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The British Columbia Court of Appeal: The First Hundred Years, 1910-2010

By Christopher Moore

Review By DeLloyd Guth

November 4, 2013

BC Studies no. 175 Autumn 2012  | p. 136-38

A law court has an inner life, beyond the many outside lives that it can rescue, ruin, remedy and reward. When it is an appellate court, the urge to converge as group judgment replaces the isolation of the solo trial judge; but in all cases the goal is to speak with one voice for maximum authority and future predictability in law.

Provincial courts of appeal in Canada are recent statutory creatures. They have taken most of the twentieth century to settle jurisdictionally alongside the Federal Court of Appeal and the Court Martial Appeal Court, none of which are constitutionally embedded and all of which operate beneath and are answerable to the Supreme Court of Canada. British Columbia was the third province (Ontario 1867, Manitoba 1906) to grow a separate appellate court out of its trial court, by statute in 1909 and its first sitting in 1910. Prior to this in Canada an appeal of any trial court judgment had to remain within that same court, before collective colleagues of their fellow trial judge.

One century later, making 2010 its historical annus mirabilis, the British Columbia Court of Appeal has been quadruply served: by this book, by a special issue of this BC Studies in the Summer of 2009, by a documentary film entitled “Though the Heavens Fall” from the Justice Education Society of British Columbia, and by published notes and articles scattered through volume 68 (2010) The Advocate[B.C.], offering an excellent historical summary by Hamar Foster, some scintillating alphabetical doggerel by retired Justice Martin Taylor and other commemorative notes organized and edited by Christopher Harvey. Let the record show that this Court of Appeal has made a commendable effort at creating its historical identity.

This book pioneers two novelties for law court history. It is a team effort of a law student committee of researchers-writers; and it puts its narrative into one chapter per decade, 1910 to 2010, to supply the reader with individual judicial biographies and then a brief sketch of one ‘typical’ case. Each biography offers a one-page quickie formula of birth, education, law practice, bench service, death: in short, a series of obituary notices, lacking the more substantive depth of a Dictionary of Canadian Biography entry, with nary a mention of specific judgments that might define and measure the judge’s abilities. British Columbians, perhaps uniquely among Canadian provinces, have produced an amazing amount of biographical portraits in oral history collections, books, articles and obituaries— a culture of personalities and individualism— that this book commendably, thoroughly collects, cites and, for this cohort of Justices, summarizes; but it does so in a two-dimensionally flat manner that avoids any prosopographical method that synthesizes characteristics of this cohort, in order to show why and how the same sorts of people shaped British Columbia’s rule of law.

From its earliest days, after An Act Constituting a Court of Appeal and Declaring its Jurisdiction (SBC 1907, c. 10), the Court had more than the normal share of characters. By the time of its first sitting in Victoria, 4 January 1910, the Court had survived the bitter public vindictiveness dividing its two most prominent jurists: Gordon Hunter, a “bon-vivant”, and Archer Martin, an “irascible” loner (to borrow words from David Ricardo Williams). There was the austerely prejudiced Roman Catholic, Cornelius Hawkins O’Halloran, the absentee Gordon Sloan who made a cottage industry of chairing public policy commissions instead of judging, and at least well into the 1980s a preponderance of Scottish-named Justices. In the twenty-first century the Court achieved gender parity, a policy that began with Chief Justice Nathan Nemetz, no doubt urged by his wife Belle, and expanded under the current Chief Justice of British Columbia, Lance Finch. This book offers a one-page numerical group portrait for each decade’s Justices: for the first decade, eight out of ten came from Ontario, all were identified with one of the two political parties and averaged nineteen years in law practice before appointment, and most had undergraduate but no law school degrees; and for the most recent decade, the majority are from B.C. and all have law school degrees, have no registered political affiliations and averaged over twenty-two years in practice, all but one in Vancouver.

If the actors on the bench came from the same backgrounds, and the actors at the bar are ignored in this book, one can understand why the Court’s judgments privileged narrow legal formalism, at least before the 1980s. The book’s first ‘typical’ case, involving the Komagata Maru (1913), is featured for effectively shutting Canada’s doors to South Asian immigrants until at least 1947, while entrenching judicial authority for non-reviewable parliamentary supremacy. In its second decade, the Court of Appeal confirmed eviction of settlers from the Stanley Park reserve who claimed a prescriptive right to residence since 1874, in the Gonzalves Case (1924). Then in 1933, the Richards and Woolridge Case forged anti-labour law into a weapon for B.C. employers, at least until Justice Ivan Rand’s ‘formula’ after World War II. For its first half-century, this Court of Appeal was very much in tune with the politically conservative, Anglo-phile elites who conducted provincial business out of the Vancouver Club (established 1889). Indeed, most were members.

The 1940s are represented by a lurid divorce case that the book admits”…broke no new ground and created no important precedent” (p. 95), just a lot of media attention, as did the chosen negligence case for the 1950s. In the latter, the Court again sided with a corporation against a citizen, refusing to apply the widely accepted Donoghue duty-of-care principle to a publisher for a false story: Guay v. Sun Publishing Company (1951), after the trial judge had awarded damages to Mrs. Guay. The Supreme Court of Canada agreed with the Court of Appeal.

The Court’s second half-century saw a quantum leap in legal learning among its Justices and in opening itself to a greater diversity of social issues needing legal definition and resolution. The book’s 1960s case is R. v. White and Bob (1964), which became the first of many Aboriginal claims for enforcement of land title rights against assertions of Crown sovereignty. In 1975 the Court upheld capital punishment, as did the Supreme Court of Canada (1977), while Parliament was abolishing it (June 1976)! But the times were changing the Court’s slavish devotion to strict constructionist legalism, which received its first jolt from Justice William McIntyre, who chose a rights-based jurisprudence (pre-Charter, based in the Canadian Bill of Rights 1960) and a pro-judicial review challenge to equally strict  parliamentary supremacy. The book’s leading case for the 1980s is another divorce case, in which Justice Peter Seaton cleared the way for legal clarity about equal division of property, in thisRutherford v. Rutherford Case. We end with another negligence case in the 1990s and then the BarbeauCase (2003) regarding same- sex marriage and Section 15 equality rights in the Canadian Charter of Rights and Freedoms (1982).  

Idiosyncratic as this law court history is, the narrative hangs together largely because of the richness of biographical resources and, for the last half-century, the systematic oral history interviewing of surviving actors by the researcher-writer committee’s coordinator, Christopher Moore. However, if you want any sort of thematic, topical analysis of the Court’s legal significance, then you must return to  BC Studies: The British Columbian Quarterly 162, Summer 2009, special issue, “The British Columbia Court of Appeal, 1910-2010.” Guest edited by the province’s celebrity legal historians (John McLaren, Hamar Foster, Wes Pue), the volume targets how and why the Court historically has resolved key issues of criminal law sentencing, labour union status, civil liberties, Aboriginal claims, and corporate-commercial law. Taken together with this book, we have a memorable map for how this Court has become a leader in litigation-based law-making in Canada.

The British Columbia Court of Appeal: The First Hundred Years, 1910-2010
By Christopher Moore (Vancouver: University of British Columbia Press, 2010, for The Osgoode Society for Canadian Legal History). 288 pp, $85.00