Watt v. Kamloops (City)

Watt v. Kamloops (City)

The chambers judge materially misapprehended the appellant's evidence regarding identity and the photograph used by the process server, undermining the factual finding of personal service under s.77; s.160 cannot be read to abrogate the specific personal service requirement in s.77; consequently the chambers judge's determination of service is unsustainable and the matter must be remitted for fresh determination. The application to admit fresh evidence on appeal is dismissed for failure to meet Palmer criteria.

Citation
2017 BCCA 379
Parties
Appellant (plaintiff): Lynda Joan Watt; Respondent (defendant): City of Kamloops
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
25 October 2017
Procedural Posture
Appeal From Chambers Judgment on a Summary Trial Under Rule 9 7 Concerning a Civil Claim for Trespass and a Municipal Counterclaim / Court of Appeal Judgment Remitting Matter to Trial Court for Fresh Determination
Outcome
Appeal allowed; order of chambers judge set aside; matters remitted to the Supreme Court of British Columbia for fresh determination; application to admit fresh evidence dismissed.
Legal Topics
Service of Process, Remedial Action Orders, Community Charter Provisions, Summary Trial Procedure, Cross Examination of Affiants, Admissibility of Fresh Evidence
Source Language
English
Municipal Law Civil Procedure Property Law Administrative Law Service of Process Remedial Action Orders Community Charter Provisions Summary Trial Procedure +2 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 4 Authorities cited 6 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Lynda Joan Watt

Appellant (plaintiff)

City of Kamloops

Respondent (defendant)

Procedural Posture

Appeal From Chambers Judgment on a Summary Trial Under Rule 9 7 Concerning a Civil Claim for Trespass and a Municipal Counterclaim / Court of Appeal Judgment Remitting Matter to Trial Court for Fresh Determination

Legal Issues

  1. 1 Whether the City personally served the appellant with a notice of remedial action under s.77 of the Community Charter
  2. 2 Whether the chambers judge erred by refusing cross-examination of the process server and by misapprehending the appellant's evidence regarding identity and the photograph
  3. 3 Whether s.160 of the Community Charter permits a municipality to rely on 'reasonable efforts' in lieu of the specific personal service required by s.77

Ratio Decidendi

The chambers judge materially misapprehended the appellant's evidence regarding identity and the photograph used by the process server, undermining the factual finding of personal service under s.77; s.160 cannot be read to abrogate the specific personal service requirement in s.77; consequently the chambers judge's determination of service is unsustainable and the matter must be remitted for fresh determination. The application to admit fresh evidence on appeal is dismissed for failure to meet Palmer criteria.

Court Disposition

Appeal allowed; order of chambers judge set aside; matters remitted to the Supreme Court of British Columbia for fresh determination; application to admit fresh evidence dismissed.

Orders

  • Appeal allowed
  • Order appealed set aside