Court of Appeal Decision of the Week

Disclosure of Materials from Client to Lawyer

Case: AARC Society v Sparks, 2018 ABCA 280 (CanLII)

Keywords: Solicitor Client Privilege; Future Crimes and Fraud Exception; Stay; RJR Macdonald v Canada (Attorney General), 1994 CanLII 117 (SCC)

Synopsis:

Amy Sparks, in her role as a contract computer technician for Alberta Adolescent Recovery Centre Society (AARC), uses the passwords of AARC employees and downloads, without authorization, several thousand electronic records from AARC before and after consulting her lawyer, Brian Fish. Many of these documents are forwarded to Brian Fish, who then turns them over to the CBC. (See AARC Society v Sparks, 2018 ABCA 177 (CanLII)).

Ms. Sparks and Mr. Fish separately apply to stay of an order of the Alberta Court of Appeal requiring them to produce (for inspection by a judge of the Court of Queen’s Bench) “…records of any communications between them in relation to the taking and distributing of…AARC Society’s records” (See para. 1) on the basis of the “future crimes and fraud” exception to solicitor-client privilege. (See AARC Society v Sparks, 2018 ABCA 177 (CanLII)). The Court of Appeal determines the Applicants would not suffer any harm if the stay is not granted. (more…)

Posted: Friday, September 07, 2018

Court of Appeal Decision of the Week

Bail Pending Appeal

Case: R. v. Papasotiriou, 2018 ONCA 719

Keywords: Bail Pending Appeal; First Degree Murder; Public Safety; R. v. Oland, 2017 SCC 17 (CanLII):

Synopsis:

The Applicant, Mr. Papasotiriou is married to Mr. Lanteigne. Mr. Papasotiriou and Mr. Ivezic have an affair. While Mr. Papasotiriou is away in Greece, Mr. Lanteigne is beaten to death in the foyer of their Toronto matrimonial home. The case against Mr. Papasotiriou is completely circumstantial. The Crown’s theory: Mr. Papasotiriou encouraged Mr. Ivezic to kill Mr. Lanteigne, and assisted him by ensuring Mr. Lanteigne arrived home at a certain time, where Mr. Ivezic lay in wait.

Following a lengthy trial, the jury deliberates for six days before delivering its verdicts. They ask no questions during deliberations. Mr. Papasotiriou and Mr. Ivezic are found guilty of first degree murder and sentenced to life imprisonment with no parole eligibility for 25 years. Mr. Papasotiriou seeks bail pending his appeal. (more…)

Posted: Wednesday, September 05, 2018

Court of Appeal Decision of the Week

The Test for Rearguing an Appeal

Case: Piikani Nation v Kostic, 2018 ABCA 275 (CanLII)

Keywords: Application to Reargue Appeal; Oldman River Dam Settlement Agreement; Trust Fund; Investments; Fraud

Synopsis:

Piikani Nation agrees to allow a portion of its lands to be used for the development of the Oldman River Dam, including a hydro-electric power plant. In exchange, Piikani Nation receives $64.3M, settled in the Piikani Trust. The trust agreement contemplates investment of the funds. Piikani selects CIBC, who allow Piikani Nation to appoint the broker and additional advisors. Ms. Kostic is selected by the Piikani Nation.

In November of 2006, Piikani Nation provides Ms. Kostic notice of termination of their business agreement. The Piikani Nation and Piikani Investment Corporation commence an action against Ms. Kostic and others alleging,

  • negligence;
  • breach of fiduciary duty; and
  • conspiracy

(more…)

Posted: Tuesday, August 28, 2018

Court of Appeal Decision of the Week

Stays of Enforcement Pending Appeal

Case: Jadhav v Kielly, 2018 NLCA 50 (CanLII)

Keywords: MVA; Temporary Foreign Workers; Rule 42 of the Court of Appeal Rules, NLR 38/16; Weir’s Construction Limited v. Warford Estate, 2016 NLCA 65 (CanLII)

Synopsis:

It is a dark and stormy night. Mr. Prashant Jadhav, dressed entirely in black, is walking on the right side of an unlit road. He is struck by Mr. David Kielly’s vehicle. At trial, the issue is Mr. Kielly’s liability for the MVA and assessment of damages. At the time of the accident, Mr. Jadhav is a temporary foreign worker who, as a result of his injuries, is unable to return to his work as a cook at Burger King.

The Trial Judge determines Mr. Jadhav is 10% at fault due to his traversing on the wrong side of the road wearing dark clothing. The total award of damages is $338,097.19. Mr. Jadhav appeals as against portions of the award of damages. Mr. Kielly cross-appeals against the finding of liability. This case is an application by Mr. Kielly to stay the enforcement of the order for the payment of damages pursuant to Rule 42 of the Court of Appeal Rules, NLR 38/16. The Court of Appeal is satisfied that a stay of enforcement is warranted.

Importance:

As per Weir’s Construction Limited v. Warford Estate, 2016 NLCA 65 (CanLII) the test for granting a stay of enforcement of an order pending disposition of an appeal requires a court to consider:

  • whether there is a serious issue to be argued on appeal;
  • whether the applicant for the stay will suffer irreparable harm if the stay is not granted (the nature of the harm, rather than its magnitude, is to be considered); and
  • the balance of inconvenience for the parties. (See para. 3).

Without commenting on the likely success of the appeal, the Court of Appeal found a serious issue to be argued on the appeal, “…in the sense contemplated by the first prong of the test.” (See para. 8). Mr. Jadhav conceded the second prong of the test:

He accepts that, because he is impecunious and does not have the legal status in Canada to obtain work, the risk that any money paid to him could not be recovered is sufficient justification on which to conclude that Mr. Kielly would suffer irreparable harm should the cross-appeal succeed and a stay of enforcement of the order not be granted. (See para. 4).

With respect to the balance of inconvenience for the parties, in the event Mr. Jadhav left (and, as the Trial Judge noted, there were strong indications he would not remain) the risk would be that the money payable under the order would not be recoverable if Mr. Kielly’s cross-appeal was successful. The Court was satisfied that the balance of inconvenience favoured Mr. Kielly. (See paras. 11-14).

To “accommodate” Mr. Kielly’s concerns, the Court of Appeal took the “rare” step of separating the cross-appeal as to Mr. Kielly’s liability in negligence from Mr. Jadhav’s appeal as to the award of damages. (See para. 16). For the Court of Appeal, the risks of non-recovery outweighed any delays associated with the special accommodation of the cross-appeal:

Considering the delay of almost five years from the time of the accident to a decision at trial, a further moderate delay occasioned by the cross-appeal would not be unreasonable particularly when balanced against the significant risk that any money paid out would likely not be recoverable. (See para. 17).

The decision of the Court of Appeal is significant because it demonstrates a “rare” means by which courts can both intervene to re-balance the inconvenience for the parties and shield litigants from irreparable harm resulting from the enforcement of an order.

Counsel for the Respondent to the Application: Philip Buckingham (Goodland Buckingham, St. John’s)

Counsel for the Applicant: Peter Shea (Intact Insurance, St. John’s)

Discuss on CanLii Conntects

Posted: Wednesday, August 22, 2018

Court of Appeal Decision of the Week

Court of Appeal: ‘Don’t mix habeas corpus and s. 12 of the Charter’

Case: Toure v. Canada (Public Safety & Emergency Preparedness), 2018 ONCA 681 (CanLII)

Keywords: Immigration claim; habeas corpus; s. 12 of the Charter; Brown v. Canada (Public Safety), 2018 ONCA 14 (CanLII)

Synopsis:

Mr. Ebrahim Toure’s immigration claim is denied by the Immigration and Refugee Board pursuant the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). Thereafter, his application for judicial review is refused and he is placed on a conditional departure order with terms and conditions pending removal from Canada.

After failing to report for a required interview with Canada Border Security Agency, he is arrested and detained at the Toronto Immigration Holding Centre (“IHC”). Mr. Toure is found to be a flight risk. Attempts are made to remove him to Guinea, but Guinean authorities find his birth certificate fraudulent and he is refused entry. Upon his return to Canada, and until the order under appeal, Mr. Toure is detained at the Central East Correctional Centre (“CECC”) rather than the IHC, a “lower risk facility”. While at the CECC, all 56 detention reviews conclude that continued detention is required. (more…)

Posted: Wednesday, August 15, 2018

Court of Appeal Decision of the Week

Mandatory Drug Testing

Case: Hibernia Platform Employers’ Organization v Communications, Energy and Paperworkers Union (Unifor, Local 2121), 2018 NLCA 45 (CanLII)

Keywords: Helicopter; unauthorized drugs; “significant incident”

Synopsis:

The collective agreement between Hibernia Platform Employers’ Organization (“Employer”) and the Communications, Energy and Paperworkers Union of Canada, Local 2121 (“Union”) incorporates a drug and alcohol policy. Following an incident relating to helicopter safety on the Hibernia offshore oil platform, the Employer undertakes an investigation: eight employees are asked to submit to drug testing. One is terminated after testing positive for unauthorized drugs.

The policy provides that when a “significant incident” occurs, the Employer may require an investigation, including drug testing. The incident in this case: mistakes in loading baggage onto the helicopter. The parties agree that a helicopter manifest error is a “significant incident”.

The Union brings a grievance and an Arbitration Board reinstates the employee on the basis that the drug test did not comply with the policy. The termination grievance is allowed. The Employer’s application for judicial review is dismissed, the Applications Judge concluding the Arbitration Board’s decision was not unreasonable. The Court of Appeal dismisses a further appeal.

Importance:

Citing Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34 (CanLII), the Court of Appeal confirmed the standard of review applicable to the Arbitration Board’s decision is reasonableness.

Regarding the termination grievance, the Arbitration Board stated as follows:

…The Board concludes that the alcohol and drug test of the Grievor was ordered without consideration of the explanation that errors in process had not been corrected, without an explanation from the Grievor, and without sufficient reason to link the Grievor’s actions to the incident.  There was not sufficient information to establish a possible link between substance use by the Grievor and the cause of the incident.  It was not appropriate to order the test in the exercise of managerial discretion.  Therefore, the test did not comply with section 5.0(2) of the Alcohol and Drug Policy, based on the language of the Policy and the requirements of the arbitral authorities. (See para. 5).

Here the Employer submitted the Arbitration Board’s decision was unreasonable because its interpretation of the Policy results in an interference with management’s right to order drug testing – in other words, that imposed additional requirements on the Employer. The Court of Appeal concluded that the application of the policy to order drug testing would require an individualized assessment. For the Court, the Board was not suggesting that an investigation must be complete or extensive before the testing can be ordered. Rather, it was suggesting that the extent of the investigation necessary depends on the particular circumstances of a case:

While drug or alcohol testing is an investigative tool available to management, it was not unreasonable for the Board to interpret the Policy so as to require management to take initial steps to be satisfied that ordering certain employees to undergo drug or alcohol testing would, indeed, be indicated (See para. 20).

The Court of Appeal dismissed the Employer’s appeal. Both the Arbitration Board and the Applications Judge gave comprehensive reasons for their decisions. The decision allowing the termination grievance was reasonable. (See para. 23).

Counsel for the Appellant: Stephan Penney and Ruth Trask (Stewart McKelvey, St. John’s)

Counsel for the Respondent: Ian Patey (O’Dea Earle, St. John’s)

Discuss on CanLii Connects

Posted: Wednesday, August 08, 2018

Court of Appeal Decision of the Week

Loose Soil & Discoverability

Case: Gillham v. Lake of Bays (Township), 2018 ONCA 667 (CanLII)

Keywords: Cottage; Limitations Act, 2002, S.O. 2002, c. 24, Sched. B

Synopsis:

The Appellants build a cottage in 2006. Three years later, in the summer of 2009, the Appellants notice a wee problem. One of their deck piers sinks about 1 ¼ inches, pulling deck posts away from the cottage structure. The Appellants approach the Respondent company who constructed the footings and foundation for the cottage. They say issues not serious. Appellants told “wait and see”. They wait. See problems continue. The Appellants obtain a soil study in July, 2012. Remedial work is recommended. Upon commencement of remedial work in 2013, the Appellants discover the cottage foundation and footings are constructed on loose soil. The Appellants commence an action October 21, 2013.

The Respondent brings a motion for summary judgment dismissing the Appellants’ action as statute barred. The Motion Judge concludes the Appellants knew or ought to have known there was a problem in 2009. The Motion Judge finds the action statute barred on the basis the applicable two-year limitation period under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, had expired. The Court of Appeal disagrees. The Appellants might have known there was an issue, but that is “…not the end of the analysis under s. 5(1) of the Act”. (more…)

Posted: Tuesday, July 31, 2018

Court of Appeal Decision of the Week

Nunavut Not a “Charter Free Zone”

Case: R v Ippak, 2018 NUCA 3 (CanLii)

Keywords: Charter, exclusion of evidence, arbitrary detention, right to counsel, search & seizure

Synopsis:

The small hamlet of Sanikiluaq in Nunavut is a dry community. The police are particularly vigilant investigating trafficking and routinely search and detain people at the airport. In the present case, the RCMP received an anonymous tip that Mr. Ippak, who was flying from Montreal to Sanikiluaq, was carrying alcohol. In questioning him at the airport, Mr. Ippak denied he was carrying liquor and welcomed a search of his suitcase. Mr. Ippak was presented with and signed a “consent to search form”. Although he was warned he didn’t need to say anything, police did not advise him of his right to counsel. Police proceeded to search his bag and found 3.7 pounds of cannabis.

At trial, the Crown conceded Mr. Ippak’s ss. 8, 9, and 10(b) Charter rights were violated. He was arbitrarily detained and unreasonably searched prior to his arrest, without being informed on detention of his right to counsel. The trial judge undertook a s. 24(2) analysis to determine whether or not to exclude the evidence and determined that exclusion of the evidence would bring the administration of justice into disrepute. In particular, she stated that the “court has a heavy responsibility to keep drug dealers and their couriers off the streets of Nunavut” (CA para. 14). (more…)

Posted: Wednesday, July 25, 2018

Court of Appeal Decision of the Week

Search Warrants – CDSA or General?

Case: R. v. Jodoin, 2018 ONCA 638 (CanLII)

Keywords: General Warrant; Controlled Drugs and Substances Act, S.C. 1996, c. 19; Criminal Code, R.S.C., 1985, c. C-46; R. v. TELUS Communications Co., 2013 SCC 16 (CanLII)

Synopsis:

Several sources provide Police with information that the Appellant is dealing cocaine. Surveillance of commercial premises called “Caboto Satellite” corroborates the information. No merchandise in the store, telephone number not in service. The Appellant attends sporadically for short periods of time.

Police apply for a “sneak and peek” warrant pursuant to s. 487.01 of the Criminal Code, R.S.C., 1985, c. C-46. Police find what they believe to be crystal methamphetamine, cocaine and marihuana in a wooden box and in a safe (the safe is inside the wooden box). The investigating officers want not only to seize the drugs, but also to link the Appellant. Reasoning that a Controlled Drugs and Substances Act (CDSA) warrant would not provide sufficient “time and flexibility” – on the “impression” that CDSA warrants provide “shorter windows for execution” – the Police obtain a general warrant pursuant to s. 487.01(1)(c) of the Criminal Code (which permits them to defer executing the warrant until the “appellant’s attendance at the commercial unit was fulfilled”, which attendance was otherwise “sporadic and unpredictable”). (more…)

Posted: Wednesday, July 18, 2018

Court of Appeal Decision of the Week

Transcripts: Getting Them Corrected in the C.A.

Case: Froom v. Ontario (Attorney General), 2018 ONCA 627 (CanLII)

Keywords: Private Prosecution; Transcript; Actions Against the Crown

Synopsis:

Mr. Froom alleges that, during the course of a failed attempt to initiate a private prosecution, the Attorney General of Ontario and Her Majesty the Queen in Right of Ontario, (the “Crown”) instructs a court reporter to provide a false transcript, and that Crown employees refuse to provide assistance with his complaint.

The Crown, pursuant to Rule 21, moves for an order striking Mr. Froom’s statement of claim. The Motions Judge determines the Attorney General, as a Minister of the Crown cannot be held vicariously liable for the tortious conduct of Crown servants. As such, it is plain and obvious Mr. Froom’s claim discloses no reasonable cause of action. The Court of Appeal finds no reason to interfere with the Motion Judge’s conclusions. (more…)

Posted: Wednesday, July 11, 2018

Court of Appeal Decision of the Week

Appealing a Summary Judgment

Case: Canadian Language Leadership Centre – CLLC Inc. v. 20 Eglinton Commercial Centre Inc., 2018 ONCA 604 (CanLII)

Keywords: Summary Judgment Motion; Lease Agreement; Water Leak

Synopsis:

The Appellant, Canadian Language Leadership Centre – CLLC Inc., sues its commercial landlord, 20 Eglinton Commercial Centre Inc. (the “Respondent”) for damages flowing from water leaks. These leaks originate from the building’s roof, and from a non-functioning gas line. The Respondent sought and obtained summary judgment dismissing the Appellant’s action as disclosing no genuine issue for trial.

The Court of Appeal sets the summary judgment aside, finding the Motion Judge failed to adequately consider whether the Appellant assumed the risk of damage, if sustained. The Court of Appeal finds there are “material factual contests” between the parties which produce genuine issues left unresolved by the Motion Judge. (more…)

Posted: Wednesday, July 04, 2018

Court of Appeal Decision of the Week

Bids & Tenders: Can Government Contract Out of Procedural Fairness?

Case: Mega Reporting Inc. v. Yukon (Government of), 2018 YKCA 10 (CanLII)

Keywords: Bids & Tenders; Request for Proposals; Public Policy; “Substantially Incontestable”; Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4 (CanLII)

Synopsis:

Yukon seeks to reduce costs on court reporting services by replacing live court reporters with a digital recording system and transcribing as needed. Yukon issues a Request for Proposals (“RFP”) seeking bids for a one-year contract to provide court reporting and transcription services. The bidding process is governed by the Yukon Contracting and Procurement Regulation, Y.O.I.C. 2013/19, and the Contracting and Procurement Directive.

The Directive sets out various principles for public procurement, including commitments to fairness, openness, transparency, and accountability. The RFP includes a clause purporting to waive Yukon’s liability for costs associated with unfairness in the RFP process. Yukon receives two bids. One is from the Appellant, Mega Reporting Inc. An evaluation committee concludes the Appellant’s bid does not meet minimum technical requirements. It does not open the envelope containing the Appellant’s price. The contract is awarded to the other bidder. (more…)

Posted: Wednesday, June 27, 2018

Court of Appeal Decision of the Week

Summary Judgments: When is Expert Evidence Required?

Case: McPeake v. Cadesky & Associates, 2018 ONCA 554 (CanLII)

Keywords: Professional Negligence; Expert Evidence; Canada Revenue Agency

Synopsis:

The Appellant, together with two associates owns a computer software research and development company. In 1999, the company is sold to Microsoft. Prior to the sale, the Appellant creates a family trust, structuring his affairs to minimize significant taxable capital gains. Approximately $4,800,000 is received by the Appellant’s family trust.

C.R.A. takes the position that s. 75(2) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) applies. Since the Appellant is

  • a beneficiary of the family trust; and
  • had the ability to unilaterally control distributions from the trust

(more…)

Posted: Wednesday, June 20, 2018

Court of Appeal Decision of the Week

Disputing Choice of Law and Forum Selection Clauses

Case: Osman v Markplan Inc, 2018 ABCA 215 (CanLII)

Keywords: Subordination Agreement; Forum Selection Clause; Choice of Law Clause; Club Resorts Ltd v Van Breda, 2012 SCC 17 (CanLII); Rule 11.25(3) of the Alberta Rules of Court, Alta Reg 124/2010

Synopsis:

The Respondents, Eric C111onroy, Edward Conroy, and Maryon Rebecca Conroy, negotiate the sale of their family-run children’s magazine business, Markplan Inc., to Magazine Acquisition Group (“MAC”) for $900,000, payable as follows:

  • $1,000 down,
  • $599,000 on closing, and
  • $300,000 as a deferred payment, payable over 42 months.

Agreements related to the sale provide for Ontario as the jurisdiction for disputes. (more…)

Posted: Wednesday, June 13, 2018

Court of Appeal Decision of the Week

Court of Appeal Modifies Costs Award

Case: Kent v Martin, 2018 ABCA 202 (CanLII)

Keywords: Defamation; “Scud Stud”; Costs Award; Fraudulent Concealment; False Evidence; Sidorsky v CFCN Communications Ltd, 1997 ABCA 280 (CanLII)

Synopsis:

The Appellant, Mr. Arthur Kent, is a Canadian-born journalist reporting during the first Iraq war. Following a career as a journalist, the Appellant is subsequently nominated to be an Alberta Progressive Conservative Party’s candidate in the 2008 provincial election.

A defamatory article, whose headline in the Calgary Herald reads “Scud stud lands with a thud”, is written by the Respondent, Mr. Don Martin, and published during the election campaign. Following a five week trial, Mr. Kent is awarded damages totaling $200,000 and costs of $250,000. The Trial Judge observes: (more…)

Posted: Wednesday, June 06, 2018

Court of Appeal Decision of the Week

Court of Appeal Grants Leave Re: Adding Third Party Claims

Case: Rodgers v Thompson, 2018 SKCA 33 (CanLII)

Keywords: Third Party Claim; Leave to Appeal; Bail Hearing

Synopsis:

Mr. John Thompson is arrested and denied bail for a period beginning August 19, 2014 (the date of his show cause hearing) and ending September 12, 2014, when he is granted judicial interim release by a judge of the Court of Queen’s Bench.

Mr. Thompson is eventually acquitted of all charges. He then commences an action for malicious prosecution against three members of the RCMP and the Crown prosecutor, Ms. Rogers. He also alleges the RCMP engaged in negligent investigation.

Specifically, he alleges that three members of the RCMP misrepresented facts in a report to the Judge at the show cause hearing. With respect to Ms. Rodgers, Crown prosecutor at the show cause hearing, he alleges that, although she was notified about the false information, she refused to correct the record – that her failure to intervene led to his continued incarceration. (more…)

Posted: Wednesday, May 30, 2018

Court of Appeal Decision of the Week

Class Actions: Court of Appeal a Facebook “Friend”?

Case: Douez v. Facebook, Inc., 2018 BCCA 186 (CanLII)

Keywords: Facebook; Class Action; s. 3(2) of the Privacy Act, RSBC 1996, c 373

Synopsis:

Beginning in 2011, the Appellant (Facebook, Inc.) introduces a new form of advertising referred to as a “sponsored story”. Sponsored stories are advertisements displayed on a member’s news feed accompanied by a statement that a member’s “friends”, as represented by their name and profile picture, “like” particular products, services or entities.

Facebook, Inc. does not provide remuneration to members, or specifically advise them of the use of their endorsement through sponsored story advertisement. The Respondents – members not remunerated for their “sponsored story” endorsements – contend that Facebook, Inc. does not have their consent to publish and that the practice constitutes a tort as per s. 3(2) of the B.C. Privacy Act

The Chambers Judge certifies the claim as a class proceeding after amending the class definition and restating the common issues. Facebook, Inc. appeals the certification. The Court of Appeal dismisses Facebook Inc.’s appeal, but modifies the class definition to the following: (more…)

Posted: Wednesday, May 16, 2018

Court of Appeal Decision of the Week

Is a “Results Achieved” Fee: Contingency, Premium, or Bonus?

Case: Jackson v. Stephen Durbin and Associates, 2018 ONCA 424 (CanLII)

Keywords: “Results Achieved Fee”; family law; retainer agreement; Solicitors Act, R.S.O. 1990, c. S. 15

Synopsis:

The Respondent retains the Appellant to represent him in family law litigation. The retainer agreement outlines hourly rates, daily fees for court appearances, and an automatic yearly increase of 15% with respect to those fees. The retainer agreement also provides for a “Results Achieved Fee”.

Following a lengthy trial, the Respondent is awarded sole custody of the child, half the proceeds from sale of the matrimonial home, and costs of $192,000. The Appellant receives $423,510.47 in trust. After deducting $132,597.74 to satisfy the outstanding account, the Appellant deducts an additional “Results Achieved Fee” of $72,433.24.

The Respondent disputes the “Results Achieved Fee” and seeks to have it assessed. The Assessment Officer concludes a judge must decide the matter as a question of law: is the “Results Achieved Fee” a contingency fee, a “premium”, or a “bonus”? The Application Judge determines the “Results Achieved Fee” is a prohibited charge – a contingency fee in a family law matter. The Court of Appeal agrees. (more…)

Posted: Wednesday, May 09, 2018

Court of Appeal Decision of the Week

What Is the Effect of a Tribunal “Termination Order”?

Case: Tresoro Mining Corporation v. Mercer Gold Corp. (B.C.), 2018 BCCA 160 (CanLII)

Keywords: Arbitration Clause; Termination Order; Final Award; Arbitration Act, RSBC 1996, c 55

Synopsis:

The Appellant, Mercer Gold Corp., applies to vary an order staying its amended counterclaim pending conclusion of arbitration proceedings. Arbitration proceedings become “unnecessary or impossible” as per Rule 34(3) of the B.C. International Commercial Arbitration Centre’s rules when the Appellant fails to pay arbitration fees and the Arbitration Tribunal issues a “termination order”. The application to lift the stay is dismissed on the basis that this “termination order” actually constitutes a “final award” under the Arbitration Act, RSBC 1996, c 55.

On appeal, the Appellant submits the Chambers Judge erred by, inter alia, characterizing the termination order as a final award. The Court of Appeal allows the appeal.

Importance:

For an appellate lawyer, perhaps the sweetest words one can read from a panel (depending on what side one is on) are found at para. 46 of the decision: (more…)

Posted: Wednesday, May 02, 2018

Court of Appeal Decision of the Week

Hiring Trades: Any Obligation to Ensure the Safety of Tradespersons?

Case: Osmond v. Watkins, 2018 ONCA 386 (CanLII)

Keywords: Roof; Negligence; Tradespersons; Occupiers’ Liability Act, R.S.O. 1990, c. O.2.

Synopsis:

The Respondents hire the Appellant, Mr. Osmond, to complete the construction of a two-story front porch at their house. The Appellant falls from the roof while performing the work and is seriously injured.

The Appellant alleges the Respondents failed to provide him with safety equipment. He sues for damages in negligence and breach of duty under s. 3(1) of the Occupiers’ Liability Act, R.S.O. 1990, c. O.2.

The Respondents move for summary judgment and the Appellant’s action is dismissed. The Appellant appeals on the basis that, since material facts and the credibility of the parties are disputed, there are genuine issues for trial. The Court of Appeal is not persuaded and the appeal is dismissed. (more…)

Posted: Wednesday, April 25, 2018

Court of Appeal Decision of the Week

Contracts/Leases: Collateral Agreements

Case: Skylink Express Inc. v Innotech Aviation, 2018 NSCA 32 (CanLII)

Keywords: Hanger; lease extension; collateral agreement

Synopsis:

The Appellant, Skylink Express Inc., leases hangar space and office facilities from the Respondent, Innotech Aviation, pursuant to a lease agreement. Negotiations begin to extend the lease. Between 1999 and 2011, the lease is extended a number of times – each time for increased space in the Respondent’s facility. As part of these particular negotiations, the Respondent agrees to credit the Appellant $27,121.23 for unused hanger space and encourages the Appellant to enter into an extension.

Prior to the signing of the lease extension, Mr. Morgan (negotiating on behalf of the Appellant) emails the Respondent (represented by its Vice President and General Manager, Mr. Bédard) and advises he has “one question left”. The email exchange is as follows: (more…)

Posted: Wednesday, April 18, 2018

Court of Appeal Decision of the Week

Court of Appeal Clarifies Pleadings Rule in ATV Accident Context

Case: Ernst v. Northbridge Personal Insurance Corporation, 2018 ONCA 339 (CanLII)

Keywords: Pleadings Rule; ATV; Off-Road Vehicles Act, R.S.O. 1990, CHAPTER O.4

Synopsis:

The Appellant, Northbridge Personal Insurance Corporation, appeals from an Application Judge’s order requiring that it defend an action arising from an ATV accident. The Respondents (Greg Ernst, Laurie Ann Stewart, and Andrew Ernst) are in the process of purchasing both the ATV and the rural property where the accident takes place from another family at the time of the accident. The Plaintiff in that action is Andrew Ernst’s ATV passenger.

The Ernst’s automobile insurance policy extends coverage to an ATV if it is both owned by the Respondents and the Respondents are not occupiers of the property on which the accident occurs. The Appellant denies coverage on the basis that, because the ATV was being operated on private property, it would not fall under the definition of an “automobile” – that it should really be considered an “off-road vehicle” subject to the Off-Road Vehicles Act, R.S.O. 1990, CHAPTER O.4. (more…)

Posted: Wednesday, April 11, 2018

Court of Appeal Decision of the Week

Beyond Hyrniak: Closing the Barn Doors on Summary Judgment Motions or, Closing After the Cattle Have Taken Off?

Case: Berscheid v Federated Co-operatives et al, 2018 MBCA 27 (CanLII)

Keywords: Summary Judgment; Cattle Supplements; Hryniak v Mauldin, 2014 SCC 7 (CanLII)

Synopsis:

The Appellant, Mr. Berscheid, operates a cattle farming operation. The Respondent, Federated Co-operatives Limited manufactures supplements for cattle. The supplements are sold to the Appellant by the Respondent, Swan Valley Consumers Co-Op.

There is no dispute the supplements were defective (not manufactured according to the specifications provided and for Sale of Goods Act, CCSM c S10 purposes). The Respondents concede this point in an amended statement of defence. The Appellant submits the defective supplements cause damages to his herd in excess of $810,000. He also submits this is an appropriate case for summary judgment. The Respondents seek further disclosure and production of information in order to properly evaluate and assess the claim for damages. (more…)

Posted: Tuesday, April 03, 2018

Court of Appeal Decision of the Week

Intervening at the Court of Appeal

Case: Huang v. Fraser Hillary’s Limited, 2018 ONCA 277 (CanLII)

Keywords: Intervener; Pollutants; Nuisance; Rule 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; Environmental Protection Act, R.S.O. 1990, c. E19

Synopsis:

Pollutants from a dry cleaning business contaminate Mr. Eddy Huang’s land, causing approximately $1.8 million in damages. The decision under appeal finds that Fraser Hillary’s Limited liable in nuisance and under the Environmental Protection Act, R.S.O. 1990, c. E19.

Ecojustice, a Canadian non-profit environmental law organization seeks leave to intervene in the appeal as “friend of the court” pursuant to Rule 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

The Court of Appeal dismisses Ecojustice’s motion. (more…)

Posted: Wednesday, March 28, 2018

Court of Appeal Decision of the Week

Who Can Sit as a “Presiding Officer” at Police Act Hearings?

Case: Frei v Calgary (Police Service), 2018 ABCA 102 (CanLII)

Keywords: Presiding Officer; Police Act, RSA 2000, c. P-17; Police Service Regulation, AR 356/90

Synopsis:

Under the Police Act, RSA 2000, c. P-17, a “presiding officer” conducts hearings as they relate to contraventions of the Act and complaints about police officers. The issue in this brief, but significant, decision of the Alberta Court of Appeal is whether Ms. Shirley Jackson, Q.C., a one-time deputy judge of the Yukon Territorial Court, is entitled to sit as a presiding officer in Alberta.

Eligibility is established by a range of statutory and regulatory provisions. Section 61(1)(g.01) of the Act provides that the Lieutenant Governor in Council may make regulations about who may serve as a presiding officer at a hearing.

Section 13(1) of the Police Service Regulation, AR 356/90 provides as follows: (more…)

Posted: Wednesday, March 21, 2018

Court of Appeal Decision of the Week

Injunctions, in the Real Estate Context

Case: May v 1986855 Alberta Ltd, 2018 ABCA 94 (CanLII)

Keywords: Injunctive Relief; Three Storey Duplex; Negative Covenant; Lubicon Lake Band v Norcen Energy Resources Ltd., 1985 ABCA 12 (CanLII); Noise Solutions v Commercial Insulation Contracting, 1998 ABCA 257 (CanLII)

Synopsis:

The parties own neighbouring lots in a residential Edmonton neighbourhood and disagree about what the Respondents can build on their lot. The Appellant says the Respondents’ plan to build a three storey duplex (or, as the Court of Appeal wrote, “three story [sic] duplex” at paras. 3 and 5) would breach the terms of agreements which restrict future development on each lot to a single dwelling unit. The Respondents take a different view.

The Appellant applies for an interim injunction enjoining the Respondents from breaching or inducing a breach of the terms of the agreements, pending a final determination by the court as to the proper interpretation of those agreements. The Chambers Judge (Burrows J.) determines that, since the amount of her loss would be capable of proof and could be the subject of an award of damages, the Appellant had not established she would suffer irreparable harm. (more…)

Posted: Wednesday, March 14, 2018

Court of Appeal Decision of the Week

Limitation Periods; Deference to Judges at First Instance

Case: Tapak v. Non-Marine Underwriters, 2018 ONCA 168 (CanLII)

Keywords: Transportation; Limitation Periods

Synopsis:

Two days before Christmas, in 2000, a passenger travelling on a bus grabs the steering wheel and forces it across the highway where it rolls onto its side and into a ditch. Several passengers suffer injuries and one passenger dies. The surviving passengers issue a statement of claim as against:

  • the steering wheel-grabbing passenger;
  • the bus driver;
  • Greyhound Canada Transportation (“Greyhound”) as operator;
  • Her Majesty the Queen in the Right of the Province of Ontario; and
  • the Ontario Provincial Police (including two individual Constables).

Ten years later, at trial, it is determined none of the defendants (with the exception of Mr. Shaun Davis, the passenger who grabbed the steering wheel) is liable. The plaintiff passengers appeal and later seek leave to the Supreme Court of Canada, but the motion is withdrawn following settlement. (more…)

Posted: Wednesday, March 07, 2018

Court of Appeal Decision of the Week

Agreements Signed in “Counterparts”: When do You Have Enough to Have a Binding Contract?

Case: Cana International Distributing Inc. v. Standard, 2018 ONCA 145 (CanLII)

Keywords: Sexual Health and Wellness Products; Contracts; Exclusive Distribution; Agreement Signed in Counterparts; Foley v. The Queen, 2000 CanLII 232 (TCC)

Synopsis:

The Respondent, Standard Innovation Corporation (“SIC”) enters extensive discussions with the Appellant, Cana International Distribution Inc. (“Cana”) to distribute “adult sexual health and wellness products”. Negotiations involve two streams of distribution: “mainstream industry” targeting and the “sex toy industry”. The Appellants argue separate agreements are reached for both streams, granting them exclusive distribution rights for the Respondent’s product, the “We-Vibe”.

The Trial Judge rejects both contractual claims, finding no binding agreements. The Court of Appeal disagrees, allowing the Appellant’s appeal in part. Although the Court of Appeal finds the “mainstream industry” agreement was binding, it does not accept that the Trial Judge erred in refusing to find an agreement for the “adult industry” stream. (more…)

Posted: Wednesday, February 21, 2018

Court of Appeal Decision of the Week

What is “Precisely the Type of Case” for Summary Judgment?

Case: Kueber v. Royal Victoria Regional Health Centre, 2018 ONCA 125 (CanLII)

Keywords: Summary Judgment; Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87

Synopsis:

A Motion Judge grants summary judgment dismissing the Appellant’s action as against the Respondents (County of Simcoe Paramedic Services, Paramedic J. Doe, nine doctors, and Barrie Medical Clinics Inc.). The decision also grants partial summary judgment dismissing the Appellant’s action against Victoria Regional Health Centre with respect to certain events described in the statement of claim.

Apart from a small correction to the partial summary judgment, the Court of Appeal finds no basis to interfere with the Motion Judge’s decision.

Importance:

This decision is worth reviewing because it provides a relatively clean, uncontroversial demonstration of the principles set out by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] 1 S.C.R. 87. (more…)

Posted: Wednesday, February 14, 2018

Court of Appeal Decision of the Week

(Lack of) Police Dashcams; Standard of Review; Motions to Strike

Case: Sangha v Alberta, 2018 ABCA 32 (CanLII)

Keywords: Traffic Conviction; Red Light; Abuse of Process; “Collateral Attack”; Standard of Review; Motions to Strike

Synopsis:

The Appellant is convicted of proceeding on a red light contrary to s. 54(1)(b) of the Use of Highway and Rules of the Road Regulation, Alta Reg 304/2002. Rather than appeal his conviction, the Appellant files a separate civil action claiming that, had there been an operational dash camera in the police vehicle, the case against him would not have involved a credibility contest (in which police evidence is allegedly “preferred”).

The Appellant argues the presence of a dash camera would have prevented the Respondent police officer’s breach of duty, negligence, and abuse of authority. He also claims against various municipal and provincial entities and argues, among other things, that the collective failure to equip (and enforce their use) police dash cameras constitutes negligence. The Appellant seeks the following remedies: (more…)

Posted: Friday, February 02, 2018

Court of Appeal Decision of the Week

Commercial Leases: What Does it Take to Revoke a Waiver?

Case: North Elgin Centre Inc. v. McDonald’s Restaurants of Canada Limited, 2018 ONCA 71 (CanLII)

Keywords: Commercial Lease; Revocation of Waiver; Petridis v. Shabinsky, 1982 CanLII 1829 (ON SC), 35 O.R. (2d) 215 (H.C.); Planning Act, R.S.O. 1990, c. P. 13

Synopsis:

The Appellant, McDonald’s Restaurants of Canada Ltd., and the Respondent, North Elgin Centre Inc., bring applications to determine their respective rights under a commercial lease. The lease is a twenty-year ground lease for lands in Richmond Hill, Ontario where McDonald’s has built and renovated a restaurant.

The lease includes an option to renew. Although Mcdonald’s gives proper notice of its intention to renew, the Application Judge determines more is required. For the Application Judge, because the Parties failed to agree on a rental rate nine months before the end of the original lease term, McDonald’s is obliged to either refer the issue to arbitration or revoke its intention to renew. Since McDonald’s does neither, the Application Judge finds the renewed lease uncertain as to the rental rate, a material term. (more…)

Posted: Wednesday, January 31, 2018

Court of Appeal Decision of the Week

Charter Damages & Habeas Corpus: Can They Go Together?

Case: Brown v. Canada (Public Safety), 2018 ONCA 14 (CanLII)

Keywords: Charter Damages; Habeas Corpus

Synopsis:

The Appellant, Mr. Brown, is a Jamaican citizen. He arrives to Canada in 1983, becoming a permanent resident by 1984. Between 1999 and 2010, he has a total of 18 convictions, some for violent offences. He is formerly addicted to crack cocaine and alcohol and it is alleged he suffers from schizophrenia. In 2005, his permanent residency is terminated and a removal order from Canada is issued because of “serious criminality”.

Prior to being deported to Jamaica, Mr. Brown is detained for the purpose of removal in a maximum security institution for five years (during which time the Jamaican consulate and Canadian Border Services Agency (CBSA) officials attempt to verify his Jamaican nationality). He brings a habeas corpus application and seeks damages under s. 24(1) as a remedy for alleged breaches of his ss. 7, 9 and 12 rights. On September 7, 2016, Mr. Brown is finally removed to Jamaica after the issuance of a travel document. (more…)

Posted: Wednesday, January 17, 2018

Court of Appeal Decision of the Week

Section 9 of the Crown Liability and Proceedings Act: What’s the Appropriate Scope of Crown Liability?

Case: Vancise v. Canada (Attorney General), 2018 ONCA 3 (CanLII)

Keywords: Proceedings Against the Crown

Synopsis:

The Appellant, John Vancise, imports four Hereford cattle from the United States. Three are infected with anaplasmosis (a disease spread by insect bites, or any instrument which can transmit blood). Once the condition is discovered, all four are returned to the United States.

Following an order made by the Respondents (the Attorney General of Canada and the Minister of Agriculture and Agri-food) designating the Appellant’s farm as an “infected place”, the original herd is quarantined. Seven of the Appellant’s cattle become infected and are ordered destroyed by the Respondents.

Pursuant to ss. 51 and 53 of the Health of Animals Act, S.C. 1990, c. 21, the Minister exercises its discretion to provide compensation to the Appellant. Compensation includes payments “with respect to treatment required” to eradicate the spread of the disease to other animals, in the amount of approximately $12,900 (the market value of the destroyed animals and associated treatment expenditures). (more…)

Posted: Wednesday, January 10, 2018

Court of Appeal Decision of the Week

Is Property Located on an Indian Reserve Exempt from Seizure?

Case: Taylor’s Towing v. Intact Insurance Company, 2017 ONCA 992 (CanLII)

Keywords: Property; Creditor’s Remedies; Repair and Storage Liens Act, R.S.O. 1990, C. R.25; Indian Act, RSC 1985, c I-5

Synopsis:

Vehicles owned by Ontario residents and insured by the Respondent, Intact Insurance Company, are involved in accidents. Following an accident, ownership effectively transfers to the Respondent. The vehicles are towed and stored by the Appellants, Taylor’s Towing, JR Towing and Salvage and Mohawk Towing. Each of these towing companies is owned by members of the Six Nations of Grand River Indian Reserve and located within the boundaries of Six Nations. Most of the vehicles are towed and stored at the request of Six Nations police.

A dispute arises with respect to towing and storage fees. The Respondent insurance company brings an application under the Repair and Storage Liens Act, R.S.O. 1990, C. R.25 (RSLA) to permit retrieval of the vehicles (in exchange for payment of money into court to the credit of any actions by the Appellants for their fees). (more…)

Posted: Wednesday, December 20, 2017

Court of Appeal Decision of the Week

Veterans’ Class Actions Litigation: Impact of “Social Covenants”; Charter; Honour of the Crown

Case: Scott v. Canada (Attorney General), 2017 BCCA 422 (CanLII)

Keywords: “New Veterans Charter”; ss. 7 and 15 of the Charter; “Social Covenant”; “Honour of the Crown”

Synopsis:

The Plaintiffs/Respondents are a class of members/former members of the Canadian Forces who suffer injuries in the course of their duties. They claim compensation under the Canadian Forces Members and Veterans Re-establishment and Compensation Act, S.C. 2005, c. 21 is inadequate – that the Act (referred to as the “New Veterans Charter”) violates an historic “social covenant” binding the Federal government. In support of their theory, the Plaintiffs/Respondents invoke the doctrine of “honour of the Crown” and assert the “social covenant” has a constitutional status which imposes obligations on the government and creates property rights. The Plaintiffs/Respondents also claim the “New Veterans Charter” scheme violates their rights under ss. 7 and 15 of the Charter.

In response, the Defendant/Appellant, the Attorney General of Canada, brings an application to have the claim struck as disclosing no cause of action. The Chambers Judge (Weatherill J.) declines to strike most of the claim, and so the Attorney General appeals to the Court of Appeal. (more…)

Posted: Wednesday, December 13, 2017

Court of Appeal Decision of the Week

Criminal Law: Restricted Use of General Warrants; How Should They Be Used?

Case: R. v. Christiansen, 2017 ONCA 941 (CanLII)

Keywords: General Warrant; s. 487.01 of the Criminal Code; Drug Trafficking

Synopsis:

Police suspect the Appellant, Mr. Christiansen, is engaged in drug trafficking. Surveillance of Mr. Christiansen entering and leaving a clothing store called “Limited Edition” leads police to further suspect the store is being used as a “stash” house. The police seek and obtain a general warrant pursuant to s. 487.01 of the Code.

Notwithstanding s. 487.01(1)(c) of the Code, the police Information to Obtain (“ITO”) discloses the general warrant is sought “…to support the issuance of a Controlled Drugs and Substances Act (CDSA) Warrant to search.” Nevertheless, the warrant is issued and police later confirm the presence of narcotics at the store. Relying on these observations, the police then secure the appropriate CDSA warrant and obtain the evidence which leads directly to Mr. Christiansen’s convictions (for possessing narcotics for the purpose of trafficking and possessing proceeds of crime). (more…)

Posted: Wednesday, December 06, 2017

Court of Appeal Decision of the Week

Rectification to Avoid Adverse Tax Consequences: A “Hail Mary Request”?

Case: Harvest Operations Corp. v. Attorney General of Canada, 2017 ABCA 393 (CanLII)

Keywords: Rectification; Corporate Law; Share Acquisition and Reorganization Transactions; “Hail Mary”; Canada (Attorney General) v. Fairmont Hotels Inc., [2016] 2 SCR 720, 2016 SCC 56 (CanLII)

Synopsis:

Viking Holdings Inc., a predecessor in interest to the Appellant, Harvest Operations Corp., enters into share acquisition and reorganization transactions. (For a complete summary of the transaction, see paras. 15-37). Tax experts produce a plan to accomplish this business objective on a tax-neutral basis.

The plan is not implemented. The result: significant adverse tax consequence (including a significant taxable capital gain) for the amalgamated company. (For a description of the tax problem, see para. 27).

The Appellants apply for rectification of the problem instruments. The Chambers Judge declines to grant the application when the Appellants fail to identify any documents containing “terms the parties did not intend them to have”. (See para. 6). (more…)

Posted: Wednesday, November 29, 2017

Court of Appeal Decision of the Week

Contracts: Breach; Set-Off; Gross Negligence; Fraudulent Misrepresentation; No-Fault Contracts; Standard of Review

Case: Precision Drilling Canada Limited Partnership v Yangarra Resources Ltd, 2017 ABCA 378 (CanLII)

Keywords: Drilling; Bilateral No-fault Agreement; Summary Judgment; Test for Fraud; Bruno Appliance and Furniture Inc v Hryniak, 2014 SCC 8 (CanLII)

Synopsis:

The parties (both participants in the oil and gas drilling industry) sign a standard industry contract known as a bilateral no-fault agreement or “knock for knock” or “no-fault” contract. The ‘gist’ of the agreement is that each party bears the risk of damage to its own assets, “regardless of the negligence or other fault of [the other party] or howsoever arising”. (See para. 6).

During an early December nightshift, an employee of the Respondent, Precision Drilling Canada Limited Partnership, mistakenly mixes sulfamic acid into drilling mud instead of caustic potash. The Respondent either does not test, or does not carefully test the mud. The Appellant, Yangarra Resources Ltd., is wrongly advised the drilling mud is in order. It is not. A “drill string and bit” becomes stuck in the hole and the Respondent cannot extract it; “Precision advised Yangarra that the drilling mud was in order, when it knew or should have known it was not.” (See para. 3). The well is abandoned and $300,000 worth of the Appellant’s equipment is lost. A replacement well is drilled at a cost of $2 million. (more…)

Posted: Wednesday, November 22, 2017

Court of Appeal Decision of the Week

Driving Over/Impaired: Is Care and Control “Over 80” An Included Offence?

Case: R. v. Pawluk, 2017 ONCA 863 (CanLII)

Keywords: Criminal Law; Included Offence; Impaired Driving; “Over 80”; s. 258(1)(c) of the Criminal Code, RSC 1985, c C-46; Detroit Lions

Synopsis:

The Respondent is involved in an MVA on his way home from a Detroit Lions football game. He admits to having consumed a “modest amount” of beer. At the roadside, the Respondent “smelled of alcohol” and discourages the driver of the vehicle he rear-ended from calling the police. Following an investigation, the Respondent is charged with impaired driving and driving “over 80” (contrary to ss. 253(1)(a) and (b) of the Criminal Code respectively).

Intoxilyzer readings show the Respondent has more than the legal amount of alcohol in his system (120 milligrams of alcohol in 100 millilitres of blood), but since the first breath sample is not taken within two hours of the time “the offence was alleged to have been committed”, the Crown is not entitled to rely on the presumption of identity (see s. 258(1)(c) of the Criminal Code). (more…)

Posted: Wednesday, November 15, 2017

Court of Appeal Decision of the Week

Class Actions: Medical; “Clean Hands”

Case: Levac v. James, 2017 ONCA 842 (CanLII)

Keywords: Class Actions; Certification Proceedings; Staphylococcus Aureus

Synopsis:

A Toronto pain management clinic (Rothbart Centre for Pain Care Ltd.) experiences a bacterial infection outbreak. Dr. Stephen James, an anaesthesiologist at the clinic, administers epidural injections to Ms. Anne Levac and other patients. Subsequent laboratory testing discloses Dr. James is “colonized” with staphylococcus aureus. Several patients, including the respondent, Anne Levac, become ill – her, “severely ill”.

Following an audit of the clinic by Toronto Public Health, a report finds:

  • James’ hand hygiene was not consistently or properly performed;
  • touched surfaces after hand sanitizing but before wearing sterile gloves;
  • used gloves that were too large for his hands;
  • did not remove his wedding ring before procedures; and
  • did not wait for skin preparation to dry before inserting the needle into the epidural space. (See complete list at para. 10).

(more…)

Posted: Wednesday, November 08, 2017

Court of Appeal Decision of the Week

Municipal Law: Appealing a Subdivision Appeal Board Zoning ByLaw Decision; Standard of Review; Duty to Consult

Case: Bell v Edmonton (Subdivision and Development Appeal Board), 2017 ABCA 354 (CanLII)

Keywords: Permission to Appeal; Zoning Bylaw; Municipal Government Act, RSA 2000, c. M-26

Synopsis:

The Applicant’s neighbour applies for a development permit to replace their existing home with one containing a secondary basement suite, rooftop terrace, fire pit, and hot tub. The proposed terrace also features a view of the Applicant’s second floor bedroom.

Pursuant to Edmonton Zoning Bylaws, a number of variances are required (which a development officer grants without providing any reasons for doing so). The Applicant appeals the development officer’s decision to the City of Edmonton Subdivision Appeal Board (SDAB). At the hearing, the SDAB permits the development officer to provide reasons, and ultimately dismisses the Applicant’s appeal, finding “…the noise and potential nuisance generated by social gatherings…is not a planning consideration that is within the purview of the Board.” (See para. 7).

The Applicant then appeals the SDAB decision on the following grounds: (more…)

Posted: Wednesday, November 01, 2017

Court of Appeal Decision of the Week

Court of Appeal finds Motion Judge’s “Sarcastic” Comments Regrettable, Not Evidence of Bias

Case: September Seventh Entertainment Limited v. The Feldman Agency, 2017 ONCA 815 (CanLII)

Keywords: Sarcasm; Reasonable Apprehension of Bias; Summary Judgment; Unconscionability

Synopsis:

The Appellant company (September Seventh Entertainment Limited) negotiates a series of contracts with the Respondent (The Feldman Agency) to have Jann Arden, Johnny Reid, and the Cowboy Junkies perform at “Harvest Picnic 2016 Festival”. Ms. Arden becomes ill and is unable to perform at the festival, but not before announcing her Toronto performance as per an amended contract. The remaining artists are alleged to have breached a “radius clause” by performing elsewhere. (See at paras. 1-10 in September Seventh Entertainment Ltd. v The Feldman Agency et al., 2017 ONSC 552 (CanLII)).

At the summary judgment motion, the Appellant company is represented by its president, Mr. Gauthier. The Motion Judge determines exclusion clauses contained in the performance contracts eliminate The Feldman Agency’s liability. Since Ms. Arden returned the premium advanced to her, the Motions Judge determines the alleged damages are “eclipsed entirely”. With respect to the remaining artists and their managers, the Motions Judge determines the limitation of liability clauses apply. (See at paras. 41-42 in September Seventh Entertainment Ltd. v The Feldman Agency et al., 2017 ONSC 552 (CanLII)). (more…)

Posted: Wednesday, October 25, 2017

Court of Appeal Decision of the Week

Teacher Voyeurism: Do Students have Reasonable Expectation of Privacy at School?

Case: R. v. Jarvis, 2017 ONCA 778

Special Note: There’s a publication ban in this case – see “Warning” at beginning of decision.

Keywords: voyeurism; sexual purpose; reasonable expectation of privacy; Criminal Code; section 162(1)(c)

Synopsis:

The Respondent, a high school teacher, made surreptitious video recordings of female students and a female teacher using a camera pen. After reports and personally observing the Respondent recording students, the principal obtained the camera pen from the Respondent and contacted police. The camera pen contained 19 videos of 30 separate individuals. The students, aged 14-18, were not aware of or did not consent to the recordings.

The Respondent was arrested and charged with voyeurism. Section 162(1)(c) of Criminal Code provides:

Every one commits an offence who, surreptitiously, observes – including by mechanical or electronic means – or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if …
(c) the observation or recording is done for a sexual purpose.

(more…)

Posted: Wednesday, October 18, 2017

Court of Appeal Decision of the Week

Misfeasance in Public Office, Fresh Evidence, and the Test for Setting Aside Discontinuance

Case: Holterman v. Fish, 2017 ONCA 769 (CanLII)

Keywords: CRA; Fraud; “Sagaz test”; Rule 59.06(2)(a); Rules of Civil Procedure, R.R.O. 1990, Reg. 194

Synopsis:

Canada Revenue Agency (“CRA”) suspects the Appellants are underreporting income. Mr. Andrew Fish, the Respondent CRA investigator, swears an Information to Obtain (“ITO”) in support of an application for search warrants. Fraud and tax evasion charges are laid against the Appellants.

At the Appellants’ criminal trial, the Trial Judge finds the Respondent “intentionally misleading” in swearing an ITO containing “numerous misstatements of facts”. These findings are subsequently upheld by the Court of Appeal and the Attorney General stays the charges against the Appellants. (See para. 5).

The Appellants next commence a civil action against the Respondent for misfeasance in public office, alleging that the Respondent had intentionally sworn a false ITO with intent to injure. After the Trial Judge reminds the Appellants of their onus to prove monies received were not taxable, the Appellants approach the Respondents and agree to discontinuance of the action on consent. (See para. 7). (more…)

Posted: Wednesday, October 11, 2017

Court of Appeal Decision of the Week

Business-Related Losses & Foreseeability

Case: Singh v. Soper, 2017 BCCA 335

Keywords: Personal Injury; Business-Related Losses; Foreseeability; Workers Compensation Act, R.S.B.C. 1996, c. 492

Synopsis:

The parties are involved in a collision. The Appellant, Mr. Robert Timothy Soper, is driving a vehicle owned by the Appellant D&R Sand and Gravel Ltd. in the course of his employment. The Respondent, Mr. Surinda Singh, is driving a leased truck in the course of his business.

Mr. Singh applies for and receives benefits under the Workers Compensation Act, R.S.B.C. 1996, c. 492. He also sues the Appellants for damages related to a $40,000 payment in respect of the leased truck. (Note: The Court of Appeal referred to this payment as the “deposit”, to signify that the word as used by the Trial Judge below was a misnomer (see at para. 6)). The Appellants obtain a s. 257 certificate precluding an action for personal injury pursuant to s. 10(1) of the Workers Compensation Act. (more…)

Posted: Monday, October 02, 2017

Court of Appeal Decision of the Week

Court of Appeal Rejects Constitutional Challenge to “User Pay” Jury System

Case: Trial Lawyers Association of British Columbia v. British Columbia, 2017 BCCA 324 (CanLII)

Keywords: Civil Jury Fees; Jury Act, R.S.B.C. 1996, c. 242; Constitutional Law

Synopsis:

The Appellant Trial Lawyers Association of British Columbia files a claim challenging the constitutionality of provisions of the Jury Act and Supreme Court Civil Rules providing for civil jury fees. The Appellant argues the provisions are

  • vague;
  • ultra vires the power of Sheriff Services; and
  • wrongfully impede access to justice (offending the rule of law and impinging on the court’s jurisdiction under s. 96 of the Constitution Act, 1867).

(more…)

Posted: Wednesday, September 27, 2017

Court of Appeal Decision of the Week

Tailoring Damage Awards for Catastrophic Impairment

Case: El-Khodr v. Lackie, 2017 ONCA 716

Keywords: Catastrophic Impairment; Prejudgment Interest; Ontario Drug Benefit Program; SABs

Synopsis:

Mr. Kossay El Khodr is “catastrophically” impaired when his tow truck is rear-ended. After a four week trial jury awards damages in the following amounts (para. 3):

General Damages: $225,000
Past Loss of Income: $220,434
Future Loss of Income: $395,593
Future Care Costs:
Attendant Care Costs/Assisted Living: $1,450,000
Professional Services (Physiotherapy, Psychology, etc): $424,550
Housekeeping and Home Maintenance: $133,000
Medication and Assistive Devices: $82,429
Total $2,931,006

Plaintiff is paid the full amount awarded by the jury. The subject matter of the appeal is a series of rulings during and after the trial. The Court of Appeal allows the Appellants’ appeal, amends the Trial Judge’s order. (more…)

Posted: Wednesday, September 20, 2017

Court of Appeal Decision of the Week

When is a Lawyer a Partner or Employee?

Case: Daniel v. Miller, Canfield, Paddock and Stone, LLP, 2017 ONCA 697 (CanLII)

Keywords: Lawyer; Employee; Partner; McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39 (CanLII); Backman v. Canada, [2001] 1 SCR 367, 2001 SCC 10 (CanLII)

Synopsis:

The Appellant, Julie Daniel, practises law in the City of Windsor in the specialty of commercial and financing transactions. The Appellant joins the Respondent law firm as an associate in March, 2000. In 2006, the Appellant is elevated from the status of an associate lawyer and accepted as a “Salaried International Principal”. Following dissolution of the law firm, the Appellant is not offered a comparable position or remuneration elsewhere, nor is she offered a severance package.

The Appellant claims she was an employee and that, under the circumstances, termination of her employment amounts to a constructive dismissal, without notice. The Respondent firm’s position is that, when the plaintiff became a “Salaried International Principal”, she became a partner and as a partner cannot maintain an action against the firm. (For more background information see Daniel v Miller, Canfield, Paddock and Stone LLP, 2016 ONSC 5712 (CanLII)). (more…)

Posted: Wednesday, September 13, 2017

Court of Appeal Decision of the Week

Former Principal/Teacher Guilty of Professional Misconduct in “Upgrading” Daughter’s High School Grades; “Weighing” Evidence at a Committee Stage

Case: Sautner v Saskatchewan Teachers’ Federation, 2017 SKCA 65 (CanLII)

Keywords: “Upgrading” High School Grades; Professional Ethics Committee; The Education Act, 1995, SS 1995, c E-0.2; Education Regulations, 1986, RRS c E-0.1 Reg 1

Synopsis:

The Appellant, Kimberly Sautner, formerly a teacher and principal of Wolseley High School, is found guilty of professional misconduct by a Professional Ethics Committee (“the Committee”) of the Saskatchewan Teachers’ Federation after “upgrading” two of her daughter’s grade 12 marks.

The Appellant’s daughter is at risk of failing an English course at the University of Lethbridge. Faculty advisors suggest that, had she achieved a combined average of 80% in two high school courses, she would not be required to take English. The Appellant undertakes to “upgrade” her daughter’s high school English marks; inquires as to whether individuals at the school could assist in altering the grades, so sends a text message as follows: (more…)

Posted: Wednesday, September 06, 2017

Court of Appeal Decision of the Week

If at First You Don’t Succeed: The Test for “Leave to Re-Argue” an Appeal

Case: Kostic v Piikani Nation, 2017 ABCA 263 (CanLII)

Keywords: Contracts; Enforceability; Misapprehension of Evidence; Test for Re-Arguing an Appeal

Synopsis:

Following the Court of Appeal’s decision in Kostic v Piikani Nation, 2017 ABCA 53 (CanLII), the Applicant, Piikani Nation, seeks leave to re-argue the appeal on the basis the court is misled with respect to the evidence, and misapprehended/overlooked critical evidence.

At the first appeal, the issue to be determined is enforceability of business agreements executed by the parties. The Applicant’s argument is that the agreements are not enforceable as they are not supported by consideration. The Respondent successfully appeals the Trial Judge’s declaration the agreements are unenforceable; the Court of Appeal concludes the business agreements are both supported by consideration and enforceable.

The Court of Appeal dismisses the Applicant’s application for leave to re-argue the appeal. The Court of Appeal concludes that arguments advanced by the Applicant in support of re-arguing the case are collateral to the decision made on enforceability. (more…)

Posted: Thursday, August 17, 2017

Court of Appeal Decision of the Week

MVA’s: Whether “Knew or Ought to Have Known” is an Objective or Subjective Test for Insurance Purposes?

Case: Schoenhalz v. Insurance Corporation of British Columbia, 2017 BCCA 289 (CanLII)

Keywords: MVA; Negligence; Owner’s Consent; Insurance (Vehicle) Act, RSBC 1996, c 231

Synopsis:

Five teenagers, including the Respondent Ms. Schoenhalz, take a 1986 Camaro to the campgrounds near Dry Lake. Once at the campsite, the Respondent and Ms. Reeves take the keys to the Camaro and set out to purchase hotdogs. The Respondent is 17 and has her driver’s licence. Ms. Reeves is 15, and does not.

Since Ms. Reeves has experience operating a standard transmission and the Respondent does not, Ms. Reeves takes the wheel. There is no discussion or concern on the part of either the Respondent or Ms. Reeves as to whether they have permission to drive the Camaro. A few miles down the road, Ms. Reeves loses control at a corner, her attention having been diverted by problems with the vehicle’s CD player. The car rolls over. The Respondent suffers serious injuries and third degree burns. (more…)

Posted: Wednesday, August 16, 2017

Court of Appeal Decision of the Week

When is a “Stay Order” Effectively an (Appealable) Injunction?

Case: Maxwell’s Plumbing and Heating Ltd. v. British Columbia, 2017 BCCA 285 (CanLII)

Keywords: Mootness; Provincial Sales Tax Act, SBC 2012, c 35; Crown Proceeding Act, R.S.B.C. 1996, c. 89); Injunctions Against the Crown

Synopsis:

The Appellant appeals the order of a Chambers Judge staying enforcement of a $14,298.88 provincial sales tax assessment against the Respondent (pending the determination of its appeal). The Respondent’s appeal is subsequently dismissed, rendering the underlying Provincial Sales Tax Act, SBC 2012, c 35 issues moot. Despite its mootness, the Province advances the argument that the Court of Appeal should consider the issues on appeal so as to address the precedential value of the Chambers Judge’s order and since other taxpayers will likely pursue the same interim remedy.

The Court of Appeal determines it is appropriate to hear and consider the Province’s first ground of appeal (that because the Chambers Judge’s order restrains the lawful conduct of a government official, it is in the nature of an injunction and thus not available pursuant to s. 11 of the Crown Proceeding Act, R.S.B.C. 1996, c. 89), despite the fact that the matter is moot and the present appeal was conducted without an adversarial context.

(more…)

Posted: Wednesday, August 09, 2017

Court of Appeal Decision of the Week

Can a Municipal Bylaw Prohibit a Dock on Waterfront Property?

Case: Zongshen (Canada) Environtech Ltd. v. Bowen Island (Municipality), 2017 BCCA 267 (CanLII)

Keywords: Dock; Municipal Bylaw; Private Moorage Facility; Permanent Moorage

Synopsis:

The Appellant owns waterfront property on Bowen Island at Cape Roger Curtis in B.C. and wants to build a dock. Bowen Island Municipality has a bylaw amendment (adopted by council after the Appellant applied for a building permit) prohibiting construction and refuses to issue a building permit. The Appellant’s application for judicial review is dismissed, based on a determination that, as amended, the bylaw prohibits the dock.

On appeal, the Appellant raises the following questions:

  • whether the amendment actually prohibits construction of the dock;
  • whether the Appellant has satisfied the test for an order in the nature of mandamus (compelling the Municipality to issue a building permit); and
  • whether it has established some alternative legal right to construct the dock despite the prohibition.

(more…)

Posted: Wednesday, August 02, 2017

Court of Appeal Decision of the Week

Prosper Warnings & The Right to Counsel Without Delay

Case: R. v. Fountain, 2017 ONCA 596 (CanLII)

Keywords: Right to Counsel Without Delay; Prosper Warning; Exclusion of Evidence

Synopsis:

General Overview

The Appellant, Mr. Jason Fountain appeals against his convictions for armed robbery, forcible confinement, and breaking/entering to commit an indictable offence. His grounds of appeal include arguments that the investigating officer should have given him a “Prosper warning”, that the Trial Judge erred in finding his s. 10(b) rights were not breached, and that the Trial Judge erred in failing to exclude statements he made prior to speaking with a lawyer.

The Court of Appeal agrees Mr. Fountain’s s. 10(b) rights were violated by the investigating officer. Paciocco J.A. finds that a “Prosper warning” is required, that the Trial Judge erred in finding Mr. Fountain had waived his right to consult counsel without delay, and that the Trial Judge erred in finding a police caution would be an adequate substitute for the warning. On the 24(2) analysis, the Court of Appeal determines Mr. Fountain’s statements, the “lynch-pin” of the Crown’s case, must be excluded. The Court of Appeal therefore quashes Mr. Fountain’s convictions and enters acquittals. (more…)

Posted: Wednesday, July 19, 2017

Court of Appeal Decision of the Week

Civil Procedure/Employment Law: When is an Expert Needed/Not Needed?

Case: Lau v. Royal Bank of Canada, 2017 BCCA 253 (CanLII)

Keywords: Employment; Wrongful Dismissal; Dismissal for Cause; Aggravated Damages; Evidence; Mental Distress; Saadati v. Moorhead, 2017 SCC 28 (CanLII)

Synopsis:

The Respondent, Mr. Marco Lau, is a Royal Bank of Canada (RBC) employee subject to the Royal Mutual Funds Inc. (RMFI) compliance manual. Following a complaint and investigation by RBC’s “Corporate Investigation Services” (CIS), it is discovered Mr. Lau tracks sales incorrectly – recording them as “new money” to artificially increase his sales figures.

RBC dismisses Mr. Lau for cause and provides a letter stating as follows:

… your employment with Royal Bank of Canada is terminated for cause … as a result of your falsification of bank records and failing to tell the truth when questioned regarding an alleged joint session with a client. In particular, you claimed existing money as new to bolster your sales, and maintained that you participated in a joint session with a client despite evidence to the contrary. (more…)

Posted: Wednesday, July 12, 2017

Court of Appeal Decision of the Week

The Commercial Activity Exemption: When are Foreign States or State ‘Actors’ Immune from Canadian Claims?

Case: Homburg v Stichting Autoriteit Financiële Markten, 2017 NSCA 62 (CanLII)

Keywords: State Immunity from Civil Lawsuit; State Immunity Act, R.S.C. 1985, c. S-18; Sovereign Equality of States

Synopsis:

The Appellants are licensed by the Respondents (a group of Dutch regulatory agencies) for the purpose of offering collective investment schemes to investors in the Netherlands. The Appellants offend aspects of the Dutch legal standard for offering securities, and are sanctioned by the Respondents. The Appellants sue the regulators in the Supreme Court of Nova Scotia, claiming the regulatory agencies’ sanctions are tortious.

A judge of the Supreme Court of Nova Scotia dismisses the action pursuant to the State Immunity Act, R.S.C. 1985, c. S-18 (under s. 3 of which “organs” of a foreign state are immune from civil action in a Canadian court). Although the Act provides state immunity does not protect “commercial activity”, the Trial Judge determines the Respondents’ activities would not meet the definition. (more…)

Posted: Wednesday, July 05, 2017

Court of Appeal Decision of the Week

Trial Judges’ Sentencing ‘Discretion’; Assignment of Judges

Case: R. v. Gashikanyi, 2017 ABCA 194 (CanLII)

Keywords: Sentencing; Stare Decisis; “non-random assignment”

Note: This case has a Restriction on Publication as follows:

Restriction on Publication

Identification Ban – See the Criminal Code, section 486.4.

By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any way.

NOTE: This judgment is intended to comply with the restriction so that it may be published

Synopsis:

Two young women run away from home. The Respondent, age 33, spots the young women, ages 14 and 18 (the latter her cousin) at a bus stop. The Respondent offers to take them to his home and feed them. All three spend the night with the Respondent. He twice has protected sexual intercourse with each young woman and, the following morning, further and unprotected  intercourse with the fourteen year old. (See para. 55). (more…)

Posted: Wednesday, June 28, 2017

Court of Appeal Decision of the Week

Spelling Bee Question: Spell “Summary Judgment”

Case: Parsaei v. Toronto (Police Services Board), 2017 ONCA 512 (CanLII)

Keywords: Wrongful Arrest; Reasonable and Probable Grounds; Hryniak v. Mauldin, 2014 SCC 7 (CanLII), [2014] S.C.J. No. 7 (S.C.C.)

Synopsis:

This matter arises from the Appellant’s complaints about the way in which her son was treated by school staff and disagreements regarding who won (or should have won) a spelling bee at the school. The Appellant appeals from a summary judgment decision dismissing her action against the Respondents, Toronto Police Services Board and Detective Constable Andrew MacPhail, for wrongful arrest and negligent investigation of criminal charges. The appellant and two other women were charged criminally in connection with:

  • a series of threatening letters posted around and mailed to residents near Perth Avenue Public School in Toronto;
  • a series of related hostile and harassing phone calls to staff, the principal of the school, and members of the Toronto District School Board; and
  • an harassing letter sent to a member of the Board.

(more…)

Posted: Wednesday, June 21, 2017

Court of Appeal Decision of the Week

Appealing from CCAA Proceedings: Court of Appeal Rejects Application for Leave

Case: Essar Steel Algoma Inc. (Re), 2017 ONCA 478 (CanLII)

Keywords: CCAA Proceedings; Restructuring; Leave to Appeal

Synopsis:

GIP Primus LP and Brightwood Loan Services LLC (collectively “GIP”) and Port of Algoma Inc. (“Portco”) apply for leave to appeal an order made in the context of insolvency proceedings under the Companies’ Creditors Arrangement Act, RSC 1985, c C-36 (“CCAA”). The proceedings involve Essar Steel Algoma Inc. (“Algoma”) and related companies.

Algoma addresses its need for “cash injection” via solvent restructuring under the CCAA. This results in a transaction involving four basic components:

  1. the sale by Algoma to Portco of port facilities at Sault Ste. Marie, Ontario;
  2. a lease of the port lands to Portco for a period of 50 years;
  3. a “Cargo Handling Agreement” under which Algoma pays Portco for the use of port and cargo-handling facilities at a cost of $36 million annually (in monthly instalments); and
  4. a “Shared Services Agreement” which requires Portco to pay Algoma $11 million annually in exchange for Algoma providing operation and maintenance services at the port. (See para. 2).

(more…)

Posted: Wednesday, June 14, 2017

Court of Appeal Decision of the Week

Court of Appeal: Cheese Smuggling by Police (Woulda, Shoulda, Gouda)

Case: R. v. Heron, 2017 ONCA 441 (CanLII)

Keywords: Conspiracy to Smuggle (here, cheese); Breach of Trust By Public Official (here, police officers)

Synopsis:

The Appellant is convicted of conspiracy to smuggle (here, cheese) into Canada from the United States. The cheese is sold to local restaurants for profit at discount prices made possible by evading the 246% duty. About $133,000 of cheese and other food is smuggled, with the result that about $325,000 worth of duty is evaded. The Appellant and his accomplice are police officers with Niagara Regional Police. As such, he is also convicted of breach of trust by a public official.

The Appellant does not appeal the smuggling conviction, but seeks to set aside the conviction for breach of trust and leave to appeal from sentences (three month imprisonment for the smuggling offences and one months’ imprisonment, consecutive, on the breach of trust offence).

The Appellant raises one ground with respect to his breach of trust conviction: that the trial judge erred in finding the only reasonable inference to be drawn from his running a Canadian Police Information Centre (“CPIC”) check on the licence plate of his accomplice and fellow police officer was that he made the search to evade detection and/or determine to what extent law enforcement was aware of their activities. (more…)

Posted: Thursday, June 08, 2017

Court of Appeal Decision of the Week

When Do Businesses “Occupy” Municipal Sidewalks – For “Slip and Fall” Purposes

Case: MacKay v. Starbucks Corporation, 2017 ONCA 350 (CanLII)

Keywords: Starbucks; Slip and Fall; Occupiers’ Liability Act, R.S.O. 1990, c. O.2

Synopsis:

The Respondent falls on an ice-covered patch of sidewalk near a Starbucks patio. Based on the evidence (including testimony from a Starbucks shift manager who relayed his instruction to ensure the safety of customers by clearing the patio entrance with a shovel and salt) the Trial Judge determines Starbucks is an occupier per the Occupiers’ Liability Act, R.S.O. 1990, c. O.2, and owes the Respondent a duty of care.

On Appeal, the Court of Appeal addressed two issues:

  1. did the Trial Judge err in her conclusion Starbucks was an occupier of the area of the sidewalk leading to its patio where the respondent slipped and fell?
  2. if that finding was in error, did Starbucks nevertheless owe a common law duty of care to the respondent?

(more…)

Posted: Wednesday, May 31, 2017

Court of Appeal Decision of the Week

The Standard Litigation-Ending Broadly-Worded Mutual Release — Does it Apply to an “Unanticipated Claim”?

Case: Biancaniello v. DMCT LLP, 2017 ONCA 386

Keywords: butterfly transaction, unanticipated claim, Income Tax Act

Motion judge:  No.|
Divisional Court (an intermediate 3-judge appellate court in Ontario): No.
Ontario Court of Appeal: Yes.
Supreme Court of Canada: don’t know (yet), judgment came down Monday of last week (May 15, 2017), so S.C.C. deadline to file a Leave to Appeal is Monday, August 14th. Email me if:

(more…)

Posted: Wednesday, May 24, 2017

Court of Appeal Decision of the Week

‘Slip and Fall’: Speculation; and the Court of Appeal

Case: Robinson v. 1390709 Alberta Ltd., 2017 BCCA 175 (CanLII)

Keywords: ‘Slip and Fall’; Occupiers Liability Act, RSBC 1996, c 337

Synopsis:

On their way to attend a show, Ms. Robinson and Ms. Horgan stop at a restaurant called Chopped Leaf to have dinner. The roads and sidewalks are dry as it had neither snowed nor rained that day. After Ms. Robinson and Ms. Horgan finish their meals, they get up and begin walking towards the front door, leaving their dishes at the table. There are no other customers in the restaurant at the time.

In her affidavit, Ms. Robinson explains what happens next (See at para. 2):

As I neared the door, I put my left foot down and felt it slip forward suddenly. I definitely felt something slimy and thicker than liquid under my foot, and felt it slide as my left foot slid forward. I could not lift my left foot because it was already too far in front when I started to react to the slip. I tried to correct my balance by shifting my weight forward but my left foot was out in front of me and I fell heavily onto my back and left side. [Emphasis added].

(more…)

Posted: Wednesday, May 17, 2017

Court of Appeal Decision of the Week

Quantifying Loss-of-Use: When the Garage Drives Your Favourite Ferrari into a Parked Truck

Case: Miller v. Brian Ross Motorsports Corp., 2017 BCCA 166 (CanLII)

Keywords: Ferrari F430; General Damages; Non-Pecuniary Damages

Synopsis:

A technician employed by the Respondent automobile dealership road-tests the Appellant’s Ferrari F430 (the “quality control” component of its annual service). During the course of this test, the technician collides with a parked truck, causing considerable negligent damage to the Ferrari (and the truck as well, no doubt). The Appellant’s Ferrari F430 is then wrongfully detained for nine months as repairs are sorted. The parties “wisely settled” repair costs ($35,664) and accelerated depreciation ($36,350.25); they could not agree on the value of the appellant’s loss-of-use. (See para. 1). (No word on whether crash-driving technician still works there).

At trial, Madam Justice Dardi awarded the Appellant $15,000 in general, non-pecuniary damages for loss-of-use. On appeal, the Appellant raises the following issues: (more…)

Posted: Wednesday, May 03, 2017

Court of Appeal Decision of the Week

Tax Returns and the Court of Appeal: “What a Diff’rence a Day Makes”

Case: TD Bank v. British Columbia (Commissioner of Income Tax), 2017 BCCA 159 (CanLII)

Keywords: International Business Activity Act, S.B.C. 2004, c. 49; Income Tax; Tax Return; Tax Refund

Synopsis:

TD Bank’s tax return claiming a refund of $2.8 million is filed one day after the B.C. Provincial Commissioner of Income Tax thought it was due. The Commissioner determines the refund is nil. She also refuses an extension of time. The B.C. Minister of Finance confirms the nil determination.

TD appeals the Minister’s decision, seeking judicial review of the Commissioner’s refusal to extend time. The chambers judge finds the return had been filed in time and ordered the Commissioner to assess the claim. The chambers judge does not find it necessary to judicially review the refusal of the extension of time. (more…)

Posted: Wednesday, April 26, 2017

Court of Appeal Decision of the Week

Employment Law: “Express Oral Terms”; Standard of Review

Case: Aubrey v. Teck Highland Valley Copper Partnership, 2017 BCCA 144 (CanLII)

Keywords: Employment Contract; Oral Term; Severance Package; Objective Assessment

Synopsis:

The Appellant, Teck Highland Valley Copper Partnership (“HVC”), operates a large copper mine near Logan Lake, Brit111ish Columbia. In 1993, the Respondent, Mr. Aubrey is hired in a staff position as supervisor. Following a discussion with HVC’s human resources department, Mr. Aubrey understands that, upon retirement, he is entitled to receive one month’s pay for every year of service up to a maximum of 18 months.

Mr. Aubrey retires in July 2012 and HVC refuses to provide the package. An action is brought for damages for breach of the employment contract. The Trial Judge allows the claim, awarding damages of $176,250. For the Trial Judge, Mr. Aubrey’s understanding/recollection of the discussion with HVC’s human resources department provided evidence of an express oral term in the employment agreement. (more…)

Posted: Wednesday, April 19, 2017

Court of Appeal Decision of the Week

Lacking Jurisdiction: Can a Court of Appeal Determine a Matter (Novel Cause of Action) Arising from in Chambers Negotiation?

Case: Abridean International Inc. v Bidgood, 2017 NSCA 25 (CanLII)

Keywords: Chambers Judge; Jurisdiction; Motion in Chambers; Enforceable Contract

Synopsis:

The Nova Scotia Labour Board awards the Applicant, Mr. Bidgood, a substantial sum of money following termination of his employment. Mr. Bidgood’s former employer appeals, arguing the Labour Board lacked jurisdiction to provide the award.

Negotiations occur between the parties. The Court of Appeal is informed an agreement in principle has been reached. Mr. Bidgood claims a deal is made. The appellants disagree. The Applicant, Mr. Bidgood, brings a motion (in chambers) to enforce the alleged settlement agreement.

Bryson J.A. raises the question of jurisdiction to resolve the matter, and dismisses the Applicant’s motion. The issue discloses a new cause of action, justiciable in the Supreme Court of Nova Scotia. (more…)

Posted: Tuesday, April 11, 2017

Court of Appeal Decision of the Week

RCMPLAND: Free Press v. Effective Police

Case: R. v. Vice Media Canada Inc., 2017 ONCA 231

Keywords: Free press, law enforcement, production order, journalists, police

Synopsis:

Journalist Ben Makuch had been messaging a Calgary man who allegedly left Canada to join ISIS. Makuch wrote three articles about the accused terrorist for Vice Media Canada Inc. Police obtained an ex parte production order requiring the appellants, Vice and Makuch, to hand over background materials used for the stories. Vice and Makuch did not produce the material but instead brought an application to quash or set aside that order and an application to unseal the record the police relied on to obtain the order.

The application judge:

  1. rejected Vice’s application to quash the production order;
  2. set aside most of the order sealing the material on which the police relied to obtain the production order; and
  3. made some of the unredacted information subject to a temporary non-publication order preventing the press from disseminating that information to the public.

(more…)

Posted: Wednesday, March 29, 2017

Court of Appeal Decision of the Week

Amicus Curiae & Zoning Disputes: With (Amicus) Friends Like These, Who Needs Enemies?

Case: Scaduto v. Cucu, 2017 ONCA 224 (CanLII)

Keywords: Amicus Curiae; Property Zoning

Synopsis:

The appellants, Maria Scaduto and her son Guiliano Scaduto, object to the operation of a restaurant at a property neighbouring theirs. The property was originally a garage before being converted into a restaurant. The respondent, Liviu Cucu, owns the property in question and formerly operated the restaurant.

The appellants maintain the property was not zoned for commercial use and the City of Toronto acted improperly in allowing a building permit for conversion of the property. In this proceeding, the appellants seek an injunction against the respondent. The City of Toronto is not a party.

An Application Judge had appointed counsel for Toronto as amicus curiae to help the court with “…the history and with the materials”. (See para. 5). The Application Judge found the appellants are incorrect – the legal address of the property (as distinct from its “convenience address”) had been zoned to permit restaurants. (more…)

Posted: Wednesday, March 22, 2017

Court of Appeal Decision of the Week

Proprietary Estoppel: Applying Wolf v. Canada (Attorney General), 2017 BCCA 30 (CanLII)

Case: Hawes v. Dave Weinrauch and Sons Trucking Ltd., 2017 BCCA 114 (CanLII)

Keywords: Subsurface Mineral Rights; Proprietary Estoppel; Equity

Synopsis:

Westmin Resources Ltd. acquires the “Ainsworth property” located in West Kootenay Lake region; hires the appellants as caretakers. In exchange for their services, Westmin allows the appellants to occupy a house for payment of a modest rent.

Boliden Westmin (Canada) Ltd. later acquires the Ainsworth property from Westmin. According to the appellants, Boliden provides assurances the houses they occupy would become theirs. Counsel for Boliden writes to the British Columbia Assets and Land Corporation (BCAL) with a view to completing the sale to the appellants. Although Counsel for Boliden eventually prepares draft contracts for the purchase and sale of properties occupied by the appellants (“if certain conditions were met”), the agreements are never executed. (more…)

Posted: Wednesday, March 15, 2017

Court of Appeal Decision of the Week

“All Inclusive” Language in Termination Clause = No Vacation from Employment Standards Act, 2000, SO 2000, c 41

Case: Wood v. Fred Deeley Imports Ltd., 2017 ONCA 158 (CanLII)

Keywords: Termination Clause; Employment Standards Act, 2000, SO 2000, c 41; Reasonable Notice

Synopsis:

Fred Deeley Imports Ltd. (the Respondent) is exclusive distributor for Harley-Davidson motorcycles, parts, apparel and accessories. At the end of April 2015, Harley-Davidson Canada enters an agreement with Deeley to purchase all of its assets. As a result of the buyout, Deeley informs its employees, including the Appellant, that their employment is terminated effective August 4, 2015. As of the date of termination, the Appellant worked as “Sales & Event Planner” for eight years and four months. She is 48 years old at the time her employment ends; her annual compensation, including benefits, is approximately $100K.

The Appellant signed an employment agreement the day after she started working for Deeley. A termination clause in that agreement provides as follows: (more…)

Posted: Wednesday, March 01, 2017

Court of Appeal Decision of the Week

Intervening at the Federal Court of Appeal: Essential Criteria for Proposed Interveners

Case: Canada (Attorney General) v. Shakov, 2016 FCA 208

Keywords: Intervener, Rule 109, Leave to Intervene, Public Interest

Synopsis:

The Director of International Programs for the Office of the Commissioner for Federal Judicial Affairs (FJA) quit. The FJA approached Oleg Shakov to take a one-year appointment. The position was created with an “English Essential” language requirement.

The Public Service Commission, an independent agency charged with making appointments to the public service, investigated the appointment. The PSC concluded the language requirement, “English Essential”, had been tailored to fit Mr. Shakov’s profile. It recommended the appointment be revoked.

The Federal Court, in a strongly worded judgment, allowed the application for judicial review and set aside the decision of the PSC: “…there was no favouritism in the appointment of Mr. Shakov. The best person available was chosen for a short term in order to quickly resolve an urgent problem….The PSC’s conclusion of “improper conduct” was unreasonable as it totally disregarded the context in which the decision of the Acting Commissioner was made.” (more…)

Posted: Tuesday, February 28, 2017

Court of Appeal Decision of the Week

A House Divided Against Itself Cannot Stand: Joint Tenancy, Ademption, and the Principles of Hyrniak v. Mauldin

Case: Winnitowy v Winnitowy, 2017 SKCA 12 (CanLII)

Keywords: Hryniak v. Mauldin, [2014] 1 SCR 87, 2014 SCC 7 (CanLII); Summary Judgment; Joint Tenancy; Ademption; Wills & Estates

Synopsis:

Bill and Jean Winnitowy meet May 19, 1999, become engaged November 27, 1999 and are married August 30, 2003.

Bill has three children: Randy, Lori, and Dale (the Appellants). All are adults and fully independent from Bill. Jean, the Respondent, is not the biological mother of any of the Appellants.

Bill and Jean reside together in a house. Prior to their marriage, Bill and Jean enter into an “Interspousal Agreement” disposing of the house in favour of Jean upon Bill’s death. Bill later executes a will and Jean is named executrix. After Bill’s passing, a dispute arises between Bill’s wife and Bill’s children with regard to entitlement to the house.

Randy and Lori believe Jean, as executrix, is secretive about the will. The children commence an action seeking orders and declarations which would result in their receiving a beneficial interest in one half of the house. Jean applies for summary judgment dismissing the Appellants’ claim.

The Court of Queen’s Bench finds that, upon his death, Bill no longer owns an interest in the house, as a result of having entered (along with Jean) into joint tenancy with a right of survivorship. An ademption of the bequest to his children of half the value of the house occurs. Jean deposes Bill’s children treated him improperly, leading Bill to his decision to transfer the house into joint tenancy.

Granting summary judgment and dismissing the Appellants’ claim, Tholl J. finds “This was Bill’s intention and the ademption accomplishes the result he wished to occur”. (See para. 72 in Winnitowy v Winnitowy, 2016 SKQB 231 (CanLII)).

On appeal, the Appellants raise the following issues:

  • that the decision to issue summary judgment in the absence of oral evidence constituted palpable and overriding error;
  • the conclusion that Bill’s children provided no evidence to support a finding Jean exerted control over Bill’s ability to make his own decision was unreasonable;
  • that the conclusion that the affidavits of Jean Winnitowy and Arliss Dellow should be given preferential weight as compared to the affidavits of Bill’s children was unreasonable; and
  • in oral argument, that Tholl J. made a palpable and overriding error of fact. (See paras. 3, 4).

The Court of Appeal dismisses the children’s appeal. The Court finds Tholl J. correctly stated the law, extensively reviewed the evidence, resolved issues of credibility, and did not misdirect himself in relation to the issues that were contested. There is no error in the analysis to justify intervention.

Importance:

This case provides an illustration of the principles found in Hryniak v. Mauldin, [2014] 1 SCR 87, 2014 SCC 7 (CanLII). For the Court of Appeal, the result in this matter was “governed entirely” by the following principles from Hryniak:

[81] In my view, absent an error of law, the exercise of powers under the new summary judgment rule attracts deference. When the motion judge exercises her new fact-finding powers under Rule 20.04(2.1) [the Rule 7-2 equivalent] and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law. Where there is no extricable error in principle, findings of mixed fact and law should not be overturned absent palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235, at para. 36.

[82] Similarly, the question of whether it is in the “interest of justice” for the motion judge to exercise the new fact-finding powers provided by Rule 20.04(2.1) depends on the relative evidence available at the summary judgment motion and at trial, the nature, size, complexity and cost of the dispute and other contextual factors. Such a decision is also a question of mixed fact and law which attracts deference.

[83] Provided that it is not against the “interest of justice”, a motion judge’s decision to exercise the new powers is discretionary. Thus, unless the motion judge misdirected herself, or came to a decision that is so clearly wrong that it resulted in an injustice, her decision should not be disturbed.

[84] Of course, where the motion judge applies an incorrect principle of law, or errs with regard to a purely legal question, such as the elements that must be proved for the plaintiff to make out her cause of action, the decision will be reviewed on a correctness standard: Housen, at para. 8.

It was not insignificant for the Court of Appeal that the parties had already expended a large sum of money on legal fees in circumstances where, for each of the three Appellants, approximately $30,000 was at stake. (See para. 5). The Court of Appeal interpreted Tholl J.’s reasons as having been consistent with Hyrniak principles – namely that the Tholl J. had been making the point that if the matter was ordered to proceed to a trial, “…it would soon diminish, if not eliminate, any possible equity in the home”. (See para. 5).

The Court of Appeal concluded that, where there is no application of an incorrect principle of law or error with respect to a purely legal question, Courts are not to intervene unless the decision is “so clearly wrong” as to result in an injustice. (See para. 14).

Counsel for the Appellants: David Rusnak, Q.C. and Andrew Glum (Rusnak Balacko Kachur Rusnak, Yorkton, Saskatchewan)

Counsel for the Respondent: Shawn Patenaude (Shawn Patenaude Legal Professional Corporation, Yorktown, Saskatchewan)

Discuss on CanLii Connects

Posted: Wednesday, February 22, 2017

Court of Appeal Decision of the Week

“The Proof is in the Pudding”: Court of Appeal Determines Appropriate Tracing Methodology

Case: Easy Loan Corporation v Wiseman, 2017 ABCA 58 (CanLII)

Keywords: Tracing Methodology; Ponzi Scheme; Lowest Intermediate Balance Rule

Synopsis:

The Defendants (not parties to the appeal) are alleged to have operated a Ponzi scheme. Following an investigation by the Alberta Securities Commission, a bank account is frozen and a receiver appointed over the assets of “Base Finance Ltd.” The court appointed receiver reports the bulk of investor funds (over $80,000,000) are invested in a U.S. company which filed for bankruptcy protection. (See para. 5).

The Appellant and Respondents are investors in the scheme. Citing Soulos v Korkontzilas, 1997 CanLII 346 (SCC), [1997] 2 SCR 217, 146 DLR (4th) 214, the Chambers Judge finds frozen funds in the Defendants’ bank account are “impressed” with a constructive trust. (See para. 9). The funds are ordered to be distributed according to pro rata sharing based on tracing or the lowest intermediate balance rule (“LIBR”).

There is no appeal of the Chambers Judge’s imposition of the constructive trust. The sole ground of appeal relates to the methodology used to trace the frozen funds; that the Chambers Judge erred in law by holding a pro rata share on the basis of tracing to the lowest intermediate balance rule is the ‘general rule’ unless practically impossible; erred in failing to consider the beneficiaries’ intentions. (more…)

Posted: Tuesday, February 14, 2017

Court of Appeal Decision of the Week

The Test for “Permission to Appeal”

Case: Bokenfohr v Pembina Pipeline Corporation, 2017 ABCA 40 (CanLII)

Keywords: Pipeline, Energy Regulator, Permission to Appeal; s. 45(1) of the Responsible Energy Development Act, SA 2012, c. R-17.3

Synopsis:

The Alberta Energy Regulator holds a 13-day hearing involving 41 witnesses and documentary evidence to consider the approval of two pipelines from Fox Creek to Namao. The Applicants, who do not oppose the pipelines per se, raise a number of questions and concerns about pipelines and their construction; counsel provide a list of site-specific concerns and ask Pembina Pipeline Corporation, the Respondent, to respond. Pembina produces an updated spreadsheet during oral argument which contains a list of “commitments” and outlining the positive steps it is prepared to take with respect to the Applicants’ site-specific concerns. Counsel objects to the timing of Pembina’s disclosure of the list.

The Regulator renders a 95-page, 482-paragraph decision approving construction of the two pipelines subject to some “conditions” but declines to include the list of commitments, stating site-specific concerns should be dealt with via individual agreements between Pembina and the affected landowners. The public interest did not require that Pembina’s commitments be made into conditions to pipeline approval. (more…)

Posted: Tuesday, February 07, 2017

Court of Appeal Decision of the Week

Appealing from an Appeal of an Appeal to the Court of Appeal: What’s the Standard of Review?

Case: Al-Ghamdi v. Peace Country Health Region, 2017 ABCA 31 (CanLII)

Keywords: Alberta Human Rights Commission; Alberta Human Rights Act, RSA 2000 C.A.-25.5; Discrimination; Standard of Review

Synopsis:

Dr. Al-Ghamdi, an orthopedic surgeon, complains to the Alberta Human Rights Commission that Peace Country Health Region discriminated against him on the grounds of race, colour, ancestry, place of origin, and age.

After reviewing Dr. Al-Ghamdi’s complaint, reviewing Peace Country Health Region’s written response, and interviewing 11 witnesses, an investigator appointed to make recommendations to the Director of the Alberta Human Rights Commission concludes there is no reasonable basis to proceed to a Tribunal hearing.

Pursuant to s. 22(1) of the Alberta Human Rights Act, RSA 2000 C.A.-25.5, the Director dismisses Dr. Al-Ghamdi’s complaint. The Chief Commissioner upholds the dismissal after Dr. Al-Ghamdi asks for further review. Relying on s. 35 of the Alberta Human Rights Act, Dr. Al-Ghamdi then asks for judicial review of the Chief Commissioner’s decision in the Court of Queen’s Bench. (more…)

Posted: Wednesday, February 01, 2017

Court of Appeal Decision of the Week

Confidential Informants & Police: Promise Made, Promise Broken

Case: Nissen v. Durham Regional Police Services Board, 2017 ONCA 10

Keywords: Informer Privilege; Breach of Confidence; Police; Damages

Synopsis:

Margaret Stack lives with her husband Chad and two children “on a quiet street in Whitby”. Ms. Stack went to police, informing them her neighbour’s teenaged son broke into another neighbour’s home and stole guns. Ms. Stack claimed the police promised that her identity and the fact she reported the theft would be treated as confidential – “totally anonymous”. Unbeknownst to Ms. Stack, a recording of her interview with police is videotaped; the recording is included in disclosure materials provided as part of criminal proceedings against the teenaged son.

Ms. Stack is then subject to threatening and harassing conduct by the parents of the accused teenager who had received copies of Ms. Stack’s unredacted police interview. The Stack family is so distressed by this conduct they sell their home and move to another community. Ms. Stack is diagnosed as having post-traumatic stress disorder. (more…)

Posted: Wednesday, January 25, 2017

Court of Appeal Decision of the Week

R. v. Robinson & the Court of Appeal: Wrestling With the Rule in Hodge’s Case

Case: R. v. Robinson, 2017 BCCA 6 (CanLII)

Keywords: Rule in Hodge’s Case, Circumstantial Evidence

Synopsis:

The appellant, Mr. Robinson, is one of four RCMP officers involved in an encounter at Vancouver International Airport which results in the death of Mr. Robert Dziekanski, a visitor to Canada from Poland.

From an agreed statement of facts, the circumstances of Mr. Dziekanski’s interaction with RCMP are, briefly, as follows:

  • at approximately 1:28AM, Airport staff contact local RCMP in regard to Mr. Dziekanski’s erratic and aggressive behaviour;
  • following their arrival at the scene, Mr. Dziekanski and four officers (including Mr. Robinson) engage in a struggle;
  • during the course of struggle RCMP deploy a conducted energy weapon, or “Taser”;
  • Dziekanski falls to the ground;
  • the officers then Taser him four additional times and handcuff him while he is on the ground
  • Dziekanski is pronounced dead at the scene at 2:10AM.

(more…)

Posted: Wednesday, January 18, 2017

Court of Appeal Decision of the Week

Privacy & Disclosure: ‘Antunes’ or ‘Halliday’?

Case: Este v. Blackburn, 2016 BCCA 496 (CanLII)

Keywords: Disclosure; Defamation; Wong v. Antunes 2009 BCCA 278 (CanLII); Halliday v. McCullough (1986) 1986 CanLII 1004 (BC CA); Supreme Court Civil Rules, BC Reg 168/2009

Synopsis:

This proceeding arises in the context of a family dispute. Ms. Este is plaintiff in both a property and defamation action. In the defamation action, Ms. Este claims her mother, Mina Esteghamat-Ardakani, her mother’s common-law husband, Mr. Blackburn, and brother, Francis Amir Este, defamed her in letters or emails to various persons, including governmental and quasi-governmental authorities. Ms. Este further claims the defendants conspired to carry out a “campaign of character assassination through the widespread publication and dissemination of defamatory statements”. She seeks general, special, punitive and aggravated damages. (more…)

Posted: Wednesday, January 11, 2017

Court of Appeal Decision of the Week

Are Landlord’s Claims Barred by the Limitations Act?

Case: 926 Capital Corp. v Petro River Oil Corp., 2016 ABCA 393 (CanLII)

Keywords: “Modern Approach”; Limitations Act, RSA 2000, c L-12; Landlord/Tenant

Synopsis:

This action involves a claim by a landlord, 926 Capital Corp., against a tenant, Petro River Oil Corp. The landlord sues for unpaid rent under a lease. The statement of claim is filed over 4 years after the last payment of rent, over 4 years after the tenant vacated the premises, and over 3 ½ years after the landlord served its written notice of default under the lease.

The landlord initially decided not to pursue a claim for rent because a legal dispute would be expensive, and any potential recovery would be minimal or speculative. A change in the tenant’s financial circumstances caused the landlord to re-evaluate.

The tenant applies for summary dismissal, arguing it is entitled to immunity from liability pursuant to s. 3 of the Limitations Act, RSA 2000, c L-12. Pursuant to Smiechowski v. Preece, 2015 ABCA 105 (CanLII), a Master in Chambers grants partial summary judgment; dismisses the landlord’s claim for unpaid rent. (more…)

Posted: Tuesday, December 20, 2016

Court of Appeal Decision of the Week

Confidentiality Agreements; Costs at the C.A.

Case: Monster Energy Company v. Craig, 2016 BCCA 484 (CanLII)

Keywords: Wrongful Death; Confidentiality Agreement; Letters Rogatory; Directions on Costs Payable; Monster Energy Company v. Craig, 2016 BCCA 290 (CanLII)

Synopsis:

Mr. Bruce Schechter represents plaintiffs in a wrongful death action against Monster Energy Company (“Monster”) in California. The parties settle the action prior to trial. The terms of settlement include a confidentiality agreement and release entered into by the parties and their attorneys, including Mr. Schechter and his firm, R. Rex Parris Law.

Ms. Craig, a journalist, interviews Mr. Schechter about the wrongful death action. Ms. Craig subsequently publishes an article on a legal news website. The article is entitled “Substantial Dollars for Family in Monster Energy Drink Wrongful Death Suit”. It refers to the wrongful death action and quotes Mr. Schechter as saying to Ms. Craig that “substantial dollars” were paid in relation to the settlement agreement reached in the wrongful death action. Ten days after the article is published, Monster sues Mr. Schechter and the R. Rex Parris Law in California based on the alleged violation of the confidentiality agreement. (more…)

Posted: Wednesday, December 07, 2016

Court of Appeal Decision of the Week

When Your Co-Accused Pleads Out & Takes the Stand Against You – Vetrovec Warnings

Case: R. v Arts, 2016 ABCA 369 (CanLII) 

Keywords: Assault Causing Bodily Harm; Assault with a Weapon; Unlawful Confinement; Co-Accused; R. v Vetrovec, 1982 CanLII 20 (SCC)

Synopsis:

The Appellant, Mr. Cory Arts and a co-accused (known as “Terrio”) assault another resident of the same four-plex. The co-accused pleads guilty and the Crown calls him to testify against the Appellant. The Appellant appeals against his conviction for assault causing bodily harm, assault with a weapon, unlawful confinement, and related offences.

In the Court of Appeal, the Appellant raises the following issues:

  • that the evidence of the various witnesses was inconsistent and the Trial Judge failed to discuss and reconcile all of these differences (See para. 2);
  • that the trial judge failed to self-instruct on the principle in v Vetrovec, 1982 CanLII 20 (SCC) with respect to the evidence of Terrio as an “accomplice” (See para. 4);
  • inadequate disclosure of the Crown’s intention to call Terrio (and the possible contents of his evidence) (See para. 6); and
  • abuse of process arising from an absence of prosecutorial impartiality (See para. 15).

(more…)

Posted: Wednesday, November 30, 2016

Court of Appeal Decision of the Week

Escaping Contributory Negligence on Appeal?

Case: Wormald v. Chiarot, 2016 BCCA 415

Keywords: contributory negligence, proximate cause, injuries, motor vehicle

Sometimes injuries happen because a person is in the wrong place at the wrong time. Other times it isn’t bad luck and the person injured is to blame. That’s where contributory negligence comes in. In the present case, the Court of Appeal grappled with a situation where the plaintiff knowingly put herself in a dangerous situation and the Court ultimately decided she shouldn’t share in the fault for her resulting injuries.

Synopsis:

Ms. Chiarot and Ms. Wormald were involved in a MVA. Ms. Chiarot, 17, was driving and Ms. Wormald, 15, was one of several passengers. The vehicle overturned and ended up in a ditch. There were no fatalities, but Ms. Wormald suffered lacerations and scarring to her leg, bruises, scrapes and cuts.

Ms. Wormald brought a claim for damages against Ms. Chiarot for the injuries suffered. The trial judge assessed damages at $8,500 for the lacerations, bruises, scrapes and cuts, but found Ms. Wormald 40% at fault on the basis she knew: (more…)

Posted: Wednesday, November 23, 2016

Court of Appeal Decision of the Week

When Can You Re-Open an Appeal?

Case: Chuang v. Toyota Canada Inc., 2016 ONCA 852 (CanLII)

Keywords: Motion to Re-Open; Court of Appeal; Repudiation; Termination of Contract; Mujagic v. Kamps, 2015 ONCA 360 (CanLII), 125 O.R. (3d) 715; R. v. Brown, 1993 CanLII 114 (SCC), [1993] 2 S.C.R. 918

Synopsis:

Dr. Sylvester Chuang and several related companies enter a commercial contract with Toyota Canada Inc. (Toyota). Toyota terminates the agreement. The Trial Judge holds Toyota’s termination is not reasonable, but says an exclusion clause protects Toyota from any obligation to pay damages. The Appellants appeal; the Court of Appeal dismisses the appeal (see Chuang v. Toyota Canada Inc., 2016 ONCA 584 (CanLII)).

The Appellants now seek to re-open their appeal on the basis Toyota repudiated the contract. It is argued the law of repudiation would lead the Court of Appeal to a different result. The Court of Appeal dismisses the Appellants’ motion. (more…)

Posted: Wednesday, November 16, 2016

Court of Appeal Decision of the Week

Leaving to Set Up a Competing Business – Who is/is Not a Fiduciary; Standard of Review

Case: HRC Tool & Die Mfg Ltd v Naderi, 2016 ABCA 334 (CanLII)

Keywords: fiduciary relationship; voluntary vulnerability; Frame v Smith, 1987 CanLII 74 (SCC), [1987] 2 SCR 99, 42 DLR (4th) 81

Synopsis:

The appellant, HRC Tool & Die Mfg Ltd (“HRC”) operates a machine shop in Edmonton; hires the respondent Mr. Onkar Bahra in 1998 as a purchasing agent and the respondent Mr. Mehrdad Naderi as a machine operator. The respondents become “key employees”. HRC operates such that the owner/shareholder is absent for days and months at a time (though remaining in contact by telephone). The respondents run the day-to-day business of the machine shop. They have access to some, but not all, confidential information and customers.

In June 2008 both respondents resign. By the following October they’re set up their own machine shop, Prowest Machine Ltd (“Prowest”). HRC claim both that Mr. Bahra and Mr. Naderi owe the company fiduciary obligations, and that they are in breach of those obligations – misusing confidential client information and taking HRC’s clients. (more…)

Posted: Wednesday, November 09, 2016

Court of Appeal Decision of the Week

Maintenance & Champerty — Implications for Litigation Funding

Case: Bjornsson et al v Smith et al, 2016 MBCA 91 

Keywords: litigation funding, champerty and maintenance, third party agreements

Synopsis

Smith, a lawyer, prepared Ms. Bjornsson’s will and acted as executor to her estate after her death in October 2006. The principal asset of the estate was a home appraised at $90,000. The beneficiaries were her two sons (receiving 41.66% each) and the Winnipeg Humane Society (“WHS”)(receiving 16.68%).

In December 2006, the sons contacted Mr. Smith numerous times requesting proceeds from the estate. Mr. Smith indicated that the administration of the estate, including the sale of the home, would need to be completed before any money was released. He estimated it could take approximately one year to complete. The sons continued to make requests for proceeds from the estate. Mr. Smith told them the appraised value of the home was $90,000, however he could arrange for a quick sale to an “investor” for $50,000. If agreed to, Mr. Smith would immediately release $10,000 to each son. He would release the balance of their share when the property title passed to the purchaser. The sons agreed. (more…)

Posted: Wednesday, November 02, 2016

Court of Appeal Decision of the Week

Municipal Law & Constitutional Paramountcy — Who Decides Where Mailboxes Go?

Case: Canada Post Corporation v. Hamilton (City), 2016 ONCA 767 (CanLII)

Keywords: Constitutional Law; Municipal Law; Doctrine of Paramountcy; Mailboxes

Synopsis:

Canada Post decides to roll-out the first phase of its conversion to community mail boxes in downtown Hamilton (exercising its powers to make Regulations under the Canada Post Corporation Act, R.S.C. 1985, c. C-10 (“CPCA”). In response, the City passes By-Law No. 15-091 establishing a regulatory regime; giving the City control over the installation of equipment (including community mail boxes) on municipal roads. Canada Post challenges the By-Law on constitutional and other grounds. It is entirely successful on its application. (more…)

Posted: Wednesday, October 26, 2016

Court of Appeal Decision of the Week

Pension Splitting in Common Law Relationships

Case: Noel v. Butler, 2016 NBCA 49

Keywords: unjust enrichment; common law relationship; relationship breakdown; division of assets

Synopsis:

Mr. Noel and Ms. Butler were in a 14-year common law relationship – never married, no children. Ms. Butler had been a teacher for over 25 years and accumulated a sizeable pension. In the last few years of their relationship, Mr. Noel had difficulty finding full-time employment and was increasingly dependent on Ms. Butler. On separation, Mr. Noel sought to divide Ms. Butler’s pension.

The parties also had bought a home together in New Brunswick. Ms. Butler paid for the down payment and the initial renovations, but they held the home as joint tenants. Although Ms. Butler suffered from various ailments and had full-time employment, she attended to the majority of the household chores. (more…)

Posted: Wednesday, October 19, 2016

Court of Appeal Decision of the Week

Workers’ Comp.: ‘No Room for Courts of Appeal to Legislate Caps on Damages’

Case: Postma v. Horizon Helicopters Ltd., 2016 YKCA 12 (CanLII)

Keywords: Helicopter Accident; Workers’ Compensation Act, S.Y. 2008, c. 12; Statutory Interpretation; Deference to Legislative Intent

Synopsis:

The Respondents, Jonathan Postma and Raphael Roy-Jauvin are passengers injured in a helicopter accident while out collecting grizzly bear hair samples for the Yukon Government.

The Appellant, Horizon Helicopters Ltd. (Horizon) is registered owner of the helicopter, piloted by Paul Rosset. Horizon pays Paul’s Aircraft Services (PAS) for Mr. Rosset’s services as a pilot; pays liability insurance for the helicopter.

The Workers’ Compensation Health and Safety Board confirm s. 50(4) of the Workers’ Compensation Act allows a cause of action (the claim) by Mr. Postma and Mr. Roy-Jauvin as against Horizon. (more…)

Posted: Tuesday, October 11, 2016

Court of Appeal Decision of the Week

Proving Animal Cruelty

Case: R v Sanaee, 2016 ABCA 289 (CanLII)

Keywords: Dog “Training Exercise”; S. 445.1(i)(a) of the Criminal Code; Cruelty to Animals; Colour of Right Defence

Synopsis:

The Appellant, Mr. Ali Sanaee is owner/operator of “b.a.r.k”, a day boarding facility or daycare centre for dogs. He also provides “dog training” to assist with “behavioural issues”. According to witness testimony, the Appellant – on at least two occasions – uses a cattle prod as a means to “train” the dogs.

First incident: as part of a training exercise involving a large dog displaying food aggression towards other animals, the Appellant puts dog food on the floor and then applies an activated cattle prod whenever aggression is displayed. The dog yelps, and eventually runs to the bathroom; stays for 10 minutes with his tail between his legs. (more…)

Posted: Wednesday, October 05, 2016

Court of Appeal Decision of the Week

MVA’s: Who is “Ordinarily Resident”; When is Residency Decided

Case: Silva v. John Doe, 2016 ONCA 700 (CanLII)

Keywords: Personal Injury; Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41; Ordinarily Resident; Motor Vehicle Accident Claims Fund

Synopsis:

The Appellant, Mr. Jarley Silva is struck by an unidentified motorist while crossing a Toronto street. He sustains multiple personal injuries. Mr. Silva is a Brazilian citizen living in Ontario illegally.

Mr. Silva is known to immigration authorities – he was deported back to Brazil previously. In 2002 Mr. Silva once again enters Canada illegally (this time with the intention of remaining indefinitely). From 2002 until the accident, the Appellant lives continuously in Ontario. He does not return to Brazil or otherwise leave Canada. He supports himself by working various jobs in the construction industry. (more…)

Posted: Wednesday, September 28, 2016

Court of Appeal Decision of the Week

Modified Test for Intervening; Jurisdiction to Control Procedure Retained

Case: Suncor Energy Inc v Unifor Local 707A, 2016 ABCA 265 (CanLII)

Keywords: Leave to Intervene; Random Alcohol and Drug Testing Policy Grievance Arbitration; Rule 14.37(2)(e) and 14.58, Alberta Rules of Court, AR 124/2010; Pedersen v. Alberta, 2008 ABCA 192 (CanLII); Canada (Attorney General) v Canadian Wheat Board, 2012 FCA 114(CanLII), 432 NR 383

Synopsis:

Concerned about safety hazards posed by alcohol and drug use in the workplace (here, oil sands operations carried out north of Fort McMurray, at Mackay River and Firebag), Suncor institutes a random testing policy. The Appellant Union alleges the proposed policy is contrary to provisions of the collective agreement, common law, and the applicable legislation. The reviewing judge below finds the issue involves the tension between privacy and safety concerns. (more…)

Posted: Wednesday, September 21, 2016

Court of Appeal Decision of the Week

Grounds for Leave at C.A.; Common Law Relationships

Case: Harris et al v Director, Social Services Interlake Region, 2016 MBCA 83 (CanLII)

Keywords: Common Law Relationships; Social Services Appeal Board; General Assistance; The Social Services Appeal Board Act, CCSM c S167; Leave to Appeal

Synopsis:

The Applicants, Mr. Kevin Harris and Ms. Melissa Touchette, seek leave to appeal an order of the Social Services Appeal Board confirming a decision terminating payment of general assistance to both Appellants; assessing an overpayment of $20,861.39 and $15,296.19.

The “sole issue” before the Board is whether they were in a common law relationship; the Board finds they are in such a relationship as per s. 18(3) of The Manitoba Assistance Act, CCSM c A150: (more…)

Posted: Wednesday, September 14, 2016

Court of Appeal Decision of the Week

Municipal Law: Assessment; Taxation of Governmental Bodies (here, a School Board)

Case: Prairie Valley School Division No. 208 v Pilot Butte (Town), 2016 SKCA 103 (CanLII)

Keywords: Special Assessment; Indirect Tax; The Local Improvements Act, 1993, SS 1993, c L-33.1

Synopsis:

A municipality, the Town of Pilot Butte, initiates a project to upgrade its water distribution system; work is approved pursuant to s. 8 of The Local Improvements Act, 1993, SS 1993, c L-33.1. The Town enacts a bylaw with a view to levying the cost of the project as a special assessment on lands benefited by the project (set at $196,218.78 payable immediately or over 10 years at 6% interest).

As an owner of affected lands, Prairie Valley School Division No. 208 (“Prairie Valley”) receives the notice of assessment and unsuccessfully appeals to the Board of Revision. Following an application for judicial review in the Court of Queen’s Bench, and subsequent appeal to the Appeals Committee, Prairie Valley further appeals (pursuant to an order of Ottenbreit J.A. granting leave to appeal). (more…)

Posted: Wednesday, September 07, 2016

Court of Appeal Decision of the Week

Gunning for s. 24 – What Can be Seized, What Can’t?

Case: R v Warren, 2016 MBCA 78 (CanLII)

Keywords: Firearms; Domestic Disturbance; Section 8 of the Charter; Search and Seizure

Synopsis:

After midnight, the RCMP receives a domestic disturbance call and police “attend” at the residence of the accused, Mr. Dwayne Warren. Officers arrive and speak with the complainant, who informs them the accused is intoxicated, that there are firearms in the residence, and that she fears for her safety, and the safety of her two children. Following a brief interaction with police, the accused is arrested for breaching the peace. An officer enters the home and spots four unloaded, unsecured firearms and ammunition. The items are seized. Shortly thereafter, the complainant turns over an additional firearm to police.

The accused is charged with five counts of careless storage of a firearm pursuant to s. 86(2) of the Criminal Code. The Trial Judge rules the first four firearms seized cannot be admitted into evidence; the accused’s s. 8 right to be secure against unreasonable search and seizure was infringed by police. The accused is convicted on the fifth charge – for careless storage of the firearm turned in by the complainant. (more…)

Posted: Wednesday, August 31, 2016

Court of Appeal Decision of the Week

“Open Contracts” & Implied Terms in Options to Purchase

Case: 101060873 Saskatchewan Ltd. v Saskatoon Open Door Society Inc., 2016 SKCA 98 (CanLII)

Keywords: Real Estate; Option to Purchase Real Property; “Open Contracts”; Implied Terms

Synopsis:

Saskatchewan Open Door Society Inc. (the Respondent) enters into a ten-year lease with Ms. Heinze, the owner of commercial real estate in the City of Saskatoon. The lease contains the following option to purchase:

It is hereby agreed by the parties hereto that, provided the Tenant is not in arrears or default of any of the covenants required on the part of the Tenant to be performed pursuant to the lease hereof, then the Landlord will grant the Tenant a one-time Option to Purchase the Building at the end of the 10th year of the lease term for a purchase price of One Hundred Thousand Dollars ($100,000). (more…)

Posted: Wednesday, August 24, 2016

Court of Appeal Decision of the Week

Applications to Extend Time: “Minor Misstep” Filing Notice of Appeal Explains Delay

Case: Murphy v Haworth, 2016 ABCA 219 (CanLII)

Keywords: Application to Extend Time; Cairns Factors; Cairns v Cairns [1931] 4 DLR 819; Constructive Trust Remedy; Division of Property; Common Law Relationship

Synopsis:

The Applicant, Mr. Haworth and Ms. Murphy, the Respondent, live together in a common law relationship for approximately 17 years. The Applicant owns shares in a corporation established prior to the commencement of the relationship; sells the shares roughly a year before the relationship ends.

As part of the Respondent’s claim for division of property, she asserts an entitlement to constructive trust against proceeds from the sale of the Applicant’s corporate shares. The Court of Queen’s Bench of Alberta orders that half the proceeds be paid into the Applicant’s lawyer’s trust account. The Applicant applies to have the proceeds paid directly to him, but this application is dismissed. (more…)

Posted: Wednesday, August 17, 2016

Court of Appeal Decision of the Week

Applying to Intervene in an Appeal (at the C.A.)

Case: Styles v Canadian Association of Counsel to Employers, 2016 ABCA 218 (CanLII)

Keywords: Employment Law; Termination Without Cause; “Pay-for-Performance”; Bhasin v Hrynew, 2014 SCC 71 (CanLII); Pedersen v Alberta, 2008 ABCA 192 (CanLII); Re Stewart Estate, 2014 ABCA 222 (CanLII)

Synopsis:

Mr. Styles commences employment with AIMCo, who confirm his participation in AIMCo’s Long Term Incentive Plan (LTIP) – a “pay-for-performance” bonus and grant program. AIMCo later terminate Mr. Styles’ contract of employment without cause. Mr. Styles is paid three months’ salary as per notice requirements in his employment contract.

Mr. Styles sues AIMCo for entitlements under the LTIP; argues the bonus and grant structure form an “integral part” of his annual compensation. The Trial Judge accepts Mr. Styles’ submission; applies principles from Bhasin v Hrynew, 2014 SCC 71 (CanLII) to the contract of employment, including the LTIP. The Trial Judge also determines it is “unfair” for an employer to benefit from an employee’s work, and then deprive the employee of compensation for that work. (more…)

Posted: Wednesday, August 03, 2016

Court of Appeal Decision of the Week

Insurance: “Student” v. “Part-Time Earner”

Case: Sosnowicz v Manitoba Public Insurance, 2016 MBCA 75 (CanLII)

Keywords: Accident Benefits; Application for Leave to Appeal; Automobile Injury Compensation Appeal Commission; Manitoba Public Insurance Corporation Act, CCSM c P215

Synopsis:

The Appellant, Manitoba Public Insurance Corporation (“MPI”), applies for leave to appeal from a decision of the Automobile Injury Compensation Appeal Commission (the “Commission”). The underlying dispute concerns whether the Respondent, Ms. Jayda Sosnowicz, qualifies as “part-time earner” or “student” under the Manitoba Public Insurance Corporation Act, CCSM c P215.

The Respondent is injured in a motor vehicle accident. At the time of the accident, she is completing her final year of a psychiatric nursing program at Brandon University with three more scheduled shifts in her eight-week practicum. She does not complete the shifts – these are waived by a Brandon University proctor. The Respondent graduates and receives the gold medal. (more…)

Posted: Wednesday, July 27, 2016

Court of Appeal Decision of the Week

Court of Appeal Affirms Law Enforcement Review Board Decision

Case: Rogers v Edmonton (Police Service), 2016 ABCA 216 (CanLII); see also Petropoulos v Edmonton (Police Service), 2015 ABLERB 6 (CanLII)

Keywords: Police Misconduct; Partner Aiding and Abetting Police Misconduct; Alberta Law Enforcement Review Board; s. 5(2)(e)(vi) Police Service Regulation, AR 356/1990;

Synopsis:

Constables Redlick and Rogers go to Mr. Petropoulos’ house to arrest him on the basis of allegations he assaulted his elderly mother. Constable Redlick is upset by the nature of the allegations; particularly by what he sees as suggestions by Mr. Petropoulos that his mother is to blame. After arresting Mr. Petropoulos and bringing him to their squad car, Constable Redlick gets into the back of the squad car as opposed to the front seat. Constable Redlick then instructs his partner, Constable Rogers, to pull over.
(more…)

Posted: Wednesday, July 13, 2016

Blog

Grandparent Access to Grandchildren; Test to Stay Trial Order Pending Appeal; Trial Judge Retains Jurisdiction

Case: N.S. v R.S., 2016 NSCA 55 (CanLII)

Keywords: Motion for Stay; Best Interests of Child; Family Law; Fulton test; Gillespie v. Patterson, 2006 NSCA 133 (CanLII); Reeves v. Reeves, 2010 NSCA 6 (CanLII)

Synopsis:

Associate Chief Justice Lawrence O’Neil (the Trial Judge), is asked to resolve a dispute over how much contact 2 ½ year old B.A.S. will enjoy with his paternal grandparents, R.S. and L.S. While B.A.S.’ father was alive, R.S. and L.S. visit “usually weekly and sometimes more” (see para. 12). Following B.A.S.’ father’s death, the frequency of these visits declines.

A dispute regarding B.A.S.’ father’s estate prompts “hard feelings”, resulting in a period of no contact between B.A.S. and his paternal grandparents. (more…)

Posted: Wednesday, July 06, 2016

Blog

Use of Extrinsic Evidence; Future Harm Damages

Case: Al Boom Wooden Pallets Factory v. Jazz Forest Products (2004) Ltd., 2016 BCCA 268 (CanLII)

Keywords: Contractual Interpretation; Damages; Sattva Capital Corp. v. Creston Moly Corp., [2014] 2 SCR 633, 2014 SCC 53 (CanLII); Surrounding Circumstances

Synopsis:

The Respondent, Al Boom Wooden Pallets Factory, agrees to purchase a certain volume of finished lumber from the Appellant, Jazz Forest Products (a lumber products wholesaler). The lumber is to be shipped from British Columbia to Al Boom’s plant in Kuwait.

A dispute arises with respect to the volume of wood specified in the sales order agreement between the parties. Prior to shipping, there are concerns about the lengths of the pieces being ordered – a representative for Al Boom emails Jazz to complain the sales order has been modified. Both parties agree to the specific volume of wood and both parties agree on the price of lumber. There is significant disagreement, however, with respect to the method of calculation for the volume.

Al Boom’s position is that volume is to be calculated on a “net count” basis – by multiplying the finished thickness, by the finished width, by the length. On the other hand, Jazz takes the position volume is to be calculated on a “nominal count” basis (multiplying the thickness of the lumber before finishing, by the width before finishing, by the length).

At trial, the difference in calculation is found to have caused significant damages to Al Boom. The Trial Judge determines the contract is ambiguous; looks to surrounding circumstances to find the contract was based on a “net count” approach. As such, the Trial Judge awards Al Boom damages of $415,000 US for the lost opportunity to utilize the missing volume of lumber, and $1,317,000 US for harmed business relationships with customers.

On appeal, Jazz submits the Trial Judge:

  1. in finding a “net count” contract, erred in law by applying the wrong test for contractual interpretation by focusing on Al Boom’s subjective intent rather than what the parties objectively agreed to; or alternatively committed a palpable and overriding error by allowing the surrounding circumstances to overwhelm the language of the contract documents;
  2. committed a palpable and overriding error in inferring, without evidence, that Jazz had sufficient material facts about Al Boom’s business and financial position to decline the risk Al Boom would experience past and future income losses caused by a breach of contract and such losses would not be too remote; and
  3. erred in law in failing to consider Al Boom’s cash flow shortage was too remote to excuse Al Boom’s failure to mitigate.

The appeal is allowed in part. There is a “legal basis” for examining the surrounding circumstances and intentions of the parties; the Trial Judge did not err in awarding damages of $415,000 US but losses associated with past and future harmed business are too remote. The $1,317,000 US award is quashed.

Importance:

As noted by the Court of Appeal at para. 45, the Supreme Court of Canada provided the following description of the nature of evidence which may appropriately be considered as “surrounding circumstances” by a court interpreting terms of a contract (Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (CanLII) at para. 58):

It should consist only of objective evidence of the background facts at the time of the execution of the contract (King, at paras. 66 and 70), that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting. Subject to these requirements and the parol evidence rule discussed below, this includes, in the words of Lord Hoffmann, “absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man” (Investors Compensation Scheme, at p. 114). Whether something was or reasonably ought to have been within the common knowledge of the parties at the time of execution of the contract is a question of fact.

In the present case, the Trial Judge found the sales orders ambiguous as they could reflect either a net count or nominal count approach. To resolve this difficulty in interpretation, the Trial Judge relied on the following “surrounding circumstances” evidence which supported Al Boom’s position – that the sales orders were to be based on a net count calculation:

  1. emails regarding the number of pieces to be shipped;
  2. the fact that Jazz (through its representative) knew the orders could be either a “net count” or a “nominal count”; and
  3. further email exchanges between representatives of Al Boom and Jazz.

On the basis of this evidence, the Trial Judge determined Jazz breached its contractual obligations. The Trial Judge examined surrounding circumstances, “not so much to aid in interpreting the First Sales Order, but to resolve what he found to be an ambiguity on the face of that document” (see para. 46).

For the Court of Appeal, resolving ambiguity was “…a legal basis for the judge examining the surrounding circumstances and the intention of the parties (as objectively demonstrated by those circumstances) and so concluding…”(see para 58).

Citing McCamus, The Law of Contracts, (Toronto: Irwin Law Inc., 2005) at 711, the Court of Appeal was careful to point out that an investigation as to evidence of the surrounding circumstances or the surrounding factual matrix is not dependent on a finding the agreement is itself ambiguous. That being said, where an ambiguity is found, the Court of Appeal affirmed the view that a Trial Judge may directly examine the intentions of the parties.

Counsel for the Appellant: Royal Morton (Buckley Hogan, Surrey)

Counsel for the Respondent: Tom Hakemi and Nathan Muirhead (Hakemi & Ridgedale LLP, Vancouver)

Discuss on CanLii Connects

Posted: Wednesday, June 29, 2016

Blog

When is a Partially Navigable Creek Navigable/Not Navigable for Practical Public Use: Court of Appeal

Case: Middlesex Centre (Municipality) v. MacMillan, 2016 ONCA 475

Keywords: Bear Creek; Navigable Waters; Practical Public Use; Beds of Navigable Waters Act, R.S.O. 1990, c. B.4; Planning Act, R.S.O. 1990, c. P.13; Coleman v. Ontario (Attorney General) (1983), 143 D.L.R. (3d) 608 (Ont. H.C.); O’Donnell v. Ontario (Attorney General), 2013 ONSC 590;

Synopsis:

The Respondents, Mr. David MacMillan and Ms. Janice McIntosh own and live on a 10-acre lot near London, Ontario. They decide to construct and sell a second home on the property. Zoning laws and rules under the Planning Act, R.S.O. 1990, c. P.13 have the practical effect of allowing just one house per lot and forbidding severance of the property. (more…)

Posted: Wednesday, June 22, 2016

Court of Appeal Decision of the Week

The Legal Standard of Causation: Smoke and Fire at the Court of Appeal

Case: Boon v. Mann, 2016 BCCA 242 (CanLII)

Keywords: Personal Injury; Smoke Detectors; Causation Analysis

Synopsis:

The Appellants, Kenneth Boon and Leona Douglas rent a suite in a home belonging to the Respondent, Kashmir Mann. During their move-in inspection, the Appellants note the absence of smoke alarms and ask the Respondent to install them. The alarms are not installed.

Late in the evening of July 12, 2011, Leona Douglas wakes up to use the washroom; discovers a fire. The Appellants and their guests escape, but lose their personal belongings and several dogs. In addition, the Appellants sustain minor physical and psychological injuries from the upsetting events of the fire. (more…)

Posted: Tuesday, June 14, 2016

Court of Appeal Decision of the Week

Customary International Law, the Rules of Civil Procedure: Service Outside Canada

Case: Xela Enterprises Ltd. v. Castillo, 2016 ONCA 437 (CanLII)

Keywords: Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the “Hague Convention”); Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”); Rule 17.05(3)

Synopsis:

The Respondents are companies and individuals residing in Canada or carrying on business in Canada, along with two Panamanian companies. Together they seek $400 million in damages from the Appellants (individuals and companies residing in and/or carrying on business in Guatemala) for conspiracy to commit tortious acts, breach of fiduciary duties, fraud and abuse of process, and unjust enrichment.

A motions judge finds the Appellants are served validly in accordance with the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”). This order is upheld by Divisional Court; the Appellants appeal to the Court of Appeal, with leave. (more…)

Posted: Wednesday, June 08, 2016

Court of Appeal Decision of the Week

Employment Law: Termination; “Possible Eventual Transition…to [Elsewhere in Canada]” Insufficient to Extend Range of Damages

Case: Cabott v. Urban Systems Ltd., 2016 YKCA 4 (CanLII)

Keywords: Employment Law; Damages for Wrongful Dismissal; Level of Responsibility; Unilateral Life Plan

Synopsis:

The appellant, Urban Systems Ltd. appeals from an order of the Supreme Court of Yukon requiring it to pay damages for wrongful dismissal. Ms. Cabott, the employee, had been awarded 6 months’ notice just short of 14 months employment in a responsible professional position. Urban Systems contends the damage award is excessive. The Court of Appeal agrees; sets aside the order and grants judgment to Ms. Cabott based on four months’ notice.

Importance:

In assessing the length of notice, the Trial Judge referred to the factors listed in Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.J.), and Saalfeld v. Absolute Software Corp., 2009 BCCA 18 (CanLII). His conclusion as to the appropriate length of notice was as follows (see para. 7): (more…)

Posted: Wednesday, June 01, 2016

Court of Appeal Decision of the Week

Court of Appeal Applies Principles of Carter on Appeal from Exemption Proceeding

Case: Canada (Attorney General) v E.F., 2016 ABCA 155 (CanLII) 

Keywords: Physician Assisted Death; Carter v. Canada (Attorney General), [2015] 1 SCR 331, 2015 SCC 5 (CanLII); Carter v. Canada (Attorney General), 2016 SCC 4 (CanLII); Psychiatric Conditions; Exemption Hearing

Synopsis:

E.F. is a 58 year old woman enduring chronic and intolerable suffering as a result of “severe conversion disorder” (classified as a psychogenic movement disorder). She suffers involuntary muscle spasms radiating from her face through the side and top of her head and into her shoulders; her eyelid muscles have spasmed shut; her digestive system is ineffective; she is non-ambulatory and needs to be carried or is otherwise wheelchair bound. In the words of the Court of Appeal, her quality of life is “non-existent” (see para. 7).

E.F.’s capacity and cognitive ability, including the ability to make informed decisions, are unimpaired. She is neither depressed nor suicidal – rather E.F. is “simply exhausted after years of suffering indescribable pain” (see para. 7). (more…)

Posted: Wednesday, May 25, 2016

Court of Appeal Decision of the Week

Attorney General Forfeits Cash en route out of Canada: Court of Appeal Affirms Decision

Case: Ontario (Attorney General) v. $104,877 in U.S. Currency (In rem), 2016 ONCA 71 (CanLII)

Keywords: Cash Courier; Civil Forfeiture; Legitimate Owner; Responsible Owner; Civil Remedies Act, 2001, SO 2001, C 28;

Synopsis:

Alexander Bourgeois is on his way to Panama City; using x-ray machine technology, airport security staff detects something suspicious in his backpack. A search reveals $100,000 USD in tightly-wound bundles stuffed into 22 socks. Police subsequently discover 2 more bundles – an additional $4,877 USD – in Mr. Bourgeois’ pockets, along with a small amount of cocaine.

Mr. Bourgeois states the money represents his combined earnings from tips, gambling winnings, and an insurance settlement arising from his mother’s death in a motor vehicle accident. The Application Judge grants the Attorney General of Ontario forfeiture of the $104,877 USD recovered pursuant to ss. 3 and 8 of the Civil Remedies Act. (more…)

Posted: Wednesday, May 18, 2016

Court of Appeal Decision of the Week

“Restoring” Appeals in Court of Appeal

Case: J.E. v Alberta (Workers’ Compensation Board), 2016 ABCA 147 (CanLII)

Keywords: Application to Restore Appeal; Self-Represented Litigants;

Synopsis:

The Applicant takes issue with medical diagnoses relating to whether or not he has dementia produced as part of his claim for Worker’s Compensation Board (WCB) compensation. The Chambers Judge below notes J.E. sought to have the cause of his cognitive issues confirmed through civil proceedings; concludes as follows on the point: “…this Court will never have jurisdiction in the context of this litigation to examine the various diagnoses and pronounce on the cause of Mr. JE’s cognitive difficulties” (2015 ABQB 460 at para. 75) (quoted at para. 8 herein).

The Applicant, J.E., applies to restore his appeal (struck by the Registrar for failure to file an appeal record). The Applicant reports taking significant steps to retain counsel – including refinancing his home to raise fees – but ultimately is late filing his appeal record. (more…)

Posted: Wednesday, May 11, 2016

Court of Appeal Decision of the Week

Self-Defence Narrative Meets Air of Reality, Should Have Been Put to Jury: Court of Appeal

Case: R v Mustard (G), 2016 MBCA 40 (CanLII)

Keywords: Second Degree Murder; Manslaughter; Self-Defence; Jury Instructions; Air of Reality; R v Cinous, 2002 SCC 29 (CanLII)

Synopsis:

The Appellant, Gerald Arnold Mustard, is a casual acquaintance of the deceased’s housemate, Karla Petersen. Ms. Petersen invites the Appellant to attend their Winnipeg residence. The Appellant and the deceased had never met before, but the three socialize while consuming beer, cocaine, and marihuana.

The deceased asks the Appellant to leave; informs him if he does not leave soon, he would be “physically” thrown out. The deceased returns to the living room to find the Appellant has not left. Based on Ms. Petersen’s description, the ensuing altercation is as follows:

The deceased was the larger man. He was highly intoxicated and unarmed. After some brief pushing and shoving, the two men separated and then Petersen saw the accused pull a pocket knife out of his pants and open the blade. She then saw what she described as the accused punching the deceased towards his face or neck. She could not say if the punch struck the deceased. In her words, “it happened very fast.” (more…)

Posted: Wednesday, May 04, 2016

Court of Appeal Decision of the Week

Motions to Strike for Delay

Case: Ro-Dar Contracting Ltd. v Verbeek Sand & Gravel Inc., 2016 ABCA 123

Keywords: summary dismissal; Rule 4.33; long delay; Alberta; significant advance

Summary:

This case is representative of the delays in the justice system. The Court of Appeal summarized it as follows:

This is a very simple lawsuit. It is a suit over a series of invoices. The plaintiffs were to crush gravel for $4.80 per tonne. There are no difficult issues of law. There is no question about the quality of the “crushing”. The main issue is how to calculate how many tonnes the plaintiff is entitled to be paid for, and how much gravel was crushed. The outcome of the action turns on simple questions of fact, which should not have taken eight years to resolve. (para. 31)

The respondents filed an application to dismiss the action for long delay under Rule 4.33. A Master dismissed that application, but on appeal the chambers judge allowed the application and dismissed the action. The Court of Appeal allowed the appeal and restored the action.

The central issue on appeal was whether “3 or more years passed without a significant advance in the action” requiring dismissal of the action under R. 4.33. The Court of Appeal found that the chambers judge took too strict a view of what constituted “a significant advance”. The fact the appellants provided information that helped both parties measure the claims was a significant advance in the action.

Importance:

Most jurisdictions provide for dismissal of a claim for delay. In recent years, to the dismay of some professional liability insurers, the law has developed make it easier to have an action dismissed. In Ontario we’ve seen the rise of Rule 48 administrative dismissals, in B.C. there has been a significant number of Rule 22-7(7) decisions, and in Alberta new Rules of Court came in force in 2010 introducing a 3-year drop dead rule (replacing the old 5-year rule).

In the present decision, the Alberta Court of Appeal taps the brakes on the trend towards greater access to dismissals. Faced with a “very simple lawsuit” over invoices that has been ongoing for eight years and a chambers judge’s assessment that there had been no significant advance in the action, the Court of Appeal restores the action.

The Court clarifies what constitutes a “significant advance”:

…A significant advance does not have to be so definitive that it would support an application for summary judgment. It is quite true that the casual and dilatory pace of this litigation continued even after the disclosure of this information. The drop dead rule does not, however, require continuous and unbroken advancement of the action, only that there be a substantial advance at one point during the 3 year period. The dilatory pace of this litigation is not to be commended, but an application to strike for persistent delay is more properly brought under R. 4.31, which requires proof of prejudice, than under the drop dead R. 4.33. (para. 28)

The Court confirmed that Alberta’s drop dead rule requires a functional approach that doesn’t overemphasize formalistic steps that might have been taken. In other words, don’t focus exclusively on the outcome of particular steps but rather look at the whole picture of what transpired during the period at issue – or as Eugene’s dad used to say, “never mind the quality, feel the width.” That being said, the Court took a hard look at a particular step in this case, namely the transfer of documents on a particular date.

To conclude its decision, the Court ordered the matter should be set down for trial without further delay. Parties should expect where a court refuses an application to dismiss an action for delay, it will make a procedural order to move the matter along. The Court stated it is “seldom appropriate” to refuse an application to dismiss without making a procedural order. This could include “the imposition of a schedule or deadlines, provisions to remedy any prejudice, and often a requirement that the plaintiff post security for costs” (para. 18).

Counsel for the Appellant: Havelock Madill, Q.C. and Gregory Plester (Brownlee LLP, Edmonton)

Counsel for the Respondent: Jeffrey Poole (Pool Lawyer, Calgary)

Posted: Thursday, April 28, 2016

Court of Appeal Decision of the Week

Court of Appeal: When Can Judges Refuse a Plea Bargain; “Send This Guy to Jail” Not Sufficiently Cogent Reasons in Sentencing

Case: R v Giesbrecht, 2016 MBCA 34 (CanLII)

Keywords: Fraud; Joint Sentencing Recommendation; Prearranged Funeral Services Act, CCSM c F200; R v. Sharpe (KD), 2009 MBCA 50 (CanLII); R. v. Sinclair (E.J.), 2004 MBCA 48 (CanLII); s. 742.3(1) of the Criminal Code

Synopsis:

The Appellant, Mr. Harvey Giesbrecht, owns a funeral home in Beausejour; enters into contracts and receives $85,567.72 payment for prearranged funerals. Contrary to the Prearranged Funeral Services Act, CCSM c F200, the money received is not placed into trust accounts. Rather, Mr. Geisbrecht uses these funds to pay for personal living expenses and – incongruously – the funeral arrangements of others.

The Appellant enters guilty pleas to 14 charges of fraud under $5,000 and 7 charges of fraud over $5,000. Crown and defence counsel make the following joint sentence recommendation (“JSR”): jail sentence of two years less a day to be served conditionally in the community, followed by 3 years of supervised probation (addressing the accused’s ongoing obligation to pay restitution), and an additional “freestanding” order of restitution. (more…)

Posted: Wednesday, April 20, 2016

Court of Appeal Decision of the Week

Apportionment: More “How Wrong Are You?” or Less “Two Wrongs Make A Right”?

Case: Bradford v. Snyder et al., 2016 ABCA 94 

Keywords: Motor Vehicle Accident; Cyclist; Apportionment of Liability; Contributory Negligence Act, RSA 2000, c C-27; Traffic Safety Act, RSA 2000, c T-6; Reverse Onus Provision

Synopsis:

A cyclist and a Volkswagen van collide at the intersection of 24th Avenue NW and 5th Street NW in Calgary, Alberta. Lighting conditions are dim, the road is wet – a grey and rainy afternoon.

The cyclist, Ms. Casey Bradford, testifies she came to a “rolling stop” at the stop sign before proceeding through the intersection. She concedes that, had she properly stopped, the accident could have been avoided. The driver of the van, Ms. Siobhan Snyder, testifies that, as she was driving through a playground zone, she looked down to check her speedometer (for between two and four seconds) and simply did not see Ms. Bradford before the collision.

At trial, accident reconstruction experts, Dr. Good and Mr. MacInnis provide evidence that sightlines at the intersection were clear, that both cyclist and driver should have been visible to one another. (more…)

Posted: Wednesday, April 13, 2016

Court of Appeal Decision of the Week

Better Late Than Never: Appeal Restoration Criteria & the Court of Appeal

Case: Barry v. Institute of Chartered Accountants of Alberta (Complaints Inquiry Committee), 2016 ABCA 89 (CanLII)

Keywords: Appeal Restoration; Alberta Rules of Court, Alta Reg 124/2010; Record of Proceedings; Regulated Accounting Profession Act, RSA 2000, c R-12

Synopsis:

A discipline tribunal of the Institute of Chartered Accountants finds Mr. Barry guilty of misconduct; imposes sanctions including:

  1. cancellation of Mr. Barry’s registration;
  2. declaration that he may not apply for reinstatement within the four-year period following cancellation;
  3. a $40,000 fine; and
  4. an order to pay costs associated with the investigation and hearing.

Pursuant to s. 101 of the Regulated Accounting Profession Act, RSA 2000, c R-12, Mr. Barry appeals to an appeal tribunal who conclude one allegation has not been established and reduces the fine to $30,000. None of the other sanctions are adjusted. (more…)

Posted: Wednesday, April 06, 2016

Court of Appeal Decision of the Week

Incident Deemed “Accident” under SABS: Court of Appeal

Case: Economical Mutual Insurance Company v. Caughy, 2016 ONCA 226 (CanLII)

Keywords: Accident; Statutory Accident Benefits Schedule – Effective September 1, 2010, O. Reg. 34/10 (the “SABS”); Amos v. Insurance Corp. of British Columbia, 1995 CanLII 66 (SCC), [1995] 3 S.C.R. 405

Synopsis:

The respondent attends a country music jamboree in Bothwell, Ontario along with his wife and two daughters. He detaches his camping trailer; parks alongside other cars and trailers in the shape of a horseshoe on a campsite. A space between the respondent’s truck and another trailer is left as a walkway for campers.

More campers arrive on motorcycles, parking on the site where the respondent’s family was camped. After nightfall, and without the respondent’s knowledge, these motorcycles are relocated to the walkway. Around midnight, the respondent – now intoxicated – is playing tag with his daughter near the parked truck. As the respondent proceeds through the walkway (which had been a clear pathway for campers), he trips over one of the parked motorcycles and is propelled forward into his truck. The respondent sustains serious spinal cord injuries in the incident. (more…)

Posted: Tuesday, March 29, 2016

Court of Appeal Decision of the Week

Court of Appeal Affirms Registrar’s Power to Deal with “Ex Facie” Contempt

Case: Lymer v Jonsson, 2016 ABCA 76 (CanLII)

Keywords: Bankruptcy and Insolvency Act, RSC 1985, c B-3; Powers of Contempt; Ex Facie; In Facie.

Synopsis:

After several years of bankruptcy proceedings and the appellant’s repeated failure to comply with orders, creditors apply for an order declaring the appellant to be in civil contempt. Following reasoning in the case of Re Cowan, 2010 ONSC 3138 (CanLII), 68 CBR (5th) 248, the Registrar concludes he has jurisdiction to make contempt orders pursuant to provisions in the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (BIA).

The issue in this appeal is whether the Registrar in bankruptcy has jurisdiction to find the appellant in contempt for failing to comply with its orders and to impose sanctions (an order of ex facie contempt) to punish contempt committed not in the face of the court. Both the Registrar and Queen’s Bench judge on appeal conclude the Registrar has that jurisdiction. The only issue for the Court of Appeal is to confirm whether the Registrar has jurisdiction to make the ex facie order. (more…)

Posted: Wednesday, March 23, 2016

Court of Appeal Decision of the Week

Court Opens Opportunities for Parties Seeking Leave to Intervene in Criminal Appeals

Case: R. v. Barton, 2016 ABCA 68 (CanLII)

Keywords: Leave to Intervene in Criminal Appeals; Alberta Rules of Court; R. v. J.L.A., 2009 ABCA 324.

Synopsis:

The Crown appeals following a trial for first degree murder (s. 235(1) of the Criminal Code) in which the Respondent, Mr. Bradley Barton, is found not guilty of causing the death of Ms. Cindy Gladue.

The grounds of appeal are as follows:

  1. The trial judge erred in law in his instruction to the jury with respect to manslaughter.
  2. The trial judge erred in law in his instruction to the jury with respect to motive.
  3. The trial judge erred in law in making a ruling under 276 of the Criminal Code (concerning evidence of the complainant’s sexual activity) after the close of evidence without any application having been brought by the defence and without a hearing on the issue.
  4. The trial judge erred in law in instructing the jury that the complainant’s consent on a previous occasion could be used to support a finding of honest but mistaken belief in consent on this occasion.
  5. Such further and other good grounds as counsel may advise.

(more…)

Posted: Wednesday, March 16, 2016

Court of Appeal Decision of the Week

Worker’s Compensation, Permanent Medical Impairment & Burden of Proof: Court of Appeal Confirms Shift on Appeal; Upholds WCAT Decision

Case: Maritime Paper Products Limited Partnership v. LeBlanc, 2016 NSCA 13 (CanLII)

Keywords: Personal Injury; Employment Context; Workers’ Compensation Board; Standard of Review; Burden of Proof; Standard of Proof; Worker’s Compensation Appeal Tribunal

Synopsis:

Mr. LeBlanc injures his left shoulder while employed with Maritime Paper Products Limited Partnership (“Maritime Paper”). Following his injury, a course of physiotherapy and shoulder surgery, Mr. LeBlanc undergoes a Permanent Medical Impairment (“PMI”) assessment.

PMI assessment is conducted by the Workers’ Compensation Board Medical Advisor, who concludes Mr. LeBlanc has a “whole person impairment” of 14%. Mr. LeBlanc is subsequently awarded a 14% PMI by the Board. (more…)

Posted: Wednesday, March 09, 2016

Court of Appeal Decision of the Week

Interpreting S.13 of the Companies’ Creditors Arrangement Act: Towards a “Purpose-Focused” Approach

Case: Essar Steel Algoma Inc. (Re), 2016 ONCA 138 (CanLII)

Keywords: Leave to Appeal; Stay Pending Appeal; Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36; Sandvik Mining & Construction Canada Inc. v. Redcorp Ventures Ltd., 2011 BCCA 333 (CanLII); Monarch Land Ltd. v. Sanderson of Fish Creek (Calgary) Developments Ltd., 2014 ABCA 143 (CanLII)

Synopsis:

Essar Steel Algoma Inc. and related companies (collectively referred to as “Essar”) manufacture steel in Sault Ste. Marie, Ontario. Iron ore pellets are critical to the manufacturing process. Cleveland-Cliffs Iron Company, Cliffs Mining Company, and Northshore Mining Company (collectively, “Cliffs”) enter into an iron ore pellet supply contract which obligates Essar to purchase exclusively from Cliffs until 2016, and thereafter to purchase a share of its iron ore pellets from Cliffs between 2017 to 2024. (more…)

Posted: Wednesday, February 24, 2016

Court of Appeal Decision of the Week

Summary Proceedings and the Court of Appeal: “Best Foot Forward” into Hryniak’s “Culture Shift”?

Case: Pyrrha Design Inc v Plum and Posey Inc, 2016 ABCA 12 (CanLII)

Keywords: Alberta Rules of Court; Procedural Fairness; Summary Disposition; Standard of Review; Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53 (CanLII); Hryniak v Mauldin, 2014 SCC 7 (CanLII), [2014] 1 SCR 87.

Synopsis:

The Appellant Pyrrha Design Inc. and Respondents (Plum and Posey Inc. and Adrinna M. Hardy) are separately involved in the creation and distribution of synthetic jewelry. A settlement agreement requires the Respondents cease creating and selling jewelry with specific characteristics claimed as unique and protected by the Appellant. (more…)

Posted: Wednesday, February 17, 2016

Court of Appeal Decision of the Week

Personal Injury, Credibility Assessments, and the Court of Appeal: A Broken Leg to Stand on?

Case: Zajaczkowski v. Grauer, 2016 BCCA 48 (CanLII)

Keywords: Personal Injury; loss of income; income earning capacity; assessment of damages; misapprehension of evidence

Synopsis:

Following what the respondent, Mr. Grauer describes as a “very small” motor vehicle accident, the appellant, Mr. Zajaczkowski claims to have suffered an injury to his neck, back and shoulders. The appellant also claims a resulting loss of income and income earning capacity.

This is an appeal from an assessment of damages, in which the trial judge finds the appellant is not credible, dismisses his claim for past wage loss, loss of future earning capacity, and loss of housekeeping capacity. (more…)

Posted: Wednesday, February 10, 2016

Court of Appeal Decision of the Week

Contingency Fee Bonuses

Case: Evans Sweeny Bordin LLP v. Zawadzki, 2015 ONCA 756 (CanLII)

Keywords: Contingency Fee Agreement; Order for Assessment; Cookish v. Paul Lee Associates Professional Corporation, 2013 ONCA 278, 305 O.A.C. 359.

Synopsis:

This appeal involves the enforceability of a contingency fee agreement entered into between the appellants (owners and developers of lands in Fort Erie worth approximately $20M) and the respondent solicitors.

The parties’ contingency fee agreement provides the clients pay a bonus of $500K in the event their appeal from a final foreclosure order is allowed. The appeal is successful, and so the solicitors submit an account including the $500K bonus. In response, the clients obtain an order for assessment and the assessment officer disallows the bonus on the basis that it is not fair and reasonable. (more…)

Posted: Wednesday, January 27, 2016

Court of Appeal Decision of the Week

Browne v Dunn; Trial Fairness; Standard of Review

Case: R v Abdulle, 2016 ABCA 5 (CanLII)

Keywords: The Rule in Browne v Dunn (1893), 6 R 67 (HL); Trial Fairness; Armed Robbery

Synopsis:

The Appellant and his friend (referred to as “Abdi”) invite the complainants, Mr. Lu and Mr. Calcines, to a party. The complainants testify that, while walking together towards the party, they are threatened at knife point by the Appellant and Abdi, Mr. Calcines is punched in the face, and the complainants’ cell phones are taken.

The Appellant raised the following issues on appeal:

  1. The Trial Judge erred in applying the rule in Browne v Dunn to insignificant or minor details;
  2. The Trial Judge found a breach of the rule in Browne v Dunn without providing counsel an opportunity to address the issue – thereby compromising trial fairness.

(more…)

Posted: Wednesday, January 20, 2016

Court of Appeal Decision of the Week

Disclosure Requests in ‘Over-80’ Prosecutions and the Court of Appeal

Case: R. v. Jackson, 2015 ONCA 832

Keywords: Disclosure; ‘Over-80’; Stinchcombe; O’Connor; Subpoena Duces Tecum; Intoxilyzer 8000C; StOnge Lamoureux

Synopsis:

The Basic Facts

A police officer sees David Jackson’s car drift into an adjacent traffic lane three times before inexplicably decelerating. The erratic behaviour of the car leads the officer to signal for Mr. Jackson to pull over to the side of the road. There, the officer observes both that Mr. Jackson has glassy eyes and his breath smells of alcohol. Mr. Jackson provides a roadside sample of his breath to enable its analysis by means of an approved screening device (‘ASD’).

After Mr. Jackson fails, he is arrested and the officer demands he provide additional samples of his breath into the Intoxilyzer 8000C at the station. These breath samples reveal Mr. Jackson’s blood alcohol concentration exceeds the legal limit. (more…)

Posted: Wednesday, January 13, 2016

Court of Appeal Decision of the Week

When Courts of Appeal Defer to Commissions (Here, Utility Tariffs)

Case: ATCO Power Ltd v Alberta Utilities Commission, 2015 ABCA 405 (CanLII)

Keywords: Energy Litigation; Alberta Utilities Commission; Standard of Review; Leave to Appeal; Dunsmuir v New Brunswick, 2008 SCC 9; Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61

Synopsis:

The Independent System Operator (ISO) files with the Alberta Utilities Commission for approval of its 2014 ISO Tariff – this includes the “general tariff application” and 2013 ISO Tariff Update. At a later date, the ISO files a revised application. The revisions include a revised rate calculation and bill impacts. (more…)

Posted: Wednesday, December 23, 2015

Court of Appeal Decision of the Week

Employment Law: Severance Not Affected by Employer’s Financial Circumstances

Case: Michela v. St. Thomas of Villanova Catholic School, 2015 ONCA 801 (CanLII)

Keywords: Employment Law; Reasonable Notice; Termination; Economic Circumstances

Synopsis:

St. Thomas of Villanova Catholic School employed the appellants, Domenica Michela, Sergio Gomes, and Catherine Carnovale, on a series of one-year contracts. Although the appellants were senior teachers at the private school, each had their employment terminated as part of cost savings measures due to an expected drop in student enrolment.

The school refused to give the teachers any notice, contending that their fixed-term contracts had merely come to an end. The appellants commenced an action for wrongful dismissal. On summary judgment, the motion judge found the teachers were wrongfully dismissed employees with indefinite terms and each was awarded pay in lieu of six months’ notice.  Taking into account the school’s alleged financial problems, notice was reduced from 12 to 6 months. The appellants sought to vary the damage award by substituting a 12-month notice period. (more…)

Posted: Thursday, December 17, 2015

Court of Appeal Decision of the Week

Damaged: Mild Traumatic Brain Injury, Assessments, and the Court of Appeal

Case: Fadai v. Cully, 2015 BCCA 505 (CanLII)

Keywords: Mild Traumatic Brain Injury; Future Loss of Income Earning Capacity; Brown v. Golaiy (1985), 1985 CanLII 149 (BC SC); Sufficiency of Evidence; Sufficiency of Reasons

Synopsis:

The Appellant, Thomas Cully rear-ends Anis Fadai in a motor vehicle accident. The accident occurs on Highway 1 in Burnaby when traffic unexpectedly stops in front of Mr. Cully. Mr. Fadai suffers numerous injuries from the accident. Although soft tissue injuries and severe headaches subside, he continues to experience difficulty regulating his behaviour and controlling his temper. The force of the impact drove Mr. Fadai’s car into the vehicle in front of him, and he has no memory of the accident.

At trial, Justice Shultes finds these outstanding behavioural symptoms to be the result of the motor vehicle accident. Mr. Fadai receives a total damages award of $373,452.77, broken down as follows: (more…)

Posted: Tuesday, December 08, 2015

Court of Appeal Decision of the Week

Civil Procedure: When Can a Non-party Appeal?

Case: Peavine Metis Settlement v. Whitehead, 2015 ABCA 366 (CanLII)

Keywords: Aboriginal Law; Rights of Appeal; Metis Settlement Appeal Tribunal; Metis Settlements Act, RSA 2000, c M-14; Indian Act, RSC 1985, c I-5

Synopsis:

At the Gift Lake Metis Settlement current members were given an opportunity to vote on the merits of granting membership to Lyle Whitehead and Brandon Laboucane.

Lester Calaheson objected to the validity of the voting list, maintaining that certain persons (on the current membership list) are ineligible for membership. An inaccurate membership list creates the following problem: persons who are not entitled to be members vote on matters affecting the Metis settlement. (more…)

Posted: Wednesday, December 02, 2015

Court of Appeal Decision of the Week

Putting Your Money Where Your Mouth Is: Security for Costs in the Court of Appeal

Case: Stallan v. Palleson, 2015 BCCA 462 (CanLII) 

Keywords: Application for Security for Costs; Res judicata; Section 24(1) of the Court of Appeal Act, RSBC 1996, c 77

Synopsis:

Mr. Andrew Stallan is Ms. Josephine Palleson’s former son-in-law. Mr. Stallan and Ms. Palleson’s daughter are divorced June 21, 2015. They had previously owned and operated a yoga-wear manufacturing retail clothing and apparel business (“Lotuswear Design Ltd.”).

Mr. Stallan seeks to appeal the order of Mr. Justice Kent (in the Supreme Court of British Columbia) dismissing his action on grounds of res judicata. In the court below, Mr. Justice Kent finds there is a common issue underlying claims made by Mr. Stallan – namely whether Ms. Lisa Palleson (his former spouse) wrongfully seized control of certain assets and transferred them to her mother to start and operate a new business. For Mr. Justice Kent, the question in issue had already been answered. (more…)

Posted: Wednesday, November 25, 2015

Court of Appeal Decision of the Week

Whirlwind Vanishing Arsonists: What’s a “Reasonable Verdict”?

Case: R. v. Bou-Daher, 2015 NSCA 97 (CanLII)

Keywords: Arson; Reasonable Verdict; s.686(1)(a)(i) of the Criminal Code; Nova Scotia Court of Appeal; R. v. Yebes, [1987] 2 SCR 168, 1987 CanLII 17 (SCC); R. v. Griffin, [2009] 2 SCR 42, 2009 SCC 28 (CanLII); R. v. Lifchus, [1997] 3 SCR 320, 1997 CanLII 319 (SCC)

Synopsis:

On July 7, 2008, between 1:00AM and 1:15AM, someone deliberately set two fires on the upstairs level of Key Largos, a bar in lower Sackville. The manager, Mr. John Bou-Daher had been on the upstairs level of the bar until about 1:10AM, whereupon he went downstairs, armed the security system, and left the building.

The report of Philip Juby, a “fire cause determination and travel” expert was admitted by consent and included the following opinions: (more…)

Posted: Wednesday, November 18, 2015

Court of Appeal Decision of the Week

Appealing Costs Awards: When is Leave Required?

Case: Mullin v. Lagace, 2015 ONCA 757 (CanLII) 

Keywords: s.133 of the Courts of Justice Act; Costs Awards; Leave to Appeal; Ontario Court of Appeal

Synopsis:

The appellant, Brenda Mullin, is injured in a car accident – she’s a passenger in a car driven by Randy Lagace. Ms. Mullin adds her own insurance company, Allstate (co-respondent on appeal) as defendant following her discovery that Mr. Lagace is uninsured.

The action settles before trial for $190,000.00 plus costs to be agreed upon or assessed.

At the assessment, Ms. Mullin seeks $528,522.25 in costs and an additional $20,000.00 for disbursements. The assessment officer issues a Certificate of Assessment of Costs in the amount of $231,137.93. (more…)

Posted: Tuesday, November 10, 2015

Court of Appeal Decision of the Week

With Clinical Precision: Court of Appeal Grants Surgeon’s Stay Pending Appeal Application

Case: Modry v Alberta Health Services, 2015 ABCA 328 (CanLII)

Keywords: Stay Pending Appeal Application; RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311; Section 40 of the Supreme Court Act, RSC 1985, c S-26; Public Importance; Irreparable Harm; Balance of Convenience

Synopsis:

Interesting case here from Alberta on mandatory injunctions. Three things:

  • book Injunctions by Meehan (yup, me) and Currie (now Vice-Dean, U of Ottawa) by Carswell 1996 — 2 years after RJR came out (why we did the book) — here’s the hyperlink if you want it
  • Justice Bielby, who wrote the decision herein, refers to “Brown JA (as he then was)”— he’s now on the S.C.C. of course
  • the case (in para. 1) specifically refers to an application for Leave to the S.C.C. — would be interested to see if the court (ie. the S.C.C.), after 21 years, is game to go back for another look-see/recalibration — even if it’d mean Currie and I would likely end up having to pen another edition of Injunctions.

(more…)

Posted: Tuesday, November 03, 2015

Court of Appeal Decision of the Week

Corroborative Evidence and Identification Overturns Acquittal

Case: R v Ballantyne, 2015 SKCA 107 (CanLII)

Keywords: Identification Evidence; Corroboration Evidence; Errors of Law; Crown Appeal; s. 686(1)(b)(iii) of the Criminal Code;

Synopsis:

December 23, 2011, a man wearing a baseball cap and sunglasses robs a bank in Prince Albert, Saskatchewan. The event is captured on bank video recording equipment. $1,845.00 stolen.

At trial, the identity of the robber (man wearing baseball cap and sunglasses) is the central issue. Mr. Michael Benjamin – an alleged accomplice – identified himself in the bank video and states Mr. Ballantyne is the man in the cap and sunglasses.

In light of Mr. Benjamin’s penchant for dishonesty (well-documented history telling untruths to police including on the day of the robbery), the trial judge looks for corroboration of his identification of Mr. Ballantyne as the robber.

Sgt. Troy Dumont testifies that he has known Mr. Ballantyne for 13 years and can identify him in the bank video. The trial judge is unconvinced following thorough cross examination by defence counsel; calls Sgt. Dumont’s evidence less than “compelling”. (more…)

Posted: Wednesday, October 28, 2015

Court of Appeal Decision of the Week

Sometimes it’s The Company You Keep: Special Cost Awards and ‘Attacks’ on Reputation

Case: The Owners, Strata Plan LMS3259 v. Sze Hang Holding Inc., 2015 BCCA 424 (CanLII) 

Keywords: special cost award; attack on reputation; vexatious litigants; litigation tactics

Synopsis:

Special costs are awarded to the Respondents (The Owners, Strata Plan LMS3259, Hanson Laud, John Wong, Sammy Chung, Martin Li and Billy Chui) after the Appellants (Mr. Leon Lam, Sze Hang Holding Inc., Extra Gift Exchange Inc. and Richmond Liquidation Sales) resort to “attacks” on the reputation of their opponents.

The Appellants’ behaviour is such that, the Court of Appeal decides the matter has, “…reached the point where it must deal summarily with the litigation conduct”. In a separate matter, the litigants are described by Madam Justice Saunders as having been the architects of a “quagmire”. (more…)

Posted: Wednesday, October 21, 2015

Court of Appeal Decision of the Week

Victori Spolia: Cost Awards at the (British Columbia) Court of Appeal

Case: Urban Communications Inc. v. BCNET Networking Society, 2015 BCCA 412

Keywords: Cost awards; Change in the Law; Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (CanLII); ‘cause of the trouble’; Yang v. Ging, 2003 BCCA 473

Synopsis:

Earlier this year, BCNET Networking Society (BCNET) successfully appeals an order granting leave to appeal an arbitrator’s award and varying the award. At the Court of Appeal, these orders are set aside and the original arbitrator’s award reinstated.

BCNET then applies to obtain the costs of proceedings in both the Supreme Court of British Columbia and in the Court of Appeal.

The respondent Urban Communications Inc. (Urban) opposes the application of BCNET for the following reasons:

  1. a) BCNET was the “cause of the trouble” in authoring the July 18, 2011 option exercise letter;
  2. b) Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 (CanLII) effected a change in the law following the lower court decisions and therefore the Court should exercise its discretion to not award costs; and
  3. c) the arbitrator’s interpretation contained a provision that each party would bear its own costs in the arbitration proceeding.

The Court of Appeal rejects Urban’s submissions; grants BCNET’s application for costs. (more…)

Posted: Wednesday, October 14, 2015

Court of Appeal Decision of the Week

Where there’s no will, the answer is ‘no way’: Secret Trusts, Step Children & the Law of Intestacy

Case: Peters v Peters Estate, 2015 ABCA 301 (CanLII)

Keywords: Intestacy; Wills and Succession Act, SA 201, c W-12.2; Fresh Evidence Application; Secret Trust; Descendents; Lineal Descendents; Step Children

Synopsis:

In 2013, Ms. Ileen Peters dies intestate. Her spouse, Mr. Lester Peters predeceases her in 2009. Together, they have one biological child. From a previous marriage, Mr. Lester Peters has four additional children.

The appellant, Ms. Marette Peters seeks an equal division of the net proceeds of the estate of Ileen Peters between the four daughters (the stepdaughters of Ileen Peters) and their step-brother, Mr. Gordon Peters (the son of Ileen and Lester Peters). (more…)

Posted: Wednesday, October 07, 2015

Court of Appeal Decision of the Week

On Their Own Behalf: Self-Reps at the Nova Scotia Court of Appeal

Case: R. v. Martin, 2015 NSCA 82 (CanLII)

Keywords: s. 684 of the Criminal Code; self-represented litigants; failure to remit tax; failure to report income; s. 7 & s. 8 of the Charter; R. v. J.W., 2011 NSCA 76

Synopsis:

The Appellant, Mr. Darren Martin, is charged with 26 counts under the Income Tax Act, R.S.C. 1985, c. 5 (5th Supp.) and the Excise Tax Act, R.S.C. 1985, c. E-15 for failure to remit tax or report income for the years of 2004, 2005, and 2006.

On his own behalf, Mr. Martin files two preliminary motions in provincial court. The first to exclude evidence seized under a warrant on the basis that the seizure violated Mr. Martin’s Charter rights. The second, to challenge the constitutionality of the s. 487 warrant to search and exclude all evidence seized from evidence.

Mr. Martin is successful on both applications, and the charges against him are dismissed (note: we acknowledge the assistance of Mr. Stephen Robertson, Nova Scotia Legal Aid credited as amicus curiae in this proceeding).

The Crown brings a summary conviction appeal pursuant to s. 813 of the Criminal Code. Mr. Martin is unrepresented. The summary conviction appeal court allows the appeal, sets aside the decisions of the provincial court and orders a new trial.

Mr. Martin files a Notice of Appeal from the summary conviction appeal decision of Van den Eynden J. In essence, his grounds are as follows: the appeal decision applies the wrong standard of review and substitutes that court’s view of the facts for those of the learned trial judge.

Mr. Martin additionally files an application for appointment of counsel – swears an affidavit setting forth his reasons which include ‘an inability to instruct, organize and administer a proper legal argument’. The Crown acknowledges Mr. Martin did not otherwise have the means to retain counsel.

The Court of Appeal is therefore asked to determine whether Mr. Martin has met the prerequisites of s.684 of the Criminal Code. Farrar J.A. finds Mr. Martin can effectively present his appeal without the assistance of counsel; the interests of justice do not require an assignment of counsel in this case.

Importance:

684 of the Criminal Code provides as follows:

(1) A court of appeal or a judge of that court may, at any time, assign counsel to act on behalf of an accused who is a party to an appeal or to proceedings preliminary or incidental to an appeal where, in the opinion of the court or judge, it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance.

Following the principles of R. v. J.W., 2011 NSCA 76, the Nova Scotia Court of Appeal found analysis pursuant to s. 684 involves two separate inquiries: the first, to determine whether Mr. Martin has sufficient means to obtain legal assistance on his own; and the second, whether it is desirable in the interests of justice for Mr. Martin to have appointed assistance in this matter.

The Court was satisfied Mr. Martin lacked the means to retain counsel. The balance of the decision involved an examination of the interests of justice analysis. This inquiry involved a number of considerations including:

(i) the merits of the appeal;

(ii) its complexity;

(iii) the appellant’s capability;

(iv) the court’s role to assist; and

(v) the responsibility of Crown counsel to ensure that the applicant is treated fairly.

Merit:

For Farrar J.A., the appropriate threshold for evaluating the merits is, following the Court’s decision in R. v. Sykes, 2014 NSCA 4 (CanLII), ‘whether there is an arguable issue’. Here the Court was satisfied, after a review of the summary conviction court decision that the threshold was met.

Complexity & Capability:

The Court of Appeal found the issues to be ‘straightforward’ in this case – the question involved the proper test and whether the summary conviction appeals court simply substituted its own view of the facts in reaching its decision.

With respect to Mr. Martin’s capability, the Court commented on and was impressed by his ‘very good knowledge of the issues’ as demonstrated by both his written and oral submissions before the Court. As such, no appointment of counsel was deemed necessary.

The Court’s Role:

Applying the case of R. v. Grenkow, 1994 CanLII 4100 (NSCA), the Court determined that, should the issues raised on Mr. Martin’s appeal have merit, the panel would allow the appeal ‘notwithstanding the lack of experience of imperfection of argument’.

The Crown’s Role:

The Court of Appeal took an opportunity to restate the well-established principle of criminal prosecution in Canadian courts (as identified in Boucher v. The Queen, 1954 CanLII 3 (SCC) and more recently in R. v. Morton, 2010 NSCA 103 (CanLII)): that the role of the Crown is not to simply obtain a conviction at all costs, but rather to ‘lay before the court what the Crown considers to be the credible evidence relevant to what is alleged’. In other words, the function of the Crown precludes the concepts of winning and losing – that function is one of public duty.

 Counsel for the Applicant/Appellant: Darren Martin (unrepresented)

Counsel for the Respondent (not appearing): Shawn O’Leary (but “Shaun” as in “Shaun the Sheep Movie” on the  Canadian Law List) and Mark Covan (Public Prosecution Service of Canada)

Counsel for the Attorney General of Canada: Ronda van der Hoek

Discuss on CanLii Connects

Posted: Wednesday, September 30, 2015

Court of Appeal Decision of the Week

Fly By: An Overview of Stay Pending Appeal

Case: Dash 224, LLC v. Vector Aerospace Engine Services, 2015 PECA 12 (CanLII)

Keywords: Prince Edward Island Rules of Civil Procedure; Stay Pending Appeal; RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (SCC); Aircraft & Aviation; National Police of Columbia

Synopsis:

Dash 224, LLC (Dash) sought an Order pursuant to Rule 63.01(2) of the Prince Edward Island Rules of Civil Procedure staying a lower court decision pending hearing and disposition of its appeal. This application is the latest in an ongoing contest to determine ownership of two aircraft engines, both of which were sent to PEI for overhaul in 2013. The combatants: Dash (a Florida based company) and the National Police of Columbia (NPC).  (more…)

Posted: Wednesday, September 23, 2015

Court of Appeal Decision of the Week

ABCA Confirms Statutory Compulsion & Principle Against Self-Incrimination Exclude MV Insurance Statements

Case: R v Porter, 2015 ABCA 279 (CanLII)

Keywords: MV Insurance Statements; Traffic Safety Act, RSA 2000, c T-6 (TSA); Careless Driving; Failure to Stop; Traffic Accident; Statutory Compulsion; ss. 7 & ss. 8 of the Canadian Charter of Rights and Freedoms (The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11); R. v. White, [1999] 2 SCR 417, 1999 CanLII 689 (SCC); R. v. Soules, 2011 ONCA 429 (CanLII); R. v. DaCosta, 156 CCC (3d) 520, [2001] OJ No 2392 (QL), 86 CRR (2d) 162, 15 MVR (4th) 272, 50 WCB (2d) 233

Synopsis:

Mr. Andrew Green pulls over on Anthony Henday Drive, Edmonton; assists another motorist. He is struck and killed by a passing vehicle while on the roadside. The driver of the vehicle does not stop.

Next morning the Respondent, Mr. Kieran Porter, contacts a lawyer about his involvement in an accident. Lawyer correctly advises Mr. Porter has right to remain silent, and obligations to provide a collision statement to police pursuant to the Traffic Safety Act, RSA 2000, c T-6 (TSA); and a collision statement to his insurance company.

Respondent’s lawyer then advises police he has a client who needs to report an accident pursuant to the TSA, provides Mr. Porter’s name to Cst. Jones (indicating that he was only doing so in compliance with the TSA). Lawyer and Respondent attend police headquarters where Mr. Porter provides full TSA report. Respondent is then placed under arrest, interviewed by Det. Yarmuch, and released. Mr. Porter declines to answer any questions during this interview on advice of his lawyer.

Sgt. Jones informs the lawyer police want to seize the Respondent’s vehicle. After reviewing the TSA statement, Cst. Chandra swears Information to Obtain (ITO) for a warrant to seize the Respondent’s car. The ITO contains and relies upon information from the TSA (statutorily compelled statements from the Respondent), including the Respondent’s name, address, and the make of his vehicle.

The warrant is granted and police find incriminating evidence after seizing the Respondent’s vehicle (a 2008 Porsche Cayenne).

Mr. Porter also contacts his insurance broker. Claims adjuster explains conditions of his insurance policy require he provide a statement; failure to cooperate could result in denial of coverage. Mr. Porter sends a written statement indicating his involvement in the collision. Police learn of the insurance statement, and obtain production orders (again relying upon information provided by Mr. Porter in his earlier TSA statement).

At trial, Mr. Porter challenges the admissibility of evidence all derived from his TSA statement (pursuant to R. v. White, [1999] 2 SCR 417, 1999 CanLII 689 (SCC)) – asserting any such evidence is obtained in breach of ss. 7 and 8 of the Charter. Following a voir dire, the trial judge agrees, applies White, and excludes the Crown’s evidence under ss. 24(2) – she finds information from compelled statements should not be used to obtain search warrants. Moreover, the trial judge concludes statements made to the insurance company are statutorily compelled and therefore inadmissible as per White.

The Crown raises two issues on appeal:

  1. Is it a breach of the Charter for police to use information found only in a TSA collision statement to obtain a search warrant or production order?
  2. Were the respondent’s insurance statements compelled statements and inadmissible at trial?

The Alberta Court of Appeal concurs with the trial judge’s reasoning; answering both questions in the affirmative. Mr. Porter is acquitted on one count of careless driving under the TSA and one count of ‘failure to stop at an accident’ under the Criminal Code, RSC 1985, c C-46.

Importance:

Where police seek to use information acquired from a driver through questioning, that information must not be provided pursuant to statutory duties (such as those found in the TSA). The reason is simple: as per White, where police action compels or coerces an individual to furnish evidence later used against them, inclusion of such evidence will offend the principle against self-incrimination.

Can the Police Rely Upon Information Found in TSA Reports to Advance an Investigation?

In Porter, the Alberta Court of Appeal’s reply is a clear ‘no’. Here the Court adopts reasoning found in both R v Powers, 2006 BCCA 454 (CanLII), leave denied [2006] SCCA No 452 (where the British Columbia Court of Appeal held statutorily compelled statements are not admissible in a criminal proceeding for any purpose – including to establish grounds for a roadside demand or breath sample demand), and R v Soules, 2011 ONCA 429 (CanLII), leave denied [2011] SCCA No 375 (where the Ontario Court of Appeal similarly held statutorily compelled statement not admissible for the purpose of establishing ASD grounds).

Accordingly, the Alberta Court of Appeal found no fault with the trial judge’s determination Mr. Porter’s TSA statement was provided on the basis of an honest and reasonably held belief he was required to do so (note: this is an important precondition for exclusion as per White). The facts used to create the Information to Obtain would not have been ‘in the hands of the police’ but for the statutorily compelled TSA report provided by Mr. Porter himself. Pursuant to R v Grant, [1993] 3 SCR 223, a search warrant would not have been issued without the information contained in the TSA report.

Therefore, the search was not authorized by law and the Respondent’s ss 7 and 8 rights were violated. Evidence against Mr. Porter was therefore excluded under s 24(2). Note: in the absence of critical evidence confirming the identity of the driver and the location of the vehicle, the Crown cannot succeed in proving the offence.

If the TSA Report is Off Limits, What about the Insurance Statement?

The Alberta Court of Appeal found certain statutory conditions as set out in the Insurance Act, RSA 2000, c I-3, s 556, require that an insured person ‘promptly give to the insurer written notice’. In R v DaCosta (2001), 156 CCC (3d) 520 (Ont SC), the principles of White were applied to Ontario’s Insurance Act and it was determined, given the mandatory nature of insurance, statements provided pursuant to an insurance contract could be excluded.

In both White and R v Fitzpatrick, [1995] 4 SCR 154, the Supreme Court of Canada outlined a series of contextual factors that can be used to assess whether to deploy the principle against self-incrimination to exclude an insurance report in criminal prosecutions.

For the Alberta Court of Appeal, these include:

  • the existence of coercion;
  • the presence of an adversarial relationship;
  • the possibility that of unreliable confessions; and
  • the risk for an abuse of power

The Court of Appeal agreed that the mandatory nature of vehicle insurance (especially the mandatory nature of reporting requirements) was sufficient coercion to trigger the principle. The Court concluded that, unlike the situation in Fitzpatrick (which involved reports and fishing logs in a context ‘free of psychological pressure’), here Mr. Porter was the subject of a criminal investigation when he admitted facts to the insurer. On the question of unreliable confessions, the Court held drivers may ‘feel a strong incentive to provide a false statement’ if they know that information will be passed along to the police to assist in their prosecution. Finally, the Court of Appeal found that allowing the Crown to use an insurance statement (required as part of a process designed to facilitate the determination of liability) as part of a criminal prosecution would be to allow the Crown to do, through other means, what ss. 7 of the Charter and White expressly prohibit.

Concluding Thoughts:

The purpose of insurance reports and/or provisions such as s. 71 of the TSA or s 61 of the British Columbia Motor Vehicles Act (featured in White) is not to assist the police in the investigation of crimes. The reasoning provided by the Alberta Court of Appeal is simply this: the federal division of powers. The criminal law power falls squarely within federal jurisdiction (pursuant to s. 91(27) of the Constitution Act, 1867) the provinces are relegated to make factual inquiries – they are forbidden to interfere with federal jurisdiction.

The constitutional division of powers may certainly create logistical concerns for police investigations, but, as indicated by the trial judge – this law is not new and police should proceed on the basis that statutorily compelled statements are inadmissible.

Counsel for the Appellant (Crown): J.R. Russell

Counsel for the Respondent: D.J. Song

Discuss on CanLii Connects

Posted: Wednesday, September 16, 2015

Court of Appeal Decision of the Week

SHRC Not ‘Second Kick at the Can’ (for University Council Appeal Board Litigants) says Saskatchewan Court of Appeal

Case: Hebron v. University of Saskatchewan, 2015 SKCA 91

Keywords: University of Saskatchewan Act; Concurrent Jurisdiction; Saskatchewan Human Rights Commission; University Council Appeals Board; Veterinary Medicine; Dunsmuir v New Brunswick, 2008 SCC 9 (CanLII), British Columbia (Workers’ Compensation Board) v Figliola, 2011 SCC 52 (CanLII), Tranchemontagne v Ontario (Director, Disability Support Program), 2006 SCC 14 (CanLII)

Synopsis:

Mr. Claude Hebron attends the University of Saskatchewan to complete a clinical fourth year of veterinary medicine (transfer after three years at St. George’s University in Grenada).

He meets with student advisors and Dr. Grahn; discloses that he has a learning disability and requires accommodation. The department of disability services requests he provide medical information as to his disability. Mr. Hebron declines. During clinical rotations, faculty recognize Mr. Hebron struggling with his studies; take steps to provide extra assistance and time to complete exams and assignments.

Despite accommodation, Mr. Hebron’s performance is found to be appreciably below average – he cannot successfully complete his fourth year studies and the College of Veterinary Medicine asks that he discontinue. The College offers Mr. Hebron an opportunity to repeat the fourth year (provided he upgrade his foundational knowledge).

Mr. Hebron first appeals the College’s decision through a student appeals system. The Dean of the College dismisses this appeal; finds the College’s assessment ‘appropriate’. Mr. Hebron next addresses his concerns through the UCAB (University Council Appeals Board) process – alleging his grades have been affected by matters ‘other than substantive academic judgment’. This includes discrimination or a failure to accommodate his disability.

UCAB determines “…that he failed in these rotations was not a failure of college accommodations but rather a failure in his own preparation for the clinical rotations” and dismisses Mr. Hebron’s appeal.

Significantly, Mr. Hebron does not seek to have the UCAB panel decision judicially reviewed – opting for “a second kick at the cat” (a phrase borrowed from the Chambers Judge, at para 54, Danyliuk J.) at the Saskatchewan Human Rights Commission (the SHRC).

The University of Saskatchewan and Dr. Grahn apply to have Mr. Hebron’s complaint dismissed, as it duplicated the UCAB procedure, but the Chief Commissioner of SHRC denies this application and directs the complaints back to SHRC.

The University of Saskatchewan and Dr. Grahn then apply to the Court of Queen’s Bench and succeed in obtaining an order quashing the Chief Commissioner’s decision. The Chambers Judge also permanently stays Mr. Hebron from bringing the matter before SHRC again. He appeals this decision to the Saskatchewan Court of Appeal. Caldwell J.A. concludes the decision is correct in its result; dismisses Mr. Hebron’s appeal.

Importance:

Mr. Hebron wanted to take his matter to the SHRC – to try again in light of the UCAB decision. The Court of Queen’s Bench said ‘no’. For the Caldwell J.A., the overriding issue was whether it makes any sense to ‘expend public and private resources on the relitigation of what is essentially the same dispute’.

Notably, Mr. Hebron did not seek to have the initial UCAB decision judicially reviewed.

The Court of Appeal cited Abella J., who wrote, after reviewing the law of issue estoppel, collateral attack and abuse of process, “forum shopping for a different and better result can be dressed up in many attractive adjectives, but fairness is not among them” (See British Columbia (Workers’ Compensation Board) v Figliola, 2011 SCC 52 (CanLII) at para 36).

Caldwell J.A. concluded the UCAB process was both lawful and just – it was procedurally fair and afforded natural justice to the parties.

Getting it Right: Concurrent Jurisdiction as a Matter of Correctness?

Counsel for Mr. Hebron contended that the proper test used to evaluate the Commissioner’s decision to bring the matter before SHRC is reasonableness. As per counsel’s interpretation of Dunsmuir v New Brunswick, 2008 SCC 9 (CanLII), Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 (CanLII) and Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 (CanLII), where a tribunal is asked to determine its own jurisdiction over a matter (and interpret its home statute) these determinations are subject to deference on judicial review.

The Court of Appeal disagreed with this interpretation, concluding that it is ‘plain’ that the Commissioner’s decision with respect to jurisdiction is reviewable by a Superior Court on the standard of correctness. For Caldwell J.A., Mr. Hebron’s submission misinterpreted Rothstein J.’s judgment in Alberta Teachers – in fact Rothstein was careful to preserve categories that attract the correctness analysis (including ‘questions regarding the jurisdictional lines between two or more competing specialized tribunals’).

The Court found this interpretation in step with a whole host of Supreme Court decisions including Dunsmuir v New Brunswick, 2008 SCC 9 (CanLII); Tranchemontagne v Ontario (Director, Disability Support Program), 2006 SCC 14 (CanLII); Syndicat de la function publique du Québec v Québec (Attorney General), 2010 SCC 28 (CanLII); and British Columbia (Workers’ Compensation Board) v Figliola, 2011 SCC 52 (CanLII) (note: for the complete list of cases cited in support of this point see para 46 of the judgment).

Concurrent Jurisdiction

Citing Bastarache J. in Tranchemontagne, the Court of Appeal concluded SHRC does not hold exclusive jurisdiction over human rights matters. In fact, both UCAB and SHRC share concurrent jurisdiction over Mr. Hebron’s complaint. Why? Tranchemontagne reaffirmed the presumption that tribunals are empowered to go beyond their enabling statute to decide questions of law.

Are These Matters ‘Essentially the Same’?

For Caldwell J.A., it was a simple point of fact that Mr. Hebron’s SHRC complaint and UCAB appeal were ‘essentially the same’ – not a single fact or factor being different and neither relying upon a law or principle not relied upon in the other. The Chief Commissioner reached the opposite conclusion, but the Court of Appeal found he relied upon facts and reasoning extraneous to the established law.

The Court of Appeal echoed Abella J.’s admonishment – from Figliola – of any ‘second-in-time’ tribunal (the Commissioner of SHRC) considering whether they are comfortable with the ‘process and merits’ of previous decisions (in this case, the UCAB decision) – they should not be complicit in any attempt to collaterally appeal the merits of the UCAB decision. This is properly the subject of judicial review.

Moreover, the Court was troubled by the prospect of a body outside the University itself having the power to override the University’s assessment of student academic performance and/or confer passing grades ‘where none had been merited’. Section 6(1) of the University of Saskatchewan Act, 1995, SS 1995, c U-6.1 confers exclusive powers to the University in the domain of implementing admission and graduation standards.

Concluding Remarks:

In many ways, this case is like an onion (but not because it makes you cry). There are multiple layers of decision to peel back. The bottom line: Court of Appeal confirms the Court of Queen’s Bench decision. One cannot use the SHRC to judicially review UCAB decisions.

Here the Court of Appeal has sent a message: it prefers that individuals appeal UCAB decisions through the established judicial review process rather than look for a more favourable outcome in another forum.

Counsel for the Appellant: Colin Gusikoski (Victory Square Law Office LLP, British Columbia)

Counsel for the Respondent University and Dr. Grahn: Catherine Sloan and Paul Clemens (McKercher LLP, Saskatchewan)

Counsel for the Respondent Tribunal: Scott Newell (Saskatchewan Human Rights Commission)

Discuss on CanLii Connects

Posted: Wednesday, September 09, 2015

Court of Appeal Decision of the Week

Newman & Newman Overruled: Court of Appeal Clarifies the Law of Vicarious Liability

Case: Fernandes v. Araujo, 2015 ONCA 571 

Keywords: Vicarious Liability; Personal Injury; Insurance litigation; Finlayson v. GMAC Leaseco Ltd., 2007 ONCA 557 (CanLii); Newman and Newman v. Terdik, 1952 CanLii 97 (ONCA); Myers-Gordon (Litigation Guardian of) v. Martin, 2013 ONSC 5441 (CanLII), Stare Decisis; Highway Traffic Act

Synopsis:

Ms. Sara Fernandes sustains serious personal injuries as passenger of an ATV operated by Ms. Eliana Araujo. The vehicle is owned by Mr. Carlos Almeida and insured by Allstate. Almeida tells Araujo and Fernandes that they can try the ATV; Mr. John Paul Almeida explains its use and warns Araujo not to leave farm property. (more…)

Posted: Wednesday, September 02, 2015

Blog

You Don’t Need No Representation? Procedural Fairness and the Municipal Government Act

Case: Money v Bonnyville (Municipal District No. 87), 2015 ABCA 254

Keywords: Procedural Fairness; Municipal Law; Stop Order; Municipal Government Act; Administrative Law

Synopsis: A stop order requires the Applicants to demolish cabins situated on their land. The order states the structures do not comply with ‘Bylaw No 1207’ as there is no development permit and too many ‘dwellings’ on the parcel as per s. 43 of the Bylaw.

The Applicants appeal the stop order. Counsel requests adjournment of the hearing, but the Subdivision and Appeal Board of the Municipal District of Bonnyville No 87 (the “SDAB”) declines – leaving Ms. Money to represent herself. The SDAB finds against the Applicants without providing written reasons. (more…)

Posted: Wednesday, August 19, 2015

Blog

Section 24(2) & Reasonable and Probable Grounds in ‘Over 80’ Practice – A Shift Towards Au-Yeung from the (Ontario) Court of Appeal?

Case: R. v. Ho, 2015 ONCA 559 (CanLII)

Keywords: Approved Screening Device; Officer’s Knowledge; Reasonable and Probable Grounds; Impaired Driving; Over ‘80’; Sections 8 and 24 of the Charter; R. v. Au-Yeung

Synopsis:

Police conduct a formal ‘RIDE’ program in the City of Markham. Mr. Ho is stopped for a sobriety check. The officer notes his eyes are bloodshot and the smell of alcohol emanates from the vehicle (note: not from the accused’s breath). Mr. Ho admits to having consumed three ‘drinks’ earlier that night. The officer forms reasonable suspicion, and a demand is made to participate in roadside testing – administration of the ‘approved screening device’ (ASD). (more…)

Posted: Wednesday, August 05, 2015

Court of Appeal Decision of the Week

Production Orders and Part VI of the Criminal Code; Not Living in the Same Building as the Police Officer Investigating Your Matter

Case: R. v. Webster, 2015 BCCA 286

Keywords: Possession of Cocaine; Trafficking; R. v. TELUS Communications; Production Order; Text Messages; Warrantless Arrest; Warrantless Entry; Hearsay; R. v. Baldree

Synopsis: RCMP arrest a woman for a ‘dial-a-dope’ trafficking offence. A search of her cell phone reveals two telephone numbers for a person referred to as ‘Dru Boss Man’.

It is common for drug traffickers to have multiple telephones (one for business and one for personal matters) and the police believe ‘Dru Boss Man’ is the woman’s drug supplier. (more…)

Posted: Wednesday, July 29, 2015

Court of Appeal Decision of the Week

Applying the Abolition of Early Parole Act (No Pressing/Substantial Reason Re: Retrospectivity)

Case: Canada (Attorney General) v. Lewis, 2015 ONCA 379 

Keywords: Charter; Sections 1, 11(i); Meaning of ‘Punishment’; Abolition of Early Parole Act; Retrospective Application; Pressing and Substantial Objective

Synopsis:

On March 28, 2011, Section 10(1) of the Abolition of Early Parole Act S.C. 2011, c. 11 put an end to ‘accelerated parole review’ under the Corrections and Conditional Release Act S.C. 1992, c. 20.

Section 10(1) provides as follows: (more…)

Posted: Wednesday, July 22, 2015

Court of Appeal Decision of the Week

Scope of Common Law Police Powers

Case: Figueiras v. Toronto (Police Services Board), 2015 ONCA 208 

Keywords: Waterfield test, common law police powers, ancillary powers, G20 Summit, freedom of expression, battery

Synopsis: Toronto, June 26, 2010: some riots occurred at the scene of the G20 Summit. A day later, Paul Figueiras and some friends went downtown to demonstrate in support of animal rights. As they walked along University Avenue (just north of King Street), the group was confronted by police officers. The officers instructed Mr. Figueiras and company that if they wished to proceed any further, they would have to submit to a search of their bags. (more…)

Posted: Wednesday, July 15, 2015

Court of Appeal Decision of the Week

Do Offensive Blog Posts Amount to Discrimination “With Respect to Employment”?

Case: Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495

Keywords: administrative decision-maker, standard of review, freedom of expression, blog posts

Synopsis: The Appellant, Mariann Taylor-Baptiste, and the Respondent, Jeff Dvorak, both worked at the Toronto Jail. In late 2008 and early 2009, during a period of labour unrest and collective bargaining, Ms. Taylor-Baptiste was Mr. Dvorak’s manager. Mr. Dvorak was president of the jail’s local branch of the Respondent union. Mr. Dvorak operated a blog about union matters on which he authored a blog post, and permitted the posting of a comment written by someone else, accusing Ms. Taylor-Baptiste of nepotism and incompetence. She complained to the Human Rights Commission, alleging discrimination “with respect to employment” contrary to section 5(1) of the Ontario Human Rights Code (“Code”) and harassment “in the workplace” contrary to section 5(2) of the Code. (more…)

Posted: Wednesday, July 08, 2015

Court of Appeal Decision of the Week

Bullying Lawsuits not Covered by Standard Homeowners’ Insurance

CaseUnifund Assurance Company v. D.E., 2015 ONCA 423C.S. v. TD Home and Auto Insurance Company, 2015 ONCA 424

Keywords: duty to defend, exclusion clause, ambiguous wording, insured, bullying

Synopsis: The respondents, D.E. and L.E., had a homeowner’s insurance policy that included liability coverage if their personal actions caused unintentional bodily injury or property damage. They became the subject of a lawsuit where the principal claim was their daughter and two other girls, all Grade 8 students, bullied and threatened a fellow student, resulting in physical and psychological injuries. The claim was rooted in negligence, namely, their failure to control their daughter.

D.E. and L.E. requested Unifund (appellant) defend and indemnify them pursuant to their insurance policy. The appellant refused, relying on two exclusion clauses contained in the policy:  (more…)

Posted: Tuesday, June 30, 2015

Court of Appeal Decision of the Week

Facebook “Likes” BCCA Decision

Case: Douez v. Facebook, Inc., 2015 BCCA 279 

Keywords: class action certification, territorial competence, forum non conveniens, online contracts

Synopsis: Deborah Douez (plaintiff) commenced an action in the B.C. Superior Court alleging that Facebook (defendant) violated users’ privacy by using their names and images in paid advertisements without their consent. The plaintiff alleged this was a breach of the Privacy Act of British Columbia. The trial judge agreed with the plaintiff and granted class action certification on behalf of all B.C. Facebook users featured in the advertisements. (more…)

Posted: Wednesday, June 24, 2015

Court of Appeal Decision of the Week

Court OKs Worldwide Order Against Google

Case: Equustek Solutions Inc. v Google Inc., 2015 BCCA 265 

Keywords: Court jurisdiction, territorial competence, comity, injunction, jurisdiction over a non-party

Synopsis: Equustek Solutions Inc. (plaintiffs) alleged Datalink Technologies Gateways Inc. (defendants) designed and sold counterfeit versions of their product. They sued for trademark infringement and unlawful appropriation of trade secrets, and obtained injunctions prohibiting the defendants from carrying on their business. The defendants continued to carry on business, but did so in a clandestine manner using a variety of websites, and relying on web search engines to direct customers to those sites. The plaintiffs successfully applied to the B.C.S.C. for an interlocutory injunction prohibiting Google from delivering search results pointing to the defendants’ websites. Google appealed, arguing: (i) the injunction was beyond the jurisdiction of the court; (ii) it improperly operated against an innocent non-party to the litigation; (iii) it had an impermissible extraterritorial reach and violated the principle of comity; and (iv) it should not have been granted because of its effect on freedom of speech. (more…)

Posted: Wednesday, June 17, 2015

Court of Appeal Decision of the Week

Law v. Mixed Fact and Law; Crown’s Right to Appeal from an Acquittal

Case: R v Bentley, 2015 BCCA 251

Keywords: Question of law v. mixed fact and law, perjury, collusion, circumstantial evidence

Synopsis: Constable Bill Bentley was the junior of four Royal Canadian Mounted Police officers involved in the October 14, 2007 encounter with Robert Dziekanski at the Vancouver International Airport. Mr. Dziekanski died shortly after the police deployed a conducted energy weapon (or “Taser”) to subdue him. The Crown appealed from the acquittal of Cst. Bentley on one count of perjury, contrary to ss. 131 and 132 of the Criminal Code. The central issue under appeal was whether the Crown had identified a question of law alone (appealable) or a mixed question of law and fact (non-appealable) in accordance with section 676(1)(a) of the Criminal Code. (more…)

Posted: Wednesday, June 10, 2015

Court of Appeal Decision of the Week

Exceptional Offer Warranting a Look Into the Crown’s Discretion

Case: R. v. Delchev, 2015 ONCA 381

Keywords: Crown settlement offer, abuse of process, privilege, stay

Synopsis: The appellant was convicted of 16 counts of firearms and drug related offences following a trial by judge and jury. In settlement discussions, trial Crown had offered to recommend a conditional sentence on a guilty plea “if the appellant provided an induced statement indicating certain evidence he had given in pre-trial proceedings was false and his trial counsel knew it was false”. If the offer was accepted it would create a conflict of interest between the appellant and his counsel.

Following the offer, the appellant brought an abuse of process application seeking a stay. The trial judge held that “because settlement privilege applied, and there was no extrinsic evidence supporting an exception based on prosecutorial impropriety, the evidence of the discussion was inadmissible”. She dismissed the application. (more…)

Posted: Tuesday, June 02, 2015

Court of Appeal Decision of the Week

When Will Judge’s Interventions Result in a Mistrial?

Case: R v Crawford, 2015 ABCA 175

Keywords: judicial intervention, questioning witnesses, fair trial

Synopsis: Crawford was convicted of theft of an automobile and being a party to a robbery committed with the use of a firearm. His friend Anderson had hijacked a car with a pellet gun. Crawford, Anderson and another friend then took the car to make a surprise 4 a.m. visit to Anderson’s girlfriend, whom he suspected of infidelity. Thanks to the car being equipped with OnStar GPS, the police located it quickly. Crawford fled but was caught, and Anderson  found in the car with the pellet gun. (more…)

Posted: Tuesday, May 26, 2015

Court of Appeal Decision of the Week

Challenging a Tribunal’s Discretion to Extend Time Periods

Case: Isbister v Metis Settlements Appeal Tribunal, 2015 ABCA 164

Keywords: Aboriginal, administrative tribunal, extension to time to appeal, membership, Métis, Indian Act

Synopsis: Linda Isbister, the appellant, lived on the Fishing Lake Metis Settlement for most of the first 22 years of her life between 1948 and 1970. After 1970, the evidence was unclear as to when she was living on or off the Settlement. In 1982, at the time of her marriage she was registered as an Indian under the Indian Act. She was 35 years old. In 2008 she was living on the Settlement and was serving as its administrator. She applied for membership and it was approved by the Council. Four and a half years later, in 2013, the respondent appealed the approval of Isbister’s membership application. The Metis Settlements Appeal Tribunal extended the time to appeal (normally 45 days). They held that she was not entitled to apply for membership by virtue of s. 75(2) of the Indian Act because she acquired Indian status through marriage after she reached 18 years of age. It revoked her membership in the Settlement. The C.A. allowed the appeal, vacated the Tribunal’s order and restoring Isbister’s name to the membership list. (more…)

Posted: Tuesday, May 19, 2015

Court of Appeal Decision of the Week

Court Order for Return of Abducted Child

Case: Sampley v. Sampley, 2015 BCCA 113 

Key Words: Family Law, (alleged) Child Abduction, Hague Convention

Basic Facts:

  • Appellant Michelle (Sampley) and Respondent Matthew (Sampley) marry in Calgary, 2010
  • Appellant Canadian, Respondent American
  • They first live in Anchorage, where their son is born, 2011
  • Later on in 2011 they move to Washington (state), until 2013
  • In late 2013 they again move to Billings (Montana), to where the Respondent’s employment is transferred
  • The Billings house is “uninhabitable”
  • After four/five days of motel living while the house was being fixed up, the Appellant tells the Respondent she is taking their child with “basic clothing and toys” to “stay at her parents’ residence in Elko, B.C.”, “only going for three weeks” (the latter the Respondent’s belief) (para. 5, B.C.C.A.; some quotes from chambers judge, paras. 3-4).

(more…)

Posted: Wednesday, May 13, 2015

Court of Appeal Decision of the Week

Dangers of Judge Copying Counsel’s Submissions

Case: Ogden v. Canadian Imperial Bank of Commerce, 2015 BCCA 175

Keywords: Judicial copying, Cojocaru, employment law, wrongful dismissal

Synopsis: Ms. Ogden worked for CIBC. She received a call in the middle of the night from a client needing to urgently transfer funds from China to a Canadian bank account in order to close a property transaction. Ogden agreed and accepted a wire transfer of approximately $100,000 into her own personal account and one shared with her husband. The next morning she transferred the funds to her client’s Canadian CIBC account in order for the client to complete the deal. CIBC discovered this “commingling” of a client’s funds with her personal account and terminated her employment for cause. (more…)

Posted: Tuesday, April 28, 2015

Court of Appeal Decision of the Week

The Inmate Code: When Asked to Fight, Must You Fight?

Case: R. v. Quansah, 2015 ONCA 237

Keywords: Browne v. Dunn, jury instructions, remedy, prison

Synopsis: Quansah and Tu are inmates at Central North Correctional Centre. They were playing the board game Risk and as usually happens when you play Risk (in or out of prison) a dispute arose. Tu challenged Quansah to a fight. Quansah hesitated and no fight occurred. As Justice Watt of the Ont. C.A. explained, this was in breach of the inmate code:

[14] An informal inmate “code” regulates life among the prisoners. The code requires any inmate challenged to a fight by another inmate to fight. An inmate who fails to respond to the challenge may be beaten, stabbed or kicked off the range, as determined by senior inmates. An inmate who at first fails to respond to a challenge to fight may restore his reputation by “showing up” subsequently through arrangements made with senior inmates.
[15] The areas best suited for fights between inmates are those not visible to the guards from the control module: the shower area and inside individual cells. The best time for cell fights is in the morning after the cell doors have been “cracked”.

(more…)

Posted: Tuesday, April 14, 2015

Blog

Upholding Stricter Sentences for Impaired Driving

Case: R v York, 2015 ABCA 129

Keywords: impaired driving causing death, increased sentencing ranges

Synopsis: The Appellant was driving drunk. His blood alcohol content was three times the legal limit. He veered into the oncoming lane and collided with a motorcycle. The crash proved fatal to the motorcyclist. The Appellant, however, literally walked away from the scene.

At trial he was convicted of impaired driving causing death and was sentenced to six years in jail and a ten-year driving ban. This was at the high end of what the Crown was seeking. The sentencing judge found several aggravating factors including the fact the appellant had two prior convictions for impaired driving (1997, 2000) (more…)

Posted:

Blog

Stanley Cup Riots & Errors in Sentencing

Case: R. v. Lynch, 2015 BCCA 140

Keywords: Stanley Cup riots, sentencing

Synopsis: In 2011, the Vancouver Canucks loses game seven of the Stanley Cup finals to the Boston Bruins. Mr. Lynch is so distraught and overcome by the loss it appears he feels it necessary to go shopping. Unfortunately the stores are closed and Lynch, along with others goes shopping anyway. Fast-forward a few years, Lynch and two co-accused plead guilty to participating in a riot contrary to s. 65 of the Criminal Code. Lynch is sentenced to 45-day intermittent jail sentence, followed by 12 months of probation and 150 hours of community service. One co-accused receives a 6 month conditional sentence order and 200 hours of community service. The other receives a 12-month conditional discharge and 100 hours of community service. (more…)

Posted: Thursday, April 02, 2015

Blog

New Test for Compliance with Expert Opinion Rules

Case: Westerhof v. Gee Estate, 2015 ONCA 206

Keywords: expert witness, evidence, neutrality, duty, opinion, Rule 53.03

Synopsis: Rule 53.03 of the Rules of Civil Procedure sets out requirements for introducing expert witness evidence at trial. Following Osborne Report recommendations, the Rule was amended in 2010 with the aim of ensuring neutrality. At issue in these cases (two appeals heard together) was to whom 53.03 applies. At the Westerhof trial, the trial judge ruled inadmissible opinion evidence from experts who had not complied with Rule 53.03 including various medical practitioners, a neurologist, and a road safety consultant/driving therapist intern. The jury awarded Mr. Westerhof $22,000 for general damages and for $13,000 past loss of income, but the trial judge dismissed the action for failure to meet the s. 267.5(5) Insurance Act threshold. The Divisional Court dismissed his appeal. Court of Appeal allowed the Westerhof appeal and ordered a new trial. The opposite occurred in the McCallum trial where a number of witnesses were permitted to give opinion evidence without complying with Rule 53.03. The C.A. dismissed the McCallum appeal. (more…)

Posted: Monday, March 30, 2015

Blog

Overloaded Shopping Carts & Store Liability

Case: Saisho v. Loblaw Companies Limited, 2015 ONCA 172

Keywords: negligence, occupier liability, standard of care, duty of care

Synopsis: The plaintiff, now deceased, was injured in an accident at a bulk item grocery store. He was 90 years old at the time and was struck by another customer’s overloaded shopping cart while walking slowly with a cane to his car. The evidence was that “cashiers do not assist customers in loading their own purchases into their carts”. The plaintiff brought an action against the store alleging it breached the duty of an occupier to keep its premises reasonably safe. The trial judge dismissed the action. The C.A. dismissed the appeal.
(more…)

Posted: Wednesday, March 18, 2015

Court of Appeal Decision of the Week

Surveillance Videos

This (Ontario) C.A. decision came down on Feb. 17, 2015 (though page 34 of same [on CanLii at any rate] states it “Released: February 17, 2016” [emphasis added] – perhaps that’ll will be the S.C.C. release date if the case goes to the Big House?

Case: Iannarella v. Corbett, 2015 ONCA 110

Keywords: MVA, Surveillance Evidence

Issues: the appeal raises five issues *, of which one is noted here.

Basic facts: Mr. & Mrs. Iannarella are rear-ended by a concrete mixer “on a snowy February evening”, “stop and go traffic on Highway 427”. The truck driver says “accident was caused by ‘mother nature’ ”. Mr. Iannarella claims rotator cuff injury (had two surgeries on same later) and chronic pain. (Paras. 3-5) (more…)

Posted:

Court of Appeal Decision of the Week

You Can’t Always Get What You Want” (Rolling Stones), But You Can Bring a Class Action to Get It (NWT C.A.)

Case: Bell Mobility Inc. v. Anderson, 2015 NWTCA 3

Key Words: Class Actions, Telecommunications, Certification

Summary: “The plaintiffs’ basic complaint is that the defendant Bell charged for non-existent services, namely 911 calling. There is no 911 service in the three Territories (except in Whitehorse). Monthly bills in the Territories bore a separate 911 fee of 75¢ (trial Reasons, supra, paras 23-24).” (para. 1)

In the (NWT) C.A.:

  • the Justice writing for the 3-judge panel (Côté, Sharkey, Wakeling)

(Côté writing) indicated:

 “One must approach this appeal through the contracts between the defendant Bell and its customers. That is because Bell relies heavily on the contracts for two purposes. First, Bell argues that it has an express contractual right to collect 911 fees from customers in areas where no 911 service of any kind is available. That is the central topic now litigated. Because of this suit, Bell dropped that fee for contracts made after November 2009…Second, Bell also argues that the contracts are a juristic reason for Bell’s enrichment from those fees, so that there cannot be unjust enrichment. A valid and enforceable contract which grants or permits something of course is a juristic reason. So the contract’s interpretation and enforceability is vital to the unjust enrichment issue.” (para. 2)

(more…)

Posted: Friday, March 06, 2015

Court of Appeal Decision of the Week

Narrowing Crown Liability Arising from Parties Unhappy with First Nations Consultation

Case: Moulton Contracting Ltd. v. British Columbia, 2015 BCCA 89

Keywords: Implied terms, negligent misrepresentation, continuing representation, consultation

Synopsis: The Province of BC sold two timber sale licenses to Moulton Contracting. The Behn family, most members of Fort Nelson First Nation, set up blockades on access roads to prevent logging. The trial judge held that the Province had impliedly promised and represented to Moulton that it had engaged in all necessary consultation with First Nations. After entering into the licenses, George Behn told an employee of the Province he intended to “stop the logging”. The Province did not inform Moulton of this threat until two months later, after Moulton had started logging. Shortly after, a blockade went up preventing Moulton from logging. The trial judge found the Province liable for failing to inform Moulton of Behn’s threat. He awarded damages of $1,750,000 to Moulton for lost opportunities to enter into alternative logging contracts. (more…)

Posted: Wednesday, March 04, 2015

Court of Appeal Decision of the Week

What’s it Take to Get Leave to Appeal a Summary Conviction Appeal?

Case: R v Kirk, 2014 ABCA 373

Keywords: Securities Act, criminal, constitutionality, ultra vires

Synopsis: The applicants were charged with contravening a number of provisions of the Alberta Securities Act regarding unregistered advising, making misleading statements to affect securities and causing artificial prices. They brought an application arguing that the impugned provisions of the Act “are ultra vires the Alberta Legislature on the grounds that they are colourable criminal law and legislation in relation to criminal law falling within the exclusive jurisdiction” of Parliament (para. 4 of 2014 ABQB 517). The Provincial Court judge dismissed the applications and an appeal to the Court of Queen’s Bench was also dismissed. The Court of Appeal denied leave to appeal. (more…)

Posted: Tuesday, February 17, 2015

Court of Appeal Decision of the Week

Effect of Misbehaving in Prison on Pre-Sentence Credit

Case: R. v. Slack, 2015 ONCA 94

Keywords: Sentencing, credit, pre-sentence custody, behaviour, mandatory minimums

Synopsis: Accused was sentenced to 8 years’ imprisonment for a series of weapons-related convictions and 2 years’ imprisonment for breach of probation, less 1:1 credit for 433 days of pre-sentence custody. He appeals his sentence on two grounds. First, the judge refused to granted enhanced credit at the rate of 1.5:1 because the accused had three misconducts while in custody. Second, the judge used the 5-year mandatory minimum as a sentencing floor (which was subsequently held to be unconstitutional). Cronk J.A. writing for the Court of Appeal allowed the appeal in part with respect to the enhanced credit. (more…)

Posted: Thursday, February 12, 2015

Court of Appeal Decision of the Week

Meeting the Minimum: Minority Language School Charter Rights

Case: Northwest Territories (Attorney General) v Association des parents ayants droit de Yellowknife, 2015 NWTCA 2

Keywords: French language education rights, Charter, s. 23

Synopsis: The plaintiffs in the trial below consisted of an association of parents asserting s. 23 Charter rights, two rights-holder parents, a French daycare association, and a federation of several Francophone associations in NWT. The defendants were the Attorney General of the NWT and Commissioner of the NWT. The plaintiffs alleged that minority language schools in the territory were not meeting the minimum constitutional standards due to lack of facilities. The trial judge agreed and ordered the government to expand the facilities available to francophone students.

The panel of the Court of Appeal for the Northwest Territories (also justices of the Court of Appeal of Alberta) were split in their decision on s. 23. The majority reasons were written by Justice Slatter with Justice Watson concurring. It allowed the appeal and scaled back the facility expansions ordered by the trial judge. (more…)

Posted: Tuesday, February 03, 2015

Court of Appeal Decision of the Week

Mental Distress Damages for Breach of Building Contracts

Hickey’s Building Supplies Limited v. Sheppard, 2014 NLCA 43

Keywords: Deficiencies, Lien, Awarding General Damages

Basic Facts: Hickey’s Building Supplies (the Appellant) contracted with Harvey and Patsy Sheppard (the Respondents) to build a house for them, Patsy being wheelchair-based. The majority decision of the Newfoundland and Labrador Court of Appeal is by Justice Hoegg J.A., with Justice Welsh writing dissenting reasons (in part).

The main problems with the house were: delay (failed to meet contract completion date); lack of adhesion of a hardwood floor to a concrete sub-floor; transition areas between hardwood and ceramic were “problematic”.

Importance: Justice Hoegg noted the “trial judge found that an important part of the house contract was to provide peace of mind for the Sheppards in that their retirement home would suit Mrs. Sheppard’s special circumstances.  He concluded that “peace of mind” was part of the home building contract…” (para. 65). (more…)

Posted: Wednesday, January 21, 2015

Court of Appeal Decision of the Week

When “Sorry” isn’t (Statutorily or Otherwise) Enough

Vance v. Cartwright, 2014 BCCA 362

Keywords: I’m sorry

Basic Facts: Motorcyclist collides with a vehicle at an intersection. At the scene he (the motorcyclist) apologizes, says he is sorry, the accident is “all his fault”, and later in the day he gives the father of the driver $1000 for the repair of her car. He (the motorcyclist) later sues her for his injuries.

Importance: The B.C. Apology Act defines “apology” as follows:

“apology” means an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate.” (para. 5) (more…)

Posted: Wednesday, January 14, 2015

Court of Appeal Decision of the Week

Ex-employee Leaves with Client List, What Next?

Case: Peters & Co Limited v Ward, 2015 ABCA 6

Keywords: Anton Piller Order, search & seizure, ex parte

Synopsis: The appellant, Mr. Ward, was employed by the respondent Peters & Co. He was a key senior employee holding an ownership interest. Peters & Co was concerned that when Ward left to start work with a competitor he would take work with him. An investigation led Peters & Co to find the following:

  • Ward downloading the company contact list to his iPhone
  • Ward printing various documents containing sensitive information
  • A video showing Mr. & Mrs. Ward leaving the office with more than 8 bankers boxes at 10 p.m. when the company Christmas party was being held elsewhere
  • Another video showing them leave with six more bankers boxes the next day at 1 a.m.

(more…)

Posted: Tuesday, January 13, 2015

Court of Appeal Decision of the Week

Duty to Repair Roads; Are Rural “STOP” Signs Merely a Suggestion?

Case: Fordham v. Dutton-Dunwich (Municipality), 2014 ONCA 891 http://canlii.ca/t/gfltd

Keywords: Torts; Negligence; Municipal Duty to Repair Roads; Reasonable Driving Standard.

Synopsis: In 2007 while driving at night, the Respondent Plaintiff Mr. Fordham took a route through the country using rural roads on the way to visit a friend. As he came to an intersection (noticing there were no cars) he drove through and ignored the stop sign, going approximately 80 km per hour (the speed limit). Just after the intersection the road curved to the right. Mr. Fordham lost control, crashed into a bridge, suffered brain damage, and has no memory of the incident. He sued the municipality of Dutton-Dunwich for non-repair of the roadway, alleging breach of statutory duty to post a checkerboard sign warning of the road alignment. At trial, the judge found ordinary rural drivers do not always stop at intersections and in this particular rural area it was local practice for drivers to go through stop signs if they felt it was safe (at para. 5). (more…)

Posted: Wednesday, December 17, 2014

Court of Appeal Decision of the Week

Family Law Support Orders – What’s Needed to Overturn Them on Appeal

D.J.E. v P.A.E., 2014 ABCA 403

Keywords:Family law; retroactive child support; special and extraordinary expenses; private school v. public school.

Synopsis:The parties divorced in 2000. The mother (Appellant) was granted sole custody of their child, and the father (Respondent) granted access. In April of 2014, the mother made an application for retroactive child support claiming s.3 (Presumptive Rule) arrears and s.7 (Special or Extraordinary Expenses) arrears pursuant to the Federal Support Guidelines. The mother argued the child’s private school tuition qualified as an s.7 expense. The chambers judge disagreed and found the mother had made a unilateral decision to enroll the child in private school without consulting the father. At the time, the father objected stating he could not afford his share of the high tuition cost. The father argued there was no evidence private school would bring significant additional benefits to his son (who had previously been succeeding both athletically and academically in the public system). Additionally, the chambers judge dismissed the mother’s argument that a new car, visits to university, donations to the child’s school, and estimates for university fees were s.7 expenses (at paras. 11-13). (more…)

Posted: Wednesday, December 10, 2014

Court of Appeal Decision of the Week

Test for Bail Pending Sentence Appeal

R. v. Sona, 2014 ONCA 859

Keywords: Appeals, Criminal law, Bail, Sentencing

Synopsis: Mr. Sona was convicted of election fraud and sentenced to nine months’ imprisonment. The trial was “fervently covered by the national media” and he was “subjected to more than the usual ignominy of a public trial and conviction” (para. 26). He brings a bail application in regards to his sentence appeal.

Importance: The issue before LaForme J.A. of the Court of Appeal was whether “Mr. Sona ought to have an opportunity to have [the Court of Appeal] consider the fitness of his sentence before he is required to serve it” (para. 30). The decision provides a clear and straightforward look at the test to be applied in these circumstances. Under s. 679(3) of the Criminal Code, an appellant must satisfy the court that: (i) his appeal is not frivolous; (ii) he will surrender into custody in accordance with the terms of the release order; and (iii) his detention is not necessary in the public interest (para. 8). The presumption of innocence no longer applies and the test is applied on the basis that the appellant is guilty.
(more…)

Posted: Wednesday, December 03, 2014

Court of Appeal Decision of the Week

Personal Injury; Insurance; Future Loss of Income; Survival of Actions

The Estate of Caroline J. Higgins v. Arseneau, 2014 NBCA 65

Keywords: Loss of Income, Survival of Actions, Entitlement

Summary: Is loss of income a person could have earned had he or she not died, an “actual pecuniary loss” to the deceased person or the estate? In the NBCA, within the meaning of s. 5(1) of the N.B. Survival of Actions Act (continued in 6(1) of the current version of the Act) says no, and is therefore not recoverable by the estate in an action enabled by that very Act.

The decision engages with the jurisprudence emanating from other Canadian appellate courts, the U.K., and the U.S., regarding entitlement to such damages under survival of actions statutes.

Decision came down on Nov. 6, 2014 (decision from the bench on June 16, 2014, reasons to follow—herewith the reasons).
(more…)

Posted: Wednesday, November 26, 2014

Court of Appeal Decision of the Week

Affidavits of Documents/Affidavits of Records

Canadian Natural Resources Ltd. v. ShawCor., 2014 ABCA 289

Keywords: Affidavits of Documents/Records

Preface: When I (Eugene) was a younger laywer (Parlee Irving Henning Mustard and Rodney, as it then was, Edmonton; then Honeywell Wotherspoon as it also was, Ottawa) I did, to speak plainly, a crapola worth of Affidavits of Documents—came a time that’s what I thought all litigators did. Did hundreds of Affidavits of Documents for any trial I juniored on, though did tons of motions in Masters/Judges Chambers (because of who I articled to in Edmonton—Madam Justice Marguerite Trussler, now Chair of the Alberta Gaming and Liquor Commission).

It was always a tough call figuring out, again to speak plainly, what goes in what pile, what gets disclosed/revealed, what gets buried, what gets tangentially referenced so the other side may not notice, but tangentially enough so that if we get pointed at later (by the other side/a judge) we’re able to say “we told you, you guys should learn to read”. And all the (more…)

Posted: Wednesday, November 19, 2014

Court of Appeal Decision of the Week

Illegal Horseplay

R. v. Riesberry, 2014 ONCA 744

Keywords: Criminal law; fraud; failure to consider totality of evidence = error of law; horseracing; betting & gambling; what is a “game”

Synopsis: The Respondent, a licensed horse trainer, was captured by a hidden video camera injecting something into the trachea of a horse at a racetrack. An hour later the injected horse was raced and finished in sixth position. A month later the Respondent was arrested at the racetrack where a search of his vehicle revealed a syringe filled with a combination of the drugs epinephrine and clenbuterol (which can be used as performance-enhancers). The use of the drugs in horses on racing day, as well as the possession of a loaded syringe at a race track, are both prohibited by regulation. (more…)

Posted: Wednesday, November 12, 2014

Court of Appeal Decision of the Week

Waiving Pension Benefits in Family Law Cases

Tarr Estate v. Tarr, 2014 BCCA 315

Keywords: Divorce, Death, Pensions, Survivorship Benefits

Summary: This one is super-important for family law practitioners, and not just in B.C.; and in speaking with a couple of senior family law lawyers in Ottawa, here’s why:

  • not every lawyer thinks of pension survivorship benefits when drafting a Separation Agreement, particularly if client(s) are young
  • getting ahold of detailed and accurate pension information from a pension administrator (and often several, because people do change jobs) can be a pain
  • pension inquiries may be outside of client instructions—but are they?
  • (more…)

Posted: Wednesday, November 05, 2014

Court of Appeal Decision of the Week

K.G.B. Statements, Unsavoury Witnesses, and Vetrovec Warnings

R. v. Kanagalingam, 2014 ONCA 727

Keywords: Criminal law; threshold and ultimate reliability; K.G.B. statements; Vetrovec jury cautions.

Synopsis: The Appellant was convicted of multiple counts of fraud-related offences which arose out of a debit/credit card PIN pad fraud scheme. Prior to his trial, four other men charged in relation to the same scheme plead guilty to charges and each entered an agreed statement of facts implicating the Appellant in the alleged crimes. At the Appellant’s trial, each of the four men recanted portions of their statements which were later admitted as evidence of the truth of their contents pursuant to an R. v. K.G.B., [1993] 1 SCR 740 application. The Appellant appealed to the Ont. C.A. and argued the trial judge erred by 1) admitting three agreed statements of fact, and 2) providing the jury with an inadequate Vetrovec warning concerning the testimony of unsavoury witnesses. Appeal granted.
(more…)

Posted: Wednesday, October 29, 2014

Court of Appeal Decision of the Week

Who Owns Church Property?

Penkerichan v. Djokic, 2014 ONCA 709

Keywords: Religious Organizations’ Lands Act; U.S. “neutral principles of law” doctrine

Basic Facts: the Appellants represent the local church congregation, the Respondents the bishop and diocese. The bishop “obliged the Congregation’s long-time parish priest to retire against his will”, then “introduced [a] new priest during a liturgical celebration…” (para. 4). As Lauwers J.A. noted (also para. 4) the “ensuing events eventually led to the application and to this appeal.”

(As an aside, it’s an Ont. C.A. decision, and came down last Friday, Oct. 17, 2014).
(more…)

Posted: Wednesday, October 22, 2014

Court of Appeal Decision of the Week

There’s No Such Thing as a Free Lunch – Alleged Incompetence of Counsel

R. v. Hordyski, 2014 SKCA 102

Keywords: Criminal; theft

Synopsis: The Appellant (Mr. Hordyski), his son, and Ms. Peters (the mother of his son) were shopping at a retail store. At one point Ms. Peters departed the threesome and left a basket containing health and beauty items in Mr. Hordyski’s care. Mr. Hordyski then proceeded to remove the price from a soft-shell lunch bag and transferred the basketed goods into it. Afterwards he picked his son up, concealed the bag between the two of them, and left the area. He then walked near the store’s cashier area, paused, looked around, walked past the cashiers, and left the store. Upon exiting, Mr. Hordyski was confronted by a loss prevention officer and subsequently arrested and charged by police for theft under $5,000 contrary to s. 334(b) of the Criminal Code. At trial, Mr. Hordyski explained he had left the store to find Ms. Peters so she could take their son to use the bathroom. The trial judge rejected material portions of Mr. Hordyski’s testimony and found him guilty as charged. Mr. Hordyski appealed to the Sask. C.A. arguing his trial counsel was incompetent, failed to call corroborating evidence of the dysfunctional nature of his relationship with Ms. Peters, and failed to call evidence confirming he suffered from a debilitating back injury. According to Mr. Hordyski, that evidence would prove he did not possess the necessary criminal intent for the offence. Appeal dismissed.
(more…)

Posted: Wednesday, October 15, 2014

Court of Appeal Decision of the Week

Admissibility of Statements During Seizure

R. v. M.C., 2014 ONCA 611

Keywords: Evidence; principle of admissibility; hearsay; principled approach; spontaneous utterances; prior consistent statements; opinion; qualification of expert; scope of expert opinion evidence.

Synopsis: ‘If you tell anyone what happened in the bathroom you will be in trouble and I will kill both you and your family’ – that is the threat the Complainant reported his uncle uttered after sexually assaulting him in the bathroom at a family gathering. Immediately after the incident another relative entered the bathroom and asked if everything was alright. The Complainant failed to report anything was wrong at the time. Several months later the Complainant disclosed the crime to his mother but did not mention the threats. His mother sought assistance from police and child welfare but no charges were laid. Approximately a year after that report, the Complainant provided a more detailed version of the allegation where he explained his uncle had raped and threatened him. The Accused was then arrested by police. Within a day of the second police report the Complainant and his mother were visiting a relative when the Complainant suddenly screamed, collapsed, and convulsed on the floor for 20-30 minutes in a seizure-like episode. During the episode the Complainant’s eyes rolled back in his head and he held his private areas saying “he’s going to kill me.” He exhibited laboured breathing and rolled around on the floor. At one point the panicked Complainant moved towards the wall after hearing the phone ring and identified the caller as “uncle.” At trial, in an attempt to link the episode with the sexual assault, the Crown called clinical psychologist Dr. Wolfe to give expert evidence concerning the episode and what it revealed (at para. 24). Despite admissibility objections, the trial judge permitted Dr. Wolfe as well as cognitive psychologist, Dr. Moore (called by the Appellant) to give evidence on the same issues. The Appellant was convicted and appealed to the Ont. C.A. arguing the judge erred when she admitted and relied on expert evidence concerning the episode and its connection and confirmation of crimes alleged.
(more…)

Posted: Wednesday, October 08, 2014

Court of Appeal Decision of the Week

Domestic Assault, Setting a Trap, and the Use of a Weapon (Syringe)

R. v. Hernandez, 2014 ABCA 311

Keywords: Criminal law; domestic violence; overemphasis and under emphasis of relevant sentencing factors; standard of review on appeal of sentence; rehabilitation; deterrence; denunciation

Synopsis: The Respondent, Ms. Hernandez, and her common-law husband (the “Complainant”) separated. Upon separation Ms. Hernandez asked the Complainant for a $10,000 loan which he declined. The next evening Ms. Hernandez set a trap in the Complainant’s home by spreading oil and scattering insulin-filled, uncapped, and exposed hypodermic syringes on his floor. The Complainant arrived home and slipped on the oil but managed to avoid falling on the exposed needles. Ms. Hernandez then confronted him and again demanded money which the Complainant again refused to give. Ms. Hernandez responded by stabbing the Complainant in the back of his neck with a syringe telling him it was filled with insulin and infected with Hepatitis C (Hernandez worked as a nurse and had stolen the needle [which she acknowledged contained 5 cubic centimeters of insulin] from her employer). After she stabbed him, Ms. Hernandez blocked the Complainant’s attempt to call police. The Complainant was taken to hospital with pain in his shoulder, low blood sugar levels, and fearing he was infected with Hepatitis C. Medical personnel later confirmed he was not infected. Ms. Hernandez was charged with intent to cause death or bodily harm through the setting of a trap and assault by the use of a weapon (syringe). After entering a plea of guilty to her charges she was sentenced to 6 months prison and two years probation. The Crown appealed to the Alta.C.A. arguing an appropriate sentence fell within a range of 18 to 24 months.
(more…)

Posted: Thursday, October 02, 2014

Court of Appeal Decision of the Week

Civil Forfeiture; Unsealing Secret Wiretap Packets

Director of Civil Forfeiture v. Hells Angels Motorcycle Corporation, 2014 BCCA 330

Keywords: Civil forfeiture; appeal jurisdiction; wiretap; right to appeal decision to unseal secret packet.

Synopsis: Pursuant to a 2001 criminal investigation of a motorcycle club, police were granted three wiretap authorizations. Using those authorizations, wiretap evidence was gathered. Charges were initially laid and then later stayed because the Crown had insufficient admissible evidence to proceed. As part of the wiretap authorization, supporting affidavits were kept secret and under seal by the court pursuant to s.187 of the Criminal Code. Section 187 specifies the sealed contents that support the wiretap authorization must be kept where the public has no access, and the contents “shall not be dealt with except in accordance with subsections (1.2) to (1.5)” of the Code. Six years later the B.C. Director of Civil Forfeiture commenced a civil action under the B.C. Civil Forfeiture Act, seeking forfeiture of a clubhouse and other property associated with the club. The property is alleged to be proceeds (or an instrument) of unlawful activity under s.3 of the Act. As part of its case, the Director intended to tender evidence gathered pursuant to the 2001 wiretaps. To challenge their admissibility, the Respondents applied and were granted an order by Davies, J. giving them access to the sealed affidavits in support of the wiretaps. The Director appealed the decision to the B.C.C.A and argued the judge erred in his application of the legal test that governs when a wiretap packet can be unsealed for a non-accused person. The Respondents countered with a preliminary objection and argued the C.A. lacked jurisdiction to hear the appeal since the order was made pursuant to criminal procedure providing no right of appeal to an intermediate appellate court (see Michaud v. Quebec, [1996] 3 SCR 3 at para. 14).
(more…)

Posted:

Court of Appeal Decision of the Week

Child Pornography & Privacy Use Exception

R. v. Barabash, 2014 ABCA 126

Keywords: Child pornography; private use exception, s.163.1 Criminal Code; age of consent.

Synopsis: The Respondents, 60-year old Donald Barabash and 42-year old Shane Rollision allowed two 14-year old girls to stay in Barabash’s home for a period of one and three weeks. Both girls had fled their homes, lived on the streets, and were regular users of crack cocaine and marijuana. The girls used the house for sleeping, eating, and consuming drugs (which at times were provided by the Respondents). Also during their stay, the girls were invited to engage in a variety of sexual conduct with each other and with the male Respondents on video. During 10 hours of recorded video, at different points Barabash is informed that the girls are 14 years of age and at one point one of the girls volunteers her birthdate during a conversation about her astrological sign. Despite this evidence, both Respondents were acquitted on all charges of making and possessing child pornography contrary to s.163.1(2)(4) of the Criminal Code. The trial judge found all elements of each offence were proven beyond a reasonable doubt but acquitted the accuseds on the basis that the material fell within the “private use exception” as read into s.163.1 of the Code as articulated by Chief Justice McLachlin in R. v. Sharpe, 2001 SCC 2 at para. 116. The Crown appealed the acquittals to the Alta.C.A.
(more…)

Posted: Wednesday, September 03, 2014

Court of Appeal Decision of the Week

Severance of Mistrial due to the Withdrawl of Counsel

R. v. Al-Enzi, 2014 ONCA 569

Keywords: Criminal law; first degree murder; co-accused; cut-throat tactics; withdrawal of counsel; appointment of counsel of choice; amicus curiae; severance; mistrial.

Synopsis: While Mohamed Zalal was in jail he had loaned his 9mm handgun to the Appellant, Nawaf Al-Enzi. Once released, Zalal demanded his gun be returned but Al-Enzi did not want to return it. The theory of the Crown was that Zalal was then lured into a car by Al-Enzi and two other men (Kayem and Abdul-Hussein) thinking he would get his gun back. While Kayem drove, Al-Enzi shot Zalal in the back of the head killing him. The men continued on and dumped Zalal’s body in a field. The Crown proceeded jointly against Al-Enzi and Kayem on charges of first degree murder. Abdul-Hussein (the Appellant’s brother-in-law) struck a deal with the Crown in which he provided a R. v. K.G.B., [1993] 1 S.C.R. 740 statement to the police confirming it was the (more…)

Posted: Wednesday, August 13, 2014

Court of Appeal Decision of the Week

‘False’ Confessions, Expert Opinion & Jury Charges

R. v. Pearce (M.L.), 2014 MBCA 70

Keywords: Criminal; murder; false confession; inadequate jury charge; expert evidence.

Synopsis: Stuart Mark was discovered beaten to death lying face down on a sofa in his residence. He had received 57 blows from a golf club. Autopsy revealed Stuart was HIV positive. There was no obvious suspect or motive for the homicide. Police received a lead that a male had told a gas-station employee intimate details about the killing on two separate occasions. The Appellant, Mr. Pearce, voluntarily contacted police informing them he may be the gas-station witness. Police interviewed Pearce who explained Stuart was his friend and casual sex partner. Aside from Pearce’s link to the victim, the (more…)

Posted: Thursday, August 07, 2014

Court of Appeal Decision of the Week

Speculation & Conjecture by a Trial Judge

R. v. Brodeur, 2014 NBCA 44

Keywords: Exclusion of evidence (s.24(2) Charter); arbitrary detention (s.9 Charter); search and seizure; speculation; conjecture; Crown appeal; s. 676(1)(a) Criminal Code.

Synopsis: Constable Raymond of the RCMP was stationed in an unmarked vehicle patrolling Highway 2 near Moncton. He recorded the Respondent, Mr. Brodeur, travelling in his vehicle above the posted speed limit using radar and pulled him over. The officer approached the passenger side of the vehicle and detected an odour of perfume. Based on his 23 years of experience and training, perfume is sometimes used by transporters of raw marihuana to camouflage its smell. Eventually the perfume dissipated and Cst. Raymond could smell the raw marihuana. The Respondent was placed under arrest and 14 pounds of the drug were located inside non-vacuum sealed Ziploc bags in the vehicle. At trial, the judge accepted Brodeur’s testimony including speculative (more…)

Posted: Wednesday, July 30, 2014

Court of Appeal Decision of the Week

Insurance – Proof of Loss and Exclusion Clauses

O’Byrne v. Farmers’ Mutual Insurance Company (Lindsay), 2014 ONCA 543

Keywords: Insurance; proof of loss; mechanical breakdown; derangement; pollution; exclusion clauses; agents; apparent and actual authority.

Synopsis: The Respondents owed a building and the Appellants (Farmers’ Mutual Insurance Co.) insured the building pursuant to an “all-risks” insurance policy. One of the Respondent’s tenants inserted a piece of cardboard into the primary control of the oil furnace to bypass the thermostat which was intended “to keep the furnace in constant ‘hot’ operation.” During the tenant’s absence a significant furnace oil spill occurred which leaked through the floorboards and saturated the main floor beam and ceiling of units below. The Appellants denied coverage for the damages. At trial the judge found in favour of the Respondents concluding there was no internal defect or problem in the otherwise “well-maintained” furnace which would have continued (more…)

Posted: Wednesday, July 23, 2014

Court of Appeal Decision of the Week

Interpreting Competing Legislative Goals

Matheson v. Lewis, 2014 ONCA 542

Keywords: insurance, farm, ATV, uninsured

Synopsis: The Respondent farmer, Matheson, was injured while driving an insured ATV on a public road when he was rear-ended by a truck. The issue was whether an unmodified ATV owned by a farmer and used in farm operations was a “self-propelled implement of husbandry” and therefore not subject to the province’s compulsory motor vehicle liability insurance regime. The motion judge found the ATV was self-propelled implement of husbandry and therefore excluded from Ontario’s compulsory insurance regime. This meant the Respondent’s claim was not barred by statute for being uninsured. The C.A. allowed the appeal on the basis that “the ATV was not a self-propelled implement of husbandry but an off-road vehicle that had to be insured when operated by a farmer (more…)

Posted: Wednesday, July 16, 2014

Court of Appeal Decision of the Week

Release of Information by Municipal Councillors

R. v. Skakun, 2014 BCCA 223

Keywords: Access to information, privacy, municipal, councillor, release, conviction

Synopsis: Mr. Skakun, a municipal councillor, received a copy of a confidential workplace harassment report during a closed restricted city council meeting. He admitted he later delivered the report to the CBC. He was convicted by a Provincial Court judge for breaching s. 30.4 of the B.C. Freedom of Information and Protection of Privacy Act. Section 30.4 provides: “An employee, officer or director of a public body or an employee or associate of a service provider who has access, whether authorized or unauthorized, to personal information in the custody or control of a public body, must not disclose that information except as authorized under this act.” The issue on appeal was whether a municipal councillor is an “officer” of a public body under s. 30.4. The C.A. dismissed the appeal, agreeing with both the trial judge and summary conviction appeal judge that “officer” included elected (more…)

Posted: Tuesday, July 08, 2014

Court of Appeal Decision of the Week

Common Law Rule Applies to Common Law Spouses

R. v. Legge, 2014 ABCA 213

Keywords: Testimony; witness; spousal privileged; compellability of common-law spouse.

Synopsis: The Respondent was on trial for evading police, mischief, possession of stolen property, possession of a weapon, and careless transport of a weapon. The main witness at trial was Ms. Farrar, the Respondent’s common law spouse. The trail judge ruled spousal immunity applied and Farrar could not be compelled to testify against her partner. In light of the decision, the Crown chose to call no evidence and the charges were subsequently dismissed. The Crown appealed the acquittal to the Alberta Court of Appeal arguing the trial judge erred in his ruling concerning spousal privilege meriting a new trial. Appeal dismissed. (more…)

Posted: Wednesday, July 02, 2014

Court of Appeal Decision of the Week

Standard of Review, Employment Law

Telus Communications Inc. v. Telecommunications Workers Union, 2014 ABCA 199

Keywords: Administrative law; employment; termination; reasonableness standard.

Synopsis: The Appellant’s request to take Monday off work to play in a slo-pitch tournament was denied by his employer (Telus) due to staffing concerns. The day of the slo-pitch tournament, minutes before the start of his shift, the Appellant texted his manager that he could not make it into work “due to unforeseen circumstances.” Suspicious, the manager went to the ball park and saw the Appellant pitching in the tournament. When later questioned about his absence, the Appellant told his employer he had awoken in the night with severe diarrhea that persisted into the next morning. He had been playing ball all weekend and ate something “that may have been funky.” He explained he “got the runs [and] woke up at 3:30 [and] was on the toilet for (more…)

Posted: Thursday, June 26, 2014