Court of Appeal Decision of the Week

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)


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


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


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).


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


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


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)


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.


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


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


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


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).


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


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