



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Insurance 
          Corporation of British Columbia v. Lo,







2006 
          BCCA 7



Date: 20060103





Docket: CA033177

Between:

Insurance 
    Corporation of British Columbia

Appellant

(
Plaintiff
)

And

Fung 
    Kwan (Tammy) Lo

Respondent

(
Defendant
)












Before:


The 
          Honourable Madam Justice Rowles




The 
          Honourable Madam Justice Ryan




The 
          Honourable Mr. Justice Low



Oral Reasons for Judgment




F.G. 
          Potts

B. Martyniuk


Counsel for the Appellant




W. Ryan


Counsel for the Respondent




Foon-Wai (David) Chiu, appearing on his own behalf







Place 
          and Date:


Vancouver, British Columbia




3 January 2006





[1]

ROWLES, J.A.
:  On 2 December 2005, the Insurance 
    Corporation of British Columbia (ICBC) brought an application for an order 
    that Mr. Chiu and Dragon Driving School Canada Ltd. (Dragon) be added 
    as respondents on the appeal and that the style of proceedings be amended 
    to include Mr. Chiu and Dragon as respondents.  Mr. Chiu appeared 
    in person on the application for himself and for Dragon.

[2]

The order was granted by Madam Justice Huddart in brief reasons.  In 
    those reasons, she said:

[1]        This is an application by the appellant to add Foon-Wai Chiu, 
    also known as David Chiu, and Dragon Driving School Canada Ltd. as parties 
    to this appeal.  In effect, this is an application to extend the time to appeal 
    what was a ruling of Groberman J. in the course of a jury trial.  Mr. Chiu 
    and the driving school were parties to the action and whether I look at it 
    as an application to extend the time for appeal or as an application to add 
    him as a party, in my view, the application must succeed.

. . .

[4]        In these circumstances Mr. Chiu is a necessary party to 
    the appeal.  Mr. Chiu has known of the grounds of appeal since 18 July 
    or, at the very latest, 25 July when he appeared to make submissions 
    for Ms. Lo.  He has had the factum since 24 October, so he has known 
    one of the errors alleged by the trial judge was the one that I have identified.  
    There is no prejudice to Mr. Chiu.  He could put forward no prejudice 
    other than he did not want to be in this Court, that he had suffered enough 
    being in the Supreme Court for a three week jury trial.  He did not suggest 
    that there is not merit in the appeal.  While counsel for ICBC admits an error, 
    counsels errors are not usually visited on their clients.  It is generally 
    thought to be in the interests of justice if an arguable appeal is heard and 
    all of the necessary parties are here.

[3]

We were informed by counsel that at the time the application was made, 
    Mr. Chiu indicated that he did not wish to have the appeal adjourned 
    and that he was not going to seek counsel, but it appears from discussions 
    this morning, that Mr. Chiu may not have been aware of the extent that 
    the appeal, if it were successful, might affect him.  Specifically, if a new 
    trial were ordered, it would, of course be costly, and if the restitutionary 
    remedy sought was granted, the effect on Mr. Chiu would be both direct 
    and indirect.

[4]

In the appellants factum, the relief sought is set out in paras. 74  78. 
     What appears in para. 76(c) would directly affect Mr. Chiu.  The 
    nature of the order sought is as follows:

74.       
    That there be a determination that all monies paid to Chiu by reason of the 
    Conspiracy are held in trust for the Plaintiff; and

75.       
    That the dismissal of the Appellants claim as against Lo be set aside; and

76.       
    That there be a mistrial in respect of Lo and a direction that the trial against 
    her continue before the Honourable Mr. Justice Groberman sitting as a 
    judge alone, and that His Lordship:

(a)        
    determine the amount of funds held by Chiu in trust for the Plaintiff; and

(b)        
    determine what funds and/or assets are held by Lo in trust for the Plaintiff, 
    or for which she is accountable to the Plaintiff, and;

(c)        
    determine, in the event the Plaintiff were to elect a restitutionary remedy 
    what amount, if any, of punitive damages ought be awarded as against Chiu.

77.       
    Upon resolution of the outstanding issues by the learned trial judge, or at 
    such time as the trial judge directs, the Appellant be given an election as 
    to what remedy it will pursue;

78.       
    In any event, costs of and incidental to this appeal.

[5]

I note as well that Mr. Wayne Ryan, who appears for Ms. Lo 
    on the appeal, cannot be expected to advise or represent Mr. Chiu because 
    there appears to be a potential conflict of interest between Ms. Lo and 
    Mr. Chiu based on the relief sought on the appeal.

[6]

I have asked Mr. Chiu whether he wishes to have an adjournment 
    to seek legal advice in view of what has been said this morning and he has 
    indicated that he does wish to obtain legal advice.

[7]

I should add that Mr. Potts does not suggest that the matter proceed 
    and is content that it be adjourned.

[8]

The appeal is therefore adjourned, my colleagues, I understand, concurring.

[9]

RYAN, J.A.
:  I agree.

[10]

LOW, J.A.
:  I agree.

[11]

ROWLES, J.A.
:  There will be no costs of the proceeding 
    this morning.

The Honourable Madam Justice Rowles





Correction:
19 January 2006



The date on the top right hand corner of the judgment should be changed 
    to 20060103.




