Mayer v. Mayer et al.,

• Jurisdiction: British Columbia
• Judge: K. Smith, D. Smith and Neilson, JJ.A.
• Neutral Citation: 2012 BCCA 77
• Citation: 2012 BCCA 77,(2012), 317 B.C.A.C. 132 (CA),[2012] 7 WWR 1,317 BCAC 132,(2012), 317 BCAC 132 (CA),317 B.C.A.C. 132
• Date: 17 February 2012
• Court: Court of Appeal (British Columbia)

Mayer v. Mayer (2012), 317 B.C.A.C. 132 (CA);

    540 W.A.C. 132

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. FE.032

Mhinder Singh Mayer (appellant/plaintiff) v. Richard Ravinder Mayer, Anuradha Mayer, Rita Webb, Gina Mayer, Custom Pumping Ltd., R & G Equipment Ltd., formerly known as R. & G. Equipment Rentals Ltd. and R. and G. Equipment Rentals Ltd., Aqua Pod Ltd., Island Aggregates Ltd., Mack Sales & Service of Nanaimo Ltd., Bastion Project Management Ltd., New Concrete Concepts Ltd., and Front Street Projects Ltd. (respondents/defendants) and Osborne Contracting Ltd., Osborne Industries Ltd., Holman Transport Ltd., Mayer Truck & Equipment Ltd., Gulf Coast Materials Ltd., Timberland Investment Ltd., Archer Holdings Ltd. (Incorporation No. BC0812178), and Custom Pumping Ltd. (defendants)

(CA038462; CA038809)

Mhinder Singh Mayer (appellant/plaintiff) v. Osborne Contracting Ltd., Osborne Industries Ltd., Holman Transport Ltd., Mayer Truck & Equipment Ltd., Gulf Coast Materials Ltd., Timberland Investment Ltd., Gina Mayer, Rita Webb, Richard Ravinder Mayer, Anuradha Mayer, Archer Holdings Ltd. (Incorporation No. BC0812178), Custom Pumping Ltd., R & G Equipment Ltd., formerly known as R. & G. Equipment Rentals Ltd. and R. and G. Equipment Rentals Ltd., Aqua Pod Ltd., Island Aggregates Ltd., Mack Sales & Service of Nanaimo Ltd., Bastion Project Management Ltd., New Concrete Concepts Ltd., and Front Street Projects Ltd. (respondents/defendants) and Bhora Singh Mayer (respondent)

(CA038600; CA038680; CA038681)

Bhora Singh Mayer (respondent/plaintiff) v. Mhinder Singh Mayer (appellant/defendant) and Marc Furnemont (respondent/defendant by counterclaim)

(CA038597; CA038807)

Mhinder Mayer (appellant/plaintiff) v. Gina Mayer (respondent/defendant)

(CA038598; CA038805)

Mhinder Mayer (appellant/petitioner) v. Osborne Contracting Ltd., Osborne Industries Ltd., Holman Transport Ltd., Mayer Truck & Equipment Ltd., Gulf Coast Materials Ltd., Timberland Investments Ltd., and Bhora Singh Mayer (respondents/respondents) and Rita Webb, Gina Mayer, New Concrete Concepts, Custom Pumping Ltd., Island Aggregates Ltd., R & G Equipment Ltd., Mack Sales & Service of Nanaimo Ltd., and Bastion Project Management Ltd. (respondents)

(CA038599; CA038806; 2012 BCCA 77)

Indexed As: Mayer v. Mayer et al.

British Columbia Court of Appeal

K. Smith, D. Smith and Neilson, JJ.A.

February 17, 2012.

Summary:

The parties were engaged in a dispute over a family trust. There were 16 related proceedings. There were 11 appeals on reserve. The plaintiff sought to stay, pending the appeals, one of the related proceedings, an action brought against him by his brother, which the case management judge had directed would proceed to trial with 30 days of court time set aside.

The British Columbia Court of Appeal, in a decision reported at (2011), 307 B.C.A.C. 242; 519 W.A.C. 242, dismissed the application. The hearing of the appeals proceeded.

The British Columbia Court of Appeal allowed 10 of the appeals in full, setting aside the orders below. The appeal from paragraph 5 of appeal CA38809 was dismissed and the balance of that appeal was allowed. The plaintiff's trust claims were remitted for trial.

Editor's Note: There are a number of reported trial decisions in these actions which are available at www.mlb.nb.ca by searching under "Mayer v. Mayer et al."

Equity - Topic 1482

Equitable principles respecting relief - Clean hands doctrine - Application of - The parties were engaged in a dispute over a family trust - There were 16 related proceedings - On summary trial applications by the defendants, the judge dismissed the plaintiff's claims based on allegations of express trusts (founded on an "acknowledgment of trust" executed in 2001), resulting trusts (founded on alleged transfers of trust assets for no or inadequate compensation) and constructive trusts - The British Columbia Court of Appeal allowed the plaintiff's appeal on the basis that the summary trial was unfair and unjust - The court rejected the defendants' assertion that the judge's errors in disregarding the defendants' evidence and failing to resolve the conflicts in the evidence could be ignored because the "clean hands" doctrine would have defeated the trust claims in any event - The plaintiff's alleged misconduct, as identified by the judge (failure to disclose the 2001 acknowledgement of trust in an earlier action), could constitute misconduct, depending on how the evidentiary conflicts were resolved - However, the misconduct did not have an "immediate and necessary relation" to the plaintiff's trust claims - It would be possible for the plaintiff to prove those claims without relying on the impugned conduct - The fact that the plaintiff, in the judge's view, did not have a "clean record" was not a bar to the equitable relief he claimed - Further, allegations of bad faith, abuse of process, lack of clean hands and the like could not be resolved without a consideration of their full factual circumstances, particularly where, as here, there were credibility issues - See paragraphs 85 to 95.

Evidence - Topic 4106

Witnesses - Privilege - General - Waiver of privilege - The parties were engaged in a dispute over a family trust - There were 16 related proceedings - On summary trial applications by the defendants, the judge dismissed the plaintiff's claims based on allegations of express trusts (founded on an "acknowledgment of trust" executed in 2001), resulting trusts (founded on alleged transfers of trust assets for no or inadequate compensation) and constructive trusts - At issue on the plaintiff's appeal was whether the judge had erred in finding that the plaintiff had implicitly waived privilege by filing an affidavit of his counsel in support of his applications to amend his pleadings - The plaintiff's counsel had testified to (1) the plaintiff's good faith in bringing new claims against new parties and (2) the plaintiff's ability to meet the statutory requirement of good faith in seeking derivative relief under the Business Corporations Act (B.C.) (BCA) - The British Columbia Court of Appeal held that the trial judge had erred in finding an implied waiver of privilege - While nothing explained why counsel had filed the affidavit, it remained extant - The central issue was whether it went to matters of substance in the plaintiff's litigation - Where it was alleged that counsel had "entered the fray" and implicitly waived privilege by testifying to a matter, that matter had to be something on which issue had been formally joined - The judge erred in relying on his prior findings to elevate the plaintiff's state of mind to a matter of substance where that issue had not been formally joined - Further, the judge had misapprehended the nature of the plaintiff's claim under the BCA, which led the judge to err in finding that the plaintiff's good faith was a matter of substance - See paragraphs 177 to 212.

Evidence - Topic 4255

Witnesses - Privilege - Lawyer-client communications - Waiver - By offer of evidence - [See Evidence - Topic 4106 ].

Practice - Topic 352

Parties - Joinder of parties - General - Evidence and proof - The parties were engaged in a dispute over a family trust - There were 16 related proceedings - On summary trial applications by the defendants, the judge dismissed the plaintiff's claims based on allegations of express trusts (founded on an "acknowledgment of trust" executed in 2001), resulting trusts (founded on alleged transfers of trust assets for no or inadequate compensation) and constructive trusts - At issue on the plaintiff's appeal was whether the judge had erred in requiring the plaintiff to provide evidence to support his applications to amend his pleadings and to add new parties - The British Columbia Court of Appeal found that the judge's adverse findings regarding the plaintiff in the summary trial wrongly coloured his views of the applications that followed and led to an inappropriate and unwarranted departure from the widely accepted rule that evidence was not required to support amendments to pleadings or the addition of parties - See paragraphs 214 to 222.

Practice - Topic 608

Parties - Adding or substituting parties - General principles - Procedure - [See Practice - Topic 352 ].

Practice - Topic 2102

Pleadings - Amendment of pleadings - Procedure for - [See Practice - Topic 352 ].

Practice - Topic 5204

Trials - General - Severance of issues or parties - General - [See second Practice - Topic 5255.4 ].

Practice - Topic 5255.4

Trials - General - Summary trials - Availability of - The parties were engaged in a dispute over a family trust - There were 16 related proceedings - On summary trial applications by the defendants, the judge dismissed the plaintiff's claims based on allegations of express trusts (founded on an "acknowledgment of trust" executed in 2001), resulting trusts (founded on alleged transfers of trust assets for no or inadequate compensation) and constructive trusts - The British Columbia Court of Appeal allowed the plaintiff's appeal - The judge erred in permitting the issue on the summary trial to "morph" from a question of the interpretation and effect of a certain document to a summary determination of the plaintiff's claims in the face of conflicting evidence on the central facts without a proper judicial examination of the evidence, which would have included discovery and cross-examination of the plaintiff's opponents - The judge's view that the plaintiff had to establish his case on his own evidence and that the defendants' evidence need not be considered did not accord with rule 18A(11) - The judge refused to allow the plaintiff to develop his case fully - In cases of conflicting evidence, cross-examination of the parties offering the conflicting evidence was essential - In addition to exposing credibility to scrutiny, cross-examination might also cast a different light on the evidence given by witnesses and might bring out relevant information that might not otherwise be disclosed - Once issues of credibility arose, it was unjust to proceed under rule 18A without permitting the plaintiff to develop his case fully through discovery and cross-examination or through a full trial - Adding to the injustice was the fact that the application was brought by the defendants - The plaintiff was thrown on the defensive at the outset - To proceed in this manner was unfair to the plaintiff and unjust - See paragraphs 68 to 84.

Practice - Topic 5255.4

Trials - General - Summary trials - Availability of - The parties were engaged in a dispute over a family trust - There were 16 related proceedings - On summary trial applications by the defendants, the judge dismissed the plaintiff's claims based on allegations of express trusts (founded on an "acknowledgment of trust" executed in 2001), resulting trusts (founded on alleged transfers of trust assets for no or inadequate compensation) and constructive trusts - The British Columbia Court of Appeal allowed the plaintiff's appeal on the basis that the summary trial was unfair and unjust - Regarding the plaintiff's assertion that the judge had erred in adjudicating certain issues on a summary basis and leaving the remaining issues to be tried at a later time, the court commented that the application judge should "carefully consider whether trying some issues and not all will contribute, in the end, to the 'just, speedy and inexpensive determination of the dispute on its merits'" - Generally, issues should not be tried separately under rule 18A when they were interconnected with the remaining issues, when substantial time would be required for hearing a summary trial and when there was a substantial risk of wasting time and effort and of producing unnecessary complexity - The judge here considered that axiom, but indicated that, as the case was under the management of a single judge, "the danger of injustice" was minimized - The court did not agree - Here, the judge's adverse findings of credibility against the plaintiff unjustly permeated his reasoning in subsequent decisions - Further, the judge erred in principle in that he gave too little weight to the above factors - See paragraphs 96 to 102.

Practice - Topic 5255.6

Trial - General - Summary trials - Evidence and proof - [See first Practice - Topic 5255.4 ].

Practice - Topic 5255.8

Trials - General - Summary trials - Procedure (incl. discovery) - [See first Practice - Topic 5255.4 ].

Trusts - Topic 2723

The beneficiary - Rights of beneficiaries - To bring action - [See both Trusts - Topic 5903 ].

Trusts - Topic 5903

The trustee - General - Right to bring action - The parties were engaged in a dispute over a family trust - There were 16 related proceedings - On summary trial applications by the defendants, the judge applied the rule in Foss v. Harbottle to conclude that the plaintiff lacked standing to advance in his own name claims arising out of the alleged diversion of assets from the trusts - The British Columbia Court of Appeal held that the judge made his determination that the plaintiff's claim was barred by the rule in Foss v. Harbottle prematurely - Under the "Prudential principle" (a more recent iteration of the Foss v. Harbottle rule), as a beneficiary of the trust, the plaintiff would be entitled to recover from the defendants the benefits that they received from the breaches of trust, if any, unless and to the extent that the defendants might show that the losses suffered by the trust were reflective of losses suffered by the companies for which the companies had causes of action, such as, for example, for damages against another brother for breach of his duties as a director - Further, a finding that the plaintiff had standing might entitle him to an order for disgorgement and a remedial constructive trust to assist him in the recovery of his personal loss - However, the questions raised could not be answered without weighing the relevant evidence and finding the necessary facts - Further, as a trustee, the plaintiff's primary duty was to pursue the claims against the defendants on behalf of the beneficiaries - As the consent of the co-trustees would clearly not be forthcoming, the plaintiff would need to seek directions from the court under s. 86 of the Trustee Act (B.C.) - See paragraphs 104 to 131.

Trusts - Topic 5903

The trustee - General - Right to bring action - The parties were engaged in a dispute over a family trust - There were 16 related proceedings - In the "Gina Mayer Rents Action", the plaintiff sought an accounting of rental income and repayment of compensation paid to Gina Mayer for her services in collecting rents on seven properties which the plaintiff originally asserted were owned by him - When the plaintiff applied to amend his pleadings to properly describe the properties as being owned by the "Brothers' Trust", the case management judge found that the plaintiff lacked standing to bring the action as a beneficiary of the trust and could only do so in his capacity as a trustee if the court granted leave under s. 86 of the Trustee Act (B.C.) - The British Columbia Court of Appeal held that the judge properly recognized that the plaintiff's dual role as a trustee and as a beneficiary of the Brothers' Trust presented difficulty in advancing a claim of knowing receipt against Gina Mayer as a beneficiary - The trustees of the Brothers' Trust were not ad idem as to pursuing the action - Thus, as both a dissenting trustee and a beneficiary, the plaintiff's ability to pursue the action was circumscribed by the requirement that he first discharge his obligations as a trustee and, then, apply to the court for directions as to whether he could pursue his action in that capacity - To hold otherwise would allow a dissenting trustee who was also a beneficiary of the trust to circumvent the requirement of trustee unanimity - See paragraphs 223 to 245.

Trusts - Topic 5924.1

The trustee - Duties - General - Duty to protect beneficiaries' interests - [See both Trusts - Topic 5903 ].

Trusts - Topic 6226

The trustee - Duty to act jointly - Trustees not unanimous - [See second Trusts - Topic 5903 ].

Cases Noticed:

Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R.(2d) 202; 36 C.P.C.(2d) 199 (C.A.), refd to. [para. 69].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82; 57 D.L.R.(4th) 231, refd to. [paras. 77, 140].

R. v. Barton (B.W.) et al., [2001] B.C.A.C. Uned. 140; 51 W.C.B.(2d) 4; 2001 BCCA 477, refd to. [para. 77].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, refd to. [para. 78].

Anglo-American Timber Products Ltd. v. British Columbia Electric Co. (1960), 23 D.L.R.(2d) 656; 31 W.W.R.(N.S.) 604 (B.C.C.A.), refd to. [para. 79].

R. v. Darrach (A.S.), [2000] 2 S.C.R. 443; 259 N.R. 336; 137 O.A.C. 91; 2000 SCC 46, refd to. [para. 80].

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81, refd to. [para. 80].

Stafford (J.M.) & Associates Ltd. v. Integrated Resources Photography Ltd. et al. (1985), 62 B.C.L.R. 60 (Co. Ct.), refd to. [para. 82].

Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; 30 N.R. 119, refd to. [para. 82].

Placer Development Ltd. v. Skyline Explorations Ltd. (1985), 67 B.C.L.R. 366 (C.A.), refd to. [para. 82].

DeJesus v. Sharif (2010), 284 B.C.A.C. 243; 481 W.A.C. 243; 71 B.L.R.(4th) 159; 2010 BCCA 121, refd to. [para. 86].

Attwood v. Small (1838), 6 Cl. & F. 232; 7 E.R. 684 (H.L.), refd to. [para. 86].

Pecore v. Pecore, [2007] 1 S.C.R. 795; 361 N.R. 1; 224 O.A.C. 330; 2007 SCC 17, refd to. [para. 89].

Tinsley v. Milligan, [1994] 1 A.C. 340; [1993] 3 All E.R. 65; 158 N.R. 133 (H.L.), refd to. [para. 90].

Taylor v. Wallbridge (1879), 2 S.C.R. 616, refd to. [para. 92].

Johnson v. Gore Wood & Co., [2001] 1 All E.R. 481; [2000] UKHL 65, refd to. [para. 93].

Bacchus Agents (1981) Ltd. v. Dandurand (Philippe) Wines Ltd. et al. (2002), 164 B.C.A.C. 300; 268 W.A.C. 300; 2002 BCCA 138, refd to. [para. 97].

Sinnott v. Westbridge Computer Corp. (1993), 78 B.C.L.R.(2d) 28 (S.C.), refd to. [para. 97].

Cannaday v. Sun Peaks Resort Corp. et al. (1998), 102 B.C.A.C. 241; 166 W.A.C. 241; 44 B.C.L.R.(3d) 195 (C.A.), refd to. [para. 100].

Foss v. Harbottle (1843), 2 Hare 461; 67 E.R. 189, refd to. [para. 104].

Everest Canadian Properties Ltd. et al. v. Mallmann et al. (2008), 258 B.C.A.C. 49; 434 W.A.C. 49; 82 B.C.L.R.(4th) 230; 2008 BCCA 276, refd to. [para. 106].

Robak Industries Ltd. et al. v. Gardner et al. (2007), 236 B.C.A.C. 237; 390 W.A.C. 237; 65 B.C.L.R.(4th) 62; 2007 BCCA 61, refd to. [para. 113].

Shaker v. Al-Bedrawi, [2002] 4 All E.R. 835; [2002] EWCA Civ. 1452, refd to. [para. 117].

Prudential Assurance Co. v. Newman Industries Ltd. (No. 2), [1982] 1 All E.R. 354; [1982] Ch. 204 (C.A.), refd to. [para. 118].

Atlas Cabinets and Furniture Ltd. v. National Trust Co. (1990), 68 D.L.R.(4th) 161; 45 B.C.L.R.(2d) 99 (C.A.), refd to. [para. 122].

Nelson House Indian Band et al. v. Young et al., [1999] 6 W.W.R. 405; 134 Man.R.(2d) 134; 193 W.A.C. 134; 169 D.L.R.(4th) 606 (C.A.), refd to. [para. 129].

British Columbia Nurses' Union v. British Columbia Women's Hospital et al. (1996), 14 B.C.L.R.(3d) 363 (S.C.), affd. [1997] 6 W.W.R. 81; 88 B.C.A.C. 248; 144 W.A.C. 248; 33 B.C.L.R.(3d) 1 (C.A.), refd to. [para. 134].

British Columbia Nurses' Union v. Labour Relations Board (B.C.) - see British Columbia Nurses' Union v. British Columbia Women's Hospital et al.

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 SCC 39, refd to. [para. 178].

Blood Tribe Department of Health v. Privacy Commissioner (Can.) et al., [2008] 2 S.C.R. 574; 376 N.R. 327; 2008 SCC 44, refd to. [para. 178].

Casino Tropical Plants Ltd. v. Rentokil Tropical Plant Services Ltd., [1998] B.C.T.C. Uned. 595; 161 D.L.R.(4th) 750; 55 B.C.L.R.(3d) 233 (S.C.), refd to. [para. 179].

Sholinder & MacKay Sand & Gravel Ltd. et al. v. Lake Windermere Resort Ltd. et al., [1998] B.C.T.C. Uned. 429 (S.C.), refd to. [para. 179].

S. & K. Processors Ltd. v. Campbell Avenue Herring Producers Ltd. et al. (1983), 45 B.C.L.R. 218; 35 C.P.C. 146 (S.C.), refd to. [para. 181].

Doman Forest Products Ltd. et al. v. GMAC Commercial Credit Corp. - Canada (2004), 204 B.C.A.C. 208; 333 W.A.C. 208; 245 D.L.R.(4th) 443; 2004 BCCA 512, refd to. [para. 182].

McNaughton v. Baker (1988), 25 B.C.L.R.(2d) 17; 28 C.P.C.(2d) 49 (C.A.), refd to. [para. 184].

MacMillan Bloedel Ltd. v. Binstead (1981), 58 B.C.L.R. 173 (C.A.), refd to. [para. 184].

Strata Plan VIS3578, Owners v. Canan Investment Group Ltd. et al. (2010), 295 B.C.A.C. 132; 501 W.A.C. 132; 323 D.L.R.(4th) 482; 2010 BCCA 329, refd to. [para. 184].

Cheung et al. v. 518402 B.C. Ltd. (1999), 25 B.C.T.C. 67 (S.C.), refd to. [para. 185].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 188].

Lax Kw'alaams Indian Band et al. v. Canada (Attorney General) et al. (2011), 423 N.R. 3; 313 B.C.A.C. 3; 533 W.A.C. 3; 338 D.L.R.(4th) 193; 2011 SCC 56, refd to. [para. 215].

Kordyban v. Kordyban et al. (2003), 181 B.C.A.C. 75; 298 W.A.C. 75; 13 B.C.L.R.(4th) 50; 2003 BCCA 216, refd to. [para. 237].

Citadel General Life Assurance Co. et al. v. Lloyd's Bank of Canada et al., [1997] 3 S.C.R. 805; 219 N.R. 323; 206 A.R. 321; 156 W.A.C. 321; 152 D.L.R.(4th) 411, refd to. [para. 239].

Hayim v. Citibank N.A., [1987] 1 A.C. 730 (P.C.), refd to. [para. 239].

National Bank Financial Ltd. v. Potter et al. (2005), 238 N.S.R.(2d) 237; 757 A.P.R. 237; 2005 NSCA 139, affing. (2005), 231 N.S.R.(2d) 14; 733 A.P.R. 14; 2005 NSSC 8, refd to. [para. 253].

Mahoney v. National Bank Financial Ltd. - see National Bank Financial Ltd. v. Potter et al.

Authors and Works Noticed:

McGhee, John, and Snell, E.H.T., Snell's Equity (31st Ed. 2005), pp. 98, 99 [para. 86].

McGuinness, Kevin P., Canadian Business Corporations Law (2nd Ed. 2007), p. 13.42 [para. 208].

Oosterhoff on Trusts: Text, Commentary and Materials (7th Ed. 2009), pp. 1050, 1051 [para. 233].

Spry, Ian C.F., The Principles of Equitable Remedies (6th Ed. 2001), p. 169 [para. 86].

Spry, Ian C.F., The Principles of Equitable Remedies (8th Ed. 2010), p. 170 [para. 90].

Waters, Donovan W.M., The Law of Trusts in Canada (3rd Ed. 2005), pp. 1098 [para. 237]; 1202, 1203 [paras. 127, 237]; 1204 [paras. 127, 128, 237, 241]; 1205 [paras. 127, 128]; 1206 [para. 127].

Weiler, Paul, Two Models of Judicial Decision-Making (1968), 46 Can. Bar Rev. 406, p. 412 [para. 78].

Counsel:

I.G. Nathanson, Q.C., G.B. Gomery, Q.C., and P.R. Senkpiel, for the appellant;

S.A. Griffin and J. Cytrynbaum, for the respondents, Marc Furnemont, New Concrete Concepts Ltd., Island Aggregates Ltd., Mack Sales & Service of Nanaimo Ltd., Bastion Project Management Ltd., Richard Ravinder Mayer and Anuradha Mayer;

G. Orris, Q.C., for the respondents, Rita Webb, Gina Mayer, Custom Pumping Ltd., R & G Equipment Ltd., Archer Holdings Ltd., Aqua Pod Ltd. and Front Street Projects Ltd.;

R.B. Fraser and S. Batkin, for the respondent, Bhora Singh Mayer.

These appeals were heard at Vancouver, B.C., on May 17-20, 2011, by K. Smith, D. Smith and Neilson, JJ.A., of the British Columbia Court of Appeal. On February 17, 2012, the court delivered the following judgments:

K. Smith, J.A. (D. Smith and Neilson, JJ.A., concurring) - see paragraphs 1 to 136;

Neilson, J.A. (K. Smith and D. Smith, JJ.A., concurring) - see paragraphs 137 to 258.