



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



J.
                Michael Jensen Boat Sales Ltd. v. McAfee,









2004 BCCA
            48




Date: 20040122





Docket: CA029715

Between:

J. Michael
      Jensen Boat Sales Ltd.

Respondent

(
Plaintiff
)

And

Roger McAfee,
      Edward Belzberg and
Jayberg Enterprises

Appellants

(
Defendants
)












Before:



The Honourable
            Mr. Justice Braidwood





The Honourable
            Madam Justice Levine





The Honourable
            Mr. Justice Smith




Oral Reasons for Judgment




G. Power



Counsel for the Appellant





G. Dureault



Counsel for the Respondent





Place and
            Date:



Vancouver, British Columbia





January 22, 2004







[1]

BRAIDWOOD,
          J.A.
: The appellants appeal from a decision of
          the Honourable Mr. Justice Lowry granting judgment against the them for
          (US)$95,000 based on a finding of intentional interference with the contractual
          relations of the parties arising out of the interference with the sale
        of the motor vessel.

[2]

The
        appellants, in their written material, raise a number of grounds of appeal,
      namely, that the learned trial judge erred:

1.    in refusing
        to consider the legal effect of a Release filed as an exhibit at the
      trial;

2.    in not
      permitting the pleadings to be amended to include the defence of estoppel;

3.    in admitting
        transcript evidence of a proceeding in a foreign jurisdiction without
      first determining if such evidence was either necessary or relevant;

4.    in making
      findings of fact not supported by admissible evidence;

5.    in fixing
        liability on points of law not plead, not argued at trial and not supported
      by evidence adduced at trial;

6.    in law
        in not adequately addressing the issue of damages and the evidence required
        to find such damage, given the onus of proof required of the plaintiff;
      and

7.    in arriving at a decision that was against the
      evidence and the weight of the evidence.

[3]

The
      respondent sets out the grounds of appeal as follows:

1.    Should
        this Court interfere with the discretionary decision of the learned judge
        in refusing, in the absence of such an application being put forward, to
        permit the defendants pleadings to be amended in support of an argument
        of estoppel raised at the conclusion of the trial of this matter.  If
        so, did such exercise of judicial discretion prevent the fair consideration
        by the court below of all issues going to the merits of this matter;
        and



2.    Did the learned judge err in law or fact when
        he decided this matter to be a clear case of there having been an intentional
        interference with contractual relations that gives rise to liability
      on the part of each appellant.

[4]

I
        am of the opinion there is no merit to the first two grounds of appeal
        as advanced in the factum of the appellants.  The trial judge neither
        restricted cross-examination on the release to which the appellants were
        not parties
        nor did he restrict the appellants from applying to amend the pleadings
      to claim estoppel.

[5]

During
        the opening statements at trial, the Court gave the following invitation
      to the appellants:

. . . I mean the point is that you want to argue about an estoppel.  I
        wouldnt have thought that you would argue at the beginning of a trial
        and that you would argue at the end.  I dont think you can argue it at
        all unless it has been pleaded.  Now, I think you have to consider your
        position . . . I would have thought that is the end of it unless there
        is an application to amend and then we have to consider what flows from
      there.

The appellants ignored this invitation and no application
      was made at any time during the trial.

[6]

The
        release would be irrelevant in any event because the applicants are not
        parties.  Further, it could not be considered unless the pleadings were
        amended to advance the defence of estoppel.  It would be unjust to allow
      the amendment now.

[7]

The
      balance of the grounds of appeal were not advanced before us.

[8]

Accordingly,
        based on the above reasons I am of the opinion that this appeal should
      be dismissed.

[9]

LEVINE,
        J.A.
: I agree.

[10]

SMITH,
        J.A.
: I agree.

The Honourable
      Mr. Justice Braidwood


