Ray Power

Notable Cases

Tellini v. Bell Alliance, 2022 BCCA 106
Craig Dennis, K.C. and Ray Power were successful for the appellants in overturning a trial decision which found the appellants liable in negligence for the plaintiff’s (respondent’s) inability to take advantage of a Foreign Buyer’s Tax refund regime. That refund regime was announced in March 2017, subsequent to the time of the alleged negligence. The Court of Appeal accepted the argument that the trial judge had erred in failing to consider that the alleged negligent advice was not the legal or proximate cause of the plaintiff’s loss (that loss being the lost opportunity to access the refund regime).

This case serves as helpful clarification of the appropriate approach to questions of legal causation, following on the recent Supreme Court of Canada decision in Nelson (City) v. Marchi, 2021 SCC 41.

Campeau v. Her Majesty The Queen, 2021 FC 1449
Craig Dennis, K.C. and Ray Power successfully opposed a motion brought by the Attorney General of Canada to stay a proposed class action.

The plaintiff claims severally against Canada for the alleged unauthorized disclosure of personal and financial information belonging to Canadian taxpayers resulting from data breaches that began in the spring of 2020.

Canada brought a motion under sections 50.1 and 50(1) of the Federal Courts Act to stay the proceeding on the basis that Canada intended to bring a claim for contribution and indemnity that fell outside the jurisdiction of the Federal Court.

The Court dismissed Canada’s motion, accepting the argument that the third party claim had no possibility of success.

Section 50.1 of the Federal Courts Act is a unique provision, available only to the Attorney General of Canada, where on Canada’s motion the Federal Court “shall” stay an action brought in Federal Court so that Canada can pursue in a provincial court a third party claim or counterclaim over which the Federal Court lacks jurisdiction. This decision appears to be the first time that a motion under section 50.1 has successfully been resisted solely on the basis that Canada’s proposed claim has no possibility of success.

The action now is expected to proceed to a certification hearing in early 2022.

Smithe Residences Ltd. v. 4 Corners Properties Ltd., 2020 BCCA 227
Craig Dennis, K.C. and Ray Power successfully represented the appellant in an appeal that the Court described as raising novel issues for adding parties and amending pleadings after the expiry of a limitation period.

The Court reversed a lower court judgment and granted an application to add defendants after the expiry of a limitation period.

The appellant, 4 Corners Properties Ltd., sued both in its own name and on behalf of two other parties (the Schouw Parties) pursuant to a security agreement. After the limitation period had expired for 4 Corners to bring a separate action against the Schouw Parties, 4 Corners brought an application to amend its existing action and add a claim in debt against the Schouw Parties as defendants. The Court agreed that 4 Corners’ claim against the Schouw Parties was the basis on which 4 Corners had brought the existing action, the two claims were sufficiently connected, and it was just and convenient to permit 4 Corners’ amendment. In reaching this conclusion the Court accepted that in the circumstances the Schouw Parties could be both plaintiffs and defendants in the same action.

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