head of a public body may refuse to disclose to an applicant information that is subject to solicitor client privilege.
[6] Once a request has been made, s. 6(2) requires a public body to create a record in response to the request under certain conditions.
[7] Reviews by the OIPC are conducted pursuant to Part 5, Division 1 of FIPPA. Pursuant to s. 56, the OIPC may conduct an inquiry and decide questions of fact and law arising in the course of that inquiry. The general burden of proof on an inquiry is set out in s. 57(1) of FIPPA, which provides as follows:
Burden of proof
57 (1) At an inquiry into a decision to refuse an applicant access to all or part of a record, it is up to the head of the public body to prove that the applicant has no right of access to the record or part.
[8] The request as originally made was for records during a particular period, between January 1, 2016 and January 18, 2017. The request, however, was for a detailed and comprehensive set of records which would have included details of hourly rates, disbursements, document production costs and witness fees, among many other categories of records. This request was subsequently modified and the decision reviewed by the judge related to a very different request, which I will describe shortly.
[9] In response to CCF's request, the Attorney General created a one‑page record that contained a summary of the various legal fees and disbursements incurred in relation to Cambie Surgeries between January 1, 2016 and January 18, 2017.
[10] The Attorney General advised CCF, on January 26, 2017, that it would be withholding the records pursuant to s. 14 of FIPPA.
[11] On March 6, 2017, CCF requested review of the Attorney General's decision pursuant to s. 53 of FIPPA.
[12] On December 4, 2017, the Information and Privacy Commissioner (the "Commissioner"), who directs reviews pursuant to FIPPA, notified the parties an adjudicator would be conducting a written review of the decision. Submissions and affidavits were exchanged during the process.
[13] In response to a request for clarification from the adjudicator, CCF's request expanded from legal costs of Cambie Surgeries incurred from January 1, 2016 to January 18, 2017 to those incurred from January 1, 2009 to January 18, 2017. This led to the Attorney General creating a new summary of the total costs incurred between these dates, although the Attorney General again took the position the record would not be released pursuant to s. 14.
[14] On August 14, 2018, the adjudicator rendered her decision (Order F18‑35). Despite the appellant having initially requested specific details of Cambie Surgeries costs, the adjudicator only considered whether s. 14 applied to the total amount of legal costs (including fees and disbursements) incurred in defending the litigation from 2009 to January 18, 2017.
[15] The adjudicator was satisfied, at para. 13 of her reasons, that even in the context of ongoing litigation, there was no reasonable possibility the decontextualized record would reveal information about the Attorney General's legal strategy, communications with counsel, or any other communication protected by solicitor‑client privilege. She ordered the record disclosed pursuant to s. 58 of FIPPA.
[16] The adjudicator analysed whether the Attorney General had established how disclosure of the costs might reveal privileged communications, concluding that it had not been shown that disclosure would reveal privileged communications: at paras. 34, 39, and 44. The adjudicator reasoned:
[52] I have considered the Ministry's arguments about what types of inferences could be drawn from the litigation cost in this case and how disclosure might prejudice the Province. In my view, given the nature of the litigation, i.e., a landmark constitutional case, the stage of the proceedings, the variety of a costs represented in the sum total, in combination with information available on the public record, any conclusions which might be drawn from the litigation cost would already be evident to anyone knowledgeable about the litigation.
[53] The parties to the litigation have undoubtedly incurred substantial legal fees. Disclosure of the exact figure would only confirm what is already in public record - that the Province is "vigorously" defending this important constitutional case. As a result, I find that the presumption that the litigation cost is privileged has been rebutted and the Ministry cannot rely on s. 14 to withhold the figure.
[17] The period captured by the decision included the entire pre‑trial period and 5 months of a trial that continued for a considerable time after the period affected by the decision.
[18] At the same time, the adjudicator issued Order F18‑36, which dealt with a request by another party for the production of total legal costs for the period January 1, 2016 to April 11, 2017. In that case, the adjudicator concluded that disclosure might reveal privileged communications relating to the Attorney General's state of preparation 9 months before the start of trial, and refused the request.
[19] The Attorney General applied for judicial review of Order F18‑35.
The Chambers Judgment
[20] The chambers judge quashed the decision in Order F18‑35.
[21] Both parties agreed the standard of review of correctness applied, as the case engaged "a question of law which is of central importance to the legal system as a whole and which falls outside of the Adjudicator's specialized expertise" (at para. 31). That agreement reflected the law before the Supreme Court of Canada decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 [Vavilov]. As I will explain below, the parties no longer agree on the standard of review.
[22] In concluding the presumption of privilege applied to the record, the chambers judge agreed with the Attorney General that "the interim legal costs arise out of the solicitor‑client relationship and what transpires within it and reflect work done at the instruction of the client" (at para. 42). She concluded that information about the interim legal costs was presumptively privileged. In reaching that conclusion, she rejected CCF's argument that the presumption of privilege applied only to information about legal costs in the criminal context, and distinguished cases said to illustrate that financial information is not presumptively privileged, by pointing out that they deal with information having a different source, such as trust ledgers (at paras. 43-50).
[23] The chambers judge went on to conclude that CCF had not rebutted the presumption of privilege. She determined CCF's submission that "knowing whether the total cost to date are '$8 million or $12 million or $20 million' may prove embarrassing for the Province, but will not reveal privileged communications" (at para. 61), which the adjudicator had accepted, was insufficient to meet its onus. CCF was required to establish there was no reasonable possibility the amount would reveal anything about privileged communications. To the contrary, in her view the "difference between an $8 million expenditure and a $20 million expenditure would be telling to the assiduous inquirer" (at para. 62), and could allow matters of privileged communication to be adduced. Critical to the judge's reasoning was the question of onus. The onus, she opined, was borne and not discharged by CCF.
On Appeal
[24] CCF repeats the arguments it made before the judge. It contends that the proposition that information about legal costs incurred in litigation, standing alone, is presumptively subject to solicitor‑client privilege applies only in the criminal context. No such presumption applies in the civil context. This result, it says, is compelled by a careful reading of the Supreme Court of Canada judgment in Maranda v. Richer, 2003 SCC 67 [Maranda], the case said to be the origin of the principle that information about the total amount of legal costs is presumptively privileged.
[25] CCF goes on to argue that, even if such information is presumptively privileged, the onus to demonstrate that releasing that information would breach solicitor‑client privilege rests with the person or entity seeking to uphold the claimed privilege, not the challenger. And, in any event, regardless of the onus, the presumption was rebutted in this case. CCF contends, as the adjudicator found, that there is no reasonable possibility that an assiduous inquirer could infer, deduce or acquire any information about privileged communications from a bare total of the legal costs spent between 2009 and 2017.
[26] CCF, supported by the Commissioner, also argues that the Supreme Court of Canada decision in Vavilov has changed the standard of review applicable to the adjudicator's decision to reasonableness. While correctness applies to the statement of the test to be applied, reasonableness is the standard applicable to findings made by the adjudicator in the application of the test. The Attorney General contends that Vavilov has not changed the standard of review which remains correctness, as intimated by the Court in that case.
The standard of review
[27] Before the chambers judge, the parties had agreed that the central issue decided by the adjudicator -- whether solicitor‑client privilege was properly claimed as a basis for refusing to disclose information under s. 14 of FIPPA -- was reviewable on the correctness standard. This was based on a clear line of authority: Legal Services Society v. British Columbia (Information and Privacy Commissioner), 2003 BCCA 278 at paras. 14-36 [Legal Services Society (2003)]; Legal Services Society v. British Columbia (Information and Privacy Commissioner) (1996), 140 D.L.R. (4th) 372 (B.C.S.C.) [Legal Services Society (1996)]; School District No. 49 (Central Coast) v. British Columbia (Information and Privacy Commissioner), 2012 BCSC 427 at paras. 73-94 [Central Coast]; Richmond (City) v. Campbell, 2017 BCSC 331 at para. 10 [Campbell].
[28] The Legal Services Society cases pre‑date Dunsmuir v. New Brunswick, 2008 SCC 9 [Dunsmuir]. Central Coast and Campbell post‑date Dunsmuir, but pre‑date the Supreme Court of Canada's most recent reconsideration and clarification of the framework for determining the standard of review of administrative decisions in Vavilov. It follows that Legal Services Society (2003), Legal Services Society (1996), Central Coast and Campbell applied different principles, as were then applicable to the analysis, but reached the same result.
[29] Vavilov was decided after the chambers judge's decision in this case, but before the appeal.
[30] It appears to me that it was settled law, before Vavilov, that the standard of review of an adjudicator's decision about whether requiring disclosure of a record would potentially reveal solicitor‑client communications was correctness. Whether that remains the case post‑Vavilov requires some analysis.
[31] There is significant disagreement amongst the parties as to what effect, if any, Vavilov has on how this Court must approach its task of reviewing the adjudicator's decision. CCF argues that a proper application of Vavilov commands a reasonableness review in this case. The Attorney General disagrees, arguing that the correctness standard continues to apply. The Commissioner submits that this Court should parse the issues and review the interpretation of s. 14 of FIPPA on a correctness standard, but its application to this case on a reasonableness standard.
[32] I accept that Vavilov invites this Court to revisit the standard of review applicable in this case. The majority in the Supreme Court explained that a court determining the standard of review in a case before it "should look to these reasons first in order to determine how this general framework applies to that case". A bare application of pre‑Vavilov jurisprudence is not sufficient. However, "past precedents will often continue to provide helpful guidance": at para. 143.
[33] Vavilov establishes that the presumption is that the standard of review of an administrative decision is reasonableness: at paras. 16 and 23. This presumption is subject to a number of exceptions. Broadly speaking, there are two situations in which the presumption of reasonableness can be rebutted. First, where the legislature has indicated that it intends a different standard to apply, either by expressly prescribing the standard of review or by providing a statutory appeal mechanism. Second, "a reviewing court must be prepared to derogate from the presumption of reasonableness review where respect for the rule of law requires a singular, determinate and final answer to the question before it": at para. 32 (emphasis added). More specifically, the rule of law requires review on a standard of correctness for constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies.
[34] The standard of review in this case turns on whether the question being reviewed is a general question of law of central importance to the legal system as a whole. As noted, the rationale for addressing this category of questions on a correctness standard is that certain general questions "require uniform and consistent answers" due to their "impact on the administration of justice as a whole": Dunsmuir at para. 60; Vavilov at para. 59.
[35] The Commissioner argues that the earlier cases supporting a correctness standard applied a multi‑part contextual inquiry which is no longer part of Canadian law, taking into account the expertise of courts as decision makers in relation to the law of privilege. Expertise no longer is a factor in determining the standard of review: Vavilov at paras. 23-31. It follows that the old articulation of the principle that referred to questions of law that are of central importance to the legal system as a whole and that are outside of the adjudicator's expertise no longer applies.
[36] The focus, contends the Commissioner, is now on general questions of law, not fact or mixed fact and law. These latter questions involve the application of legal tests, which may be of general importance, to matters of fact or mixed fact and law, which are not. The importance of particular findings resulting from the application of a test are of importance to the parties, not the system as a whole. Accordingly, a reasonableness standard relating to the application of the test in cases involving solicitor‑client privilege in the freedom of information context is consistent with the rationale offered by the Supreme Court for reasonableness review generally.
[37] In the result, the Commissioner says the adjudicator's articulation of the test to be applied, that is the interpretation of s. 14 in this case, is reviewed on a correctness standard, but the application of that test is subject to reasonableness review. In this case, the adjudicator identified the test correctly, and the court should defer to her application of the test to her findings about the facts if it is reasonable. In other words, this Court should apply a reasonableness standard to the decision that, in this case, disclosing the litigation costs would not risk a reasonably possible disclosure of solicitor‑client communications.
[38] I am not persuaded by this analysis. The core of the question under review is a general question of law of central importance to the legal system as a whole. This is sufficient to call for review on a correctness standard, notwithstanding the Supreme Court's abandonment of expertise as part of the rationale supporting correctness. The question, as I see the matter, engages the correct scope of a principle that is fundamental to the proper functioning of our legal system; a principle, the protection of which must be as near to absolute as possible. It is a question that, given its importance, calls for a uniform and consistent answer. The question is fundamentally about the scope of solicitor‑client privilege. Admittedly, it arises in the factual context of a question about whether solicitor‑client privilege attaches to a record disclosing the total sum spent on litigating a matter during a certain time period while the litigation is ongoing. But it remains a question about the proper scope of privilege. Moreover, the answer to that question has precedential value and a significant impact on the administration of justice as a whole and other institutions of government. It goes far beyond the immediate interests of the parties in this case. Respect for the rule of law demands this Court ensure a single, correct answer is provided. The standard of correctness, in my opinion, continues to apply.
[39] It is important to stress not just that the issue involves a general question of law, but also one of central importance. In Vavilov, the Court recognized that the "uniform protection of solicitor‑client privilege is necessary for the proper functioning of the justice system": at para. 59. The communications protected by solicitor‑client privilege "are essential to the effective operation of the legal system", because "the important relationship between a client and his or her lawyer stretches beyond the parties and is integral to the workings of the legal system itself": R. v. Gruenke, [1991] 3 S.C.R. 263; R. v. McClure, 2001 SCC 14. The proper approach to s. 14 of FIPPA reflects these interests. As Lowry J. (as he then was) put it in Legal Services Society (1996) at para. 26: "The objective of s. 14 is one of preserving a fundamental right that has always been essential to the administration of justice and it must be applied accordingly."
[40] In my opinion, the Supreme Court did not intend to call into question the proposition that decisions about the scope and content of solicitor‑client privilege be assessed on a correctness standard. The references to cases by the Court serve to illustrate the continuing applicability of the correctness standard, not to cast doubt on that conclusion. Notably, Vavilov refers to Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53 [University of Calgary] as a case involving a general question of law of central importance to the legal system as a whole. The question in University of Calgary was whether a provision in Alberta's freedom of information legislation permitted solicitor‑client privilege to be set aside. As CCF points out, whether a provision allows solicitor‑client privilege to be set aside is a different question from the scope of solicitor‑client privilege. University of Calgary is not, therefore, dispositive of the standard of review in this case. That said, the example chosen by the Supreme Court is striking. In the case, the Court pointed out that solicitor‑client privilege "is a legal privilege concerned with the protection of a relationship that has central importance to the legal system as a whole": at para. 26 (emphasis added). This suggests that "uniform protection of solicitor‑client privilege" is "necessary for the proper functioning of the justice system": see Vavilov at para. 59.
[41] I turn to some more specific arguments advanced on this issue. First, I disagree with CCF's characterization of the issue as engaging the exercise of discretion by the adjudicator. The issue before the adjudicator was whether the Attorney General could rely on s. 14 to withhold the record. The Attorney General is only entitled to rely on s. 14 if the record is privileged. If a document is privileged, the Attorney General "may" refuse to disclose it. The plain text of the legislation suggests that a discretionary decision is engaged if solicitor‑client privilege exists, but the discretion resides in the client. Whether the document is protected by privilege is, however, a logically prior question not subject to discretion. Solicitor‑client privilege is a substantive legal right with constitutional dimensions, and a clear line of authority holds that it must be maintained as close as possible to absolute: University of Calgary at para. 43; Central Coast at para. 88.
[42] The Court did not say anything to the contrary in Ontario (Public Safety and Security) v. Criminal Lawyers' Association, 2010 SCC 23 [Criminal Lawyers' Association]. As the Court explained in the University of Calgary decision, Criminal Lawyers' Association "addressed, as a secondary issue, whether the Assistant Commissioner properly exercised his discretion under a provision explicitly permitting him to exempt from disclosure documents subject to solicitor‑client privilege": University of Calgary at para. 24. The "discretionary" element of the decision in Criminal Lawyers' Association was whether or not to exempt privileged documents. No discretion was involved in determining whether the documents were privileged. Further, the Court in Criminal Lawyers' Association appears to have circumscribed any discretion to disclose privileged documents, "given the near‑absolute nature of solicitor‑client privilege": at paras. 53-54. In the Court's view, it was "difficult to see how these records could have been disclosed" given the "categorical nature of the privilege": at para. 75.
[43] Second, I agree with the observation of Butler J. (as he then was) in Central Coast, where he characterized the question of "whether the Acting Commissioner erred in holding that the Board could not rely upon s. 14 of the Act to withhold the records" as "primarily a question of law". Justice Butler aptly observed that "questions of fact will necessarily be intertwined with the legal issue(s) in a case from time to time": at para. 86. Even where a case involves applying a standard to a unique set of facts, it may primarily engage an extricable issue of law: Housen v. Nikolaisen, 2002 SCC 33 at para. 36.
[44] I agree with the Attorney General that Vavilov does not preclude correctness review in every case that has a factual component. The scope and content of a substantive right will inevitably arise in a specific factual context. The rule of law imperative to protect the right in the legal system as a whole invariably involves an assessment of the context in which it arises. This reality is recognized by the explicit reference in Vavilov to Chagnon v. Syndicat de la function public et parapublique du Québec, 2018 SCC 39 [Chagnon] to illustrate a case involving a general question of law of central importance to the legal system: Vavilov at para. 60. The issue in Chagnon, broadly stated, was the scope of parliamentary privilege. Properly defining the scope of parliamentary privilege required the Court to assess the privilege as it applied to the facts and specific circumstances of the case. The Court had no difficulty in finding a correctness standard applied.
[45] In this case, the facts are straightforward and uncontested. Whether or not solicitor‑client privilege applies on those facts is essentially a legal question. This case requires the court -- and required the adjudicator -- to sketch the contours of the protection afforded by solicitor‑client privilege. As CCF said in their main factum, "this case is about the scope of privilege." The test for solicitor‑client privilege, stated at its highest level, is not at issue. But the scope of solicitor‑client privilege, at a greater degree of specificity and its protection in the fabric of the legal system, is clearly at issue.
[46] The characterization of the issue in this case as primarily a legal one is illustrated by CCF's specific arguments on the merits of the appeal. CCF's main argument is that the presumption of privilege over legal billings established by the Supreme Court of Canada in Maranda does not apply to simple disclosure of a blended total sum of expenses incurred in the government's civil litigation. CCF asks us to interpret Maranda, and to distinguish it from the case at bar. Alternatively, CCF asks us accept that the judge erred in placing the onus of rebutting privilege on it. These arguments raise issues of law of broad applicability.
[47] Accordingly, I conclude the standard of review of the adjudicator's decision is correctness. The judge correctly identified and applied the correct standard.
Maranda
[48] CCF argues that the judge erred by concluding that information that merely states the total amount of legal fees is presumptively privileged. It contends that the judge extended the conclusion reached by the Supreme Court in Maranda outside the limits of the principle which, it argues, applies only in the context of criminal proceedings.
[49] In Donell v. GJB Enterprises Inc., 2012 BCCA 135 [Donell], this Court appears to have left open the question of whether or not the presumption established in Maranda extends beyond its immediate context. Justice Chiasson said, at para. 59: "at a minimum, Maranda establishes that lawyers' bills, in the criminal law context, are presumptively subject to solicitor-client privilege" (emphasis added).
[50] I am unable, however, to accept the submission that Maranda stands only for the proposition that a presumption of solicitor‑client privilege attaches to information about the total amount of legal fees in the criminal law context. In my view, the case does not limit the scope of the principle in such a way. To the contrary, the principle is engaged in respect of information concerning the total legal fees incurred in any context.
[51] The issue of the scope of solicitor‑client privilege arose in Maranda in the context of criminal proceedings, specifically the execution of a search warrant. There is no doubt that the Court's analysis of the issues in the case was informed by that context. The law as it was developing was animated by the need to protect solicitor‑client privilege to reflect its social importance in protecting the confidentiality of communications between solicitor and client. This imperative had led to the recognition of the privilege as a rare class privilege: see para. 11.
[52] As Justice LeBel said, at para. 12:
[12] The decisions of this Court have consistently strengthened solicitor-client privilege, which it now refuses to regard as merely an evidentiary or procedural rule, and considers rather to be a general principle of substantive law (see: Lavallee, Rackel & Heintz, at para. 49). The only exceptions to the principle of confidentiality established by that privilege that will be tolerated, in the criminal law context, are limited, clearly defined and strictly controlled (R. v. McClure), [2001] 1 S.C.R. 445, 2001 SCC 14; R. v. Brown, [2002] 2 S.C.R. 185, 2002 SCC 32). The aim in those decisions was to avoid lawyers becoming, even involuntarily, a resource to be used in the criminal prosecution of their clients, thus jeopardizing the constitutional protection against self-incrimination enjoyed by the clients. In determining the propriety of the authorization and execution of the search in Mr. Maranda's office and examining the problem of the confidentiality of the information about the fees and disbursements billed to his clients, care must be taken to follow the general approach that can be seen in this Court's decisions in this area.
[53] There is no doubt that the risks associated with a breach of solicitor‑client privilege in executing a search warrant are particularly serious given the consequences for the proper operation of the criminal justice system. That does not mean, however, that the scope or content of the privilege is defined relative to that context. It simply reinforces the care that must be taken to ensure that a search does not violate the privilege, which exists independently of the search. It means then that the approach to protecting privilege must ensure the values and institutions of the criminal justice system are preserved.
[54] As I read Maranda, the fundamental question that had to be decided was whether information about the total amount of legal fees fell within or without the scope of common law privilege:
[23] In this appeal, however, the Attorney General of Canada, whose arguments on this point were adopted by the Quebec Court of Appeal, submits that the application related only to neutral information, the amount of the fees and disbursements paid, and to no other details. That information, it is submitted, falls outside the scope of the solicitor-client communication that is protected by common law privilege. The Attorney General compares it to a pure fact which is not such as would inform third parties about the content of the solicitor-client communication. ...
[55] The issue was articulated in this way:
[24] The question has never before been submitted to this Court in these terms. To answer it, I will have to assume that the Crown is seeking only the raw data, the amount of the fees and disbursements.
[56] Justice LeBel reasoned:
[28] The problem here must be solved in a way that is consistent with the general approach adopted in the case law to defining the content of solicitor-client privilege and to the need to protect that privilege. In the context of criminal investigations and prosecutions, that solution must respect the fundamental principles of criminal procedure, and in particular the accused's right to silence and the constitutional protection against self-incrimination.
[57] Justice LeBel concluded that the appropriate rule could not be based on the distinction between facts and communication. That distinction was not an accurate reflection of the nature of the relationship in issue. Hence: "The existence of the fact consisting of the bill of account and its payment arises out of the solicitor-client relationship and of what transpires within it. That fact is connected to that relationship, and must be regarded, as a general rule, as one of its elements": at para. 32. Justice LeBel concluded:
[33] In law, when authorization is sought for a search of a lawyer's office, the fact consisting of the amount of the fees must be regarded, in itself, as information that is, as a general rule, protected by solicitor-client privilege. While that presumption does not create a new category of privileged information, it will provide necessary guidance concerning the methods by which effect is given to solicitor-client privilege, which, it will be recalled, is a class privilege. Because of the difficulties inherent in determining the extent to which the information contained in lawyers' bills of account is neutral information, and the importance of the constitutional values that disclosing it would endanger, recognizing a presumption that such information falls prima facie within the privileged category will better ensure that the objectives of this time‑honoured privilege are achieved. That presumption is also more consistent with the aim of keeping impairments of solicitor-client privilege to a minimum, which this Court forcefully stated even more recently in McClure, supra, at paras. 4-5.
[58] As I read the judgment, the majority is not suggesting that the scope of the privilege was defined in a way that that made it dependent on the criminal law. To the contrary, the question of the existence and scope of the privilege is logically and legally independent of any particular context. Certainly, issues concerning the protection of the privilege arise in particular contexts which may affect how the privilege is protected, but those contexts do not define the scope or content of the privilege. The analysis in Maranda confirms these observations.
[59] The Court rejected the proposition that the amount of fees was just a neutral fact, and endorsed the view that it can indicate something about communications between a client and solicitor. Such a question can arise in any context. Moreover, solicitor‑client privilege is a fundamentally important substantive right, the protection of which has a constitutional dimension and must be as near to absolute as possible. None of these considerations are limited to the criminal context, even though that context raises special concerns which underscore the protection of privilege.
[60] In short, the Court in Maranda is articulating the proposition that information about amounts of legal fees is presumptively privileged because it arises out of the solicitor‑client relationship and is capable of disclosing privileged information about communications between solicitor and client. The Court is defining the scope of solicitor‑client privilege.
[61] Accordingly, in my view, Maranda stands for a general proposition that information about the total amounts of legal fees is presumptively privileged. The presumption may be displaced, but the onus of doing so rests with the party attempting to displace it. This is as it should be in my opinion. Placing the onus on the party who seeks the protection of the privilege risks forcing the disclosure of the very communications the privilege is intended to protect. It follows that the judge did not err in her conclusions on this point, and was right to say that it was important to keep the onus clearly in mind in deciding whether the presumption had been displaced.
[62] It is important to distinguish the circumstances of this case from others in which factual information in the hands of lawyers does not reveal or is not capable of revealing solicitor‑client communications. Hence, for example, redacted trust ledgers have been found not to be presumptively privileged: see Wong v. Luu, 2015 BCCA 159 [Luu]; Donell. I do not think there is anything inconsistent with my reading of Maranda to be found in cases such as Luu or Donell. To the contrary, those cases are consistent with my interpretation.
[63] In Donell, Justice Chiasson differentiated between a statement of legal fees and a lawyers' trust ledgers. He said:
[49] [Maranda] concerned a specific type of document ‒ a lawyer's fee account ‒ which is intrinsically connected to the solicitor-client relationship and the communications inherent to it; to repeat LeBel J.'s formulation, "[t]he existence of the fact consisting of the bill and its payment arises out of the solicitor-client relationship and what transpires within it". As noted by LeBel J., what transpires within that relationship is communication for the purpose of enabling clients to obtain legal advice; it is that communication that is protected by solicitor-client privilege.
[50] Maranda neither does away with the distinction between facts and communications nor holds that entries in a lawyer's trust account ledgers are presumptively privileged. It does mandate that such entries must be considered in light of any connection between them and the solicitor-client relationship and what transpires within it.
[51] In the present case, we are not concerned with a lawyer's bill. The Receiver seeks production of trust ledgers. Generally, such documents record facts, not communications, and are not subject to solicitor-client privilege, but I would not favour a blanket endorsement of the automatic production of such records. In my view, while the analysis in Maranda did not dispose of the distinction between facts and communications, it requires the court to ensure that entries on a trust ledger do not contain information that is ancillary to the provision of legal advice.
[Emphasis added.]
[64] The chambers judge was alive to Donell and, in my view, she correctly observed that, unlike the trust ledgers at issue in Donell, the record of interim legal costs "arise[s] out of the solicitor-client relationship and what transpires within it and reflect[s] work done at the instruction of the client": at para. 42.
[65] The appellant also argues, relying on one paragraph from Luu, that the record is not presumptively privileged because it merely states a total sum of costs incurred and is not a detailed bill. In Luu, Justice Willcock wrote:
[38] A lawyer's bills are presumptively privileged because they are ordinarily descriptive; by recording the work done by the solicitor, they disclose the client's instructions, which the client cannot be compelled to divulge and the confidentiality of which the solicitor is obliged to protect.
[66] Here, the record does not explicitly set out "the work done by the solicitor." It states the total costs of litigation to a certain date, and is admittedly decontextualized by comparison to a comprehensive statement of account. Nonetheless, the authorities hold that the presumption of privilege applies. Indeed, Maranda itself was decided on the assumption that the record at issue included "only the raw data, the amount of the fees and disbursements": at para. 24. It was the "amount of the fees" that "must be regarded, in itself, as information that is, as a general rule, protected by solicitor-client privilege": at para. 33.
[67] As the chambers judge noted, the presumption of privilege arises from the connection between billing information and the nature of the relationship between lawyers and clients; it does not depend on the specific details included or not included in a particular bill. This is exemplified by lower court authorities explicitly applying the presumption of privilege to a gross sum of legal expenses: see Central Coast; Campbell; Municipal Insurance Assn. of British Columbia v. British Columbia (Information and Privacy Commissioner) (1996), 143 D.LR. (4th) 134 (B.C.S.C.) [Municipal Insurance Assn.].
Did the judge err in her conclusion that CCF had not rebutted the presumption?
[68] The judge's analysis of whether the presumption of privilege had been rebutted was influenced by Justice Butler's analysis of a similar issue in Central Coast, drawing on consideration of these matters in other cases. She examined the criticisms of the Attorney General's evidence and said:
[57] CCF concludes that the affidavits offer no basis to conclude there is a reasonable possibility that the Cambie Litigation legal costs would reveal anything about privileged communications. Counsel submits that the Ministry's claims of privilege "boil down to speculation".
[58] In my view it is important to keep the onus in the forefront. Given the presumption of privilege, there is no onus on the Ministry to establish that there is a reasonable possibility that the Cambie Litigation legal costs would reveal anything about privileged communications. Nor is there an onus on the Ministry to establish some particular inference that could or would be drawn from the disclosure. Rather, the onus is on CCF to establish through evidence or argument that there is no such reasonable possibility. [Emphasis in original.]
[59] In this regard, CCF adopts the Adjudicator's conclusions, which are as follows:
a) It is "self-evident" from the nature of the litigation that the case will involve hotly contested issues, novel issues or unclear areas of the law (para. 40);
b) The Cambie Litigation is a landmark constitutional case, it is not plausible that the litigation is unimportant to the Province or that the Province does not believe the case involves unique issues (para. 40);
c) It is evident from the public record that the case is hard fought and important to both sides (para. 41);
d) Because the parties are in the thick of trial, the state of the Province's preparation is evident (para. 42); and
e) Because of the state of the litigation, the length of time covered by the Record and the fact that the amount in the Record is undifferentiated, no particular insight could be gained from disclosure (paras. 42-44).
[60] At para. 52 the Adjudicator concluded that given the nature of the litigation, the stage of the proceedings, and the undifferentiated nature of the amount, in combination with what is available on the public record, any conclusions which might be drawn would be evident to anyone knowledgeable about the litigation -- namely that the Province is vigorously defending and has incurred substantial legal fees.
[61] The Adjudicator's reasoning, adopted by CCF on this review, is in brief that it is clear from the facts available in the public record that the amount of legal expenditure is high. Knowing how high could only confirm this, and no more. This echoes CCF's submission to the Adjudicator, cited at para. 35 of the Decision, that "knowing whether the total cost to date are '$8 million or $12 million or $20 million' may prove embarrassing for the Province, but will not reveal privileged communications".
[62] In my view this line of reasoning is not sufficient to discharge the onus of proof to rebut the presumption of privilege, particularly in circumstances of ongoing litigation. I agree that the Cambie Litigation is an important constitutional case, that it is hard fought on both sides and that the amount of legal cost is undoubtedly substantial. However, in my view, an assiduous inquirer, aware of the background available to the public (which would include how many court days had been occupied both at trial and in chambers applications, the nature of those applications, the issues disclosed in the pleadings, and the stage of the litigation for the period covered by the request), would, by learning the legal cost of the litigation, be able to draw inferences about matters of instruction to counsel, strategies being employed or contemplated, the likely involvement of experts, and the Province's state of preparation. To use the CCF submission quoted by the Adjudicator, the difference between an $8 million expenditure and a $20 million expenditure would be telling to the assiduous inquirer and would in my view permit that inquirer to deduce matters of privileged communication.
[69] CCF argues that, even if it has the onus, it is evident that the mere disclosure of the total amount of legal fees incurred over many years raises no possibility that an assiduous observer could infer anything about confidential communications between the client and its solicitors. The bare number is shorn of all context and detail. Nothing could be inferred that was not already obvious to anyone who was knowledgeable about the litigation.
[70] By the time the request was made, the litigation had gone through years of pre‑trial preparation including document disclosure, examinations for discovery, disclosure of expert reports and an exchange of witness lists. There had been multiple pre‑trial and mid‑trial applications. The defendant's strategy in defending the case, and the fact the litigation was being taken seriously and was hard fought, was obvious from the way the litigation was being conducted. The fact that the request was made in the context of ongoing litigation is, according to CCF, immaterial, at least on the facts of this case.
[71] The judge took a different view of the matter. I think she was right to do so.
[72] It is important to reiterate that we must assess whether there is a risk of disclosing solicitor‑client communications in the circumstances that existed at the end date of the disclosure period. That question can be answered only by relying on the circumstances as they existed at that time (or at the latest when the adjudicator made her decision) and not by taking into account facts or circumstances as they subsequently developed. In other words, it is essential to analyse the issue in the context of the litigation as it then existed, and not as the case subsequently unfolded.
[73] Moreover, the issue before us is one of solicitor‑client privilege. We are not concerned directly with issues of litigation privilege. Having said that, the issue we must consider involves solicitor‑client communications in the context of litigation. Those communications may include communications about such matters as litigation strategy in all its multiple facets, the state of trial preparation, matters connected with the retention of experts and, for example, issues to do with decisions about waiving privilege and other matters.
[74] The reality of litigation is that whether the disclosure of information is capable of revealing solicitor‑client communications is likely to vary or change as litigation progresses. Communications about litigation strategy are ongoing but are more likely to be confidential (which means they are about information that is not known to the other side and to the world) earlier on in the case. Solicitor‑client privilege protects those communications both at the start and during a case, as well as after its conclusion. Inevitably, however, the progress of a trial will reveal much that will permit reasonable inferences to be drawn by an assiduous observer about likely solicitor-client communications of an opposing party. For example, many decisions about trial tactics become evident during trial including what kinds of admissions to make, what kinds of matters to join issue on, how to approach issues of expert evidence and so forth. These kinds of strategic calls may, indeed probably, reflect instructions which in turn depend on solicitor‑client instructions. What may become obvious, or be reasonably capable of being inferred, as litigation unfolds may not be so at earlier stages of litigation or a trial. What may have been privileged early in a case may not remain so throughout the trial as government strategy and other matters are revealed. It is for this reason that the timing of disclosure matters.
[75] In this case, it is important that the disclosure would have occurred at an early stage in the trial; a trial that could reasonably be expected to be lengthy. There had been a substantial period of pre‑trial preparation. The proposed disclosure related to extensive pre‑trial preparation and the first part of the trial. Much information was in the public domain. There had no doubt been many pre‑trial applications. Significant numbers of expert reports had been exchanged. It would have been known how many days of discovery had taken place. At the same time, one would expect that there was much that was known to the parties that was not public, since much information would have been still subject to implied undertakings of confidentiality.
[76] CCF is not a stranger to the litigation. It has openly acknowledged its role in funding the plaintiffs. I do not suggest for a moment that CCF was privy to information it ought not to have had. But it must be treated not just as an ordinary assiduous observer, but as one that can be taken to be particularly well‑informed. As such, it seems to me, that one must in part analyse the question whether the disclosure of the legal fees might reasonably disclose privileged communications recognizing that CCF is better placed than most to draw such inferences. But that is not, in any event, the end of the inquiry. If the total amount of fees is disclosed it will be in the public domain and known by the plaintiffs. One must ask whether there is a reasonable possibility that the plaintiffs, equipped with all of their knowledge of the litigation, including matters that remain confidential as between the parties, would be able to draw inferences about solicitor‑client communications with the assistance of the information about the legal costs. This is so even if other assiduous observers, without that knowledge, could not draw those inferences. Even if it were reasonably possible for only the plaintiffs to draw the necessary inferences, privilege risks being breached. That is sufficient to uphold the protection of the privilege.
[77] In my opinion, the amount of public and private knowledge available about the case makes it more and not less likely that inferences about communications could possibly be drawn. I do not accept that the only available inferences are those that anyone informed of public information could draw anyway. Certainly, publicly available information is no doubt revealing to some degree about the nature of a party's litigation strategy or the vigour with which a matter is being defended. But, I agree in principle with the Attorney General that the more information that is available enhances and does not simply replicate the inferences that could be drawn. With more information, it seems to me more likely that a knowledgeable person, armed with information about total legal costs, particularly in an ongoing matter where much of the hand is yet to be played, could draw inferences that will fill in gaps, make further connections, or illuminate what may not otherwise be clear about matters protected by the privilege.
[78] It must be remembered too that the public information available from the government is not derived only from what is known about the Cambie Surgeries litigation. The government discloses much other information, such as information about salaries of lawyers and others within the public service, as well as other budget information about various public activities. The possible implications of this kind of information must also be factored into the analysis.
[79] Taking all of these considerations into account, a fully informed assiduous observer could well work out more about government strategy than just that the litigation is uncompromising and hard fought and considerable resources were being devoted to the defence of the government position. Such a person would have a good idea how many counsel were involved in the case, make a reasonable estimate of the number of support staff and form a reasonable estimate of the proportion of the total legal costs paid to professional staff. Knowing the amount of document production would allow a reasonably accurate estimate of the cost of document production. Knowing the number of expert reports that had been disclosed would again allow, in rough ball‑park terms, an estimate of the cost of those items. Piece by piece it seems to me reasonably possible that by comparing these estimates, and what is unaccounted for, one could begin to form judgments about such matters as whether the government was employing consulting experts in addition to testimonial experts, or had in its possession expert reports that had not been disclosed and over which it was maintaining its claim for privilege.
[80] Piecing all of the information together, more specific inferences about government strategy than just the obvious ones evident from what was already known might become available. Given that the disclosure of fees would have occurred at what was still a relatively early stage of what turned out to be a very long trial, it might reveal yet more about the government's state of preparation and future strategy in the remainder of the trial.
[81] Additionally, disclosure mid‑trial of litigation costs could have a significant effect on the government's strategy in negotiating costs at the end of the day. This is not just a question of whether the government's negotiation position would be prejudiced, but, more importantly for current purposes, could indicate something about the kind of instructions the government might give or be able to give counsel in negotiating costs.
[82] In my view, none of these concerns can be dismissed as merely fanciful or entirely speculative. I agree with the judge that the difference between an $8 million and $20 million expenditure could be telling to an assiduous observer and reasonably possibly lead to the drawing of inferences about privileged communications. Furthermore, it is difficult to see how the government could do much more than raise the kinds of concerns it has in a general or categorical way without risking revealing something about the communications the privilege is intended to protect.
[83] In sum, a number factors prevent me from reaching the conclusion that CCF rebutted the presumption of privilege in this case. It seems to me that what needs to be established is that there is no reasonable possibility of revealing privileged communications by disclosing the total amount of legal costs. That is an appropriately high threshold. There is a significant amount of public information available in this case. This information, combined with knowledge of the government's interim legal costs, risks the possibility of allowing an assiduous inquirer to draw inferences about litigation strategy and communications between lawyer and client. Even more importantly, CCF is not a stranger to the litigation, and, in any event, any information it obtains will become a part of the public domain and available to the plaintiff in ongoing litigation. In this regard, Justice Butler's observations in Central Coast are apt:
[132] Here, as in [Municipal Insurance Assn.] before Holmes J., the access requests were made in the circumstances of ongoing litigation and sought information regarding the total amount of funds that the public body had spent in relation to litigation. The fact that the request related to litigation expenses generally does not change the situation. An assiduous inquirer would know what other litigation the Board was involved in and could likely infer how much of any global litigation expense amount related to the case under consideration. As Holmes J. recognized, the possibility that such information could reveal privileged communications between a public body and its lawyer may require the public right of access to information to be tempered in these circumstances. I find that this is the case here.
[134] If the access applicant is also a litigant in the proceeding in question, there is no question that any insight they might gain into these matters could be prejudicial to the public body's interests in the litigation and would therefore operate to undermine the sanctity of the solicitor-client relationship.
[84] I recognize the attraction and the force of the argument that a mere decontextualized number grounds no inferences beyond the fact that the number is the amount spent on a case. The Ontario Court of Appeal was able to reach that conclusion in respect of the amount of fees spent in connection with the Paul Bernardo case: see Ontario (Ministry of the Attorney General) v. Ontario (Assistant Information and Privacy Commissioner) (2005), 251 D.LR. (4th) 65 (Ont. C.A.). That conclusion, however, was reached on different facts when the case was concluded. I am not able, confidently and with the necessary degree of assurance, to reach the same conclusion in the circumstances of this case.
Disposition
[85] Solicitor‑client privilege is a fundamental principle of our legal system. Its protection must be as close to absolute as possible. The protection of the privilege has a constitutional dimension. It is fundamental to the rule of law. I think it appropriate therefore that CCF bears the burden of demonstrating that none of the possible inferences I have sketched above could reasonably be drawn by an assiduous observer. In my view, it has not done so. Accordingly, the presumption has not been rebutted. I would dismiss the appeal.
"The Honourable Mr. Justice Harris"
I agree:
"The Honourable Mr. Justice Fitch"
I agree:
"The Honourable Mr. Justice Butler"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2020 BCCA 237 | R. v. Czechowski | 2020-08-13T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/20/02/2020BCCA0237.htm | 2026-01-18T04:09:42.784000 |
2020 BCCA 237 R. v. Czechowski
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
R. v. Czechowski,
2020 BCCA 237
Date: 20200813
Docket: CA45999
Between:
Regina
Respondent
And
Jeremy Robert Czechowski
Appellant
Restriction on publication: A publication ban has been imposed under ss. 486.4(1)
and 486.4(2) of the Criminal Code restricting publication, broadcasting or
transmission in any way of any information that could identify the complainant or a
witness. This publication ban applies indefinitely unless otherwise ordered.
Restriction on publication: Pursuant to s. 16(4) of the Sex Offender Information
and Registration Act [SOIRA], no person shall disclose any information that is
collected pursuant to an order under SOIRA or the fact that information
relating to a person is collected under SOIRA.
Before:
The Honourable Mr. Justice Butler
(In Chambers)
On appeal from: An order of the Supreme Court of British Columbia, dated
May 16, 2018 (R. v. Czechowski, 2018 BCSC 1646, Kelowna Docket 84432‑2).
Oral Reasons for Judgment
Counsel for the Appellant
(via teleconference):
M.A. Nathanson
K. Leslie
H. Parmar, Articled Student
Counsel for the Respondent
(via teleconference):
M. Vojvodic
Place and Date of Hearing:
Vancouver, British Columbia
August 13, 2020
Place and Date of Judgment:
Vancouver, British Columbia
August 13, 2020
Summary:
While on judicial interim release pending the determination of his appeal, the appellant was charged with uttering threats. The Crown applies to revoke bail. Held: Application dismissed. The appellant has shown that his detention is not necessary in the public interest, provided that the terms of release are modified to address the public safety concerns arising from the recent charge.
[1] BUTLER J.A.: On May 16, 2018, Jeremy Czechowski was convicted of four offences in connection to a sexual encounter with the complainant in February 2016. He appealed those convictions and obtained judicial interim release from this Court pending the determination of his appeal. The appeal was heard on June 16, 2020, and judgment is currently under reserve.
[2] On August 5, 2020, Crown received a sworn Information charging the appellant with uttering threats. Pursuant to ss. 679(3) and 524(2) of the Criminal Code, R.S.C. 1985, c. C‑46, Justice Griffin issued a warrant for Mr. Czechowski's arrest on August 7, 2020. The appellant was arrested and the Crown now applies to revoke bail. Mr. Czechowski opposes the application and seeks his release. However, he acknowledges that the new charge has changed the circumstances and submits that it would be appropriate to modify the terms of bail to satisfy concerns arising from the new charge.
[3] For the reasons that follow, I would dismiss the Crown's application to revoke Mr. Czechowski's judicial interim release. I am satisfied the appellant has met the onus of showing that his detention is not justified, provided the terms of bail are modified as I will outline below.
Background
[4] In reasons indexed as 2018 BCSC 1646, Justice Ball convicted Mr. Czechowski of one count of sexual assault causing bodily harm; one count of unlawful confinement; one count of choking with intent to enable himself to commit an indictable offence; and one count of uttering threats. He received a global sentence of five years' imprisonment.
[5] The appellant filed a notice of appeal against conviction on April 5, 2019. He subsequently received judicial interim release on his own recognizance, without sureties, in the amount of $25,000 with a cash deposit of $10,000. His bail was renewed on the same terms by an order of Justice Harris on December 9, 2019, and again on June 16, 2020, when his appeal was heard. With judgment reserved, the most recent release order expires on the date set for the pronouncement of reasons.
[6] On August 5, 2020, Crown counsel received the Information sworn in relation to the appellant, charging him with uttering threats. The offence is alleged to have taken place on August 3, 2020. Crown also received a copy of the narrative portion of a report to Crown counsel, which has been provided to the Court. The report outlines the complainant's statement to the police. She met the appellant through a mutual friend. On August 3, she says she attended a gathering on the Enderby River with a group of people, including the mutual friend and the appellant. The complainant left the group when the partying became too rowdy for her but inadvertently left her car key in the appellant's truck. When she spoke with the appellant on the phone, she alleges he threatened to kill her and kidnap her child. The report also attaches a copy of a Facebook message from the appellant to the complainant in which he states, "I know where you live" and "[it's] on now". The complainant says that she is afraid of the appellant.
Legal framework
[7] Section 679 of the Criminal Code governs release pending the determination of an appeal. Subsection 679(6) provides:
679 (6) Sections 495.1, 512.3 and 524 apply, with any modifications that the circumstances require, in respect of any proceedings under this section.
[8] Section 512.3 deals with the powers of a judge where there are reasonable grounds to believe that an accused has contravened their undertaking or recognizance, or committed an indictable offence after being released pending trial:
512.3 If a justice is satisfied that there are reasonable grounds to believe that an accused has contravened or is about to contravene any summons, appearance notice, undertaking or release order that was issued or given to the accused or entered into by the accused or has committed an indictable offence while being subject to any summons, appearance notice, undertaking or release order, the justice may issue a warrant for the purpose of taking them before a justice under section 524.
In the circumstances here, the modification required is that the reasonable grounds relate to contravention of an undertaking or recognizance or commission of an indictable offence, pending release of this Court's decision on appeal.
[9] As the warrant was issued, the question that now arises is whether the appellant should be released again. The proper approach to the consideration of this issue is set out in R. v. Mehan, 2016 BCCA 129 and R. v. Joe, 2017 YKCA 1. The recent amendments to s. 679 of the Criminal Code have not altered that approach.
[10] In deciding whether an appellant can be released again, the factors to be considered are those set out in s. 679(3)-(4) as opposed to the grounds listed in s. 515(10). This is, in part, because the benefit of the presumption of innocence no longer inheres to the appellant, and he must be considered guilty for the purposes of the application: R. v. Oland, 2017 SCC 17 at paras. 19, 35. As explained in Joe at paras. 30-31, bail pending appeal raises different considerations than pre-trial bail:
[30] But bail pending appeal engages different considerations, and is governed by different factors, as noted above at Paragraph 25. In my view, it would be incongruous to have the factors set out at section 679 apply at an appellant's initial application for bail pending appeal, and then, in the event of a breach, revert to the pre-trial bail framework in deciding whether that appellant should be released again pending the hearing of the appeal.
[31] Subsection 679(6) incorporates subsection 525(7) by reference, but the wording of the provision includes an important caveat: subsection 525(7) applies "with such modifications as the circumstances require". In my view, one modification that the circumstances require is that in deciding whether an appellant can be released again, the factors to be considered are those set out at subsections 679(3) and 679(4) as opposed to the grounds listed at subsection 515(10).
[11] Section 679(3) provides:
679 (3) In the case of an appeal referred to in paragraph (1)(a) or (c), the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that
(a) the appeal or application for leave to appeal is not frivolous;
(b) he will surrender himself into custody in accordance with the terms of the order; and
(c) his detention is not necessary in the public interest.
[12] The appellant bears the onus of establishing the three criteria set out in s. 679(3). In the present case, the first two criteria are not in issue. Bail would not have been ordered by this Court if those criteria were not met. The question is whether the appellant has satisfied the onus of showing that his detention is not necessary in the public interest given the recent charge.
[13] In Mehan, Justice Donald (in Chambers) explained the test at para. 17:
[17] Section 679(3)(c) puts the onus on the appellant to establish that "his detention is not necessary in the public interest." Public interest has two elements: (1) protection and safety of the public; and (2) maintenance of the public's confidence in the administration of justice: see, e.g., R. v. Lohrer, 2003 BCCA 161 (per Rowles J.A. in Chambers). The first most commonly addresses the likelihood or actual occurrence of reoffending while on bail, as in Lohrer; the second, public confidence, involves a balancing of the principles of enforceability and reviewability, as discussed in R. v. Gingras; R. v. Porisky, 2012 BCCA 467.
[14] In Oland, the Court reiterated the approach to the public interest consideration that was set out in R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.). The public interest component requires the court to consider public safety and the public confidence in the administration of justice. The Court also noted that the public safety and public confidence components are not to be treated as silos; the public safety concerns are relevant to the public confidence analysis: at para. 27.
[15] In Mehan, referring to R. v. Ling, 2008 BCCA 330, Justice Donald emphasized that the denial of bail is not a means of punishment and that a grant of bail pending appeal "ensures that a convicted person will not serve a sentence for a conviction that cannot be sustained." Further, he observed that a new charge "should not automatically result in revocation or denial; it should be considered contextually and on a practical sense of public safety": Mehan at para. 28.
[16] In Mehan, at para. 29, Justice Donald set out a list of non-exhaustive factors to apply in assessing whether further release of the applicant would be contrary to the public interest. In doing so, he was concerned primarily with the public safety component of the public interest. As the public safety component is the primary consideration here, I will examine those factors below.
Discussion
[17] The Crown takes the position that the application of the factors from Mehan to the circumstances of this case should lead to the conclusion that the protection and safety of the public cannot be met without detention of the appellant. The Crown says there are several distinguishing features between this case and Mehan. In particular, in Mehan, neither the index offence nor the new charge involved allegations of violence. Here, the appellant was convicted of a violent sexual assault and the new charge involves threats of violence.
[18] The appellant refers to R. v. Zora, 2020 SCC 14, at para. 26, for the proposition that the principle of restraint must be applied as a primary consideration in any interim release decision. He says that applies equally to bail decisions under s. 679. He further says that detention would not be the proportionate result here as the public interest can be satisfied by modifying the bail conditions to take into account any concerns arising from the recent charge. The modifications proposed include a change to the terms of the curfew, an increase in the cash deposit, and a no-contact term to protect the complainant.
[19] I will start my analysis by applying the factors outlined in Mehan to the circumstances here.
Is the offence charged in the same class as the index offence?
· One of the convictions under appeal is for uttering threats to cause death or bodily harm to the complainant, contrary to s. 264.1(1)(a). While the circumstances of the new charge do not involve a sexual element, the appellant now stands charged with the same offence.
Are the circumstances alleged in direct contravention of a specific term of the release order?
· The appellant is not charged with a contravention of a specific term of a release order. Nevertheless, the uttering threats charge can be seen to contravene the term requiring the appellant to keep the peace and be of good behaviour.
Does the appellant have a record of offences similar to the charge?
· The appellant does have a dated conviction for uttering threats from 2003. His other convictions are unrelated, with the exception of the index offences. As appellant's counsel notes, the appellant received a suspended sentence for the 2003 charge from which I can infer that the threat was at the less serious end of the spectrum. I cannot say that the appellant's record establishes a pattern of similar behaviour.
What is the gravity of the allegations?
· An allegation of threatening to cause death or bodily harm is serious. However, it is attenuated somewhat by the fact that the threat was allegedly made over the phone to someone who is not a close acquaintance and little information is provided regarding the surrounding circumstances.
Has there been any difficulty with bail compliance?
· The appellant has been on bail pending appeal or disposition of the appeal for almost two years without any difficulties. He was also on bail for a lengthy time leading up to trial. He does have a record of two breaches of an undertaking or recognizance, including one for failing to report as required in 2016, and one breach of an undertaking in 2010.
Is there any allegation of violence in the commission of the offence?
· The allegations against the appellant do not involve any physical violence.
[20] I am satisfied that the application of these factors to the circumstances of this case raises real concerns regarding the protection and safety of the public. The new charge changes the circumstances from those existing when the current release order was made. As a result, the question of whether the safety of the public can be met without detention requires reconsideration. Absent any alteration to the terms of the release order, I would not have been persuaded by the appellant that his detention was not warranted.
[21] While I accept the proposition in Zora that the principle of restraint must be applied as a consideration in this decision, as in other release decisions, that does not of itself assist in how I approach the difficult task at hand. However, I would take guidance from the approach set out in Mehan. I start from the proposition that where an appeal is not frivolous, it is important to recognize that denial of bail raises the possibility that a convicted person will serve prison time for a conviction that cannot be sustained. As Justice Donald indicated at para. 28:
[28] I think this philosophy tempers the decision whether a charge laid while on bail amounts to just cause to revoke or deny bail. A new charge should not automatically result in revocation or denial; it should be considered contextually and on a practical sense of public safety.
[Emphasis added.]
[22] When I approach the question of public safety contextually and practically, I would make these observations. First, the new charge raises a concern of public safety that is directed at one individual. It did not involve physical violence, but it did involve a serious threat. The circumstances of the charge, while much closer to one of the index offences than the situation in Mehan, are of an entirely different character, and are less serious.
[23] Third, and most significantly, the proposed variations to the conditions attached to the release order will significantly reduce the public safety concerns that arise from the recent charge. Increasing the amount of the cash deposit should bring home to the appellant in a direct way the seriousness of the change in circumstances. Increasing the curfew limits so that the appellant is confined to his residence from 7:00 p.m. to 6:00 a.m. provides for a significant limitation on his activities outside of work. Finally, adding the complainant to the list of individuals with whom the appellant can have no contact and to whom he cannot be in close proximity, reduces the public safety concern to the complainant.
[24] Although I am satisfied that the change in conditions meets the public safety concerns, I must still consider the maintenance of the public's confidence in the administration of justice. As noted in Oland, the two concerns do not operate in silos. Nevertheless, if the public safety concerns arising from the new charge are satisfied by the imposition of additional conditions to the release order, it is my view that the public confidence consideration is also satisfied. Accordingly, I am satisfied that the appellant's detention is not necessary in the public interest.
Disposition
[25] I dismiss the Crown's application to revoke the appellant's bail pending determination of the appeal. The conditions attached to the release order are varied to: increase the amount of the cash deposit to $20,000; increase the hours of curfew so that the appellant shall not be found outside his residence between the hours of 7:00 p.m. and 6:00 a.m. (condition (d)); and add the complainant to conditions (l) and (m) of the conditions of the recognizance.
[Discussion with counsel re: seeking further clarification]
"The Honourable Mr. Justice Butler"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2020 BCCA 236 | Red Chris Development Company Ltd. v. United Steelworkers, Local 1-1937 | 2020-08-11T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/20/02/2020BCCA0236.htm | 2026-01-18T04:09:49.087000 |
2020 BCCA 236 Red Chris Development Company Ltd. v. United Steelworkers, Local 1-1937
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
Red Chris Development Company Ltd. v. United Steelworkers, Local 1-1937,
2020 BCCA 236
Date: 20200811
Docket: CA46624
Between:
Red Chris Development Company Ltd.
Respondent
(Petitioner)
And
United Steel, Paper and Forestry, Rubber, Manufacturing,
Energy, Allied Industrial and Service Workers International Union,
Local 1-1937
Appellant
(Respondent)
And
Labour Relations Board
Respondent
Before:
The Honourable Mr. Justice Butler
(In Chambers)
On appeal from: An order of the Supreme Court of British Columbia, dated
December 19, 2019 (Red Chris Development Company Ltd. v.
United Steel Workers, 2019 BCSC 2216, Vancouver Docket S198389).
Oral Reasons for Judgment
Counsel for the Appellant
(via teleconference):
R.C. Gordon, Q.C.
S. Kiamanesh
Counsel for the Respondent, Red Chris Development Company Ltd.
(via teleconference):
T.A. Roper, Q.C.
A. Nicholl
Counsel for the Respondent, Labour Relations Board
(via teleconference):
E.F. Miller
A.M. Vulimiri
Place and Date of Hearing:
Vancouver, British Columbia
August 11, 2020
Place and Date of Judgment:
Vancouver, British Columbia
August 11, 2020
Summary:
The Union seeks leave to file an amended factum following a change in counsel. Held: Application granted. It is in the interests of justice for the Union's arguments to be fully set out in its factum so that the real questions in controversy between the parties can be determined. The additional expense occasioned to the respondent can be compensated in costs.
[1] BUTLER J.A.: The appellant, United Steelworker's Union, Local 1-1937 (the "Union"), applies for leave to file an amended factum following a change in counsel. The respondent, Red Chris Development Company Ltd. ("Red Chris Development"), opposes the application. The respondent, Labour Relations Board (the "LRB"), consents to the application.
[2] For the reasons that follow, I would grant leave for the Union to file an amended factum.
Background
[3] The underlying appeal is from an order of Justice Myers setting aside two decisions of the LRB: Red Chris Development Company Ltd. v. United Steel Workers, 2019 BCSC 2216. The decisions by the LRB, referred to as the Reconsideration Decision and the Remedial Decision, led to the certification of the Union as the representative of a group of employees at a mine owned by Red Chris Development.
[4] The Union filed a notice of appeal on January 9, 2020. Former counsel filed a factum on behalf of the Union on May 25, 2020. A certificate of readiness was filed on June 1, 2020 and a notice of hearing setting the appeal for October 27, 2020 was filed on June 9, 2020.
[5] By notice dated July 17, 2020, Charles Gordon, Q.C. was appointed to act as counsel for the Union. I understand that this followed from a move by the Union to retain his firm to act for them generally. On July 27, 2020, Mr. Gordon received instructions from the Union to file an amended factum. On the same day, he advised counsel for the respondents of those instructions and asked if they would consent to the filing of an amended factum. He proposed to file the revised factum by August 14, 2020.
[6] Counsel for Red Chris Development responded by advising Mr. Gordon that the parties had previously agreed the respondent's factum would be filed by July 31, 2020. He indicated the factum was complete and about to be filed. He further indicated that he could not consent to the appellant amending its factum without knowing what the proposed amendments were.
[7] Mr. Gordon responded by suggesting that Red Chris Development should hold off on filing its factum. He indicated that he could only provide "a broad conception of our amendments." He suggested the amendments would likely require Red Chris Development to make some modification to its factum but that it could "preserve much, if not most, of it." When the consent of Red Chris Development was not granted, Mr. Gordon advised that he would seek leave to amend because, "I don't think it makes sense for me to revise the factum and then seek consent and, failing that, leave."
[8] The respondent LRB filed its factum on July 27, 2020. Red Chris Development filed its factum on July 30, 2020.
[9] The substance of the matters at issue on appeal can be stated briefly.
[10] The Union filed a standard form application with the LRB that described the bargaining unit of Red Chris Development proposed to be certified. The Union also filed a covering letter concurrent with its application, setting out in detail the inclusions and exclusions of the group. That letter was not posted at the worksite of the employer; nor was it seen by the employees who subsequently participated in the vote for certification. The only description of the bargaining unit produced was from the standard form application.
[11] The Original Panel of the LRB concluded that the bargaining unit description in the Union's application did not cover certain groups of employees described in the letter. The votes of those employees were accordingly not counted, resulting in the dismissal of the Union's application for certification due to a lack of a majority.
[12] The Review Panel set aside that decision, finding that the Original Panel had erred when it treated the application form without the covering letter as the "face of the application" and the letter as supplementary to it. In the Reconsideration Decision, the Review Panel found that the proposed bargaining unit in the application comprised the groups of employees described in the covering letter. In the Remedial Decision, the Review Panel concluded that a new vote was not necessary, and that the previously sealed votes were to be counted in determining whether a majority had been carried. In the result, the Union's application for certification was granted.
[13] On judicial review, Justice Myers set aside the decisions of the Review Panel and remitted the matter to the LRB.
Positions of the Parties
Union
[14] In his email to the respondents, Mr. Gordon described the proposed amendments as follows:
We will be arguing that the Chambers Judge correctly held that the standard of patent unreasonableness applied, but that he did not then give the Reconsideration Decision the deference indicated by that standard. I think we will articulate that differently than [former counsel] did. While I anticipate that we will still argue that it is at least implicit in the Reconsideration Decision that the letter did not contradict the application, but further that the Reconsideration Panel was not required to come to a finding as to whether there was any contradiction between the letter and the application form. However, given that we are only starting work on this, we would reserve the right to make any further arguments as we think would further the appeal
[15] In his filed argument on the application that was delivered only yesterday, Mr. Gordon provided a somewhat fuller description of the proposed amendment. He says the chambers judge erred in law when he proceeded on the "misapprehension that the employees were voting on the bargaining unit description at all".
[16] The Union argues that it is in the interests of justice to permit the amendment in order to have its arguments fully articulated in its factum for consideration by this Court. It anticipates that Red Chris Development would require minor modifications to its factum in answer to the amendments, but concedes that the alleged error about the judge's misapprehension as to the nature of the vote is an issue that is not dealt with in the current factum. In any event, the Union notes that the respondent would have ample opportunity to respond to the amendments if it seeks to do so, given that the hearing of the appeal is set for October 27, 2020. Further, counsel advises that he was not aware of the agreement between counsel that Red Chris Development's factum would be filed at the end of July. He expected it would not be filed until 30 days before the hearing date in accordance with the COVID-19 practice direction and thus did not anticipate that the amended factum would impose any additional burden on the respondent.
Red Chris Development
[17] Red Chris Development draws a distinction between an amended factum and a new factum. It says that the Union appears to be seeking to file a new factum and argues that the grounds to file a new factum can be no less stringent than those for leave to file amendments. It says that this Court has consistently taken the position that parties should only be granted leave to amend a factum in special circumstances. Further, leave is only granted when a party has provided sufficient details of the proposed amendments. Red Chris Development argues that the Union cannot point to any special circumstance and has not provided sufficient detail of its proposed amendments other than to say it wishes to articulate the arguments it has already made somewhat differently. It says that the issues outlined in Mr. Gordon's email are already dealt with in the existing factum.
[18] In response to the Union's newly filed written argument, Red Chris Development says that the Union is raising a new issue that was not argued in the court below and on which the chambers judge did not rule. Relying on R. v. Trieu, 2010 BCCA 540 at para. 56, it says that the Court has discretion to hear a new argument on appeal but says that the discretion must be exercised sparingly and only where the interests of justice require it.
[19] In the event that leave is granted, Red Chris Development requests leave to file a new factum and seeks costs on a special costs basis for the preparation of its original factum in any event of the appeal.
Legal Framework
[20] Section 10(2) of the Court of Appeal Act, R.S.B.C. 1996, c. 77 empowers a justice of this Court to "make an order incidental to the appeal or matter not involving a decision of the appeal on the merits." Practice Note Correction of Books Filed with Court (Civil & Criminal Practice Note, 2 August 2013) contemplates the circumstances presented here. It reads, in part:
If there is a change in counsel and new counsel would like to file a new factum, this may also be done by consent or by order of a justice.
[21] Applications of this nature are relatively rare. In MacMillan Bloedel Ltd. v. Youell (1993), 23 B.C.A.C. 214 (C.A.), Justice Legg allowed the amendment leaving it up to the division hearing the appeal to determine if all of the facts bearing on the issue to be raised by the proposed amendment were before the trial court. He awarded costs to the respondent in any event of the appeal. Amended factums have also been permitted to allow parties to raise arguments based on decisions released after the trial decision appealed from: R. v. Jimmy, [1987] B.C.J. No. 900 (C.A.); Solmundson v. Davies (1996), 78 B.C.A.C. 15 (C.A.).
[22] Recently, in Pavlovich v. Danilovic, 2020 BCCA 36, Justice DeWitt-Van Oosten allowed the appellant to file an amended factum so that he could raise an argument relying on two recent decisions that were released following the filing of the first factum. She found that the appellant had a legitimate reason to raise the new argument that did not take the respondent by surprise. She found it to be in the interests of justice to grant leave to amend the factum even though the order required adjournment of the appeal.
[23] Leave to file an amended factum has been allowed to enable new counsel to refocus an appeal: Cridge v. Ivancic, 2010 BCCA 476 at paras. 15, 19. In Szabo v. Stasiuk (1997), 29 B.C.L.R. (3d) 49 (C.A.), the Court granted leave to file a new factum to allow the appellant to recast arguments advanced in the original factum. The order was made even though the appellant intended to raise a new argument that might not be permitted to be argued by the division hearing the appeal:
[7] I am also of the view that leave ought to be granted to the appellant to file an amended factum. As I understood counsel's submissions virtually all of the issues raised in the proposed amended factum, which is ready for filing, are a recasting of arguments which were initially advanced. I would say that if it should appear to the panel hearing this appeal that there are new arguments raised, which for some reason ought not be permitted to be argued, I would not wish anything I say now to suggest that the Court could not refuse to not hear those arguments. ...
[24] It is clear from a review of the decisions where amendments have been permitted that the sole test is whether it is in the interests of justice to grant the order. Factors relevant to that consideration include: whether the applicant has provided a legitimate reason for the proposed amendments; whether the trial record is adequate for the court to consider the new issue; the timing of the application and whether the amendment would require an adjournment of the hearing of the appeal; whether the respondent would be required to amend or file a new factum in response; and whether the refusal to make the amendment would prevent the appellant from advancing a legal argument that is available on the record and the jurisprudence.
Analysis
[25] I am of the view that it is in the interests of justice to grant the application.
[26] The explanation provided to respondent's counsel about the substance of the proposed amendments was lacking in detail. However, the Union's argument has provided more information about the reasons for the application. The Union now offers the following rationale for wanting to restate or recast the appellant's position:
The factum filed by previous counsel is almost entirely concerned with whether the Board had found that the form and the letter were consistent (and thus that the employees were voting on the basis of the correct bargaining description). In our view, the fundamental issue is that the Chambers Judge proceeds on the basis of a misapprehension that the employees were voting on the bargaining unit description at all.
[27] Counsel indicates that while the Union will raise and perhaps restate the issues contained in the original factum, the focus will be on the alleged misapprehension. He is of the view that this represents the real issue of controversy on appeal.
[28] Red Chris Development has raised two concerns other than their understandable frustration at not knowing the scope of the proposed amendments. First, they say that the factum will raise a new issue that should not be permitted on appeal. Second, they say that as a result of the current status of the filings, they will incur the cost of preparing an entirely new respondent's factum. It is in this context that they highlight the difference between an amended factum and a new factum.
[29] Dealing with the argument that the Union is proposing to raise a new issue, the situation here is somewhat analogous to that in MacMillan Bloedel and Szabo in that the application is opposed on the basis that the amended factum will raise an issue that the division hearing the appeal may decide should not be permitted. The applicant here disagrees with Red Chris Development's characterization of the argument it proposes to make and says there is no reason why it should not be permitted to raise an issue of law. As in those cases, I am not in a position to decide that issue. It is clear that in all other respects the proposed amendments will simply recast arguments already contained in the existing factum. In these circumstances, Red Chris Development's concerns can be met by making a similar order to those made in MacMillan Bloedel and Szabo. In that way, Red Chris Development's right to argue that the division should not hear the proposed argument is preserved.
[30] It would have been preferable for the Union to have provided more detail about the proposed amendments. That would have allowed the respondent to know whether it would be required to prepare a wholesale redraft of its original factum or merely some modest tinkering. However, I am of the view that it is in the interests of justice for the Court to have the Union's argument fully set out in its factum so that the real questions in controversy between the parties can be determined. It is also of benefit to the respondent to have the Union's position fully articulated so that it is able to respond to the appellant's principal arguments.
[31] I should also say that I am of the view that the distinction between a new and amended factum is not significant for the disposition of the application. It appears that there will be a fairly substantial amendment to the appellant's factum, but that does not change the way in which the application is to be approached. The question is whether it is in the interest of justice to make the order sought.
[32] It is unfortunate that the change of counsel did not take place earlier so that the respondent would not be put to the expense of filing an amended factum. However, there is ample time prior to the hearing for the appellant to file its amended factum and for Red Chris Development to respond. I understand that the LRB does not anticipate filing an amended factum. The additional expense to Red Chris Development can be compensated in costs.
Disposition
[33] I grant leave to the appellant to file an amended factum on or before August 17, 2020. Red Chris Development has leave to file an amended respondent's factum on or before September 18, 2020. It may raise in that factum any argument it wishes to advance including that the new issue should not be permitted to be raised on appeal. The Union's reply, if any, shall be filed by September 25, 2020.
[34] I see no basis for an award of special costs in these circumstances. However, it is clear that Red Chris Development will have to file an amended factum. I order that the Union pay the costs of the preparation of the amended factum in any event of the cause.
"The Honourable Mr. Justice Butler"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2020 BCCA 214 | Oei v. Hui | 2020-07-24T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/20/02/2020BCCA0214.htm | 2026-01-18T04:11:10.397000 |
2020 BCCA 214 Oei v. Hui
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
Oei v. Hui,
2020 BCCA 214
Date: 20200724
Docket: CA45549
Between:
Hong Leong Oei, Hong Kong Expo Holdings Ltd.
and Canadian Metropolitan Properties Corporation
Respondents
(Plaintiffs)
And
Hui Chi Yan, otherwise known as Terry Hui
and Concord Pacific Acquisitions
Appellants
(Defendants)
Before:
The Honourable Madam Justice Saunders
The Honourable Madam Justice Stromberg-Stein
The Honourable Madam Justice Griffin
On appeal from: An order of the Supreme Court of British Columbia, dated
August 10, 2018 (Oei v. Concord Pacific Acquisitions, 2018 BCSC 1346,
Vancouver Docket S‑161950).
Counsel for the Appellants:
J.K. McEwan, Q.C.
E.A. Kirkpatrick
Counsel for the Respondents:
I.G. Nathanson, Q.C.
M.C. Ohama‑Darcus
Place and Date of Hearing:
Vancouver, British Columbia
November 25, 2019
Place and Date of Judgment:
Vancouver, British Columbia
July 24, 2020
Written Reasons by:
The Honourable Madam Justice Saunders
Concurred in by:
The Honourable Madam Justice Stromberg-Stein
The Honourable Madam Justice Griffin
Summary:
The respondents (plaintiffs) alleged the appellants (defendants) had engaged in tortious abuse of process by commencing a prior action, with knowing falsity of the claims, to constrain the ability of the respondents to deal with or develop property and to induce or compel the respondents to continue negotiations with respect to the property. The appellants applied to strike the respondents' amended notice of civil claim as disclosing no cause of action. The judge provided the elements of the tort of abuse of process as (1) a collateral and improper purpose, (2) an overt act, and (3) damages, but stated that on the authority of Smith v. Rusk, 2009 BCCA 96, the generally applied element of an overt act may not be required in British Columbia. The judge held it was not "plain and obvious" the abuse of process action could not succeed. On appeal, the appellants contend the judge erred in holding that a plea of "knowing falsity" may be actionable absent a collateral purpose, that is, one outside the ambit of the litigation, and submit an overt act is a requirement of the tort.
Held: Appeal allowed. A plea of "knowing falsity" cannot transform purposes within the ambit of the litigation into tortious purposes in respect of the tort of abuse of process. This conclusion is affirmed by the doctrine of absolute privilege. On the issue of an overt act, the expression of doubt concerning this element in British Columbia rests on shaky ground; absent a reasoned basis to diverge from the law first stated in British Columbia, an overt act is required for the tort. The order is set aside and the application is remitted to the Supreme Court of British Columbia for fresh consideration.
Reasons for Judgment of the Honourable Madam Justice Saunders:
[1] This appeal is from an order dismissing the defendants' application to strike the plaintiffs' amended notice of civil claim alleging the tort of abuse of process, on the basis it discloses no reasonable claim (Rule 9‑5(1)(a) of the Supreme Court Civil Rules). The issues before us concern the elements of the tort - what must plaintiffs plead to establish a cause of action for abuse of process allegedly committed in previous legal proceedings?
[2] The appellants are Concord Pacific Acquisitions and Mr. Hui (principal of Concord), defendants in this current action, S‑161950, commenced by the respondents Mr. Oei, Hong Kong Expo Holdings Ltd., and Canadian Metropolitan Properties Corporation. Action S‑161950 is the second in time of two actions between the parties. The first action, S‑158989, was commenced on October 30, 2015, by Concord as plaintiff against Mr. Oei, Hong Kong Expo, and Canadian Metropolitan Properties as defendants and it is the underlying litigation to this current action. In the first action, Concord alleged that it had entered into an agreement with Mr. Oei, Hong Kong Expo, and Canadian Metropolitan Properties, on certain terms by which Concord would acquire a 50% indirect interest in real property and would enter into a joint venture to develop the property. They sought specific performance of that contract or, in the alternative, damages. By order pronounced August 10, 2018, Mr. Justice Voith dismissed the first action. See 2019 BCSC 1190.
[3] On February 29, 2016, Mr. Oei, Hong Kong Expo, and Canadian Metropolitan Properties, reversed their litigation roles and became plaintiffs in this action against Concord and Mr. Hui. They allege that Mr. Hui and Concord engaged in tortious abuse of process in commencing the first action by concocting claims known to be false for the purposes of constraining their abilities to deal with their lands and coercing them to negotiate. The critical paragraph of this current action's amended notice of civil claim is paragraph 12. It alleges:
12. Terry Hui and Concord deliberately, with knowledge of the falsity of the claims advanced by Concord, as alleged in [S‑158989], determined that these claims would be advanced for the purpose of seeking to constrain the ability of the plaintiffs to deal with the Lands or to develop the Lands by means of a partnership or joint venture with other Canadian developers. In advancing these false claims, the defendants knew: (a) that the result of such claims would be that no other developers or others would enter into agreements with the plaintiffs for the development of the Lands as a mixed‑use residential and commercial project; to act as general contractor for the construction of the project; to manage the marketing and sale of all residential condominiums in the project; to manage the lease‑up of commercial space in the project, the on‑going leasing and other property operating matters relating to the commercial space; (b) the plaintiffs did not have the expertise to perform these services and required the retainer of third parties to do so; (c) the plaintiffs would be unable to sell the Lands while those claims were extant. The defendants thereby sought to induce or compel the plaintiffs, and particularly the plaintiff Oei, to continue negotiations with Concord for the purpose of entering into agreements by which Concord would have an indirect interest in the Lands and obtain for itself, or one of its affiliates, agreements to develop, construct, market and sell and/or lease the Lands.
[Emphasis added.]
[4] In these reasons I refer to the parties either as appellants and respondents, or as the Concord parties and the Oei parties.
[5] Tortious abuse of process requires as a precursor, previous court proceedings advanced against the now plaintiffs, by the now defendants. The classic formulation of this tort presents three elements. Professor Fleming stated two of these elements in J.G. Fleming, The Law of Torts, 4th ed. (Sydney: The Law Book Company, 1971) at 548, in a passage adopted by Mr. Justice Anderson (later J.A.) in Guilford Industries Ltd. v. Hankinson Management Services Ltd. (1973), 40 D.L.R. (3d) 398 at 405 (B.C.S.C.):
The essential elements of abuse of process are: first, a collateral and improper purpose, such as extortion, and secondly, a definite act or threat, in furtherance of a purpose not legitimate in the use of the process. Some such overt conduct is essential, because there is clearly no liability when the defendant merely employs regular legal process to its proper conclusion, albeit with bad intentions.
The second element described by Professor Fleming of "a definite act or threat, in furtherance of a purpose not legitimate in the use of the process" is commonly referred to by the shorthand description of an "overt act".
[6] The two Fleming elements of 1) a collateral and improper purpose, and 2) an overt act, are joined by the third element, damages resulting to the plaintiff from the wrongful use of the legal process. The tort's first requirement that the underlying litigation have a collateral and improper purpose is not contested as an essential element of the tort, although what conduct may constitute a collateral and improper purpose is at issue. As I will discuss, the second element, an overt act, has been said by this court to be of questionable application in British Columbia.
[7] Professor Fleming's rather narrow description of the tort is derived from the seminal authorities starting with Grainger v. Hill (1838), 4 Bing. (N.C.) 211, and stands in contrast to the broader concept of the procedural fault of abuse of process which may ground the striking of pleadings under Rule 9‑5(1)(d), an elevated award of costs, and other procedural remedies, but which cannot lead to an award of damages. In reviewing the jurisprudence advanced, and the judge's comments on the tort of abuse of process, this distinction is important. In particular, unlike tortious abuse of process, the procedural fault of abuse of process does not require that the wrongful behaviour be for a collateral and improper purpose.
[8] Additionally, as I will discuss, the tort of abuse of process stands in tension with the public policy doctrine of absolute privilege (sometimes referred to as "absolute immunity"). The classic explanation of this doctrine comes from Munster v. Lamb (1883), 11 Q.B. 588 (C.A.), including this passage at 604:
The rule of law is that which is said in the course of the administration of the law, is privileged; and the reason of that rule covers a counsel even more than a judge or a witness.
[9] The keys to the compatibility of absolute privilege and tortious abuse of process are the formulation of absolute privilege as applying to what is said "in the course of the administration of the law", and the requirement that tortious abuse of process involves something outside that administration of the law, encapsulated by the phrases "collateral and improper", "outside the normal incidents of litigation", or "outside of the ambit of the litigation", and sometimes coupled with "ulterior".
[10] In British Columbia the question of whether the second Fleming element - an overt act in furtherance of the collateral and improper purpose - is also required was said in Smith v. Rusk, 2009 BCCA 96, to be uncertain. In Smith, Mr. Justice Smith, referring to comments in certain decisions of courts in British Columbia and an academic comment, said at para. 34 that in respect of the tort, "[i]t may be arguable that the law in British Columbia does not require an overt act or threat".
[11] Mr. Justice Voith, the trial judge in the first action, heard the application to strike the plaintiffs' amended notice of civil claim alleging the tort of abuse of process. In light of Smith, the judge could not say the failure to plead an overt act was a fatal deficiency in the pleading and the parties agreed at the hearing that the point was "off the table". The judge, on being told the law was uncertain, did not review the pleadings to determine whether the second Fleming element was pleaded. Instead he kept his discussion to the need to plead the first Fleming element, a collateral and improper purpose. In doing so he discussed the effect of the allegation of knowing falsity on the requirement to plead this element and concluded that it was not plain and obvious that the plea in the current action would not sufficiently state the first element.
[12] The appellants contend that the judge erred in this conclusion. They say that absent the plea of knowing falsity, the "purpose alleged" in paragraph 12 of the amended notice of civil claim, broadly understood, was within the ambit of the first action and that the plea that knowingly false allegations had been made in the first action could not transform the purpose of that action into one that was collateral and improper. The judge's conclusion, they say, offends against the doctrine of absolute privilege prohibiting actions based on falsehoods expressed in earlier court proceedings. Last, the appellants ask us to clarify the content of the tort in British Columbia by finding an overt act or threat must be pleaded.
[13] The respondents submit that the judge was correct in finding that a claim in which critical allegations were known by the pleader to be false, brought to create economic pressure on the other side and to cause a negotiation, can satisfy the first Fleming element. They submit that absolute privilege does not foreclose the result here because the doctrine is not as absolute as contended by the appellants and because, they say, their case is not premised on the falsity of pleadings in the first action but rather on an improper purpose. At the hearing of the appeal they asked us not to decide the case on the issue of absolute privilege because, they say, the submission was not advanced below and consequently we do not have the benefit of the judge's reasoning on the issue. The respondents submit, also, that we should decline to take up the invitation to clarify the law in British Columbia to determine whether an "overt act or threat" is a requirement of the tort, given that the appellants did not ask the judge to address that question. In the alternative, they request an opportunity to amend their pleadings.
[14] Two legal standards are engaged in this appeal. The first is the standard applicable to Rule 9‑5(1)(a) applications. The judge correctly referred to the applicable test, reiterated in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, that a claim will be struck under this rule only if it is plain and obvious, assuming the facts to be true, that the pleadings disclose no reasonable cause of action. He also stated correctly that the court must not weigh evidence under Rule 9‑5(1)(a); the challenge is to the pleadings as they stand and the question is whether the claim pleaded cannot succeed as a matter of law.
[15] The second standard relates to our task, which is to determine whether the judge erred in law in respect of the first Fleming element of the tort - a collateral and improper purpose. This question attracts the standard of correctness: Housen v. Nikolaisen, 2002 SCC 33.
DISCUSSION
1. The First Fleming Element - Collateral and improper Purpose
[16] It is convenient to address the submissions by considering first whether the Oei parties' amended notice of civil claim in this action, absent the allegation of knowing falsity, alleges that the first action was commenced by the Concord parties for a collateral and improper purpose. If so, the pleading is sufficient and the plea of knowing falsity adds nothing to the Rule 9‑5(1)(a) analysis. On the other hand, if, stripped of its allegation of knowing falsity, that amended notice of civil claim does not allege a collateral and improper purpose, the question becomes whether the plea of knowing falsity fills the gap to satisfy the requirement of a plea of collateral and improper purpose. Wound into this second enquiry is the effect, if any, of the doctrine of absolute privilege on the issue.
Did the Judge Determine the Sufficiency of the Pleading Absent the Allegation of Knowing Falsity?
[17] As a starting point in considering whether the amended notice of civil claim before us, absent the claim of knowing falsity, satisfies the requirement to plead a collateral and improper purpose, I ask whether the judge decided this issue.
[18] The judge began his consideration of the tort of abuse of process by discussing the meaning of the words "collateral and improper purpose". He correctly observed that the tort of abuse of process was less broad than abuse of process under Rule 9‑5(1)(d), and he referred to cases concerning the procedural fault of abuse of process: Chernen v. Robertson, 2014 BCSC 1358; Flavelle v. Mahood (1980), 25 B.C.L.R. 236 (S.C.), aff'd (1981), 33 B.C.L.R. 10 (C.A.); Wang v. British Columbia Medical Association, 2010 BCCA 43; and Behn v. Moulton Contracting Ltd., 2013 SCC 26, including this disjunctive statement in Flavelle at 242:
A pleading is an abuse of process if made knowing there is no factual basis for the allegations made or if made for some improper collateral purpose.
[19] The judge then moved to a discussion of the parties' positions on the scope of the elements of the tort. The Concord parties contended before him that a collateral and improper purpose is one that is independent of or unrelated to that which they could achieve in the underlying litigation if successful; they said a concocted action is not tortious so long as the plaintiff's purpose falls within the ambit of the litigation. The Oei parties contended that the essence of the tort is misuse or perversion of the court process. They said that in British Columbia the need to prove a collateral and improper purpose is entangled with the questionable "overt act" requirement, and unclear.
[20] The judge held that the tort requires a collateral and improper purpose. He then said:
[24] Second, I consider that the Defendants seek to unreasonably constrain the ambit of what can constitute an improper purpose or a purpose that is "collateral" to the action for the tort of abuse of process. It is the content of that requirement that is at issue on this application.
[25] It is clear that there are various inevitable incidents or consequences of litigation. These include, inter alia, delay, cost, potential embarrassment, difficulty in securing financing and a chilling effect on those who would otherwise do business with the party who has been sued. Such matters are not actionable and cannot ground a claim for abuse of process.
[26] I consider, however, that a different result may ensue, where a plaintiff commences an action, based on what it knows to be a fiction, for the very purpose of achieving these same consequences and in order to coerce the party that has been sued. Such purposes are "collateral" to the action and constitute both a misuse and a perversion of the court's processes.
[Emphasis added.]
[21] The judge next reviewed the jurisprudence and observed that many of the cases followed a trial and focused on the acts or conduct of the alleged tortfeasor, unlike the application before him which simply concerned the pleadings. He concluded:
[44] Once again the incidental and natural consequences of a properly commenced action, such as delay and cost, can satisfy the "improper" or "ulterior" purpose requirement of the tort if an action is advanced on the basis of material facts that are known to be false and where, the very object of the action is to create such cost or delay for the purpose of exerting economic pressure, or otherwise coercing, a defendant. Such an object or strategy can/would constitute a misuse and perversion of the court's processes and would, I consider, properly ground an action for abuse of process.
[47] ... Furthermore, I do not consider that it is "plain and obvious", or "perfectly clear", or "absolutely beyond doubt" that the Plaintiffs' action cannot succeed. This is so for several reasons. First, I consider that there is some uncertainty in this jurisdiction, in relation to the requirements of the tort of abuse of process. Second, I consider that the natural incidents of an action that is properly commenced can, in different circumstances, take on a different character. Thus, I consider that the "improper" or "extraneous purpose" element of the tort of abuse of process can be made out in circumstances where a plaintiff knowingly advances a "baseless" claim for the purpose of i) creating or manufacturing the incidents of litigation that I have described ii) to coerce a defendant into an agreement.
[48] In particular, I do not consider that is plain and obvious that an action for specific performance, that is commenced by a plaintiff on facts that the plaintiff knows to be false, and that is commenced for the purpose of both inhibiting or constraining the ability of a defendant to develop its land and to compel or coerce the defendant to negotiate with that plaintiff, does not support an action for abuse of process.
[Emphasis added.]
[22] It appears to me from these passages that the judge did not decide whether the amended notice of civil claim, stripped of the allegation of knowing falsity, sufficiently pleads the first Fleming element. That is, he did not decide whether the pleadings in the current action, other than the plea of knowingly false allegations, pleaded a collateral and improper purpose. I will set that issue aside, and first address the other possibility identified in my para. 16 above, that the plea of knowing falsity, by itself, can satisfy the requirement for a plea of a collateral and improper purpose. I will then return to the matter of the sufficiency of the plea, stripped of its knowing falsity allegation, for purposes of the first Fleming element.
The Plea of Knowing Falsity and the First Fleming Element
[23] For this discussion I must take the purpose of the first action as alleged in this action in paragraph 12 of the amended notice of civil claim as true. That is, I must consider that in the first action the Concord parties sought to constrain the ability of the Oei parties to deal with the lands which were the subject of the claim for specific performance or their ability to develop the lands by arrangements with other developers, and that the Concord parties sought to compel the Oei parties to negotiate with them to obtain agreements giving Concord an indirect interest in the land and the right to participate in the development, construction, marketing and disposition of the land.
[24] I have set out above the main portions of the judge's reasoning in which he: concludes that the plea that knowingly false allegations were made in the first action "can satisfy the 'improper' or 'ulterior' purpose requirement of the tort" (at para. 44); holds that where an action is based on a fiction for the purpose of achieving some of the inevitable incidents or consequences of litigation so as to "coerce the party" the purposes are "collateral" to the action (at para. 26); and, in the result, dismisses the application (at paras. 47, 48).
[25] Although the respondents resist reading the reasons for judgment as giving the plea of knowingly false allegations a transformative effect on the adequacy of the pleading of the first Fleming element, I can read the reasons in no other way. The judge's reasons focus on the effect the plea of knowingly false allegations has on the "incidents of litigation" (see para. 47). By his reasoning, this plea is the difference-maker; he uses it to transmute an unobjectionable plea in the first action into one that was collateral and improper.
[26] The common understanding of the conjunctive phrase "collateral and improper purpose" is that the purpose must be outside of the normal incidents of litigation. In the 10th edition of Fleming, The Law of Torts (Sydney: Thomson Reuters, 2011), the editors explained at 707, relying upon a seminal case from the High Court of Australia, Varawa v. Howard Smith (1911), 13 C.L.R. 35 at 91:
It involves the notion that the proceedings were "merely a stalking‑horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the court is asked to adjudicate."
They said further at 708:
Of course, not every collateral advantage sought by a litigant becomes improper merely because it is beyond the court's power to grant it. Actions are commonly settled on terms that a court could not impose, for example an apology for libel, or specific performance of certain contracts. In order to be improper the ulterior advantage must be one not reasonably related to the subject matter of the litigation and but for which the defendant would not have commenced the proceedings.
[27] The question at this stage becomes whether the plea of intentionally dishonest allegations advanced in the first action is capable of changing the purpose from one inside the ambit of the first action to a collateral purpose outside it.
[28] The judge answered this question affirmatively. In so saying he relied upon D.K. Investments Ltd. v. S.W.S. Investments Ltd. (1984), 59 B.C.L.R. 333 (S.C.), aff'd (1986), 6 B.C.L.R. (2d) 291 (C.A.), leave to appeal ref'd [1986] 2 S.C.R. vi; Goldman, Sachs & Co. v. Sessions (1999), 38 C.P.C. (4th) 143 (B.C.S.C.); Border Enterprises Ltd. v. Beazer East Inc., 2002 BCCA 449; Glazer v. Kirsch, [1985] B.C.J. No. 3058 (Co. Ct.); Norton, Stewart, Norton & Scarlett v. Kirsch (1987), 16 B.C.L.R. (2d) 221 (Co. Ct.); and Pires v. Vectis Technologies, 2007 BCSC 1144.
[29] In D.K. Investments, the underlying action was a claim for specific performance of a contract for the purchase and sale of land. The plaintiff filed a lis pendens and a caveat; the defendant filed a counterclaim for abuse of process. The case was tried; it was not a pleadings case. In his reasons for finding liability, Mr. Justice Finch (later C.J.B.C.) found at 339, that contrary to the claim for specific performance, the plaintiff had not desired "to complete the agreement it had made", that it "knew it had no claim to fixtures other than the building", and that the action was commenced "to coerce the defendant to sell at a lower price than that bargained for, or to obtain for the plaintiff benefits which the plaintiff could not otherwise obtain". Thus the judge found the plaintiff had not wished to pay the price set out in the contract of which it claimed specific performance, and intended to delay the agreement's completion. Although the judge relied on the falsity of statements in the filed caveat to support his conclusion that the purpose of the claim for specific performance was an abuse of process, I take the gravamen of the decision to be that the action was for a collateral and improper purpose because the plaintiff never held the purpose of enforcing the contract for sale of the land. At most the false statements in the caveat were evidence of the improper purpose, but the purpose itself is what was collateral and improper to the claim. Thus D.K. Investments does not support the judge's conclusion that a plea of knowing falsity can have a transformative effect on the pleaded purpose.
[30] Nor does Goldman, Sachs & Co., in my view, support such a conclusion. In Goldman, Sachs & Co., the defendant Mr. Sessions was sued on his personal covenant to pay, and two corporations of which he was the principal were joined as defendants on the basis they were his alter egos and liable for his debt. The plaintiffs brought pre‑judgment garnishment proceedings attaching bank accounts of the corporations. The corporate defendants counterclaimed for abuse of process. In upholding the plea of tortious abuse of process, Mr. Justice Smith (later J.A.) held:
[27] the knowingly baseless institution of a lawsuit against the corporate defendants would be, if proven, a misuse of the courts process if its purpose was to enable the plaintiffs to attach the funds on deposit in their bank accounts in order to coerce Anthony Sessions to settle the claim against him, as is alleged. The issuance of pre-judgment garnishing orders against those bank accounts would be, in those circumstances, an act "outside the ambit of the legal claim upon which the court is asked to adjudicate": Fleming, The Law of Torts, [9th ed.] at p. 688. It would be a step taken for the extraneous purpose of coercing Anthony Sessions by oppressing the corporate defendants.
[31] Here the judge described Goldman, Sachs & Co. as demonstrating that if the action (against the corporations) was properly commenced, the purpose of economic pressure would be an incident of the action but if the action was, to the plaintiff's knowledge, "baseless, and with the object of coercing the personal defendant, the economic pressure that was placed on the personal defendant would constitute an improper and ulterior purpose" (at para. 40). This view, however, does not recognize that Justice Smith's observation spoke of a knowingly baseless claim against the corporate defendants for the purpose of coercing the individual defendant. If true, this would be a case in which third parties were sued for the purpose of forcing settlement of their claim against another party. That was the abuse of process claimed, and it appears to me that Justice Smith's conclusion rests on the plea that the purpose of the action against the corporate defendants was only to obtain advantage over a different party, a purpose he said was "outside of the legal ambit of the legal claim" the court was asked to adjudicate. That is not the plea before us, which is to the effect that knowingly false allegations were made against parties to obtain advantage from those same parties.
[32] In Border Enterprises, the Federal Crown sought to strike a claim of the tort of abuse of process committed in previous litigation commenced by the Federal Crown. The plaintiff alleged that the Federal Crown had commenced an action to avoid liability, expenses, and costs in remediating property. Mr. Justice Thackray, writing for the court and employing the test counsel put to him, found that no material facts were pleaded that disclosed a misuse or perversion of the court's process and said avoidance of liability was a proper purpose, although some "methods" of doing so may be improper. In this case, the judge referred to Justice Thackray's comment that some "methods" of avoiding liability could be improper and said that had Border Enterprises Ltd. pleaded that the claim was baseless and had been commenced to put financial pressure on the plaintiffs, embarrass the plaintiffs, or delay site remediation, "a different result would have ensued" and the pleading would have survived. I do not consider Border Enterprises to be authority for this proposition.
[33] Both Glazer and Norton are analogous to the case before us. Glazer concerned a knowingly false allegation in the filed defence, as did Norton. In my view, those decisions are not correct, and cannot be reconciled with the approach described by Professor Fleming taken to normal incidents of litigation nor, as I will discuss, with the doctrine of absolute privilege. In my view they ought not to be followed. For that reason I also consider Pires, the decision of Master Taylor relying on Norton, is in error.
[34] In contrast to Glazer and Norton, trial decisions in British Columbia and elsewhere have held that advancing a false claim, for wrongful motives, is not enough to establish the tort of abuse of process: Teledata Communications Inc. v. Westburne Industrial Enterprises Ltd. (1990), 65 D.L.R. (4th) 636 (Ont. S.C.) ("factually groundless"); Scintilore Explorations Ltd. v. Larche, [1999] O.J. No. 2847 (S.C.) ("a false claim or false evidence"); Office and Professional Employees Int'l. Union v. Office and Professional Employees Int'l. Union, Local 15, 2006 BCSC 847 [OPEIU] (at para. 15 citing Teledata). See also A.M. v. Matthews, 2003 ABQB 942 on malicious institution of proceedings.
[35] All of this is not to say that advancing intentionally false pleadings is not odious to the court process. Lawyers, of course, are bound by the ethics of their profession not to promote suits upon frivolous pretences, and they have an obligation as officers of the court not to be false to the court. Apart from serious ethical standards applicable to lawyers, all parties are subject to sanctions by way of costs for misconduct in the court process, are bound by rules designed to expeditiously weed out baseless claims, including an application to dismiss a claim under Rule 9‑5(1)(d) for procedural abuse of process, and can be asked to post security for costs. The question before us is not whether intentionally false pleadings, if established, could attract opprobrium in the first action, but whether such pleadings can support a claim in tort for abuse of process by reason of the alleged knowing falsity of the allegations. Such a claim in tort requires a pleaded purpose that is outside the ambit of the first action, whereas procedural abuse of process is more widely discovered.
[36] The tort of abuse of process is narrow, intentionally so to foreclose the spawn of litigation wherein one failed action begets another action, which may beget another action, and so on.
[37] In the case of abuse of process advanced against a plaintiff, one action may beget another action only where the first action is brought for a purpose that is both improper and collateral (outside of what might be achieved against the person on whom the claim is made). This keeps the litigation between parties from multiplying beyond the original proceedings, which are intended to address all issues between the parties arising from the lis. The same notion, adapted, also narrows the tort of abuse of process as it applies to a defence that is advanced. Looking at this aspect of the tort, I conclude that knowing falsity, by itself, is not a "purpose" as required for the tort, and a plea of knowingly false allegations cannot transform an acceptable purpose into a tortious purpose in respect of the tort of abuse of process.
Concordance of the Tort of Abuse of Process and the Doctrine of Absolute Privilege
[38] My conclusion above is affirmed by considering the fit of this order with the doctrine of absolute privilege. They are, in my view, incompatible; I consider that by stretching the allegation that the Concord parties filed knowingly false pleadings in the first action so as to transform the plea from non‑tortious to tortious, as done in paras. 25 and 26 of the reasons for judgment, the judge trod upon the absolute protection afforded to statements uttered in the course of litigation.
[39] The doctrine of absolute privilege, for reasons of policy, shields the legal process from itself becoming the source of further litigation. It has developed most robustly in the context of proceedings against lawyers and in the law of defamation, but the doctrine applies broadly.
[40] The Oei parties complain that the appellants did not address this doctrine on their application to strike. I consider that the issue naturally arises from the view the judge took on the effect of the plea of knowing falsity as potentially taking a pleading that did not allege a purpose beyond the ambit of the first action into one that is beyond that ambit and, as it arises from his reasons, must be addressed. On my understanding of the tension between the tort and the doctrine of absolute privilege, it is the requirement to plead a collateral purpose, that is, a purpose outside the ambit of the first litigation, that allows the tort to harmonize with the doctrine. Resting the decision on the plea of knowing falsehood potentially upsets the harmony, and the issue in my view is fairly engaged in this appeal.
[41] This court has previously considered the actionability of statements made by lawyers in the course of the litigation process, including statements made outside the courtroom in correspondence with other counsel in respect of the action, and statements made by a complainant to a disciplinary body.
[42] Madam Justice Levine, in Hamouth v. Edwards & Angell, 2005 BCCA 172, concluded that absolute privilege extends to communications by lawyers in respect of judicial proceedings. She said:
[2] There is no dispute that a lawyer is protected by absolute privilege regarding statements made in a court proceeding, and that the privilege extends to communications made in the course of inquiry with respect to or in preparation for judicial proceedings: see [Munster] at 600 and 604; Web Offset Publications Limited v. Vickery (1999), 43 O.R. (3d) 802 at 804 (C.A.); Gatley on Libel and Slander, 9th ed. (London: Sweet & Maxwell, 1998) at 13.12 -13.13; John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services) at 618-19. The privilege also extends to such statements made with respect to quasi-judicial proceedings of a tribunal: see Sussman v. Eales (1985), 33 C.C.L.T. 156 at 157 (Ont. H.C.J.), appeal allowed in part (1986), 25 C.P.C. (2d) 7 (Ont. C.A.); applied by this Court in Hung v. Gardiner (2003), 13 B.C.L.R. (4th) 298 (C.A.), 2003 BCCA 257 at6-9, and Schut v. Magee (2003), 15 B.C.L.R. (4th) 250, 2003 BCCA 417 at 15-18.
[3] There is also no dispute that absolute privilege provides immunity against suit.
[43] Referring to her earlier reasons in Hung v. Gardiner, 2003 BCCA 257, Justice Levine said:
[23] In Hung v. Gardiner, this Court considered the application of absolute privilege to disciplinary bodies that have the power to investigate complaints and impose disciplinary sanctions. I concluded (at para. 30), in reasons for judgment with which Ryan and Hall JJ.A. agreed, after considering Sussman, Lincoln v. Daniels, [1962] 1 Q.B. 237 (Eng.C.A.), O'Connor v. Waldron, [1935] A.C. 76 (P.C.), reversing [1932] S.C.R. 183; Boyachyk v. Dukes (1982), 136 D.L.R. (3d) 28 (Alta.Q.B.) and Rajkhowa v. Watson (1998), 167 N.S.R. (2d) 108 (S.C.) (In Chambers) that where such a body has "the power to determine the legal rights and to affect the status of" the parties who appear before it, it exercises powers that are similar to that of a court. Absolute privilege applies to complaints made to such bodies to initiate proceedings and to communications made in the course of their investigations.
[Emphasis added.]
[44] Hung, in turn, applied W. Blake Odgers & Robert Ritson, Odgers' Digest of the Law on Libel and Slander, 6th ed. (London: Stevens, 1929) at 195:
An absolute privilege also attaches to all proceedings of, and to all evidence given before, any tribunal which by law, though not expressly a Court, exercises judicial functions -- that is to say has power to determine the legal rights and to effect (sic) the status of the parties who appear before it.
[Emphasis added.]
[45] It is, as noted by Justice Cromwell in Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115, the occasion of the statement, not the words, that attract the privilege. See also Leighton v. Canada (Attorney General), 2012 BCSC 961.
[46] The doctrine has broad application outside of defamation cases: Marrinan v. Vibart, [1962] 3 All E.R. 380 (C.A.). In Lefebvre v. Durakovic, 2018 BCCA 201, Justice Groberman surveyed the leading British Columbia authorities on absolute privilege and referred with approval to McDaniel v. McDaniel, 2008 BCSC 653, rev'd in part 2009 BCCA 53, wherein he had previously stated:
[18] Witnesses are absolutely immune from civil liability for anything that they say in court, even if what is said is false and even if they harboured malicious motives for giving evidence.
See also Lower v. Stasiuk, 2013 BCCA 389, leave to appeal ref'd [2014] 2 S.C.R. viii, wherein Justice Levine cited this passage from McDaniel with approval, and Goldberg v. Law Society of British Columbia, 2009 BCCA 147, in which Mr. Justice Donald, at para. 51, quoted with approval a statement from the New Brunswick Court of Appeal in Penney v. New Brunswick Association of Social Workers, 2002 NBCA 28, that "the policy considerations underlying the immunity rule were developed to prevent legal actions for damages in defamation, negligence or other damages however framed."
[47] A notice of civil claim is a specialized statement made by a party to commence legal proceedings. If a complaint to a disciplinary body is protected by absolute privilege, certainly a notice of civil claim attracts that protection.
[48] The application of absolute privilege to defence pleadings in a court action was addressed in Dooley v. C.N. Weber Ltd. (1994), 118 D.L.R. (4th) 750 (Ont. Gen. Div.). In passages approved by Madam Justice Griffin (later J.A.) in Duncan v. Lessing, 2016 BCSC 1386, aff'd 2018 BCCA 9, Justice Reilly said at 753:
I conclude, after considering submissions of counsel and the relevant jurisprudence, that an absolute privilege attaches to the pleadings and they may not form the basis for a cause of action, even for abuse of process. The development of this privilege has been consistent and without exception, applying in England, Canada and other common law jurisdictions to judges, witnesses, counsel and litigants. The privilege extends to statements made in court, the evidence of witnesses, to submissions, to addresses, to statements in court by counsel, to pleadings (as in this case) and perhaps even to statements made to investigators in the preparation of a prosecution.
[Emphasis added.]
[49] In addition to Duncan, Dooley has been applied in British Columbia in McColl v. Thompson, 2015 BCSC 1034, a case of a counterclaim alleging abuse of process by the plaintiffs by virtue of the content of their notice of civil claim. See also Foote v. Hallen, 2014 BCSC 564.
[50] The respondents submit that the doctrine of absolute privilege is not offended in this case because the tort of abuse of process is one of the narrow exceptions to the general rule, referring to 311165 B.C. Ltd. v. Canada (A.G.), 2017 BCCA 196, leave to appeal ref'd [2017] 1 S.C.R. v, and say that this claim is not premised on giving false evidence but rather on the improper purpose they pleaded.
[51] I do not see these submissions as answers because they assume a collateral and improper purpose has been pleaded. I have explained above that the judge's use of the plea of knowing falsity to determine that the alleged purpose was collateral and improper skirted the required decision on the pleaded purpose. In this case, as discussed above, the judge rested his conclusion on the allegation of knowingly false pleadings in the underlying litigation. His conclusion has allowed an action to proceed in circumstances in which he has not found that the pleaded purpose, by itself, is collateral. In the event the pleaded purpose, absent the allegation of knowing falsehood, is not collateral, using the plea of knowing falsity to meet the requirement to plead a collateral purpose, steps squarely into the spotlight of absolute privilege and is, in my view, impermissible.
Conclusion on the First Fleming Element
[52] I conclude that the plea of knowing falsity of allegations in the first action cannot be the difference‑maker between a pleading that does not allege a collateral and improper purpose and one that does allege such a purpose. Respectfully, it was not open in law to establish a sufficient plea of the first Fleming element based upon the plea of knowing falsity of allegations made in the first action.
[53] As I indicated at my para. 22, the judge did not review the amended notice of civil claim, absent the plea of knowing falsity, so as to determine whether, stripped of the knowing falsity portion of paragraph 12, the amended notice of civil claim met the pleadings burden on the first Fleming element.
[54] In Bank of Montreal v. Basant Motors Ltd., 2019 BCSC 748, Mr. Justice Sewell described this case, at para. 40, as one in which "a collateral purpose was clearly pleaded". I do not agree. On a review of paragraph 12 of the amended notice of civil claim in this current action, the collateral purpose is not clear to me. In the first action the Concord parties claimed specific performance of an agreement to purchase 50% of the lands and to develop them, and damages. The allegation in paragraph 12 of this case is that the first action was advanced for the purpose of constraining the Oei parties from dealing with the lands or developing them with others. Paragraph 12 further alleges that the Concord parties sought to compel the Oei parties to continue negotiations with Concord for an indirect interest in the land and agreements to develop, construct, market, and sell and/or lease the lands. It is well established that the normal incidents of litigation, including settlement, are not collateral and improper purposes. Considering that settlement discussions often produce terms that could not be included in a court judgment, it is not obvious to me at this stage that the purpose pleaded in paragraph 12 of this action of constraining the Oei parties from dealing with others concerning the lands or negotiating with the Concord parties in respect to ownership and development of the lands, is "clearly collateral", that is, outside the ambit of the first action, or not reasonably related to the subject matter of the litigation, or outside the range of solutions that might reasonably be considered in settlement discussions.
[55] The question is whether we should decide whether a collateral and improper purpose has been pleaded without knowing how the judge would have answered this question and without the benefit of his reasoning. On balance I consider we should not answer this question for the first time, but rather remit this question to the trial court to determine whether the purpose advanced in the amended notice of civil claim, uninfluenced by the plea of knowing falsity, meets the requirements of the first Fleming element.
2. The Second Fleming Element - An Overt Act Requirement
[56] The judge did not address the second Fleming element, an overt act, as on the authority of Smith it was unclear whether performance of an overt act in furtherance of the collateral and improper purpose is an essential element of the tort of abuse of process in British Columbia.
[57] The uncertainty spoken of in Smith derives from statements in the British Columbia Supreme Court, for example in Starbucks Corp. v. The Second Cup Ltd. (1993), 46 C.P.R. (3d) 492 (B.C.S.C.). Starbucks posed the question whether the overt act, said by Fleming to be required for this tort, may be found in the lawsuit itself or was required to be external to the lawsuit. Mr. Justice Donald (later J.A.) referred to Guilford, D.K. Investments, and John Irvine, "The Resurrection of Tortious Abuse of Process" (1989), 47 C.C.L.T. 217 - an annotation in Canadian Cases of the Law of Torts following Pacific Aquafoods Ltd. v. C.P. Koch Ltd. (1988), 47 C.C.L.T. 214 (B.C.S.C.) - and concluded that it was not plain and obvious that the claim as pleaded without the allegation of an overt act could not succeed. He held that the trial judge should determine the issue after trial.
[58] In the twenty‑seven years since Starbucks, the issue has not been settled in this court. We are invited by the appellants to resolve the question in favour of the Fleming expression of the tort, requiring an overt act outside of regular legal process.
[59] The respondents say we should not engage this question because the parties discouraged the judge from considering it, and refer us to my reasons in Gorenshtein v. British Columbia (Employment Standards Tribunal), 2016 BCCA 457 at para. 46, explaining the restrained approach this court generally takes to entertaining new legal questions that have not been the subject of a reasoned decision. In the alternative, they ask for an opportunity to amend their pleading.
[60] I cannot say the judge erred in his treatment of this issue. Indeed, the question was taken "off the table".
[61] Nonetheless, the doubt cast by Smith continues to prevent the trial court from fully resolving pleadings motions involving this element of the tort, and the issue has not advanced to this court for resolution of the confusion. No doubt this by itself creates confusion and expense, and having persisted so long, is not a good state of affairs. I consider it is appropriate to say something about the "overt act" issue.
[62] I will admit to being puzzled at the proposition that in 1993 the law on this point was uncertain. That thought appears to have been seeded by comment on D.K. Investments and Guilford, both trial decisions wherein the field of dispute at trial appears to have focused on the element of purpose. Tracking this discussion as best I understand it, I see no case in which a British Columbia court has said that Justice Anderson's original description in Guilford of the tort as requiring Fleming's two elements, was incorrect. It is true that Justice Anderson did not identify the overt act committed in Guilford, but he recited the need for an overt act in describing the tort and did not disavow it. Rather, he appears to have kept his trial reasons to the issues disputed at trial by the parties, as trial judges do. The passage in Quinn v. Leathem, [1901] A.C. 495 (H.L.), applied in Cowichan Valley (Regional District) v. Cobble Hill Holdings Ltd., 2016 BCCA 432, leave to appeal ref'd [2017] 1 S.C.R. ix, explains:
there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides.
[Emphasis added.]
Had Justice Anderson been asked in Guilford, he may have found that the requirement of an overt act was met in that case by the plaintiff's filing a claim of a mechanic's lien (a step that precedes the action necessary to enforce the lien) without a contractual claim in respect to the properties liened, so as to advance collection of a putative debt owing to a related company.
[63] In the other named case that seems to have prompted the doubt, D.K. Investments, Justice Finch dealt with a tale of deceit of a plaintiff who sued for specific performance of an agreement, registered a lis pendens, and filed a caveat based on the defendant owner's alleged failure to provide title to fixtures. The defendant counterclaimed, alleging amongst other wrongs, the tort of abuse of process. Justice Finch observed that D.K. Investments' claim for specific performance alleged a failure to convey title to certain fixtures but that the principal of D.K. Investments testified the claim for specific performance was intended to bring pressure on a third party to provide a release of a petroleum agreement it had with the defendant. Although the details of all of this are not spelled out in what is a complicated narrative of shifting positions, on my understanding of the reasons and comparing this to the original formulation of the tort in Grainger, this appears to be a case of steps taken to obtain a release from a third party outside the ambit of the litigation in issue. It is true that Justice Finch did not recount the two elements described by Professor Fleming, and instead described the essence of the tort as "the misuse or perversion of the court's process for an extraneous or ulterior purpose", saying, and referring to Guilford, "[t]here must be a purpose other than that which the process was designed to serve" (at 339). He held, however:
The purposes behind the action were completely improper. There has been ample overt conduct by the plaintiff in its attempts to achieve its improper ends.
[Emphasis added.]
Judgment was given in favour of the defendant who had counterclaimed. On appeal to this court the plaintiff challenged findings of fact and the principles on which damages were awarded; this court did not discuss the elements of the tort of abuse of process.
[64] These cases were followed by the County Court cases Glazer and Norton, both referring to Justice Finch's description that the essence of the tort is misuse of the process for an extraneous and ulterior motive.
[65] Pacific Aquafoods then came along and, relying on Norton, Mr. Justice Meredith opined that the only important facts in a case alleging tortious abuse of process are those that go to the purpose of the impugned legal process. This case prompted academic comment questioning the Fleming element of overt act.
[66] Relying upon these cases and the comment, Justice Donald in Starbucks sent the case before him to trial, saying, at 496-497:
It is arguable whether this court has developed an approach to the tort of abuse of process which ascribes less importance to the overt act element than the Ontario courts.
[Emphasis added.]
[67] Chronologically, after Starbucks, Mr. Justice Tysoe (later J.A.) in Ascot Holdings Ltd. v. Wilkie (1993), 49 C.P.R. (3d) 188 (B.C.S.C.), supp. reasons 42 A.C.W.S. (3d) 25 (B.C.S.C.), described the tort as requiring prosecution for an improper collateral purpose and an overt act or threat in furtherance of the improper purpose. In like vein Madam Justice Kirkpatrick (later J.A.), in Summex Mines Ltd. v. Farallon Resources Ltd., [1998] B.C.J. No. 1723 (S.C.), adopted this passage from Professor Fleming's 8th edition of The Law of Torts, (Sydney: The Law Book Company, 1992) at 622-623:
Unlike malicious prosecution, the gist of this tort lies not in the wrongful procurement of legal process or the wrongful launching of criminal proceedings, but in the misuse of process, no matter how properly obtained, for any purpose other than that which it was designed to serve. It involves the notion that the proceedings were "merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the court is asked to adjudicate." It is therefore immaterial whether the suit thus commenced was founded on reasonable cause or even terminated in favour of the instigator: the improper purpose is the gravamen of liability.
In addition to the improper purpose, there must be some overt act or threat, distinct from the proceedings themselves, in furtherance of that purpose, such as in the abovementioned case the extortion accompanying the capias. Were it otherwise, any legal process could be challenged on account of its "hidden agenda."
[Emphasis added.]
[68] In Goldman, Sachs, & Co., Justice Smith referred to Starbucks and questioned but did not decide the necessity of proof of an overt act.
[69] Finally, Border Enterprises, as noted above, considered a claim that a Federal Crown action was taken in bad faith, for the sole purpose of avoiding liability, expenses, or costs related to remediation of land and causing loss, damage, and harm due to expenses and costs incurred as a result of the Federal Crown action. Justice Thackray noted, at para. 51, that counsel agreed at trial that the elements of the tort were: "a willful misuse or perversion of the court's process for a purpose extraneous or ulterior to that [which] the process was designed to serve, and some damage flowing therefrom ". He said no material facts in the pleadings disclosed a misuse or perversion of the court's process and struck the claim. He then continued to the question of whether an overt act was required. Referring to the statement of Justice Donald in Starbucks he said, at para. 61, that while Fleming's two elements are followed in Ontario, it is "open to debate" whether the overt act is necessary in British Columbia. He declined to resolve that "debate", saying "it should be initiated within the Federal Crown action."
[70] Subsequent to Border Enterprises, Madam Justice Quijano in Home Equity Development Inc. v. Crow, 2002 BCSC 1747, referred to Guilford, Ascot, an Alberta case, and Ontario cases in opining that a "definite act or threat to advance the collateral improper purpose" is an essential element of the tort (at paras. 20-21).
[71] To different effect, in W.D. World Travel Inc. v. Lock, 2006 BCSC 114, Master Bolton considered a motion to strike out an abuse of process claim. He relied on the uncertainty as to the state of the law expressed in Starbucks and refused to strike out the claim for lack of a pleaded overt act.
[72] In 2006, in OPEIU, Madam Justice Dillon comprehensively canvassed the law, and noted that as most cases failed at the improper purpose stage, consideration of an overt act was not necessary on their facts. She then stated that the court had, on multiple occasions, supported Fleming's formulation of the elements of the tort, including the requirement of an overt act. She wrote:
[24] Aside from Guildford and D.K. Investments, the British Columbia cases have not had to go so far as to find facts to support the overt act element of the tort. However, support is given to the Fleming definition and there is no doubt that the second element, an overt act, is required. Anderson J. accurately described this conduct in Guildford as amounting to "legal blackmail." The act cannot be found within the very process complained of because this would not be in furtherance of the improper purpose which is also to be outside the ambit of the action. I agree with Irvine that to focus on improper motive alone would expand the tort and require examination of bad motives alone. It would leave the requirement for an overt act meaningless. To define the act within the scope of the relief available within the lawsuit itself would broaden the tort beyond its classic description from Grainger v. Hill (1838), 4 Bing N.C. 212, 132 E.A. 769. In that case, the defendant sued wrongfully on a mortgage in order to force the plaintiff to surrender the register of a vessel to the defendant, a remedy to which he was not entitled in the litigation.
[Emphasis added.]
[73] In 2007, Master Taylor, in Pires, quoted Ontario authority for the proposition that "a definite act or threat" in furtherance of the purpose is required to establish the tort. But again, in 2008, the uncertainty stated in Border Enterprises, based on Starbucks, was repeated: Adroit Resources Inc. v. Tres‑Or Resources Ltd., 2008 BCSC 1211.
[74] We reach Smith. By then, this court had adopted the view in Border Enterprises that the law in British Columbia is unclear on the overt act requirement, and had not resolved the issue. Relying on Starbucks and Border Enterprises, Justice Smith said:
[34] It may be arguable, however, that the law of British Columbia does not require an overt act or threat.
[75] The reasons in Smith refer to Guilford and D.K. Investments but do not refer to Justice Anderson's adoption of Fleming's elements in Guilford, nor the reference in D.K. Investments to Guilford (quoting Fleming), nor Justice Finch's conclusion an overt act was established, nor the several decisions of the Supreme Court of British Columbia which had affirmed the "overt act" requirement of the tort.
[76] Since Smith, this court has faced the tort in Palmer v. Palmer, 2015 BCCA 438; Gadhri v. 0760815 B.C. Ltd., 2017 BCCA 31; and 311165 B.C. Ltd. In Palmer and Gadhri, the court made no reference to the requirement of an overt act, and adopted without discussing whether an overt act was otherwise present, the description that the tort requires a misuse or perversion of the court's process for an extraneous purpose. In 311165 B.C. Ltd., Mr. Justice Groberman noted, at para. 59, that the tort's elements in British Columbia were "less well defined", but instructed that the pleadings must allege "collateral or improper" purposes.
[77] This uncertainty in the law stands in contrast to authorities in Ontario, Alberta, Nova Scotia, Saskatchewan, New Brunswick, Prince Edward Island, all of which require an overt act: Atland Containers Ltd. v. Macs Corp. Ltd. (1974), 54 D.L.R. (3d) 363 (Ont. S.C.); Beckingham v. Sparrow (1977), 2 C.C.L.T. 214 (Ont. S.C.); Tsiopoulos v. Commercial Union Assurance Co. (1986), 32 D.L.R. (4th) 614 (Ont. S.C.); Poulos v. Matovic (1989), 47 C.C.L.T. 207 (Ont. S.C.); R. Cholkan & Co. v. Brinker (1990), 1 C.C.L.T. (2d) 291 (Ont. S.C.); Metrick v. Deeb (2003), 16 C.C.L.T. (3d) 298 (Ont. C.A.), leave to appeal ref'd [2004] 1 S.C.R. viii; Apotex Inc. v. Ontario (Minister of Health & Long‑Term Care) (2005), 204 O.A.C. 275; Harris v. GlaxoSmithKline Inc., 2010 ONCA 872, leave to appeal ref'd [2011] 2 S.C.R. vii; Grenon v. Canada Revenue Agency, 2017 ABCA 96, leave to appeal ref'd [2017] 2 S.C.R. vii; Rocky Mountain Rail Society v. H & D Hobby Distributing Ltd. (1995), 167 A.R. 16 (Q.B.); Amirault v. Westminer Canada Ltd. (1994), 127 N.S.R. (2d) 241 (C.A.), leave to appeal ref'd [1994] 3 S.C.R. xi; Potash Corp. of Saskatchewan Inc. v. Barton, 2013 SKCA 141, leave to appeal ref'd [2014] 2 S.C.R. viii; Belong v. Her Majesty the Queen in Right of the Attorney General of Canada and Timothy Quigley, 2013 NBCA 68, leave to appeal ref'd [2013] 1 S.C.R. vi; Heath v. Mercantile Finance Service Ltd., 2015 PECA 11.
[78] In Australia the tort appears to require an overt act or threat, but commencement of proceedings may constitute an improper act sufficient for the tort when there has been a prior demand or threat to obtain something not achievable through the proceedings: Williams v. Spautz, [1992] HCA 34. Since Williams, multiple decisions of appellate courts in Australian states have affirmed the view that an overt act is required to establish the tort of abuse of process. See e.g., Paradise Grove Pty. Ltd. v. Stubberfield, [2001] QCA 117; The Beach Club Port Douglas Pty. Ltd. v. Page, [2005] QCA 475; Maxwell-Smith v. S. & E. Hall Pty. Ltd., [2014] NSWCA 146; and Burton v. Office of the Director of Public Prosecutions, [2019] NSWCA 245.
[79] Canvassing these many authorities, it seems plain to me that the original expression of doubt as to the requirement in British Columbia of an overt act rests on shaky ground, but it has been repeated. I consider the reasons of Justice Dillon in OPEIU to best state the requirements in British Columbia, and while the extra-provincial authorities cited here are not binding in British Columbia, their nearly unanimous view of the tort is persuasive, absent a reason in principle why the formulation is wrong. We have not had a reasoned decision in British Columbia explaining the error in Professor Fleming's description, which did find its way into the seminal case of Guilford, although that aspect of Guilford appears to have been overlooked and has created, in the result, confusion. I conclude that absent a reasoned basis to diverge from the law first stated in British Columbia, that the tort conceptually requires more than a collateral and improper purpose, and that the "more" is an overt act or threat.
CONCLUSION
[80] In my view the judge erred in his analysis of the first element of the tort of abuse of process by relying upon the allegation of knowing falsity to establish a collateral and improper purpose. I would set aside the order and remit the application to the Supreme Court of British Columbia for fresh consideration.
"The Honourable Madam Justice Saunders"
I agree:
"The Honourable Madam Justice Stromberg-Stein"
I agree:
"The Honourable Madam Justice Griffin"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2020 BCCA 234 | R. v. Brown | 2020-08-18T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/20/02/2020BCCA0234.htm | 2026-01-18T04:09:29.853000 |
2020 BCCA 234 R. v. Brown
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
R. v. Brown,
2020 BCCA 234
Date: 20200818
Docket: CA46934
Between:
Regina
Respondent
And
Derick Brown
Appellant
Before:
The Honourable Mr. Justice Butler
The Honourable Mr. Justice Abrioux
The Honourable Mr. Justice Grauer
On appeal from: An order of the Provincial Court of British Columbia, dated
April 2, 2020 (R. v. Brown, Abbotsford Dockets 89556-1; 89603-1-B and
Victoria Docket 178689-2-C).
Counsel for the Appellant:
B. Movassaghi
Counsel for the Respondent:
C. Lusk
Written Joint Statement Filed:
Vancouver, British Columbia
August 11, 2020
Place and Date of Judgment:
Vancouver, British Columbia
August 18, 2020
Written Reasons of the Court
Summary:
The appellant applies for his sentence to be adjusted to account for time in pre‑sentence custody that was inadvertently not brought to the sentencing judge's attention. Held: Appeal allowed. The sentence is reduced from eight months to 205 days.
Reasons for Judgment of the Court:
[1] The appellant seeks an extension of time to appeal his sentence, leave to appeal the sentence and that his appeal be allowed only to the extent that two eight‑month concurrent sentences be reduced to 205 days in custody to include credit for pre-sentence custody. There is some urgency to the appeal as the appellant's release date would be August 18, 2020 if the appeal is allowed.
[2] The appellant was sentenced on April 2, 2020. He asks that his time to appeal be extended to July 24, 2020. The Crown does not oppose the granting of an extension of time for leave to appeal and does not oppose the granting of leave to appeal. The Crown also agrees that the appellant is entitled to credit at a ratio of 1.5:1 for 26 days he spent in pre-sentence custody.
[3] The parties sought to have this appeal determined in writing. Pursuant to s. 26(1) of the Court of Appeal Act, R.S.B.C. 1996, c. 77, we directed that argument be submitted in writing. Counsel presented a helpful joint statement to explain the somewhat unusual circumstances that led to the oversight in bringing pre-sentence custody to the attention of the sentencing judge and the error that resulted from that oversight. The parties submit that the appellant should be credited with 39 days of pre-sentence custody that would reduce the sentence to 205 days in custody. For the reasons that follow, we agree.
[4] The appellant pleaded guilty to three offences that occurred on November 4, 2019 in Victoria, British Columbia when he assaulted the complainant while wearing a face mask. He was detained in custody from the date of the offences until the guilty plea. On April 2, 2020, he received concurrent eight-month sentences for Counts 2 and 3 of Information 178689, the indictable offences of assault causing bodily harm (contrary to s. 267(b) of the Criminal Code, R.S.C. 1985, c. C-46) and disguising his face with intent to commit an indictable offence (contrary to s. 351(2) of the Criminal Code). These are the sentences under appeal.
[5] At the same time that he was sentenced for the Victoria offences, he was sentenced for two offences committed on December 14, 2018 in Abbotsford, British Columbia: assault with a weapon and breach of probation. The sentencing judge approached the sentencing in what the parties describe as a global fashion: the eight-month concurrent sentences were imposed for the Victoria offences, and the appellant was sentenced to "time served" for the Abbotsford offences.
[6] The appellant spent 26 days in custody from February 24, 2019 to March 21, 2019 when he was arrested for the Abbotsford offences (Period 1). He was then granted bail but detained in custody following the Victoria offences. He remained in custody from November 4, 2019 until he was sentenced on April 2, 2020 (Period 2). Through inadvertence, the judge was not advised by the parties of the Period 1 pre‑sentence custody. Accordingly, he received no credit for that time in custody.
[7] The judge indicated that he would have imposed a sentence of 7.5 months for the Abbotsford offences but sentenced him to "time served". At a ratio of 1.5:1, the time spent in Period 2 is slightly more than 7.5 months. The sentence imposed was illegal as the time spent in pre-sentence custody was recorded as part of the actual sentence rather than credited against a fit sentence as determined by the sentencing judge: see R. v. Mizen, 2009 BCCA 253 at para. 20. However, that sentence is spent and an appeal of that sentence has no utility. The 26 days in custody from Period 1 should have been credited against the sentence for the Abbotsford sentences but were not. The appellant says that if the judge had been aware of the Period 1 pre-sentence custody when sentencing him, he would have credited the appellant for that additional time in custody against the sentence imposed for the Abbotsford offences. Had that been done, there would have been 26 additional days of pre-sentence custody from Period 2 that would have been credited against the sentence for the Victoria offences, those under appeal.
[8] The appellant further asserts, and the Crown agrees, that there is no basis to argue he would not receive early remission. Accordingly, if the judge had been aware of that additional time in custody, the appellant should have received credit at a ratio of 1.5:1: R. v. Summers, 2014 SCC 26. Had that been done, the appellant would have received credit for 39 days and the appellant would have been sentenced to 205 days of imprisonment for the Victoria offences.
[9] We agree that the error made in sentencing the appellant for the Abbotsford offences led to the appellant being denied credit for pre-sentence custody that he should have received for the sentences for the Victoria offences.
[10] In the circumstances, the time for filing the notice of appeal is extended to July 24, 2020; leave to appeal is granted; and the appellant's sentence on Counts 2 and 3 of Information 178689 is reduced from eight months to 205 days including the credit for pre-sentence custody.
"The Honourable Mr. Justice Butler"
"The Honourable Mr. Justice Abrioux"
"The Honourable Mr. Justice Grauer"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2020 BCCA 232 | R. v. Schouw | 2020-08-07T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/20/02/2020BCCA0232.htm | 2026-01-18T04:09:56.763000 |
2020 BCCA 232 R. v. Schouw
COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
R. v. Schouw,
2020 BCCA 232
Date: 20200807
Docket: CA44433
Between:
Regina
Respondent
And
Brendan James Schouw
Appellant
Before:
The Honourable Madam Justice Dickson
The Honourable Mr. Justice Hunter
The Honourable Madam Justice Griffin
On appeal from: An order of the Provincial Court of British Columbia, dated
January 31, 2017 (R. v. Schouw, Vancouver Docket 931-1).
Oral Reasons for Judgment
The Appellant, appearing in person on July 29, 2020 and via videoconference on August 7, 2020):
B.J. Schouw
Counsel for the Respondent, (and appearing via videoconference on August 7, 2020):
R. Leong
S. Manery
Place and Date of Hearing:
Vancouver, British Columbia
July 29, 2020
Place and Date of Judgment:
Vancouver, British Columbia
August 7, 2020
Summary:
The appellant appeals his conviction for wilfully evading remittance of Goods and Services Tax ("GST") contrary to s. 327(1)(c) of the Excise Tax Act, R.S.C. 1985, c. E-15, arguing the judge erred by applying an objective, rather than subjective, test for the mens rea of the offence and by disregarding evidence of equity that was available to pay the GST liability, if necessary. Held: Appeal dismissed. The judge correctly applied a subjective mens rea test and drew reasonable inferences that were available on the evidence regarding the appellant's state of mind in connection with his GST obligations. The judge did not err in disregarding evidence that the appellant may have been able to pay the GST liability in the future because the relevant time for assessing mens rea was the time when the GST obligation became due and owing.
[1] DICKSON J.A.: The appellant, Brendan James Schouw, appeals his conviction for wilfully evading remittance of Goods and Services Tax ("GST"), contrary to s. 327(1)(c) of the Excise Tax Act, R.S.C. 1985, c. E-15 [ETA]. He acknowledges that he failed to pay GST due on the transfer of two strata lots, but contends the trial judge erred by applying an objective, rather than subjective, test for the mens rea element of the offence and by disregarding evidence of substantial equity in one of the lots that was available to pay his GST liability, if necessary. Based on those alleged errors and the nature of the evidence, he asks this Court to grant the appeal, set aside the conviction and enter an acquittal in its place.
[2] For the reasons that follow, I would dismiss the appeal.
Background
[3] Mr. Schouw is a designer and property developer. At the material time, he was the sole shareholder and director of Grace Residences Ltd. ("Grace"), a company he incorporated to develop a high-rise condominium building located at 1280 Richards Street in Vancouver, British Columbia. He was also the sole shareholder and director of Drake Street Residences Ltd. ("Drake"), through which he developed an adjacent low-rise condominium building located at 499 Drake Street. The two buildings are architecturally complementary and related by a single strata plan.
[4] The Drake development completed in 2004. That year, while construction was still in progress, Grace began entering into purchase and sale contracts for its strata lots. The pre-sale contracts listed Grace and Drake as the seller and Mr. Schouw signed them on behalf of both companies. All but five of the sales of Grace strata lots completed between August and December of 2008.
[5] Unfortunately, in September 2008, the global credit crisis developed. The consequences for Grace and some of its purchasers with respect to financing were significant. As the effects of the crisis deepened, Mr. Schouw recognized that, as with many real estate development projects at the time and despite his ongoing efforts to find financing, there was a real threat that Grace properties could be lost to foreclosure.
[6] Grace and Drake were both registered with the Canada Revenue Agency ("CRA") for the purpose of reporting and remitting GST and both were required to file monthly GST returns. When sales of Grace strata lots completed between August and December of 2008, Grace collected GST of approximately $2.7 million from third-party purchasers and deposited the funds into its operating account, but did not remit the GST to the CRA as required. By the end of December 2008, Grace had spent most of the GST funds collected from the third-party purchasers. By January 30, 2009, Grace's operating account was overdrawn and Mr. Schouw's efforts to find financing for the project had not been successful.
[7] Mr. Schouw was eventually charged with evading remittance of GST in connection with Grace strata lot sales to the third-party purchasers in 2008, but the trial judge acquitted him. The tax evasion charge with which we are concerned on this appeal involved two Grace strata lots that he transferred to himself the following year.
[8] The first strata lot Mr. Schouw transferred to himself was Lot 55, which his close friend had agreed in 2004 to purchase. However, by 2009, his friend was experiencing financial difficulties and, on January 23, 2009, Mr. Schouw arranged for Grace to transfer ownership of Lot 55 to himself in an effort to protect his friend's investment. The transfer was a "paper transaction" only, with no cash exchanged, no GST collected, reported or remitted and no record of the sale entered into the general ledger of Grace or Drake.
[9] Land Titles Office documents showed the consideration for the transfer of Lot 55 from Grace to Mr. Schouw as $1,809,523.81. As a result of the transfer, the GST triggered and collectible on the transfer was $90,476.19, with the net GST payment to CRA due on February 28, 2009. Grace did not pay the GST obligation.
[10] The other strata lot Mr. Schouw transferred to himself was Lot 71, which he had agreed in 2004 to purchase personally. On May 25, 2009, as with Lot 55, he arranged for Grace to transfer ownership of Lot 71 to himself, the sale was a paper transaction only, no cash was exchanged, no GST was collected, reported or remitted and no record of the sale was entered into the general ledger of Grace or Drake. Mr. Schouw assumed approximately $3 million in debt attached to the title for Lot 71 in connection with the transfer. He also executed a GST certificate acknowledging that the sale was subject to GST payable by the buyer to the seller, with the latter responsible for remitting the GST to the CRA.
[11] Land Titles Office documents showed the consideration for the transfer of Lot 71 from Grace to Mr. Schouw as $2,252,134.50. Again, the obligation to pay GST was triggered by the transfer. In this instance, the amount of GST collectible was $112,606.73, with the net GST payment to CRA due on June 30, 2009. Again, Grace did not pay the GST obligation.
[12] In the period that followed, Mr. Schouw continued to try hard to obtain financing, but he was unsuccessful. Eventually, both Lots 55 and 71 were lost to foreclosure.
[13] Mr. Schouw was charged on a six count information with several offences. Counts 1 and 2 alleged that he made false statements in connection with the Grace strata lot sales to third parties in 2008. Count 3 alleged that he evaded the remittance of GST imposed with respect to those sales and Count 4 alleged that he evaded the remittance of GST with respect to the Grace strata lot sales of Lots 55 and 71 to himself in 2009. Counts 5 and 6 concerned income tax. Mr. Schouw was acquitted on all counts except Count 4.
Reasons for Judgment
[14] Near the outset of his reasons, the judge identified the essential elements of the offence of tax evasion, as described in R. v. Klundert (2004), 242 D.L.R. (4th) 644 (O.N.C.A.) and adopted by this Court in Samaroo v. Canada Revenue Agency, 2019 BCCA 113 at paras. 52-54. In particular, he noted that the mens rea component of tax evasion has two elements: i) the accused knows tax is owing; and ii) the accused intends to avoid, or intends to attempt to avoid, payment of the tax that is owing. He also noted that the second criterion may be met in one of two ways: i) where the purpose of the accused is to avoid the payment of tax; or ii) where the accused knows that his course of conduct is virtually certain to result in avoiding payment of the tax that is owing. Then he reviewed and considered the evidence and applied the law to the facts.
[15] The judge found that Mr. Schouw was an honest witness. He accepted his testimony regarding the creation of false GST returns and acquitted him on Counts 1 and 2. He also acquitted him on Count 3 because he was left with a reasonable doubt that Mr. Schouw intended, in December 2008, to evade the remittance of GST when Grace used the GST funds collected for another purpose. However, he convicted Mr. Schouw of evading the remittance of GST on Count 4, the transfers from Grace to himself of Lots 55 and 71. In concluding that Mr. Schouw was guilty on Count 4, he analysed each of the two transactions.
[16] As to Lot 55, the judge accepted Mr. Schouw's evidence that his purpose in taking title was to protect his friend's investment. However, he noted the surrounding circumstances described above and found that "given the precarious financial position of Grace in January, 2009 and the fact that Mr. Schouw by then was well aware of the credit issues and limitations caused by the financial crisis" the transaction "should have been structured to include the collection of GST by Grace and its remittance". He also found that Mr. Schouw "knew by this point in time that not doing so was virtually certain to result in the non-payment of GST": at para. 45.
[17] As to Lot 71, the judge accepted that Mr. Schouw was entitled to the benefit of equity built up since 2004, when he agreed to purchase the unit for a stated price of $2,421,650, including GST. He also accepted that the equity was likely substantial, which may have explained, at least in part, why he was willing to assume the nearly $3 million in liabilities attached to the title. Nevertheless, he went on to say this:
[48] Although Mr. Schouw may not have specifically made a conscious decision to not pay the GST on this transaction, it would have been patently obvious to him in May, 2009 that his course of conduct was virtually certain to result in the non-payment of GST. He was unsuccessful at obtaining financing at that time. He did not advance any cash toward this transfer and he was aware of the fragile financial condition of Grace. He could no longer reasonably have expected to obtain financing from which the GST could be paid. I find that at the time of this transfer, the evidence establishes beyond a reasonable doubt that Mr. Schouw wilfully evaded the payment of GST which should have been collected and remitted by Grace.
On Appeal
[18] Mr. Schouw contends that the judge erred by applying an objective, rather than subjective, test to the mens rea component of the offence of tax evasion. In his submission, this error is apparent from his statement at para. 48 that "it would have been patently obvious to him in May, 2009 that his course of conduct was virtually certain to result in the non-payment of GST". He says the judge's use of the words "would have" at para. 48 imported an objective measure into his mens rea analysis and contrasts sharply with his statement at para. 45 that he "knew by [January 2009] that not [collecting and remitting GST] was virtually certain to result in the non‑payment of GST". He says this difference underscores the objective nature of the test erroneously applied by the judge when assessing his intention with respect to the transfer of Lot 71.
[19] Mr. Schouw also contends that the judge's application of this erroneous objective test highlights the illogical nature of the inference he drew regarding his intention when he completed the transfers. According to Mr. Schouw, given the approximately $5 million in available net equity in Lot 71 in 2009, when the two transfers triggered the tax liability, it was more likely that he believed the GST would be paid than it was that he believed it would not be paid. This is so on an objective analysis, he says, because, it was reasonable to infer on the evidence that he believed if financing could not be obtained despite his ongoing efforts he could sell Lot 71 and use the proceeds to pay the entire outstanding GST liability, including the $203,082.92 outstanding in respect of the transfers. However, he says, the judge overlooked this important aspect of the evidence and its implications for the mens rea analysis.
[20] In support of his position, Mr. Schouw emphasizes the judge's finding that he was an honest witness. He also emphasizes the fact that the focus of the evidence and argument at trial was his efforts to find financing, which were ultimately, but not necessarily predictably, unsuccessful. In his submission, that focus may help to explain why the judge apparently disregarded and failed to account for the reasonable possibility that, if necessary, Lot 71 could have been sold to pay the outstanding GST and failed to incorporate that reasonable possibility into his mens rea analysis. In any event, he says, regardless of why the judge failed to recognize that a reasonable inference inconsistent with his guilt was available, that failure was plainly a legal error.
Discussion
[21] Despite Mr. Schouw's clear and well-presented submissions, I am not persuaded that the judge erred in his mens rea analysis by applying an objective test or by disregarding relevant evidence and failing to consider an alternative reasonable inference. In my view, his reasons, read as a whole, do not contain any legal errors and his finding of guilt was reasonable.
[22] As the judge correctly noted, the essential elements of the offence of tax evasion are outlined in Klundert. To establish liability under s. 327(1)(c) of the ETA, the Crown was required to prove beyond a reasonable doubt that Mr. Schouw: i) did something or engaged in a course of conduct that avoided or attempted to avoid the payment of tax imposed by the ETA; ii) knew there was tax imposed by the ETA; and iii) engaged in the conduct for the purpose of avoiding or attempting to avoid the payment of tax imposed by the ETA or knowing that avoiding payment of tax imposed by the Act was a virtually certain consequence of his actions. The only live issue at trial was whether the third element of the offence was established beyond a reasonable doubt.
[23] As noted, Grace was registered as a monthly GST filer with the CRA. Accordingly, it was required by law to file monthly GST returns and the net GST payable was due on or before the return filing deadline. Pursuant to s. 238(1)(b) of the ETA, Grace's returns were due within one month after the end of the reporting period and pursuant to s. 228(2)(b), the net tax payable for a reporting period was to remitted at the same time as the returns. Pursuant to s. 330 of the ETA, as a director of Grace, Mr. Schouw was a party to any offence it committed in respect of a failure to comply with its GST obligation.
[24] It was open to the Crown to prove the requisite mens rea for tax evasion by either direct or circumstantial evidence. In other words, the Crown was entitled to prove the mens rea component of the offence by inviting the judge to draw reasonable inferences from Mr. Schouw's conduct. In analysing Mr. Schouw's conduct, the judge was not required to find that the evasive act alleged by the Crown was deceitful or underhanded: Samaroo at para. 56. Rather, the relevant determination was whether the Crown had established beyond a reasonable doubt each of the essential elements of tax evasion in connection with the 2009 transactions.
[25] As Justice Cromwell explained in R. v. Villaroman, 2016 SCC 33, a judge's reasons must be "read as a whole, in the context of the evidence, the issues and the arguments at trial, together with 'an appreciation of the purposes or functions for which they are delivered'": at para. 15. As he also explained, an inference of guilt drawn from circumstantial evidence must be the only reasonable inference that the evidence permits and any "blanks" in the evidence must not be filled in by overlooking reasonable alternative inferences. Rather, available inferences "must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense" and a trier of fact should consider all other plausible theories and reasonable possibilities which are inconsistent with guilt. However, the Crown need not negative every possible conjecture, no matter how fanciful, which might be consistent with innocence and the other reasonable possibilities considered must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation: at paras. 30, 37.
[26] In my view, when the judge's reasons are read as a whole, it is clear that he applied the foregoing principles in his mens rea analysis. He was fully alive to the need to consider and account for all reasonable possibilities inconsistent with Mr. Schouw's guilt when he transferred Lots 55 and 71 and thus triggered a GST obligation, and he did so. However, the possibility that, if necessary, he could eventually sell Lot 71 and use the proceeds of sale to pay the GST liability if he failed to obtain financing to do so was not a reasonable possibility inconsistent with Mr. Schouw's guilt. As the judge recognized, the relevant time for mens rea purposes was the time when the GST obligation became due and owing, namely, February and June of 2009. Although, as the Crown concedes, Mr. Schouw may well have hoped and expected to be able to pay the GST at some future time, that could not amount to a defence to the charge of tax evasion. It follows that the judge did not err in disregarding evidence with respect to such a possibility or failing to consider it in drawing an inference as to Mr. Schouw's relevant intention.
[27] Nor, in my view, did the judge err by applying an objective, rather than subjective, test in his analysis of the mens rea component of the offence of tax evasion. His finding that Mr. Schouw knew by January 2009 that not collecting and remitting GST was virtually certain to result in the non-payment of GST constituted an unambiguous finding regarding his subjective state of mind in connection with the GST obligation triggered by the transfer of Lot 55. This was an available reasonable inference on the evidence.
[28] Read in the context of his reasons as a whole, in my view, the same is true of the judge's finding in connection with Lot 71 that "it would have been patently obvious to him in May, 2009 that his course of conduct was virtually certain to result in the non-payment of GST". Bearing in mind his recitation of the correct legal test for the mens rea component of tax evasion and his application of that test with respect to the Lot 55 transaction, this also constituted an available finding regarding Mr. Schouw's subjective state of mind, in this instance in connection with the GST obligation triggered by the Lot 71 transfer. The judge's use of the words "would have been" did not connote the application of an objective test of knowledge where the offence required subjective knowledge. Rather, as in R. v. Barrett (R.J.) (1998), 108 B.C.A.C. 231, it amounted to "no more, and no less, than an inference drawn by the trial judge from the evidence": at para. 25.
Conclusion
[29] For these reasons, I would dismiss the appeal.
[30] HUNTER J.A.: I agree.
[31] GRIFFIN J.A.: I agree.
[32] DICKSON J.A.: The appeal is dismissed.
"The Honourable Madam Justice Dickson"
| null | null | null | null | null | null | null | See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5DK. Note: This is an unofficial reproduction of a British Columbia Court of Appeal decision, without endorsement or affiliation by the British Columbia courts. | |
BCCA | 2020 BCCA 231 | Canex Investment Corporation v. 0799701 B.C. Ltd. | 2020-08-18T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/20/02/2020BCCA0231.htm | 2026-01-18T04:09:27.602000 | "\n2020 BCCA 231 Canex Investment Corporation v. 0799701 B.C. Ltd.\nCOURT OF APPEAL FOR BRITISH COLU(...TRUNCATED) | null | null | null | null | null | null | null | "See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5(...TRUNCATED) | |
BCCA | 2020 BCCA 230 | Bajwa v. Habib | 2020-08-14T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/20/02/2020BCCA0230.htm | 2026-01-18T04:09:39.331000 | "\n2020 BCCA 230 Bajwa v. Habib\nCOURT OF APPEAL FOR BRITISH COLUMBIA\nCitation:\nBajwa v. Habib,\n2(...TRUNCATED) | null | null | null | null | null | null | null | "See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5(...TRUNCATED) | |
BCCA | 2020 BCCA 23 | R. v. Awasis | 2020-01-24T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/20/00/2020BCCA0023.htm | 2026-01-18T04:18:35.696000 | "\n2020 BCCA 23 R. v. Awasis\nCOURT OF APPEAL FOR BRITISH COLUMBIA\nCitation:\nR. v. Awasis,\n2020 B(...TRUNCATED) | null | null | null | null | null | null | null | "See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5(...TRUNCATED) | |
BCCA | 2020 BCCA 229 | R. v. Mehl | 2020-08-13T00:00:00 | https://www.bccourts.ca/jdb-txt/ca/20/02/2020BCCA0229.htm | 2026-01-18T04:09:44.724000 | "\n2020 BCCA 229 R. v. Mehl\nCOURT OF APPEAL FOR BRITISH COLUMBIA\nCitation:\nR. v. Mehl,\n2020 BCCA(...TRUNCATED) | null | null | null | null | null | null | null | "See upstream license, including non-commercial use and other restrictions: https://perma.cc/EA5C-R5(...TRUNCATED) |
End of preview. Expand in Data Studio
A2AJ Canadian Case Law
Last updated: 2026-03-29 Maintainer: Access to Algorithmic Justice (A2AJ)
Dataset Summary
The A2AJ Canadian Case Law dataset provides bulk, open-access full-text decisions from Canadian courts and tribunals. Each row corresponds to a single case and contains the English and French versions of the decision where both are publicly available. The project builds on an earlier version that was maintained by the Refugee Law Lab (RLL) and is now maintained by A2AJ, a research project co-hosted by York University's Osgoode Hall Law School and Toronto Metropolitan University's Lincoln Alexander School of Law. The dataset is intended to support empirical legal research, legal-tech prototyping, and language-model pre-training in the public interest—especially work that advances access to justice for marginalised and low-income communities.
Dataset Structure (~ 191k cases)
| Code | Court / Tribunal / Reporter | First document - Last document | Rows |
|---|---|---|---|
| SCC | Supreme Court of Canada | 1877-01-15 – 2026-03-20 | 10,870 |
| FCA | Federal Court of Appeal | 2001-02-01 – 2026-03-27 | 7,729 |
| FC | Federal Court | 2001-02-01 – 2026-03-27 | 35,256 |
| TCC | Tax Court of Canada | 2003-01-21 – 2026-03-25 | 8,033 |
| CMAC | Court Martial Appeal Court of Canada | 2001-01-19 – 2026-03-25 | 152 |
| CHRT | Canadian Human Rights Tribunal | 2003-01-10 – 2026-03-10 | 1,117 |
| SST | Social Security Tribunal of Canada | 2013-03-08 – 2026-03-11 | 17,536 |
| RPD | Refugee Protection Division (IRB) | 2002-07-16 – 2020-12-14 | 6,729 |
| RAD | Refugee Appeal Division (IRB) | 2013-02-19 – 2025-08-11 | 14,122 |
| RLLR | Refugee Law Lab Reporter (RPD, IRB) | 2019-01-07 – 2024-12-13 | 927 |
| BCCA | British Columbia Court of Appeal | 1999-01-04 – 2026-03-27 | 14,439 |
| BCSC | British Columbia Supreme Court | 2000-01-04 – 2026-03-26 | 50,783 |
| ONCA | Ontario Court of Appeal | 1998-06-08 – 2026-03-27 | 23,706 |
| YKCA | Yukon Court of Appeal | 2000-05-15 – 2026-01-19 | 269 |
Note: Counts are approximate and will drift as the dataset is updated.
Data Fields
| Field | Type | Description |
|---|---|---|
dataset |
string |
Abbreviation identifying the court/tribunal (see above) |
citation_en / citation_fr |
string |
Neutral citation in English / French |
citation2_en / citation2_fr |
string |
Secondary citation(s) where available |
name_en / name_fr |
string |
Style of cause |
document_date_en / document_date_fr |
datetime64[ns, UTC] |
Decision date |
url_en / url_fr |
string |
Source URL for the official online version |
scraped_timestamp_en / scraped_timestamp_fr |
datetime64[ns, UTC] |
Timestamp when the page was scraped |
unofficial_text_en / unofficial_text_fr |
string |
Full unofficial text of the decision |
upstream_license |
string |
License terms from the source court/tribunal |
Missing values are represented as empty strings ("") or NaN.
Data Languages
Where availble, rows include both English and French texts. Where only one language is published, the fields for the other language are empty.
Data Splits
All rows are provided in a single train split.
Data Loading
from datasets import load_dataset
import pandas as pd
# load decisions for a specific court / tribunal (e.g. Supreme Court of Canada)
cases = load_dataset("a2aj/canadian-case-law", data_dir = "SCC", split="train")
## ALTERNATIVELY
## load the entire corpus
# cases = load_dataset("a2aj/canadian-case-law", split="train")
# covert to df
df = cases.to_pandas()
df.head(5)
The dataset is also offered in Parquet format for fast local use. Files are in subfolders with the court/tribunal names.
Dataset Creation
Curation Rationale
Building on the RLL's earlier bulk-data programme, A2AJ is collecting and sharing Canadian legal data to:
- democratise access to Canadian jurisprudence;
- enable large-scale empirical legal studies; and
- support responsible AI development for the justice sector.
We scrape data only where we are permitted to do so by terms of service of websites that host the data. We also obtain some additional data directly from courts and tribunals.
Source Data & Normalisation
Cases are scraped directly from the official websites of the respective courts and tribunals, or is obtained directly from the tribunals through email or other distruction processes. Where possible, text is stored verbatim with minimal normalisation (e.g. HTML → plain text, whitespace cleanup).
Personal & Sensitive Information
Court and tribunal decisions can contain sensitive personal information. Although all documents are already public, easy bulk access increases privacy risk—particularly for refugees, criminal-justice-involved persons and other marginalised groups. Users who reproduce the data from this dataset are responsible for complying with relevant privacy laws, as well as other laws relating to disseminating information such as publication bans.
Non-Official Versions & Disclaimer
The texts here are unofficial copies. For authoritative versions, consult the URLs in url_en / url_fr.
Non-Affiliation / Endorsement
A2AJ and the production of this dataset are not affiliated with, nor endorsed by, the Government of Canada, provincial courts, or the listed tribunals.
Considerations for Using the Data
- Social Impact. Open legal data can reduce information asymmetries but also facilitate surveillance or discriminatory profiling. We encourage downstream users to collaborate with community organisations and ensure that derivative tools advance—rather than undermine—access to justice.
- Bias & Representativeness. Published decisions are not a random sample of disputes. For example, positive administrative decisions are less likely to be appealed and thus under-represented in court records. Models trained on this corpus may therefore skew negative.
- Limitations. The dataset excludes annexes, schedules and appendices that are sometimes attached as separate PDFs. Long historical gaps exist for some courts (e.g. ONCA pre-1990).
Licensing Information
The code used to create the dataset by the A2AJ and any work on the dataset undertaken by the A2AJ is subject to an open source MIT license.
Users must also comply with upstream licenses found in the upstream_license field in the dataset for each document, which reflects the licenses through which the A2AJ obtained the document. These upstream licenses may include limits on commercial use, as well as other limitations.
The A2AJ is committed to open source methodologies, and we are actively working to obtain more permissive licenses for this data.
Warranties / Representations
While we make best efforts to ensure the completeness and accuracy of the dataset, we provide no warranties regarding completeness or accuracy. The data were collected through automated processes and may contain errors. Always verify data against the official source.
Dataset Curators
- Sean Rehaag - Co-Diretor, A2AJ
- Simon Wallace - Co-Director, A2AJ
- Contact: a2aj@yorku.ca
Citation
Sean Rehaag & Simon Wallace, "A2AJ Canadian Case Law" (2025), online: Hugging Face Datasets https://huggingface.co/datasets/a2aj/canadian-case-law.
Acknowledgements
This research output is supported in part by funding from the Law Foundation of Ontario and the Social Scienes and Humanities Research Council of Canada, by in-kind compute from the Digital Research Alliance of Canada and by adminstrative support from the Centre for Refugee Studies, the Refugee Law Lab, and Osgoode Hall Law School. We also thank the Canadian judiciary and tribunal staff who publish decisions in open formats.
- Downloads last month
- 1,030