



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Grape Expectations Wine Emporium Inc. v. Haslam,









2012 BCCA 14




Date: 20120112

Docket: CA038068

Between:

Grape Expectations
Wine Emporium Inc.

Appellant

(Plaintiff)

And

Keith Haslam,
doing business as
Keith Haslam Associates

Respondent

(Defendant)




Before:



The Honourable Mr. Justice Hall





The Honourable Madam Justice Saunders





The Honourable Mr. Justice Chiasson




On appeal from: 
Supreme Court of British Columbia, April 1, 2010
(
Grape Expectations Wine Emporium Inc. v. Baker Jr.
, 2010 BCSC 452
Courtenay Docket No. 07174)




Counsel for the Appellant:



E. Chesterley





Counsel for the Respondent:



M. Burger





Place and Date of Hearing:



Victoria, British
  Columbia

December 7, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January
  12, 2012





Written Reasons by:





The Honourable Mr. Justice Chiasson





Concurred in by:





The Honourable Mr. Justice Hall
The Honourable Madam Justice Saunders








Reasons for Judgment of the Honourable
Mr. Justice Chiasson:

Introduction

[1]

This appeal and appeal CA038188 arise out of the purchase by the
appellant of a restaurant business in Courtenay, British Columbia.  The
appellant alleged negligent misrepresentation and breach of contract against Mr.
Baker personally and as executor of the estate of his mother and negligent
misrepresentation against the businesss bookkeeper, the respondent Keith Haslam. 
This appeal is from the judges dismissal of the claim against the respondent on
a no-evidence motion.  The latter appeal is from the judges decision after the
trial of the action against Mr. Baker.

Background

[2]

The details of the transaction are set out in my decision in appeal
CA038188 and I shall not repeat them here.

[3]

The claim against the respondent, as stated in the appellants statement
of claim, was that Mr. Haslam knew that the 2004 financial statements he
prepared would be used by the vendor of the restaurant business and relied on
by prospective purchasers.  More specifically, the appellant claims that its
representative, Mr. Tingley, relied on the 2004 financial statements in
deciding to purchase the business.

[4]

Of significance on this appeal are findings of fact made by the trial
judge in the action against Mr. Baker (
Grape Expectations Wine Emporium Inc.
v. Baker Jr.
, 2010 BCSC 658).  At para. 68 he stated, I find that the
[appellant] has failed to prove that Mr. Tingley relied on these statements ...
to any significant extent in removing the subject to conditions.

Discussion

[5]

The appellant contended before us that the judge erred in granting the
no evidence motion.  I find it unnecessary to address this submission or to
comment on the judges reasons because, in my view, the judges finding in
para. 68 is dispositive of this appeal.

[6]

In
Skender v. Farley
, 2007 BCCA 629, 289 D.L.R. (4th) 111, real estate
was registered to a son and his mother as tenants-in-common.  The sons parents
took the position that the registration did not reflect the real situation and
that their son was entitled to a one-fifth interest only.  The son brought an
action against his parents for a declaration that he was entitled to a one-half
interest in the real estate.  The trial judge held that the registration
reflected the legal and beneficial interests of the son and his mother.  The
parents then sued Mr. Farley, the notary public who had handled the transaction,
alleging that his registration of the property did not reflect the true
interests of the parties.  At para. 32, I had this to say:

In my view, insofar as the
Skenders pursue Mr. Farley for failing to follow their instructions, this
action is an abuse of process. The core issue before Dorgan J. was whether the
property, as registered, reflected the true interests of Nada and Leon Skender.
She found that it did. In para. 26 the chambers judge said, "[t]o succeed
the plaintiffs in this action are going to have to persuade a trier of fact to
come to different conclusions on essential points". It would be a misuse
of the courts procedures, would impinge upon the integrity of judicial
decision making and would hold the administration of justice in disrepute if,
in this action, the Skenders were allowed to seek a conclusion contrary to the
findings of Dorgan J. as inevitably they must to succeed.

I see no difference in principle between this case and
Skender
.

[7]

If the appellant were to succeed in setting aside the dismissal on the
no-evidence motion, he would have to proceed with the litigation against Mr.
Haslam on the basis that the appellant relied on the 2004 financial statements
when deciding to remove the subject-to conditions, that is, when finally making
the agreement to purchase the business.  This would require the Court to make a
finding directly contrary to the finding of the trial judge in the appellants
action against Mr. Baker.  To pursue such a path would be an abuse of process. 
The dismissal on the no-evidence motion is moot.

[8]

The appellant argues that Mr. Haslam continued to provide financial
information after the agreement was made and that this constitutes an
affirmation of his misrepresentations.  The respondent disputes this, but, in
any event, I do not see how this could obviate the finding of pre-contractual
non-reliance.

Conclusion

[9]

As noted, it is not necessary for me to review the reasons of the trial
judge for granting the no-evidence motion.  It should not be taken by this that
I necessarily agree with all aspects of the judges reasons.

[10]

I would dismiss this appeal.

The Honourable Mr. Justice Chiasson

I agree:

The Honourable Mr. Justice Hall

I agree:

The Honourable Madam Justice
Saunders


