



Court 
    of Appeal for British Columbia




Citation:


McLeay 
          v. Kelowna (City)
,







2003 
          BCCA 34



Date: 
    20030117





Docket: CA029434

Between:

Thomas 
    McLeay and Deanna Arelis

Appellants

(
Plaintiffs
)

And

City 
    of Kelowna and Her Majesty the Queen

in 
    Right of the Province of British Columbia

Respondents

(
Defendants
)












Before:


The 
          Honourable Madam Justice Ryan




(In 
          Chambers)








H. 
          Wiebach


Counsel 
          for the Appellants




A. 
          Hobkirk


Counsel for the Respondent, City of Kelowna




N.E. 
          Brown


Counsel for the Respondent, H.M.T.Q. in Right of B.C.




Place 
          and Date of Hearing:


Vancouver, 
          British Columbia




January 10, 2003




Place 
          and Date of Judgment:


Vancouver, 
          British Columbia




January 17, 2003






Reasons 
    for Judgment of the Honourable Madam Justice Ryan:

[1]

This is an application by the respondent, the Province of British Columbia 
    for an order directing that there be a pre-hearing conference in respect of 
    this appeal.

[2]

In an action filed in the Supreme Court the appellants sought judgment 
    for:

a)   a declaration that the plaintiffs 
    are the owners of the property described in their certificate of indefeasible 
    title;



b)   a declaration that Kelowna is not 
    entitled to use their property as a public walkway;



c)   an injunction requiring the City to 
    block public access to the greenbelt; and



d)   an order that the plaintiffs recover 
    judgment for damages to be assessed against the defendants, for trespass.







[3]

The matter was heard by way of an application under Rule 18A.  This 
    appeal is from the order of Mr. Justice Clancy dismissing the appellants' 
    action on that application.  In dismissing the application the trial judge 
    said this (at para. 56):

Title to the triangular portion depicted 
    on Plan B4694 is not included in the indefeasible certificate of title issued 
    to the plaintiffs. The plaintiffs' action is dismissed. They are not entitled 
    to judgment for damages, nor to the declaratory or injunctive relief sought. 
    The claims for relief are predicated on the assumption that the certificate 
    of title includes the triangular portion. I have found that it does not.





[4]

In his factum, counsel for the appellants outlines these alleged errors 
    in the judgment:

46.  The learned trial judge erred in finding 
    that neither McLeay and Arelis nor their predecessors in title obtained title 
    to the Triangle.



47.  The learned trial judge erred in dismissing 
    the appellants' application to adduce additional evidence and in failing to 
    consider Plan KAP61083.



48.  The learned trial judge erred in declaring 
    that he would order rectification, if necessary.



49.  The learned trial judge erred in holding 
    that it was unnecessary to address the issues raised by the parties in their 
    pleadings.  He should have decided those issues and he should have held that:



(a)  the Triangle 
    was not reserved to the Province by the Crown Grant;



(b)  no part 
    of the Triangle belongs to the Province pursuant to s. 55 of the
Land Act
.



(c)  no part 
    of the Triangle belongs to the Province pursuant to s. 108 of the
Land 
    Title Act
.





[5]

Counsel for the respondents say that the last ground of appeal constitutes 
    a submission that this court should make the findings of fact that the trial 
    judge ought to have made.  Counsel for the respondents advise me that on the 
    appeal their position will be that if this court concludes that the trial 
    judge erred, it ought to order a new trial rather than engage in a fact-finding 
    mission of its own.

[6]

Counsel for the respondents say that if they are forced to confront 
    the facts, they will require more time to argue the appeal and may require 
    an order permitting them to file factums which exceed the 30-page limit imposed 
    by the Rules.

[7]

Counsel submit that a pre-hearing conference should be ordered to either 
    limit the scope of the appeal or to make orders expanding the time set aside 
    for the appeal, or the size of the factums.

[8]

Generally speaking, a Court of Appeal will not make findings of fact.  
    There are exceptions.  In
Hollis v. Dow Corning Corp.
, [1995] 
    4 S.C.R. 634, Mr. Justice La Forest said this (at para. 33):

While appellate courts are generally, and justifiably, 
    wary of making findings of fact without having the advantage of seeing and 
    hearing testimony first-hand, I do not believe that such concerns arise in 
    this case because the bulk of the critical evidence adduced at trial was documentary, 
    not testimonial.  In light of the fact that Ms. Hollis has now waited 
    close to seven years for the final resolution of her claim, and the high costs 
    already created by the unusual length of this appeal process, I believe the 
    Court of Appeal followed the proper course in weighing and assessing this 
    evidence in order to achieve a measure of finality in this case; see, e.g.,
Davie Shipbuilding Ltd. v. The Queen
, [1984] 1 F.C. 461, at p. 464 
    (C.A.);
Nova, An Alberta Corporation v. Guelph Engineering Co.
(1989), 
    70 Alta. L.R. (2d) 97 (Alta. C.A.), at pp. 110-12.





[9]

Only the division of the court that hears the appeal will be in a position, 
    after the issues are fully argued, to appreciate whether this is a case where 
    the court, assuming the appellants are successful, will take on the role of 
    a trial court, or whether it will return the matter to the trial list for 
    a new trial.  Thus, a pre-hearing conference would be of no assistance to 
    the parties in this matter.  I do not see the utility of ordering a pre-hearing 
    conference at this stage of the proceedings.

[10]

Counsel 
    also advised me that there remain outstanding issues with respect to the content 
    of the appeal books and transcripts.  Apparently the trial judge made a ruling 
    that he would only look at portions of affidavits that had been put to witnesses 
    on cross-examination.  An issue arose as to how to deal with this on the appeal.  
    Counsel have now agreed that they will prepare a schedule of the questions 
    and answers and file it as part of the appeal book.  This seems like a sensible 
    resolution of the issue.

[11]

I 
    would not accede to the request for a pre-hearing conference at this time.  
    This should not preclude a further request should matters arise which require 
    the assistance of a pre-hearing conference.








The 
    Honourable Madam Justice Ryan






