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


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


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


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


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.


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


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


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)


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)


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).


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.


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


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