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

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


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.


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


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)


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


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


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