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

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)


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


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


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


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


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.


Posted: Wednesday, August 09, 2017